An Introduction to English-Language Literature on Israeli Legal History, Part 2: Jewish Law in Israel

This is a continuation of An Introduction to English-Language Literature on Israeli Legal History.

Jewish Courts in the Mandate Period

Likhovski (2006) and Shamir (1999, Shamir [2002]) have both written about the culture and structure of law under the Mandate. During that period, Zionists had quite an ambivalent attitude toward British law. It was sometimes disdained as a tool of imperialism and sometimes embraced in an effort to further Zionist goals. Some Zionists made an attempt – only partially successful, and even that only for a relatively short period – to construct a socialist legal system on the basis of a secularized Jewish law. (For more on these workers’ courts, see also De Vries [2000]).

These secular Zionist Hebrew law courts, known as Hebrew Courts of Peace, owed a debt to the foundation of the Mishpat Ivri [Hebrew Law] movement in Moscow in 1918. The movement attempted to develop a new secular Hebrew law based on the traditional Jewish legal corpus. Its interest was not in national, rather than religious, revival. It was a nationalist project which advocated the renaissance of Hebrew law in the same way as many Zionists advocated the renaissance of Hebrew language and literature. The movement and its legacy has been analyzed in Likhovski (1998) and Radzyner has written extensively about the relationship between Mishpat Ivri and traditional Jewish law (2005a; 2005b; 2007; 2009).

Jurisdiction of Jewish Religious Law

Although the historical significance of the Hebrew Law movement or the Hebrew Courts of Peace is somewhat limited, the place of religious Jewish law in the State of Israel remains a matter of ongoing controversy. Jewish law has formal jurisdiction over the “personal law” of Jewish citizens of the state – law pertaining to marriage, divorce, inheritance etc. – in the same way that religious law of other religious communities has jurisdiction in the personal law of their own members. This is a residue of the Ottoman millet system that was kept in place by the British and inherited by the State of Israel. There are many good works that offer an overview of the history of the jurisdiction of Jewish law in Israel. See, for example, Englard (1975). After 1948, Jewish religious courts had to adapt to their incorporation into a modern state. Much material on this adaptation, along with a wealth of other resources, is found in Elon 2003 Vol. 4.

Jewish Law and Legislation

Since 1948, some have hoped for an influence of Jewish law on Israeli legislation while others have firmly resisted it (Shochetman 1990). Traditional Jewish norms have exerted a particular influence on the legislation of spheres of life with peculiar cultural resonance such as the legal definition of Jewish identity and the consumption of pork. Daphne Barak-Erez, who was recently appointed to Israel’s Supreme Court, has written about the ways in which legislation in these areas has changed over the decades (Barak-Erez 2008). In a book-length treatment (2007), she focuses on the test case of laws pertaining to the rearing of pigs in Israel and places them in the context of Israel’s changing political culture. The question of “Who is a Jew” (which had practical significance especially with regard to qualification for immigration to Israel under the Law of Return) has been a source of recurring controversy in Israel. Michael Stanislawski’s (2005) study places the decision of the court in the 1962 Brother Daniel case (which ruled that a Carmelite Friar who had been born a Jew and still considered himself Jewish did not qualify for immigration under the Law of Return) in the context of Israeli politics and Zionist culture of the period.

Orthodox Jews and Law in Israel

The establishment of the State of Israel posed special challenges for Orthodox Jews. Their diverse responses to the success of Zionism is of interest to legal historians, particularly those who pay attention to the role of law in the complex mediation between religious and national identity and between “religion” and “secularity” in modernity.

For legal historians, the most fruitful areas of study deal with Orthodox Jewish Zionists (normally called simply “religious Zionists”) who had to decide how to fit the modern state of Israel and its legal system into the paradigm of religious law. (See Kaye [2013a] for an extended discussion on this subject. See also Kaye [2013b] for a discussion of strategies that some religous Zionists employed to bring democratic culture to traditional law.) Suzanne Last Stone (2008) has written about the resources that different schools among the religious Zionists brought to bear on these questions. See also Blidstein (2006) on the mobilization of the use of the precedentlegislationegisaltion in the legitimation of lay (i.e. non-rabbinical) legislation more generally. Some, like Israel’s first Ashkenazic Chief Rabbi, Isaac Herzog (father of Chaim Herzog, Israel’s 6th President), hoped that the state would be run by a modernized version of traditional law. Excerpts of his writings on the topic have been translated in Kaplan and Penslar (2011) and Rabinovich and Reinharz (2008) . Herzog’s approach to law in general has been analyzed by a number of authors in Jackson (1991). For the approach to many aspects of law by his counterpart, the Sephardic Chief Rabbi Benzion Meir Hai Ousiel, see Angel (1999).

Part of the religious Zionist community were also socialists and tried to combloyalties loyalites to traditional Judaism, socialism and Zionism by forming religious kibbutzim –religious socialist communes. Their approach to law is particularly fascinating, combining revolutionary idealism, Jewish nationalism and socialist ideology. Fishman (1992) deals extensively with the context and development of this approach to law as do several articles in Admanit (1957). Kaye (2014) explores the jurisprudence of Eliezer Goldman, who brought his background inphilosophicalilsophical pragmatism to bear on the legal challenges of the religious Zionist community and, insodoing, addressed universalt unversal questions in the philosophy of law such as the role of personal moral intuitijudicialhe jducial process.

