Minister of Justice

May 1, 2008
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Yedidia Z. Stern

The law is a social tool that, through its rulings, should express a society’s values, culture, and ethos. The fundamental issue that should therefore concern the Israeli minister of justice is: Is currently accepted Israeli law truly suitable in meeting the needs of Israeli society? In my opinion, the answer is “no.”

The State of Israel exists out of cultural duality: On one side is western-liberal culture and on the other is Jewish tradition. Its laws and, perhaps more importantly, its citizens’ collective consciousness, define it as a “Jewish and democratic state.” In this sense, the State of Israel is an organization of a unique historical nature in the annals of human history: It is the only Jewish country within the family of democratic nations, and the only democratic organization among varying forms of Jewish existence throughout our people’s long history.

However, this unique dual sense of belonging is not reflected in Israel’s legal system. The democratic character of state law is easily discernible. But what is the uniquely Jewish character of Israeli law? How is the substance of the law — its values, the balances among them, and the concrete allocation of rights and resources — influenced by the Jewishness of the society within which it exists?

Two models of the “Judaization” of Israeli law are visible on the Israeli public agenda: The first, accepted by the religious-Zionist community, seeks to advance religious legislation that will set into law Jewish halakhic practices (for example, a law forbidding the display of chametz during Pesach) and to remove from law norms that conflict with halakhah (such as objecting to the legalization of the value of “equality”). The second model, accepted by the Charedi, the ultra-Orthodox community, proffers a coexistence of two alternative legal systems — the halakhah and state law — to be applied side by side, on different sectors of the population, as per their choice.

As minister of justice, I would reject both these models unequivocally. The first attempts to enforce religion on a secular majority, thereby resulting in a continuous struggle between state and religion. After 60 years, it can be clearly determined that religious legislation is a central reason for the failure of the relations between the religious and secular communities in Israel. Coercion distances Israelis from their Judaism. Similarly, what religious value can be ascribed to a religious practice that is interpreted and implemented by a civil court of law? I find the second model equally invalid: If realized, every minority group in Israel will request independent judicial autonomy: halakhah for Charedim, Islamic law for Moslem Arabs, international law for secular liberals, etc. Israeli society, already divided, would only further split into separate autonomies independent from and hostile to each other.

Nonetheless, I am of the opinion that the primary task of the Israeli minister of justice should be to extend a sense of Jewish uniqueness to Israeli law. We must now examine in what manner this is to be achieved.

Israeli law is, in principle, a reflection and an echo of the British and American legal systems. Israeli professors of law are educated between the Charles and Hudson rivers (and not between the Jordan River and the Mediterranean). The precedents that shape the law and its leading lights are not drawn from the Jewish bookshelf. The Americanization of the law is part of a broad process of domination — western culture (primarily American) eclipsing the unique aspects of small cultures. Thus, the processes overtaking media, art, taste, language, and leisure are also taking place in law. The motto is “I am in the East and my heart (both professional and cultural) lies deep in the West.”

American law expresses concrete moral choices, a proportion of which contradict the moral choices generally accepted in Jewish culture. Thus, for example, American culture sanctifies the individual, disregards the community, and in some contexts views the state as dangerous. The American public domain is conceived as a neutral area, lacking any particular identity. An American (generally) has rights, not obligations. Values of efficiency are paramount to (almost) all other values. American capitalism and the American ethos despise imposing the responsibility for private welfare on the state: Therefore there is no place for an American welfare state. Massive import of American law — which embodies these moral and cultural choices — into Israeli law transforms Israeli society into a body that echoes the American lifestyle.

The Israeli minister of justice must expose the local legal system to the influence of varied cultural voices, a central one of which must be the Jewish voice. The halakhah bears the fundamental genome of Jewish culture, and it prefers alternative solutions to each of the aforementioned American preferences. Even a Jew who is not interested in Judaism as a religion can relate to the halakhic answers regarding the place of the community in Israeli society (extremely important); the obligations of the Israeli citizen (and not merely his or her rights); the value of decency (even at the expense of efficiency); the unique nature of the public domain (which should be particularly Jewish, as befits a nation-state); the deep-rooted value of solidarity and mutual responsibility, and the assignment of communal responsibility for the welfare of the underprivileged (i.e., creating a welfare state) and for the minorities living in our midst (“loving the stranger”). Without all these, there is no spiritual and cultural justification for the existence of a Jewish state.

The “Judaization” of Israeli law is neither a religious mission nor one for the religious. Although true that halakhah is a religious judicial system, beyond its theological significance it also possesses immense cultural importance. It is the pungent spice that has, for generations, contributed to the shaping of the Jewish soul. It is a detailed road map, whose strength and light have guided and managed a Jewish way of life throughout history, everywhere and always. The Jewish identity, memory, and consciousness are woven into it. For these very reasons, the current removal of the halakhah from the daily agenda of the Jewish state renders Israel a country lacking in depth, meager in language, disconnected and isolated from the rich horizons of its past. The Israeli minister of justice — religious or secular — must amend this situation and enable Jewish tradition and halakhah to shape secular Israeli culture without caving in to   religious coercion.

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Professor Yedidia Z. Stern was the dean of the Faculty of Law at Bar-Ilan University and serves as vice president of the Israel Democracy Institute in Jerusalem. He is the author and editor of various books and co-editor of the journal Democratic Culture . Translated by Jeremy Kuttner.

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