Is Jewish Law ‘Hebrew Law’? On Religion, Morality, and Law

Akdamot – 5765

Rabbi Michael Abraham[1]

A. Presentation of the Problem and General Introduction

A prevalent assumption is that, at least in the academic world (though not only there), certain parts of Jewish law constitute a framework worthy of the designation ‘Hebrew law.’ This assumption led a number of leading halakhic figures (such as Rabbi Herzog of blessed memory, among others) to try to induce the renewed State of Israel to adopt Hebrew law as its governing law. As is well known, this attempt failed utterly, but the assumption itself has remained, in some sense, within the academic and public context. Within law faculties in universities in Israel and abroad, as well as in the Ministry of Justice, there is a division devoted to Hebrew law.

The Foundations of Law Act, 5740-1980, seemingly entrenched this assumption and also gave it legal significance. The law severs the obligatory connection that had existed until then to British law and provides:

If a court encounters a legal question requiring decision and finds no answer to it in legislation, binding precedent, or by way of analogy, it shall decide it in light of the principles of freedom, justice, equity, and peace of the heritage of Israel.

The law’s vague wording led to many disputes over its interpretation. Proponents of Hebrew law (this expression denotes those who hold an ideological position, not a field of occupation or research) assume, as a matter of course, that the intent is primarily to turn to Jewish law (in their terminology: Hebrew law). Hence also their claim against the legal system, headed by Supreme Court President Aharon Barak, that it has ignored the law and given it a narrow, perhaps even distorted meaning.[2]

It is important to note that beyond the legal claim, a value-laden cultural claim is also raised. According to it, it is absurd that judges in the Israeli legal system resort to citations and authorities from foreign legal systems while almost entirely ignoring the wealth contained in the halakhic system and in Hebrew law. This was well expressed by Dr. Michael Vigoda, who currently heads the Hebrew Law Department in the Ministry of Justice:

All cultured nations conduct an ongoing dialogue with the heritage of the generations that preceded them, and even if they do not necessarily accept the values and norms of those earlier generations, and do not adopt them, they feel a natural and healthy need to justify their position in relation to the heritage of their forefathers, in the spirit of the words of Moses our teacher, who said: Ask your father and he will tell you, your elders and they will say to you. Although one of the hallmarks of Jewish culture throughout the generations has been the development of legal values, it seems that the legal world in the State of Israel is moving ever farther away from this inexhaustible cultural source.[3]

As emerges from these remarks, Vigoda assumes that recourse to Hebrew law does not require halakhic commitment, since its point is selective reliance on the legal heritage as part of a cultural-national tradition, not necessarily a religious one. Even so, Hebrew law has remained entirely neglected. Several reasons are usually suggested for this state of affairs: lack of proficiency in the language and method of Jewish law, ignorance of Jewish sources, and finally also the fear that exists in the general public of Jewish law taking over the character of the state.

In this article I wish to challenge this basic assumption and propose an additional, more essential explanation that justifies the legal system’s disregard for most parts of Hebrew law. The core of my argument, which I shall expand later in the article, is that in fact there is no such thing as ‘Hebrew law’ as a field separate from Jewish law; therefore reliance without commitment is impossible and may even create distortions. I will further argue that drawing from Jewish law, even when it is done, usually has only declarative value (a value that, in my view, is highly dubious). Moreover, I shall later argue that even had the project of assimilating Hebrew law into Israeli law succeeded, it would have had no religious value.

At the close of this introduction, I would like to make two comments. The method of the discussion will rely mainly on an empirical examination of Jewish law itself, and not on meta-halakhic sources. This is an important methodological principle, but its elaboration and justification lie beyond the scope of this article. Second, the brevity of the format dictates some superficiality and generalization in a number of fundamental issues. For this reason, this article should be seen as a basis and framework for discussion, and as an expression of a certain position, but certainly not as a survey of all the various positions and possibilities.

B. The Essence of Jewish Law as ‘Hebrew Law’

The point of departure for our inquiry is the question of the essence of Jewish law, both its ‘legal’ parts and its other parts. There is a well-known dispute between Judges Menachem Elon and Yitzhak Englard regarding the meaning of the term ‘Hebrew law.’ Elon, in his book Hebrew Law (p. 93), defines as ‘Hebrew law’ only that part of Jewish law that deals with regulating the relations between a person and his surroundings and the society in which he lives.[4] Englard,[5] by contrast, defines the concept ‘Hebrew law’ as the totality of norms called ‘halakhah.’