Finally, Arye Edrei has written about two other Chief Rabbis of Israel. In Edrei (2009) he deals with the jurisprudence of Abraham Isaac Kook, Chief Rabbi under the British Mandate, and the ways in which Kook adhered to an inclusive jurisprudence that was distinguished from that of the more reactionary non-Zionist Orthodox community. In Edrei (2006) he looks at the laws of war developed by Shlomo Goren (Chief Rabbi 1973-1983) focusing on Goren’s strategies for producing a body of norms in an area of law that had not been seriously addressed by the Jewish canon since the Biblical period.

It goes without saying that this short bibliography is only a beginning. Even the topics represented here could be significantly expanded and many additional topics could be added.

A continuation of this bibliography should begin by focusing on particular areas of Israeli legal history that have attracted substantial scholarship. These might include the the relationship of law to the Israeli military, to the state’s control of land and to Israel’s minority populations, the constitutional revolution under Aharon Barak and the history of the role of human rights in Israeli law, the ways that the memory of the Holocaust played out in Israeli society through the law (such as in the Kasztner and Eichmann trials), the discussion of gender in Israeli legal history and the use of law in the Arab-Israeli conflict and the peace process.

References

Admanit, Tsuriel. 1957. “On the Religious Significance of the Community.” In The Religious Kibbutz Movement: The Revival of the Jewish Religious Community, edited by Aryei Fishman, 195 p. Jerusalem: Religious Section of the Youth; Hehalutz Dept. of the Zionist Organization.

Angel, Marc. 1999. Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel. Northvale, N.J.: Jason Aronson.

Barak-Erez, Daphne. 2007. Outlawed Pigs: Law, Religion, and Culture In Israel. Madison, Wis: University of Wisconsin Press.

———. 2008. “Law and Religion Under the Status Quo Model: Between Past Compromises and Constant Change.” Cardozo L. Rev. 30: 2495.

Blidstein, Gerald J. 2006. “On Lay Legislation in Halakhah: The King as Instance.” In Rabbinic and Lay Communal Authority, edited by Suzanne Last Stone, 1–18. New York: Michael Scharf Publication Trust of the Yeshiva University Press.

De Vries, David. 2000. “The Making of Labour Zionism as a Moral Community: Workers’ Tribunals in 1920s Palestine.” Labour History Review (Maney Publishing) 65 (2): 139–65.

Edrei, Arye. 2006. “Law, Interpretation, and Ideology: The Renewal of the Jewish Laws of War in the State of Israel.” Cardozo Law Review 28: 187–227.

———. 2009. “From Orthodoxy to Religious Zionism: Rabbi Kook and the Sabbatical Year Polemic.” Diné Israel 26-27: 45–145.

Elon, Menachem. 2003. Jewish Law : History, Sources, Principles. Reprint edition. Philadelphia: The Jewish Publication Society.

Englard, Izhak. 1975. Religious Law in the Israel Legal System. Jerusalem: Hebrew University of Jerusalem Faculty of Law, Harry Sacher Institute for Legislative Research; Comparative Law.

Fishman, Aryei. 1992. Judaism and Modernization on the Religious Kibbutz. Cambridge ; New York: Cambridge University Press.

Jackson, Bernard S., ed. 1991. The Halakhic Thought of R. Isaac Herzog. Jewish Law Association Studies 5. Atlanta: Scholars Press.

Kaplan, Eran, and Derek Penslar. 2011. The Origins of Israel, 1882-1948: A Documentary History. University of Wisconsin Press.

Kaye, Alexander. 2013a. “The Legal Philosophies of Religious Zionism 1937-1967.” PhD thesis, Columbia University.

———. 2013b. “Democratic Themes in Religious Zionism.” Shofar: An Interdisciplinary Journal of Jewish Studies 31 (2): 8–30.

———. 2014. “Eliezer Goldman and the Origins of Meta-Halacha.” Modern Judaism 34 (3): 309–33.

Likhovski, Assaf. 1998. “The Invention of ‘Hebrew Law’ in Mandatory Palestine.” The American Journal of Comparative Law 46 (2): 339–73.

———. 2006. Law and Identity In Mandate Palestine. Chapel Hill N.C.: University of North Carolina Press.

Rabinovich, Itamar, and Jehuda Reinharz. 2008. Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present. UPNE.

Radzyner, Amihai. 2005a. “Mishpat Ivri Between ’National’ and ’Religious’: The Dilemma of the National Religious Movement.”

———. 2005b. “The ‘Mishpat Ivri’ Is Not Halakhah ( but Is Nonetheless of Value).” Akdamot 16: 139.

———. 2007. “Between Scholar and Jurist: The Controversy over the Research of Jewish Law Using Comparative Methods at the Early Time of the Field.” Journal of Law And Religion 23 (August): 189.

———. 2009. “Jewish Law in London: Between Two Societies.” In Jewish Law Annual 18, edited by Berachyahu Lifshitz, 81–135. London; New York: Routledge.

Shamir, Ronen. 1999. The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine. Cambridge, UK ; New York: Cambridge University Press.

———. 2002. “The Comrades of Hebrew Workers in Palestine: A Study in Socialist Justice.” Law and History Review 20 (2): 279–305.

Shochetman, Eliav. 1990. “Israeli Law and Jewish Law - Interaction and Independence: A Commentary.” Israel Law Review 24: 525–36.

Stanislawski, Michael. 2005. “A Jewish Monk? A Legal and Ideological Analysis of the Origins of the ‘Who Is a Jew’ Controversy.” In Text and Context: Essays in Modern Jewish History and Historiography in Honor of Ismar Schorsch, edited by Jack Wertheimer Eli Lederhendler. New York: JTS.

Stone, Suzanne Last. 2008. “Religion and State: Models of Separation from Within Jewish Law.” Int J Constitutional Law 6 (3-4): 631–61.