Jewish and Religious Law in the Israeli Legal System

Question 1

Describe the relationship between Jewish law and Israeli law.

Answer 1

Tense relationship — finding the right place for Jewish law in Israeli law is one of the fundamental challenges of the Israeli legal system and society.

Question 2

Jewish law.

Answer 2

The national religious legal system of the Jewish people.

Question 3

Israeli law.

Answer 3

The prevailing legal system of the State of Israel.

Question 4

Torah.

Answer 4

Broad term encompassing the corpus of Jewish religious wisdom, including Halakha, Jewish philosophy, Kabbalah, and Jewish religious poetry.

Question 5

Halakha.

Answer 5

Normative parts of the Torah (for example, the laws of holy days, the laws of prayer, marital law, and the law of torts).

Question 6

Jewish law.

Answer 6

The Halakhic parts of regulating legal issues (torts, contracts, family law, evidence).

Question 7

What is the main Halakhic literature?

Answer 7

Biblical law (Pentateuch), Mishnah, Talmud, the Code of Maimonidess, and Shulhan Arukh.

Question 8

Two unique key features of Judaism.

Answer 8

Judaism is a law-based religion; and Judaism creates an overlap between religion and nationality.

Question 9

How is Judaism a law-based religion?

Answer 9

The basic criterion of Jewish religious life is living in accordance with a detailed, comprehensive law on a daily basis.

Question 10

How does Judaism create an overlap between religion and nationality?

Answer 10

It is not possible to become a religious Jew without belonging to the Jewish nation.

Question 11

What are the two competing visions regarding the nature of the desirable character of Israeli law?

Answer 11

Developing an Israeli legal system inspired primarily by Jewish law heritage; and developing an independent eclectic Israeli legal system.

Question 12

What are the two categories of getting inspiration from Jewish law?

Answer 12

Complete absorption; and partial absorption.

Question 13

Complete absorption.

Answer 13

Main areas of complete absorption of Jewish law includes marriage and divorce and conversion to Judaism.

Question 14

Why are the areas of marriage and divorce governed exclusively by Jewish law?

Answer 14

Marriage and divorce are the entrance gates to the Jewish collective — if someone gets married outside of the Jewish faith, it affects the identity of their children. Marriage and conversion are private actions which directly affect the entire public.

Question 15

Rabbinical Courts Jurisdiction (Marriage and Divorce) Law.

Answer 15

Matters of marriage and divorce of Jews in Israel shall be under the exclusive jurisdiction of rabbinical courts in accordance with Jewish religious law. Where a suit for divorce between Jews has been in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including maintenance for the wife and for the children of the couple.

Question 16

How are there problems with same-sex marriage as a result of the rabbinical courts’ jurisdiction over marriage and conversion?

Answer 16

There is no option for same-sex marriage. If there is a gay couple that wants to get married, they have to go to another country or another country’s embassy to get married there, and then will be recognized as married in Israel under private international law.

Question 17

How are there problems with the presumption of community property as a result of the rabbinical courts’ jurisdiction over marriage and conversion?

Answer 17

Upon divorce, dividing of the couple’s assets between them should be equal but currently is not. Ongoing attempts of the Supreme Court to force rabbinical courts to act according to the doctrine of presumption of community property.

Question 18

How are there problems with civil marriage as a result of the rabbinical courts’ jurisdiction over marriage and conversion?

Answer 18

Since 2010, civil marriage is available in Israel exclusively to people who do not belong to one of the recognized religious communities. There is an ongoing debate of whether the option of civil marriages should be opened to the entire population.

Question 19

What is the definition of a Jew?

Answer 19

The secular definition is based on self-determination (speaking Hebrew, joining the Israel Defence Forces), while the religious orthodox definition is based on immersion, circumcision, and acceptance of Halakhic duties.

Question 20

The Law of Return

Answer 20

Every Jew has the right to come to this country as an immigrant. For the purpose of this law, “Jew” means a person who was born of a Jewish mother (a religious Jewish definition) or has become converted to Judaism, and who is not a member of another religion (a secular Jewish definition).

Question 21

What are the two paths to partial absorption?

Answer 21

Legislation and Supreme Court rulings.

Question 22

What are some areas of legislation where Jewish law has been partially absorbed?

Answer 22

Good samaritan obligations; unjust enrichment; and euthanasia.

Question 23

How has Jewish law influenced good samaritan legislation?

Answer 23

In other jurisdictions, there is no duty to rescue but under Jewish law, there is a legal duty to rescue. Based in Leviticus 19:16. Lo Ta’amod ‘al Dam Re’ekha Law.

Question 24

Lo Ta’amod ‘al Dam Re’ekha Law.

Answer 24

A person is obliged to proffer assistance, when able to do so without endangering himself or his fellow, to a person who, in close proximity, and following a sudden event, is subject to a serious and immediate danger to his life, his person, or his health.

Question 25

How has Jewish law influenced the principle of unjust enrichment?

Answer 25

In other jurisdictions, have to make restitutions if someone is unjustly enriched. Under Jewish law, based on both loss, not just benefit gained. More communitarian in nature.

Question 26

Unjust Enrichment Law.

Answer 26

When a person obtains any benefit from another person without legal cause, the courts may exempt the beneficiary from the duty to make restitution if it finds that receipt of the benefit did not involve any loss to the benefactor. If a person did, in good faith and within reason, any act to protect the life, physical integrity, health, honour or property of another person without being under obligation to him to do so, and if, in that connection, he incurred or undertook to incur any expenses, then the beneficiary shall indemnify the benefactor for his reasonable expenses.

Question 27

How has Jewish law influenced euthanasia?

Answer 27

Israeli law adapted the Halakhic distinction between active euthanasia, which is legally prohibited, and passive euthanasia, which is legally permitted.

Question 28

How did Jewish law influence the Supreme Court ruling in Katalan v The Israeli Prison Service?

Answer 28

Based on the Halakhic interpretation of the idea of “human dignity,” forced enemas to prisoners (for instance, to find drugs) is prohibited.

Question 29

How did Jewish law influence the Supreme Court ruling in Afangar v The State of Israel?

Answer 29

Based on Jewish law, self-defence by a third party is legitimate.

Question 30

How did Jewish law influence the Supreme Court ruling in Cohen v The State of Israel?

Answer 30

Based on Jewish law, marital rape is considered a rape offence (contrary to Christian medieval interpretation of Genesis 2:24).

Question 31

What did the Foundations of Law state?

Answer 31

Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity, and peace of Israel’s heritage.

Question 32

What was the Barak-Elon Controversy?

Answer 32

What is the meaning of the words “finds no answer to it”? Justice Menachem Elon (deputy): when there is no sufficient reference in the law. Justice Aharon Barak (president): when there is no reference in the law.

Question 33

What is the purpose of the Basic Law: Human Dignity and Liberty?

Answer 33

To protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state. A Jewish state is a state where Jewish law fulfills an important role, and where marriage and divorce of Jews are decided based on the Halakha. A Jewish state is a state that the values of the Halakha are part of its basic values.