Legal Advisor to Torah Mitzion
My last column outlined the duty of an Israeli Court, faced with a legal question requiring decision, where is nothing on the statute book or case law (rules developed by judges to deal with the case before them) which deals with that question, to decide the question in the light of the “principles of… Jewish heritage”.
One celebrated case on which the Israeli Courts were asked to adjudicate in 1986, involved a defendant who had swallowed two plastic bags of heroin and the question facing the Court was whether an operation could be conducted by a doctor without the patient’s consent and against his will, but with the aim of saving his life?
In an illuminating judgment, the Court ruled as follows:
“Since there is nothing in our legislation or case law or in anything else that deals directly with the situation where a rational adult opposes an operation that will save his life, counsel for prosecution proposed that use be made of sec. 1 of the Foundations of Law Act of 1980 and that the matter be decided in the light of the principles of ‘Israel’s heritage’. To this end, he cited a leading authority of his age, Ya’akov Emden (1697-1776) from his Mor uKetziah on Orach Chayim:
“Where a person is obviously sick, and the physician has clear and certain knowledge of the sickness and employs proven medicines, one may always compel the sick person to undergo treatment when he refuses, if the danger is apparent, and permit the physician to proceed… and he is not heeded if he does not wish to undergo the pain and chooses to die… Everything is to be done to preserve the life of a sick person even against his will…The matter does not depend on the wishes of the sick person and he is not at liberty to abandon his life.”
This principle that a person may save another’s life, even where the latter is opposed and desires to commit suicide, is to be found indirectly in sec. 5(c) of the Unjust Enrichment Law, 1979. By virtue of this section, the Knesset recognized that a person is required to pay compensation to another person who acts to preserve his “life, bodily integrity or health” – even where the victim objects to the rescuer’s actions. From this we learn that an act, which is directed at saving the life of another, merits encouragement, support and, where necessary, protection as well, even if these are contrary to the wishes of the person being saved.”
The “Unjust Enrichment Law” provides that where a person (‘the rescuer’), not acting under any duty, performs an act to protect the life, bodily integrity, health or honor of another (‘the victim’), the victim must compensate the rescuer for the reasonable expenses incurred by the rescuer in the act of rescue and he cannot turn around and say: I did not ask or want to be rescued! As the preamble to the draft Law makes clear: the Law’s goal is to encourage acts of rescue in cases where the rescuer goes beyond the call of duty to save the victim. This Law effected a complete reversal of the approach adopted by the English Courts and which was in force prior to the passage of this Law.
The preamble to the draft Law also stated: “The proposed Law adopts in its title the Biblical idiom of asiyat osher shelo ve’mishpat (‘unjust enrichment’), in light of the use of this term employed by the Prophet Jeremiah (17:11).” (In that verse, Jeremiah compares a person with ill-gotten gains to a partridge, which sits on eggs laid by other birds. When the chicks hatch, they soon realize they are not of the same species and so leave the nest and desert their adopted parents. So, too, a dishonest person (one who ‘amasses wealth unjustly’) may prosper, but he will eventually lose it all).
We have thus seen an example of a case decided by Israeli judges, in which recourse was made to Halakha in applying and interpreting a piece of Knesset legislation – which itself (both the title and the content!) was enacted based on the principles of Jewish Law!
(a) State of Israel v. Kortam (District Court Decision); Kortam v. State of Israel (Supreme Court Decision) as cited in “Modern Applications of Jewish Law,” 1992, by Prof N. Rakover, former Deputy Attorney-General in Jewish Law Department of Israel Ministry of Justice; pp. 123-125.
(b) “Jewish Law and Israeli Law: On the Process of Integration,” Prof N. Rakover, pp. 21-22.
(c) “Jewish Law in the Debates of the Knesset,” Prof. N. Rakover, 1988, pp. 853-873.