Halakha and Homeland Redux
Lawrence A. Kobrin
[“Looking Backward” is an occasional feature on TraditionOnline.org in which we ask authors to reflect on their contributions to the pages of Tradition from years ago, or in which we re-explore classic essays and their ongoing contributions to religious thought.]
It is always a risky enterprise to revisit an article or essay written more than fifty years ago. “How could I possibly have said that?” can often be the reaction when leafing through old expressions of projections or opinion. In our Fall 1961 issue, I published a review article titled “The Return of Halakha to its Homeland” (Tradition 4:1; Fall 1961). Happily, in reading the article again, I remain comfortable with most everything I wrote except for the concluding paragraph and the very title of the piece.
The article was an extended review of the then fairly recently published The Case for Jewish Civil Law in the Jewish State by British rabbinical scholar, Rabbi Kalman Kahana. I outlined some of the principles of legal development on which R. Kahana’s “case” was based. These included ideas of reception of bodies of law by newly formed countries and legal systems and their application to the range of possibilities then open to Israel in its early years. The analysis and explanation remain valid for they were simply restatements or summaries of generally accepted legal principles and practices. The projection suggested by the concluding paragraph of my article and the title itself, namely the return of halakha as Israel’s guiding legal principle, have not been fully realized to this day, almost 60 years later.
I concluded with a reference to a broader exploration of the possibility of halakhic application to modern state problems:
The public, both lay and specialist, eagerly awaits this larger work which will more convincingly advance the cause of the acceptance of the Halakha in the State of Israel – a sort of return of the native son to its homeland.
It was that conclusion that led to the title, “The Return of Halakha to its Homeland.” That has simply not happened. in the broad sense suggested by my review, for a variety of reasons.
There is background and history to explain the enthusiasm of the time and what has happened since. For many years prior to the establishment of the State, writers from the halakhic community had written about the possibility and desirability of using halakhic materials, or mishpat ivri, as a basis for court decisions in the Jewish State. Perhaps the most prestigious and earliest of these 20th-century writers was Chief Rabbi Isaac Herzog. His The Main Institutions of Jewish Law, published in 1939, was an attempt to organize in more modern format the principles of Jewish law in the civic (as opposed to religious or ritual) realm. An earlier version of the same effort in Hebrew had been that of Asher Gulak, authored in 1913. A 20th century rabbinic author, proceeding from the vantage point of halakha itself, was R. Chaim Hirschensohn, whose multi-volume Malki Ba-Kodesh (published between 1919 and 1928) explored those halakhot which might govern a future Jewish state and sought to encourage use of halakhic norms and rules, with appropriate adaptation, to such a state.
After establishment of the State, the efforts continued but with modest achievements. The very dispute over whether reference could be made to the Almighty in the Israeli Declaration of Independence was a hint of the kind of debate which would follow. There were a variety of efforts to conform new Israeli legislative enactments to some understanding of Jewish civil law, or mishpat ivri. Israeli legal and judicial figures reached out to American law schools where there were some efforts to create an academic groundwork for the use of halakha in new legislation.
A Harvard-Israel project changed into the Harvard-Brandeis Cooperative Research for Israel’s Legal Development, ending in 1959. (A similar kind of work on Israeli legislation was continued at an institute on legislation at the Hebrew University.) At the end of the Harvard project, all of its files and materials were deposited in the Harvard Law School Archives. The project developed a series of lengthy legislative bills, drafted in the Ministry of Justice in Israel and sent to the Harvard-Brandeis project for commentary. The bills included a Draft Succession Bill, a Draft Evidence Bill, a Draft Person and Family Bill, a Draft Companies Bill, and a Draft Criminal Procedure Bill. None ever made it to the legislative table in full form.[*]
At around the same time, other efforts were made to make accessible halakhic or mishpat ivri decisions and principles in modern format Prof. Menachem Elon supervised the creation of a detailed index of the teshuvot of the Rosh, and this kind of effort was advanced and then superseded by the digital creation of the Bar Ilan Responsa Project which enabled word search of a more sophisticated kind. In his continuing efforts to expose the development and principles of mishpat ivri to a broader public, Prof. Elon authored the definitive work, available in English in 4-volumes as Jewish Law: History, Sources, Principles, as well as a casebook of materials parallel to it for use in law school classes.
