Legal Advisor to Torah Mitzion
In April 2005, the Israeli Supreme Court ruled that the Government’s Sabbath laws forbidding the employment of Jews without a special permit “are compatible with the values of the State of Israel.” As discussed on our last two columns, this ruling was handed down in response to a petition by the Design-22 furniture company against the Israeli Sabbath laws, which provide that Saturday is the national day of rest and that Jews may not be employed on that day unless a special permit is issued. This column considers two further key issues that were discussed in that judgment: (i) that a theoretically mobile rest day – may mean no rest day in practice; and (ii) that the Hours of Work and Rest Law, 5711-1951, was indeed enacted for a fitting and appropriate national purpose.
A theoretically “mobile” rest day may mean no rest day in practice
Justice Barak defended the Israeli Hours of Work and Rest Law as a mechanism that “protects the worker and the employer, guarantees equality between the religious and nonreligious, and protects the needs of the religious public.” Barak rejected the company’s claim that the day of rest should be “mobile” and that all employees or employers should be able to choose the hours convenient for them. “The determination of uniform hours of rest for the entire economy is a social-national interest of the highest degree…” Justice Barak quoted the President of the Canadian Supreme Court in the context of the closure of businesses on Sundays:
“I regard as self-evident the desirability of enabling parents to have regular days off from work in common with their child’s day off from school, and with a day off enjoyed by most other family and community members…
A family visit to an uncle or a grandmother, the attendance of a parent at a child’s sports tournament, a picnic, a swim, or a hike in the park on a summer day, or a family expedition to a zoo, circus or exhibition – these and hundreds of other leisure activities with family and friends are amongst the simplest but most profound joys that any of us can know. The aim of protecting workers, families and communities from a diminution of opportunity to experience the fulfilment offered by these activities, and from the alienation of the individual from his or her closest social bonds, is not one which I regard as unimportant or trivial…”
Justice Naor noted that “a law forcing a unified day of rest protects the worker more than one that allows free choice.” A ‘mobile’ rest hours system would leave the real choice in the hands of the employer, far more than those of the employee, she noted, to which Justice Barak added: “While the law restricts the individual’s freedom to determine his hours of employment, the goal of this restriction is to protect the employee against violation of the human image in him.”
Justice Procaccia wrote that the “choice of Shabbat as Israeli society’s day of rest requires a balance between the welfare aspect and the national-religious aspect of the Sabbath. Labor should be allowed in certain circumstances, she argued, “however, this freedom should be limited, because of the need to keep other values, primarily that of the Sabbath as a day of rest with a national-religious character.”
The court therefore ruled that the determination of uniform rest hours for the entire economy was a “national-social interest,” and the technical choice of Saturday as the day of rest for Jews did not amount to religious coercion. To the contrary, the absence of work on the Jewish Sabbath and festivals gives expression to the values of the State of Israel as a Jewish state. While the ban on employment of Jews on the Sabbath did impinge on the Basic Law: Freedom of Occupation, the court ruled that this “does not render the law [prohibiting Sabbath work] illegal,” since it “befits the values of the State of Israel.”
The Hours of Work and Rest Law – a law enacted for a “proper purpose”
Any violation of the right to freedom of occupation must be by a law enacted “for a fitting purpose.” A purpose will be fitting and proper, Justice Barak explained, where it serves an important social goal which is sensitive to human rights. Therefore, legislation which is intended to protect human rights is certainly for a proper purpose. Likewise, legislation which is intended to attain general social goals, such as welfare policy or the protection of the public interest is for a fitting purpose. A purpose is fitting if it serves important public goals to the State and society, with the aim of effecting an infrastructure to joint living and to a social framework which seeks to protect and to promote human rights.
Justice Barak analysed the purpose of the Hours of Work and Rest Law in the light of these criteria. The law has two aims. Its first goal is social: to protect the worker’s welfare. It does this by preventing work and occupations which sap a person’s strength and by requiring him to rest on a periodic basis. This day has been uniformly fixed for the entire economy, in order to promote the social value of joint family togetherness. The second goal is religious-national in character: the preservation of the Sabbath by the Jews is the realization of one of the most important values to Judaism which has a national character. In a similar vein, the designation of different rest days to persons who are not Jewish realizes their religious ideology.
That the weekly rest includes – for a Jew – specifically the Sabbath day, attests to the fact that the law regards the preservation of the Shabbat as the national asset of the Jewish people, which must be preserved in the State of Israel, as well as the fact that religious sensibilities are held by wide circles of the public.
Earlier in the same judgment, Justice Barak notes the key role assumed by the Shabbat in Judaism:
The Shabbat is the fourth of the Ten Commandments. It constitutes an original and significant contribution of the Israelites to universal culture… It constitutes an axiom of Jewish heritage. It is a symbol which expresses… the character of the people of Israel. Remove from Judaism the Shabbat – and you remove its soul… Many of our people gave their lives for the character of the Shabbat in our blood-suffused history…
The Shabbat is the most amazing creation of the Jewish spirit’ wrote Haim Nachman Bialik [the poet of the nation]… and Achad Ha’Am stated: “Someone who feels in his heart a genuine connection with the life of the nation throughout the generations is totally unable to paint for himself a picture of the people of Israel without Shabbat its Queen…”
It is intriguing that, after a mass desecration of the Shabbat in Kibbutz Gevra, Bialik was moved to write:
“Without Shabbat, there is no image of God and no image of humanity in the world. If work became an end in itself, man would be no different than the beast. All cultured peoples received from Israel, in one form or other, the day of rest, and this is what enabled them to wear the mantle of humanity to some degree. Without it, they would all be completely wild. The Shabbat, and not a culture of oranges or potatoes, is what has preserved our people throughout its years of wandering. And now that we have returned to the land of our ancestors, shall we cast it off as a worthless object?”
Next Column: What should be the character of Shabbat in modern-day Israel?