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The dilemma of the religious citizen: when the rulings of the judicial system contradict the Halacha Israel today

2023-01-26T10:03:09.395Z


The recent uproar regarding the legal system and the changes in legislation has awakened an old discussion, which deals with the differences between the decisions of the courts and the rabbinical courts • According to Halacha, observants are prohibited from litigating in courts that do not rule according to it - but there are also concessions on the subject • Members of the Sanhedrin, the historical legal system that operated according to Halacha , were supposed to meet many requirements and have certain qualities, which would qualify them to be the best judges • And what about the legal system today?


The public polemic regarding the planned legislative changes in the legal system reaches high tones and many emotions, and has long since drifted from the legal space to the value space, the political and even the interpersonal space.

But despite the existing criticism of the judicial system in certain areas, with the acceptance of the High Court's verdict and the dismissal of the Minister of Health and Interior Rabbi Aryeh Deri by the Prime Minister, it seemed that contrary to the concerns (or perhaps the murmurs of the heart) of some of the country's residents, the last word is still It belongs to the judicial system, which stands as the democratic gatekeeper in the State of Israel.

Quite a few times there are those who agree that many decisions in the legal system are not compatible with the fact that the state is Jewish and not only democratic, since the legal system is not the gatekeeper for the values ​​of Halachic Judaism but rather for the Jewish nation for its unique character and nationality, and more than once on the basis of this principle religious and halachic principles are trampled in favor of Maintaining public space, equal opportunities and human dignity and freedom in the civil sense.

The many adjustments in Israeli law and the parallels in many areas to the laws of Hebrew law are still not sufficient to give halachic and Torah kosher to this system, since according to Jewish law the law of this system is no different from the courts of the nations of the world.

The differences in the ruling system are reflected in many areas, but when it comes to financial conflicts that reach litigation in court, it is possible that money that according to Torah law belongs to a certain person, will be taken from him against his will and given to another in light of the ruling of the Israeli legal system based on law, constitution, reasonableness, precedents, Social norms, interpretation of contracts, and a national educational vision, which is not even the least bit impartial in the way of humans.

Aryeh Deri, photo: Oren Ben Hakon

The problem of the observant

Prof. Eliav Shohatman points out in an article published on the subject, that when there is a conflict between the two systems of law, the observant Jewish citizen is faced with a difficult problem.

On the one hand, he considers himself faithful to the laws of the Torah, but on the other hand, he also considers himself faithful to the laws of the state.

But the truth is more complex, because even if the court decided to rule according to the laws of the Torah, it is stated in the sources of the Talmud (Gittin Tract) that laymen who do not know the rules of religious ruling or those who do not believe in the Torah and its laws should not be heard before a court of law, as they are not faithful to hear According to her, and as ruled by the Halachah in the Shulchan Aruch (Hom Mark 26, Section 1): "It is forbidden to discuss the laws of courts, even if the two litigants agree to this, it is forbidden, and even if they have accepted the property to discuss."

The religious person who wants to be committed to his people and heritage, with an emphasis on keeping the mitzvot, is in a dilemma - since many issues do not reach the threshold of courts and must reach civil judicial courts.

Sometimes the civil system will benefit the applicant beyond the relevant financial litigation, such as compensation payments that do not usually appear in religious rulings, as well as the sharing of expenses on one of the parties or linking to an index and the addition of interest which is prohibited according to the Torah.

The meeting of the Sanhedrin, illustration from 1883,

Judged by the High Court as a merchant's trial?

There is a difference between litigation on pecuniary issues between one person on a private level and public and policy issues which is known to everyone because the arbitrators on the issue are the law authorities accepted by the public.

It is stated in Jewish sources that non-Jewish legal arbitration permitted according to the Halacha is called "merchants' law".

Even though the Torah has rules for negotiation, sometimes the prevailing custom has a substantial halachic validity, as Rabbi Akiva Iger, who was one of the greatest jurists and brought the words of the Maharashk, who was a well-known lawmaker, states that because in the place where the business is done there is a custom to negotiate according to the laws of the merchants and not according to the law Torah, after all, custom cancels Halacha.

Much has been written about the question of whether the High Court of Justice ruled as the merchant's court, and thus the observant could rely on these rulings, and many parties were brought here and there, but it seems that the merchant's court had a different status, since it was created in a democratic process in which the accepted representatives were elected on The merchants as arbitrators in complex monetary questions and in any case he was a kind of arbitrator in monetary law, when the parties accept the arbitration decision.

Today, the Jewish courts that deal with the law of appointment act as arbitrators and not as jurists, despite their halachic training as expert jurists.  

In Judaism, the highest supreme court was the Sanhedrin, which sat in the Temple in Jerusalem and was composed of seventy-one elite judges of the people, who had cognitive abilities, recognized the wisdom of the world, had a broad and extreme opinion, and were an example to the public.

Maimonides points out that they would not appoint an old man who is extremely old because he has already forgotten what the behavior of the younger generation is, and sometimes the ruling will be difficult for him. The sages of the Sanhedrin were those whose opinion was mixed with the people. The head of the Sanhedrin was not chosen by the seniority system but by the Sanhedrin itself.

The areas of authority were different and varied: starting from halachic, monetary and ethical conflict solutions to decisions regarding the laws of souls and security and halachic matters, as well as the distribution of general and spiritual instructions to the entire nation.

The first members of the Sanhedrin, who were called the "elders", were appointed by Moses, followed by Yehoshua ben Nun, but later the Sanhedrin was appointed by the people and the various communities, when in the last years of its functioning, the representatives of the people (the best of the city - those who deal with the needs of the public and diplomacy) were involved in the selection of the members The Sanhedrin in front of their compliance with the mandatory threshold conditions: wisdom, integrity, etc.

Do members of the Israeli justice system also meet these conditions?

This is definitely a good question.

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Source: israelhayom

All news articles on 2023-01-26

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