Jewish and Israeli Law - An Introduction

Shimon Shetreet, Walter Homolka

• Publisher: De Gruyter
• Year: 2017
• eBook ISBN: 9783110387025
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

This book provides a concise introduction to the basics of Jewish law. It gives a detailed analysis of contemporary public and private law in the State of Israel, as well as Israel's legal culture, its system of government, and the roles of its democratic institutions: the executive, parliament, and judiciary. The book examines issues of Holocaust, law and religion, constitutionalization, and equality. It is the ultimate book for anyone interested in Israeli Law and its politics.

Authors

Shimon Shetreet is the Greenblatt Professor of Public and International Law at the Hebrew University of Jerusalem, Israel. He is the President of the International Association of Judicial Independence and World Peace and heads the International Project of Judicial Independence. In 2008, the Mt. Scopus Standards of Judicial Independence were issued under his leadership. Between 1988 and 1996, Professor Shetreet served as a member of the Israeli Parliament, and was a cabinet minister under Yitzhak Rabin and Shimon Peres. He was senior deputy mayor of Jerusalem between 1999 and 2003. He was a Judge of the Standard Contract Court and served as a member of the Chief Justice Landau Commission on the Israeli Court System. The author and editor of many books on the judiciary, Professor Shetreet is a member of the Royal Academy of Science and Arts of Belgium.

Rabbi Walter Homolka PhD (King's College London, 1992), PhD (University of Wales Trinity St. David, 2015), DHL (Hebrew Union College, New York, 2009), is a full professor of Modern Jewish Thought and the executive director of the School of Jewish Theology at the University of Potsdam (Germany). The rector of the Abraham Geiger College (since 2003) is Chairman of the Leo Baeck Foundation and of the Ernst Ludwig Ehrlich Scholarship Foundation in Potsdam. In addition, he has served as the executive director of the Masorti Zacharias Frankel College since 2013.The author of "Jüdisches Eherecht" and other publications on Jewish Law holds several distinctions: among them the Knight Commander's Cross of the Austrian Merit Order and the 1st Class Federal Merit Order of Germany. In 2004, President Jacques Chirac admitted Rabbi Homolka to the French Legion of Honor.

Part I:Jewish Law

Chapter 1:
The Emergence and Development of Jewish Law

Jewish law1 is the law not of a state, but of a people: the people of Israel. In its more than 3,000-year history, this people has rarely had its own state with political sovereignty. The majority of Jewish history has been characterized by life under alien rule, particularly in the Diaspora.2 Jews have lived and continue to live in many different countries and cultures and under quite varied systems of government and law. These have consistently had an influence on the development of Jewish law, yet the people was nevertheless able to preserve its autonomy throughout the centuries. A crucial factor was the relatively broad autonomy often enjoyed by Jewish communities in legal matters, although the degree of autonomy varied depending on time and place. This legal autonomy, and the practical use of law that it required, ensured its continuous development.

Another reason that Jewish law has preserved its autonomy and uniqueness to this day is even more significant and fundamental. The basis of Jewish law is not the authority of a worldly legislature, but ultimately the covenant between the people of Israel and God. Its original source and its actual core is thus divine revelation, as expressed in the Torah3 and other books of the Hebrew Bible.

The Biblical phrases for law are mishpat and din. However, it is not really possible to clearly separate the meanings of the two expressions. The word mishpat means, among other things, “law” as a system of precepts and regulations that comprise civil, criminal, and religious law equally. It regulates people’s relationships among themselves and their relationship with God.4 The word din, on the other hand, refers in Deut. 17:8 to the context of interpersonal law. The word is also used in this sense later in the Talmud, although there a distinction is made between property law (dine mamonot), family law (dine mishpacha), criminal law (dine nefashot), and law of the state (dine ha-malchut). Dine mamanot includes all property law issues. These include the law of civil procedure and the property law aspects of marriage and inheritance law, as well as rules regarding fines (kenass). Dine mishpacha includes all laws on issues of marriage and family, as well as personal status. Dine nefashot are laws dealing with the punishment of individuals (except for fines) and criminal procedure. The dine hamalchut deal with issues involving the state, war and peace, appointment of kings and judges, private property and land rights, as well as rights concerning the sanctuary and the community. But the word din certainly also includes the rules regulating the relationship between humans and God—for overall, a division between religious and profane law (corresponding to the Roman distinction between fas and ius) is foreign to Jewish law.