Beyond these academic efforts, the early years saw creative and sustained efforts of some justices on the Israeli Supreme Court, most notably Chaim Cohen, Moshe Zilberg, Izhak Englard, and Elon, to make use of historical Jewish precedents in their decisions and to persuade their colleagues to follow that example. The most that the Knesset would confirm specifically was the passage in 1980 of a Basic Law called the Foundations of Law Act. It specified that where judges were faced with a case where neither the law nor previous rulings offers guidance and a “lacuna” thus existed, they were to rule in light of “the principles of freedom, justice, integrity and peace in the heritage of Israel.” The language seems precatory and not mandatory and even its general terms were the subject of considerable dispute. [+]
In 1992, other Basic Laws (which function as a type of de facto Constitution) confirmed Israel as a “Jewish and democratic state” and at least by implication or interpretation would give mishpat ivri a preferred status. Another Knesset legislative declaration in 2018 inserted the words “mishpat ivri” before “heritage of Israel” in the Foundations of Law Basic Law. The mandate would remain advisory only for judges and it is unclear what its impact even in its amended form will be in a real sense. As a result, it would be a misnomer to think that halakha had “returned” in any major and principled way to Israeli legislation.
I believe that there are several reasons why this has been so. First is the extent to which resort to halakha has become politicized over the intervening years. Without attempting to put a specific date on the matter, at some point secular Israeli legislators (and their public) began to react to any reference or suggestion concerning halakhic norms as a political effort to “take over” some aspect of the State and the lives of its citizens by the rabbinical structure. The so-called status quo arrangement, to which Ben-Gurion had agreed, by which religious courts were given jurisdiction over matters of personal status through the rabbinic court system rankled the secular community and their legislative representatives enough. The idea that there should be expanded resort of halakhic literature and history just proved unacceptable and politically unfeasible. The sometimes extreme positions taken by the Haredi-dominated rabbinic court system did not help matters very much.
The efforts of sympathetic Israeli Supreme Court Justices may themselves have been partly at fault. The lack of extended knowledge of the halakhic sources made it impossible for attorneys in a contested matter to brief or argue the fine points involved. Where the Supreme Court would accept the proposed opinion of a Justice, they were relying on his scholarship and research. There was little or no briefing or adversary argument over the points involved. By way of illustration, Prof. Elon (by then a Supreme Court Judge) once told me about a decision on a matter without precedent where he used halakhic sources. I asked whether the positions he took had been briefed to the Court by the lawyers. No, he responded, they would not have had the background to do so; this was all his own research which the other Judges accepted.
This kind of “top down” jurisprudence served to alienate much of the bench and the bar from the use of such materials. The Israeli law school curriculum continued (and continues) to include some basic materials in Jewish Law, but they hardly serve to create experts in the subject within the Israel bar community itself or advocates who could intelligently debate the possible alternatives under halakha.
The nature of the available halakhic materials may be somewhat off-putting to judges called on to make use of them in decisions. Moreover, judges remain reluctant to say that there is a “lacuna” and the body of law on which they rely is somehow missing something. Thus, the judges, the bar, and the public are left without clear guidance on what impact the use of halakhic materials may have in any given situation. The lack of developed bodies of contemporary jurisprudence in the fields of public and criminal law may heighten the concern of these three groups. In a monograph on the subject, Benjamin Porat urges the creation of some arrangement for referral of questions to an authorized source where a judge felt that a halakhic source would be appropriate or useful. To date nothing has come of this proposal.
Thus, back in 1961, caught up in the enthusiasm of the decade and the argument of Rabbi Kahana, I projected something which simply did not and probably could not occur in the then foreseeable future. Whether it ever will come to pass remains a matter for the future.
Lawrence Kobrin, a practicing attorney, was the first Managing Editor of Tradition at its founding by R. Norman Lamm.
[*] My thanks for this information to Prof. Norman Abrams, now at the University of California, Los Angeles, who was personally involved in some of these projects, to Prof. Arnold Enker who introduced us, and to Harvard University’s Menachem Butler for tracking down some of the materials involved. [+] The continuing debate is reflected and summarized in a 2016 monograph issued by the Israel Democracy Institute authored by Dr. Benjamin Porat, Head of the Institute for Jewish Law at Hebrew University, with a rejoinder by Prof. Mordechai Kremnitzer. My thanks to Prof. Dov Frimer who called this publication to my attention.
[Published on October 28, 2019]