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Sunday, December 13, 2009

Israel should bring Jewish law into its legal system

Is Israel about to introduce a legal system where adulterous women are stoned to death and unruly sons put to the sword? One might have thought that was the case from the near-hysterical reaction to Justice Minister Yaakov Neeman's speech on Monday, in which he spoke of his desire to "step by step" make the laws of the Torah into the law of the land.

Neeman's later explanation - that he simply meant that alternative courts dealing in financial matters according to halakha should be allowed to take over - sounded disingenuous to say the least. If one is to believe his explanation, then Neeman, one of the most successful and richest lawyers in Israeli legal history, threw his trademark caution and circumspection to the winds when he took the podium at that rabbinical conference.

But whatever he really meant, I think the outrage is misplaced. Incorporating Jewish law into Israel's civil legal system is a fantastic idea, though that certainly doesn't mean giving more power to the corrupt and moribund religious courts.

Law books are not written from scratch. A legal code is based on centuries of precedents and, in the case of a relatively new state such as Israel, based on other legal systems, in our case Ottoman law and the British laws of the Mandate to begin with and then a whole hodgepodge of Zionist legislation and rulings.

Some of these are based on precedents from courts around the world, a few based on the rather general precepts of Israel's declaration of independence - and in some cases, on Jewish law. The 1980 Foundations of Law statute even says, "Where a 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 light of the principles of freedom, justice, equity and peace of Israel's heritage."

But despite this, the huge body of Jewish law, from the Bible, through the Mishna and Talmud and to the responsa of rabbis in our generation, has played only a very limited role in the general business of Israeli law. Which is a pity.

You don't have to be religious, or even believe in God, to be capable of appreciating one of the world's oldest and most comprehensive legal codes, a system that not only gave the world many of its basic legal principles but also proved capable of adapting itself to changing circumstances.

Everybody must not get stoned

Those who hear "Torah law" and automatically think of the stonings and hangings meted out in the Bible are ignorant of centuries of literature setting out the technicalities, rendering capital punishment in a Jewish court practically impossible.

The sages of every generation realized the danger of allowing local courts to sentence their fellow citizens to death. They also set out clear limits to a monarch's powers to do so and even limited him in matters of planning and road building, a concept lawmakers of the most enlightened nations only got around to in recent centuries.

Another "modern" concept that existed in Jewish law for at least a millennium and a half before it was even envisaged by other systems is marital rape, which was forbidden already by the Talmud. The examples are endless.

This doesn't mean, of course, that all parts of halakha are enlightened. And it doesn't mean that secular, or even religious Israelis, Jews and non-Jews, should be coerced in any way to live by it or have their affairs judged by rabbinical judges.

But there is another compelling reason to expand Jewish content's role in Israel's laws. Jewish law has to be liberated.

After so many centuries of lively debate which adapted the corpus of law from an agrarian society living in a Jewish kingdom with one religious center, to a globalized people living in many different exiles, Jewish law entered a deep freeze a couple of centuries ago.

Spiritual leaders failed to react to the challenges of enlightenment and Zionism and instead came up with the stifling rule: haddash asur min ha-torah, anything new is forbidden by the Torah, thereby putting an end to dynamism.

There were still rabbis who wrote interesting new rulings on technology and social changes but the hardline mainstream, who controlled the religious courts and mandated daily practice, stuck to the set-in-stone version of Judaism.

Today, most secular Israeli judges shy away from using Jewish law. It smacks to them of religiosity and they prefer to find precedents from Western courts, sometimes roving as far away as New Zealand.

They overlook the fact that so much of Western law is also rooted in religion, just another one. By doing so, they are performing all of us a disservice. Instead of leaving Jewish law to the most intransigent rabbis who have little in common with the scholarship and research of the ancients they unthinkingly quote, the courts of Israel could be the best place for bringing it out of the Dark Ages and into daily use - not to coerce secular citizens, but as an inspiration which should be part of our modern lives.

Just imagine, judges in every court in the land, from Supreme Court President Dorit Beinisch all the way down to the lowliest traffic judge, interpreting and applying the Talmud and Maimonides on a daily basis.

It would break once and for all the stranglehold of the ultra-Orthodox establishment. And who knows where it could lead. Maybe we would discover that Jewish law actually favors showing kindness to converts, instead of making their lives hell. We may even discover that far from exercising their God-given right, Jewish tradition actually sees the settlers as thieves and brigands.

Of course there is ample Talmudic evidence for different, often opposing views, but that is all the more reason to take Jewish law out and give it a good airing.

I doubt this is quite what Yaakov Neeman meant on Monday. The rabbis who applauded him were certainly not thinking about this. But if the justice minister wants Jewish law to become the law of the secular state of Israel, we should reply: bring it on.

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