After the epoch of its Biblical establishment, the period between the destruction of the Second Temple (70 CE) and the beginning of the third century was particularly important for the development of Jewish law. In this period, traditional law was reordered and systematized in a new way; thus, a novel Jewish law evolved that would, from then on, be known as halacha. The word halacha is a derivation of the Hebrew word halach (go). The fact that it came to denote the entirety of Jewish law is based on a metaphorical interpretation of Ex. 18:20: “… And thou shalt teach them ordinances and laws, and shalt shew them the way wherein they must walk, and the work that they must do.” Halacha is thus “the way wherein they must walk.” Depending on context, therefore, the word halacha (pl. halachot) can denote both all of Jewish law or a specific rule, a law relating to a specific matter.5

As the entire system of Jewish norms, halacha includes legal matters regarding life in all its manifestations. Two factors play a particularly important role in the practical application of Jewish law: first, different interpretations among the various currents of Judaism on the guiding principles governing the implementation of the law; second, its relationship to the “law of the state,” that is, to the existing laws of the country in which it is practiced.

1.The Classic Sources of Jewish Law

The character of Jewish law described above reveals that it is based, as a whole, on a Biblical foundation. The first and most important written source of Jewish law is thus the Hebrew Bible, and especially the Torah. The traditional Jewish interpretation counts a total of 613 legal precepts in the five books of the Torah, the so-called mitzvot6; they form the basis of all later Jewish legal codifications and of the Jewish legal system as a whole. The first texts in which the Torah of Moses is mentioned (2 Kings 14:6, 2 Chron. 25:4) refer to a King Amaziah who lived in the early eighth century. However, it is unclear whether the legal code that guided the behavior of this King of Judah, according to the Biblical narrative (written down a bit later), was really identical to the Torah in its later canonical form. In the initial years following the Babylonian exile, at the latest—that is, at the time of Ezra (fifth century CE), who is described in the Torah of Moses as a priest and scribe—the Torah emerges clearly as a written legal code, interpreted and applied by priests: “So they read in the book in the law of God distinctly, and gave the sense, and caused them to understand the reading” (Neh. 8:8). It is assumed that the books that were called “the Torah of Moses” or the “Torah of God” are more or less the same as the Pentateuch in its current form.

The Torah contains not only specific commandments, but also various collections of rules. Examples are the so-called Book of the Covenant (Ex. 20:23–23:19), the so-called Holiness Code (Lev. 17–26), and the Ten Commandments. The Book of the Covenant contains ritual, ethical, and legal rules; in Ex. 21:1–22:16 (as in, for example, Deut. 15:12–18, 19:11–13, 21:1–25:13), the focus is on rules that regulate relationships between individuals. The laws collected in Lev. 17–26 can be classified largely, though not exclusively, as religious law. The Ten Commandments, which appear in two accounts (Ex. 20:1–17 and Deut. 5:6–21), are moral demands on individuals and cannot be called “laws” in the actual sense because they do not provide for sanctions in the event of non-compliance.

The next authoritative literary sources of Jewish law are the prophets (nevi’im) and hagiographies (ketuvim), although in comparison with the Torah they contain few legally relevant passages. They can deal with matters as varied as rights of acquisition (Ruth 4; Jer. 32), royalty (1 Sam. 8;1 Kings 21), questions of sureties (Prov 6:1–5), and individual or collective liability for breaking the law (2 Kings 14:6).

In the post-Biblical era, the epoch between the destruction of the Second Temple (70 CE) and the completion of the Talmud (circa 600 CE) is particularly important to the development of Jewish law. This was the period in which the classical sources of Jewish law were created: the Mishnah, the Tosefta, and the two Talmuds—the Palestinian (or Jerusalem) and the Babylonian Talmud— as well as the halachic midrashim. To this day, these form the starting point for the study of the sources and all legal development.

The word midrash is derived from the Hebrew verb darash, meaning “seek” and “question.” This word is used to describe, for example, Ezra’s behavior (Ezra 7:10): “For Ezra had prepared his heart to seek the law of the Lord, and to do it, and to teach in Israel statutes and judgments.” Thus the Bible already makes a connection between interpretation of the Biblical word and findings of law. Midrash (pl. midrashim) thus means primarily “research, study,” but also “interpretation” and “doctrine.” The term refers, in its narrower sense, to the interpretation of books of the Hebrew Bible in general, and also to the various collections of these interpretations, which emerged largely between 70 and 300 CE in Palestine. A subgroup of the midrashim are called “halachic midrashim”; these refer to texts in the Torah, particularly the books of Exodus, Leviticus, Numbers, and Deuteronomy.

