Abstracts

JEWISH LAW IN ISRAEL

Per Bilde & Peter Steensgaard, eds., Zionismen og Israel: religion, ideologi, stat: belyst ved det moderne Israel som eksempel. Aros, Aarhus, 1983, ISBN 87-7003-421-4, Pp. 167, Price: 122 Dkr. - The main theme of this book is the relation between religion (Judaism) and ideology (Zionism). The book consists of 6 papers on the background of Zionism, its beginning, its history, and its development after the foundation of the State of Israel. One of the papers, written by the counsellor of the Israeli Embassy in Copenhagen, Ralph Walden (M.A., Oxon.), treats the relation between Jewish Religion and legislation in the State of Israel. Walden discusses the theoretical possibility of accepting Judaism as State religion and the practical (problematic) consequences of having halakhah as basic law in a modern democracy. Walden ends up by describing the extent to which halakhah has influenced the actual legislation in Israel. (K.N.)

Y. Danzier, "A Symbolic Gesture which is more Harmful than Advantageous" (Heb.), Hapraklit 33 (1981), 619-623. - In this short note, the writer criticizes the Foundations of Law Act 5740-1980, in the light of what he believes to be its purely symbolic nature. According to the writer, reference to the principles of "freedom, justice, equity and peace of the heritage of Israel" can only be symbolic, since not even the modern scholars of Jewish law are capable of reaching any sort of agreement on the definition of this type of general principle in Jewish law, a fortiori the judges of the Israeli courts. The law imposes upon the judge a task for which he is entirely unsuited and, as such, is a bad law. (Y.S.K.)

S. Dichovsky, "A Critique of Rabbinical Court Decisions" (Heb.), Diné Israel 13-14 (1986-1988) 7-19. - The author deals with the relationship between both State and private Rabbinical courts, and State Rabbinical courts and secular courts. He cites various instances in which private Rabbinical courts recognized the superior jurisdiction of the State Rabbinical courts, and outlines the reasons for this recognition. Regarding the relationship between the Rabbinical courts system and the secular courts, the author, who is a religious judge in the Rabbinical Appeals Court in Jerusalem, discusses various cases in which the latter system has encroached upon the authority of the former, and argues that the attitude of the secular courts is partly responsible for the low reputation of the Rabbinical courts system in Israel. The last part of the article is devoted to the thorny issue of divorce proceedings in the Rabbinical courts, and recommendations of a procedural nature are made with a view to solving the problem of recalcitrant husbands who refuse to divorce their wives when ordered to do so by the Court. (D.B.S.)

Z. Falk and D. Frimer, Dine nisu'in, Jerusalem: Mesharim, l983, Pp. 178; see KS 59/2-3 no. 3896.

M. Keshet, "Foundations of Law Act, 1980" (Heb.), Hapraklit 33 (1981), 611-618. - This law, which requires the judge to turn to the "principles of freedom, justice, equity and peace of the heritage of Israel" when he is in doubt as to the relevant law for a particular case, is, in fact, a compromise between conflicting views. In this article, the constitutional aspects of the new law are analysed, and the conclusion reached that it is an attempt to encourage Israeli judges to indulge in "judicial legislation" in doubtful cases. The author also believes that whereas it will have little significance in matters of Civil law, the Foundations of Law Act, 5740-1980, will have a considerable effect in the area of Constitutional and Administrative law. (Y.S.K.)

Aharon Layish, Marriage, Divorce and Succession in the Druze Family, Leiden: E.J. Brill, 1982, ISBN 90 04 06412 5, Pp. xxv, 474, Price: Gld.156 (Social, Economic and Political Studies of the Middle East, XXXI). - Israeli legislation has established Druze Religious Courts with exclusive jurisdiction in marriage and divorce, and concurrent jurisdiction in succession, both for the Druze resident in Israel, and, since 1970, also for those resident on the Golan Heights. This current substantial study is, as the sub-title indicates, "based on decisions of Druze arbitrators and religious courts in Israel and the Golan Heights." The author assesses these decisions in both legal and sociological terms: the former, in the light of traditional religious law, customary practice and modern legislation (especially that of Lebanon and Syria), the latter with an eye to the actual effect upon the status of woman. It reflects the author's intimate involvement with the Druze community and its institutions, and makes substantial use of interviews and other empirical data, as well as legal sources. Apart from its intrinsic interest, the book provides a wealth of material for comparison with the content and operation of Jewish religious law on these matters. (B.S.J.)

G. Leibson and P. Segal, eds., Mishpat ivri bipsikat bet hamishpat ha'elyon, Jerusalem: Akadmon, l981, Pp. iv, 600; see KS 57/2 no. 2223.

