Legal Advisor to Torah Mitzion
What happens when these two values contradict each other? How will the Israeli courts decide between them?
“Ask your father and he will relate it to you, and your elders and they will tell you” (Devarim 32:7)
Until the year 1980, when a particular situation was not fully covered by the existing Israeli law, the principles of British law would be used to fill the gap created.
In 1980, a revolutionary law was passed by the Israeli Knesset – the Foundations of Law Act. This stated that where a judge is faced with a legal question requiring decision, to which he finds no answer in statute law, judicial precedent or analogy: “…he shall decide it in light of the principles of freedom, justice, equity and peace of the Jewish heritage.”
Over the coming weeks, we will discuss a number of pieces of Knesset legislation and case law (rules developed by judges to deal with the case before them), in which recourse to Jewish Law has been made by members of the Knesset in making laws in the modern State of Israel or by judges in applying and interpreting such laws.
In the year 1992, two special laws were passed by the Knesset relating to human rights (‘Basic Law: Human Dignity and Liberty’ and ‘Basic Law: Freedom of Occupation’).
The Basic Law on Human Dignity and Liberty protects Jewish values and elevates these to basic values. These include: the protection of life, body, property and dignity of a person; and a person’s right to privacy. These values, which the Torah has recognized and protected from time immemorial, are acknowledged by most countries in the world. The value of ‘human dignity’ (kevod habriot) is already mentioned by the Talmud as a constitutional value which can even override other values. The Talmud states: ‘Great is human dignity for it pushes off a negative commandment in the Torah’ (Berakhot 19b).
No less important is the determination contained in the preamble to both these Basic Laws which makes clear that: “The purpose of this Basic Law is to protect human dignity and liberty, in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state” (my emphasis).
And of immense significance is the provision that “None of these rights may be violated, except by a Law befitting the values of the State of Israel…”
According to this provision, Laws of the Knesset must befit the values of the State of Israel as a Jewish and democratic state – otherwise they can be struck down by the courts! Moreover, the courts themselves must take account of Jewish values when resolving legal-ethical questions which come before them. For example, in 1981 the court ruled that active euthanasia (‘mercy killing’) was illegal, because it negated the values of the State of Israel as a Jewish state (Yael Shefer v. The State of Israel).
Every cultured nation engages in a dialogue with the heritage of its ancestors. Even if it chooses not to accept the values and norms of previous generations, it feels (or should feel) a healthy, natural need to justify their position in relation to the heritage of their national predecessors, similar to the words of Moshe Rabbeinu: “Ask your father and he will relate it to you, and your elders and they will tell you”.
The big question that faces us, here in Medinat Yisrael, is the meaning which the courts will give to the terms “Jewish heritage,” “Jewish state” and “democratic state” and how they will reconcile these values. For example, in the case on active euthanasia, the court gave its ‘pro-Jewish Law’ ruling in light of the fact that the majority of enlightened nations also prohibited active euthanasia. How would the court decide if all other countries were to permit active euthanasia? Would the court then determine that the character of the State of Israel as a Jewish state overrides its character as a democratic state, and thus reject the approach adopted by other countries?
The answer to this significant question will determine the Jewish character of the State of Israel in the years to come.
(a) “Modern Applications of Jewish Law,” 1992, Prof N. Rakover, former Deputy Attorney-General in Jewish Law Department of Israel Ministry of Justice, pp. 6-24.
(b) “Jewish Law and Israeli Law: On the Process of Integration,” Prof N. Rakover, pp. 30-31; 39.
(c) “Who’s scared of Jewish Law?” Israel Ministry of Justice Parshat Hashavua sheet 5764 (2004), Dr. M. Wygoda, Head of Jewish Law Department in Israel Ministry of Justice.