Israel’s Ministerial Committee for Legislation will decide tomorrow if it will back legislation that would sometimes require Israel’s secular courts to issue rulings on the basis of halakha (Orthodox Jewish law).
Is Israel On The Verge Of Becoming A Theocracy?
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Israel’s Ministerial Committee for Legislation will decide tomorrow if it will back legislation that would sometimes require Israel’s secular courts to issue rulings on the basis of halakha (Orthodox Jewish law), Ha’aretz reported. Courts would be required to rely on halakha when existing case law does not provide a clear decision in the matter at hand.
The bill is sponsored by two members of Knesset from the right-wing Zionist Orthodox HaBayit HaYehudi Party, Nissan Slomiansky and Bezalel Smotrich.
If the bill passes, it will “bring Israel closer to becoming a religious state and contravene Israel’s essence as a democratic state, which is the nation state of the Jewish people,” Professor Mordechai Kremnitzer, vice president of the Israel Democracy Institute, said.
A law passed in 1980, after Israel’s right-wing led by Menachem Begin formed a bloc with haredim and took Knesset, orders secular courts to use Jewish heritage when ruling on a matter that cannot be otherwise resolved through existing law or judicial precedent. Secular court judges, the 1980 law says, should base their rulings on “the principles of freedom, justice, integrity and peace of Jewish heritage.”
But, Slomiansky and Smotrich claim, judges rarely do this because the law is vaguely worded and because the secular courts are allowed to rule by inferring judgements from alternative secular legal sources.
The new law proposed by Slomiansky and Smotrich says that in cases in which a legal matter has no judicial precent, case law or actual Knesset-passed law to resolve it, secular court judges would have to turn to halakha to find a source for their ruling before using alternative secular legal sources (like, for example, case law from other Western democracies).
The new law would also spell out where in the vast compendium of halakha secular judges should look to for their rulings. The proposed law’s language explicitly says “judges may rule on the basis of the Code of Jewish Law.”
Over the weekend, the Israel Democracy Institute issued a legal opinion against the proposed bill that warns this proposed bill “will badly damage Israel’s status in the world and portray it as a state in which religious laws rule rather than democratic principles.”
The Israel Democracy Institute points out that the 1980 law mandates that if a secular court doesn’t resolution to an issue of law in existing case law by allowed inference, it must rule “in the light of the principles of freedom, justice, integrity and peace of Jewish heritage” – wording which makes clear secular law and existing legal precedents take precedence over halakha.
But the new bill proposed by Slomiansky and Smotrich changes this order of hierarchy and inserts halakha into the judicial process before legal inference. The proposed bill also removes the phrase “the principles of freedom, justice, integrity and peace of Jewish heritage” and replaces it with the term “halakha.” That gives short shrift to Jewish theology (for instance, the theology of the great medieval Jewish scholars known as the Rishonim) and commands secular judges to rely on a compendium of halakha that is by no means the final word on Jewish law.
“One wonders why Israeli law would want to take in, without the required screening or filtering, principles of religious law that was written thousands of years ago and consists of entire areas that are not compatible with a sovereign state in the 21st century, like discrimination against women and non-Jews?…[The proposed bill is nothing more than] religious coercion that infringes of the right to freedom from religion, a freedom already undermined in Israel today by legislation, especially in issues of personal status,” the Israel Democracy Institute’s paper says.