Introduction to “Jewish Law in Our Times” Series
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” (“Moreshet Yisrael”), rather than the principles of British law which were employed until that time.
One celebrated case (cited in the author’s article: “The Duty to Rescue Despite Protest”) on which the Israeli Courts were asked to adjudicate in 1986, involved a person 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 stated: “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, use should be made of sec. 1 of the Foundations of Law Act of 1980 and the matter should be decided in the light of the principles of ‘Israel’s heritage.’” To this end, counsel for the prosecution cited a leading authority of his age, Ya’akov Emden (1697-1776) from the Mor uKetziah on Orach Chayim, who wrote:
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.
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 preamble to both these Basic Laws states 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 Israelas 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 ofIsraelas a Jewish state (Yael Shefer v. The State of Israel).
At times, the reader is afforded access to regulations of which even religious Israelis will be unaware. Take, the article entitled: “The Value of Cleanliness in the Mea Shearim Regulations of the 19th Century,” in which readers are exposed to provisions contained in the 1889 bye-laws for the emerging “Mea Shearim” neighborhood, which was founded in 1874. Under the heading, “Hanhagat HaYishuv” (Rules of Conduct for the Yishuv), the bye-laws state:
“And your camp shall be holy” - This is a positive commandment. Therefore, all the members and residents of our society ‘Mea Shearim’ (may it be built up and established) are obligated to take care to keep the place clean, both in the public and also in the private domain. The same applies to the cleanliness of the latrines, so that no damage should be caused to the purity of the air. Garbage and fetid water shall similarly not be spilled. Anyone who transgresses this command once and twice, shall be punished on the third occasion. And may it go well with those who take heed of this command!”
The articles in this series are tailored in particular for Acheinu Bnei Yisrael around the world, who, due to the language barrier and their specialized nature, may not have ready access to the source materials from which the articles are inspired and drawn. They cover topics on which the Knesset and the Israeli courts have had to regulate and decide in recent years; topics as diverse as “Hunting Animals for Sport” and “White Lies in the Courtroom” to “Human Dignity and Ticking Bombs” and “Redeeming Hostages at any Cost?”
The reader is exposed to the world of Knesset legislation and Israeli Supreme Court judgments, in which recourse to Jewish Law has been made by the Knesset in drafting laws that befit the modern “Jewish and democratic” State of Israel or by Israeli judges in applying and interpreting such laws - or how the principles of Moreshet Yisrael would have invaluably enriched and/or bettered the law or court ruling thereon had they been taken into consideration.
The articles thus remind us all of the need to have the Israeli judicial system work according to Halacha and to show the progress (albeit only very limited) taken in this direction. The very act of citing and having exposure to traditional Jewish sources (Mishnah, Gemara, Rishonim, Responsa Literature, enlightened judgments of modern-day Israeli Rabbinical Courts etc.) is, in and of itself, of great merit towards breaking down the artificial boundaries that exist towards Jewish texts and values particularly amongst the higher echelons of Israeli society. This is true even if the final conclusion reached by the Israeli court in any particular case may not always be the same conclusion which a Beit Din would arrive at - taking into account the whole array of Jewish legal precedents and applying the Halakhic decision-making process in a comprehensive manner.
Moreover, the very fact that we have succeeded in creating a culture which encourages/tolerates the citation of Halakha and Gemara in its laws and courtrooms, especially when the Knesset considered our sacred texts when drafting the law - is in and of itself a very real achievement. This achievement takes out the sting of those who argue that Israeli judges are no better than gentile judges, or even worse because they have deliberately gone out of their way to reject the authority of the Torah. The more exposure judges and lawyers, and by extension, the wider public, can have to our sacred sources, the greater the likelihood that antipathy on the part of our non-religious compatriots towards the Torah will be reduced.
It is the author’s fervent hope and prayer that by enlightening the reader on the extent of the integration of Halacha into Israeli law and society - he, too, will be inspired and moved to delve further into the areas touched upon in these articles to enable him to play his part, in an informed manner, to transform the modern State of Israel, our country, into a “Jewish and democratic State,” by building on the enlightening successes achieved to date and by working to rectify those areas (of which there is no shortage) still in need of enrichment by the age-old principles of Gemara and Halacha.