The Mishnah is a collection of laws, or a legal code, in the Hebrew language that was compiled around 200 CE. The word mishnah comes from the Hebrew word shanah, which means “repeat, learn” (matnita in Aramaic). The various halachot were for a long time passed on orally; later they were collected in academies and written down. It is assumed that the classification of the halachot and their ordering by subject were largely completed before the destruction of the Second Temple. The final form of the Mishnah is traditionally ascribed to Yehuda ha-Nasi7 (circa 135–220 CE). After its completion, the Mishnah became the central reference point for the practice of Jewish legal practice. It would no longer be possible to apply a law without looking to the Mishnah for advice.

The Mishnah consists of six orders (sedarim), each of which represents an area of the law. The orders are “Seeds” (zera’im—agricultural law, which relates only to crops in Israel); “Celebration” (mo’ed—religious holidays); “Women” (nashim—family law in the broad sense); “Damages” (nezikin—civil law, criminal law); “Holy Things” (kodashim—laws regarding rites and temple taxes); and “Purities” (toharot—laws relating to the ritual purity of persons, objects, and places). The orders are subdivided in turn into tractates (masechtot), the tractates into chapters (perakim), the chapters into mishnayot (pl., from mishnah)—the smallest unit in the Mishnah. The word “Mishnah” can therefore refer to the entire code or to an individual paragraph. This structure of the Mishnah determined the systemization of Jewish law in the following centuries.

The next important work of Jewish law is the Tosefta, which was created around the same time as the Mishnah8 and whose final editing probably took place in the late third and early fourth centuries.9 The word tosefta is derived from the verb yasaf, meaning “collection, addition.” The Tosefta is also a collection of laws. In its overall structure, it is similar to the Mishnah, and the text deviates very little from that of the Mishnah. However, the laws are organized differently in each chapter. In addition, there are legal provisions and subjects that are not found, or are found in a different version, in the Mishnah. The Tosefta sometimes names authorities as the sources of laws that are anonymous in the Mishnah, or ascribes laws to different rabbis10 than those named in the Mishnah, and it contradicts the Mishnah regarding which halacha is valid and should be used. In addition, it contains narrative (haggadic) and interpretive (midrashic) textual materials.

The principle relationship between Mishnah and Tosefta will be discussed later in this chapter. It has not quite been resolved whether these are collections of laws by two different, rival schools of law, or whether the Tosefta is a contemporary supplement and completion of the Mishnah, which was completed a short time earlier, but had already attained authoritative status.

In the three centuries following the editing of the Mishnah, two additional central works of Jewish law emerged that would become the cornerstone of all later halachic literature. These are the Palestinian or Jerusalem Talmud, created in the land of Israel and completed in the fifth century, and the Babylonian Talmud, completed by Babylon’s rabbis in the sixth century. The word Talmud means “teaching, instruction, study.” The aim of both Talmuds is to interpret the Mishnah, and they emerged through a long process of learning and teaching of the earlier halachic writings, especially the Mishnah. While the Mishnah is a thematically organized collection of briefly formulated rules, the Talmud contains discursive commentaries and analyses of them, called Gemara (from the Aramaic gemar—“to learn”; “to complete”).

The Mishnah is the common foundation of both Talmuds. However, the Palestinian and the Babylonian Talmuds clearly differ in language and literary character, as well as in regard to the source materials they include, the Mishnah tractates they comment on, and the extent of these commentaries.

Determining the form of the Mishnah upon which the Palestinian Talmud is based is difficult; the original version contained no Mishnah texts, but only quotes and allusions within the Gemara itself. Only in later manuscripts was the previously continuous text broken up according to the Mishnah’s textual units and the Mishnah texts placed b...

Table of contents

• Cover
• Title Page
• Copyright
• Detailed Contents
• Contents
• Preface
• Table of Cases
• Contents
• Glossary
• About the Authors
• Part I: Jewish Law
• Part II: Legal Culture and System of Government in the State of Israel
• Part III: Fundamental Legal Doctrines of Israeli Law
• Part IV: Executive Powers and National Security Powers
• Part V: Israel as a Jewish and Democratic State
• Part VI: Law and Religion: International Perspectives
• Part VII: Equality in Israeli Law
• Part VIII: Israel Meets the Challenges of Holocaust Dilemmas
• Part IX: Israeli Private and Commercial Law
• Index