M.Z. Nehorai, "Remarks on the Rabbinic Rulings of Rabbi Kook" (Heb.), Tarbiz 59 (1990), 481-505. - Rabbi A.I. Kook, the first Ashkenazi Chief Rabbi of Erets Yisra'el in the Mandatory period, provided the ideological basis for modern religious Zionism in his voluminous writings, which incorporate the belief that the Zionist movement was a Divine manifestation of God's promise of redemption for Israel. As a result of this belief, R. Kook came under fierce attack from extreme orthodox quarters, who rejected any move to redeem Jews from Exile prior to the Messianic era and opposed the settlement of Israel by non-observant Jews. R. Kook, however, was not prepared to compromise on halakhic issues, since he saw the whole period through Messianic eyes, and did not, therefore, feel the need to accommodate halakhah to practical reality. In the course of the Messianic process, secular Zionism would disappear, and all Jews would become thoroughly observant. Consequently, there was no need to rule leniently on matters such as milking cows on the Sabbath, Scripturally forbidden work during the shemittah year, women's right to vote, and autopsies. In all these cases, Rabbi Kook's rulings, had they been followed, would have been detrimental to the development of the State, both economically and socially. In fact, these rulings were not followed, even during his lifetime, and religious pioneers went to other Rabbinic authorities who found ways of dealing permissively with all of these issues. The author concludes that Rabbi Kook's popularity in Zionist circles was due both to his ideology and his great standing in the Rabbinic world, which provided the necessary legitimacy for the whole Zionist enterprise. Subsequently, Zionist folk legend created an imaginary Rabbi Kook who had allegedly legitimized a whole lifestyle, not merely the ideal of the renascence of the Jewish State. (D.B.S.

Nahum Rakover, HaRambam vehahok bimedinat yisra'el, Jerusalem: Sifriyat hamishpat ha'ivri, 1985, Pp. 563. - The passing of the Hok Yesodot Hamishpat in 1980 has prompted an upsurge in research and educational activity in Jewish law which may come to be seen as at least as significant as any practical impact which the Law may have on the Israel legal system. Professor Rakover, Deputy Attorney-General and Adviser on Jewish Law in the Ministry of Justice, is at the very centre of this activity. This book adopts an ingenious approach to the problem of making the classical Jewish sources accessible to the Israeli legal public: Israeli civil law statutes are annotated, clause by clause, with comparable provisions taken from the Code of Maimonides. Such treatment is here accorded to statutes on the major areas of civil law: capacity, agency, contracts (general and special), security, sale, gift, hire, bailment, lost property, moveables and real property. A book like this cannot be reviewed in the normal manner: everything depends on how it will be used. And this admits of a multitude of levels, from the most superficial to the posing of the deepest conceptual and methodological problems concerning the character of Jewish law and the process of comparison itself. (B.S.J.)

M. Shava, Hadin ha'ishi beyisra'el, Givatayim: Masada, l983, 2nd ed., Pp. xvii, 665 (Publications of the Faculty of Law, Tel-Aviv University, 13); see KS 59/2-3 no. 3899.

P. Shifman, Dine hamishpahah beyisra'el, Jerusalem: Harry Sacher Institute for Legislative Research and Comparative Law, l984, Pp. iii, 335; see KS 59/2-3 no. 2458. - This book deals with family law as administered by the civil (as opposed to rabbinical) courts in Israel.

S. Shilo, "Comments and Some New Light on the Foundations of Law Act" (Heb.) Shenaton Hamishpat Ha'ivri 13 (1987), 351-369. - In this review of the major theoretical difficulties arising out of the Foundations of Law Act, 1980, the author highlights existing debates and raises some new points on the status of custom as part of "the heritage of Israel". The concepts of "analogy" and "lacuna" are discussed in the context of the debate regarding the scope of the Act, and the author concludes that the former is the major obstacle to the absorption of Jewish law, and the latter does not apply to general principles such as "good faith" and "the public good". Attention is also paid to the notion of "the heritage of Israel" and the considerable difficulties facing any attempt to separate principles of a transcendental nature from specific legal provisions is discussed. The author cites various decisions, including some District Court cases, in this wide-ranging overview of a much-discussed, albeit rarely applied, piece of legislation. (D.B.S.)

Peter Steensgaard, "Jødisk religion som faktor i israelisk indenrigspolitik", in Religion och samhälle i Mellanöstern, ed. J-O Blichfeldt & J. Hjärpe (Vänersborg: Plus Ultra, l985), 161-83, ISBN 91-86668-06-4, Pp.311. - The article "Jewish religion as factor in Israeli domestic policy" has as its main aim to demonstrate the tension between orthodox religion and secular, public institutions in modern Israel. The author gives a survey of the political situation and underlines the problems of applying Halakhah in the twentieth century, e.g. in matters of marriage and divorce or matters of immigration. (K.N.)

E. Tabory, "State and Religion: Religious Conflict Among Jews in Israel", Journal of Church and State 23 (1981), 275-83. - Tabory observes that in modern industrialized, Western nations, where "state and religion are structurally separate" and society is "not governed by religious adherence", different religions (or subgroups within a religion) can be very tolerant of each other. This is so in the United States where relations among Reform, Conservative, and Orthodox Judaism are fairly good. But when a government, such as that of Israel, links church and state, antagonism arises. Israel has given some religions legal authority over even nonreligious members (whose membership is defined by the religion), has favoured some Jewish groups over others, and has given some Jewish symbols and observances a favoured status. In Tabory's view, a combination of political and cultural factors so far has kept protests from assuming major proportions. But further intertwining of church and state could upset that balance. To make of Israel a truly unified nation, Tabory feels a lessening of the tension is necessary. (D.H.P.)

 

 

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