For Elon and Englard the discussion is ostensibly academic, since it concerns priorities in the study of Hebrew law. But it is derived from fundamental conceptions regarding the need to integrate it into civil law. In our context, and this is apparently Elon’s aim, the matter concerns the demand to draw norms and values from ‘Hebrew law’ into the state’s civil law.[6]

Now according to the Foundations of Law Act, it is clear that the matter concerns not only legal norms, but principles of justice and equity from the heritage of Israel, and these certainly include a broader field. Even so, it seems that the main demand (especially on the cultural plane) is for the influence of Hebrew law precisely because it is perceived as ‘law.’ For this reason Englard writes there (pp. 37-38):

The terminological question remains. In Israeli reality—and only there, for no foreign-language translation exists for the term ‘Hebrew law’—the concept ‘Hebrew law’ serves as a vehicle for a value-laden outlook. A person who wishes to emphasize the religious aspect uses the language of ‘halakhah’ or ‘Torah law.’ A person who wishes to emphasize the national-cultural aspect uses the language of ‘Hebrew law.’ Hence it is understandable that in rabbinic circles one engages only in the study of ‘halakhah,’ and there is an aversion to the new term because of its ideological freight.[7]

We are dealing with the question of the meaning of the term ‘Hebrew law’ from a somewhat different angle, though one closely linked to the foregoing dispute. Our claim is that since what is involved here is not a legal system in the full sense of the term, it is very difficult to find ways of drawing from it into law, or of seeing any significance in doing so.

For purposes of discussing the essence of Jewish law, and whether it constitutes a legal system in the accepted sense, we would need to enter into a definition of the concept ‘legal system,’ but this is not the place for that.[8] We shall assume a simple intuitive understanding of this concept: a system of commands, with enforcement capacity and sanctions, intended to achieve social order—and justice as far as possible—and to express the values of the society in question.

At first glance, Jewish law does indeed meet these criteria. Admittedly, particular contents and values, and even general policy, may differ greatly between Jewish law and other legal systems. But such differences may also characterize the relation between two civil legal systems that rest on different outlooks. Here we are concerned only with the principled characteristics of Jewish law as against legal systems in general, and with the essential differences between them. These appear on several planes, among them the authority and scope of application, the aims, the form of operation, and the metaphysical-religious infrastructure.

The main claim of proponents of Hebrew law, who are aware of all this, is that despite these differences one can still draw parts of Jewish law into the Israeli legal and judicial system. The best and shortest way to display the differences between Jewish law and other legal systems is through examining various examples. In almost every example one can see a tendency among scholars of Hebrew law to interpret the rule as based on a legal consideration, but this is not necessarily the correct interpretation.

1. The Authority and Scope of Application of Jewish Law

Jewish law sees itself as possessing total authority in all areas of action and life, both communal and individual. Even where Jewish law leaves a free space, it does so by autonomous decision and not out of necessity. These are spaces that Jewish law has chosen not to address.[9]

Admittedly, general law also has ‘imperialistic’ conceptions that maintain that everything falls under law, but it seems to me that these are a minority view and do not really withstand scrutiny. Does the right to breathe, as Judge Elon formulates it, exist for us only by virtue of the legal system’s permission? What is the principled difference between saying that this is a law that is manifestly invalid, and saying that the right to breathe is not granted to us at all (and therefore not taken from us either) by the legal system? There is a clear difference between the authority of the Creator of the world, which dictates the scope of application of Jewish law, and the authority that an individual in a modern society is willing to place in the hands of society. These questions have been discussed by others (see, for example, the article by Yedidya Stern mentioned below), and therefore we shall not deal with them here.

2. The Aims of Jewish Law

Even where it seems that certain areas of Jewish law are concerned with achieving monetary arrangements among the individuals of a Torah-based society (civil law), this is not always accurate. Evidence for this claim may be seen from the treatment of Noahides. According to most views, Jewish law does not give Noahides detailed instructions on how to conduct their lives; it contents itself with commanding them to appoint courts and establish a legal system (see, for example, the end of Maimonides’ Laws of Kings, and Nachmanides’ addition at the end of the ‘roots’ in Maimonides). By contrast, with respect to Jews, Jewish law deals in great detail with various forms of transaction and reciprocal obligations (the laws of hiring and contracting, bailees, deposits, loans, and more). From this one can clearly see that Jewish law has preferences that do not necessarily correspond to universal considerations of justice, fairness, and order (even those that it itself accepts).

At this point an objection may be raised based on the power to stipulate against Torah monetary law. In practice, the opinion of Rabbi Yehudah was accepted, according to which in monetary matters one may stipulate contrary to what is written in the Torah, thereby shaping almost freely the transactions and the reciprocal monetary relations, both private and public (see, for example, the Mishnah, Bava Metzia 94a, regarding the laws of bailees, and many more such cases).[10] According to this approach, all monetary law is merely a dispositive arrangement—a default rule.

But this argument is unfounded. The freedom to stipulate contrary to what is written in the Torah does not indicate an assumption that monetary laws are merely orderly and fair forms of monetary relations among individuals in society. The Torah also has a ‘religious’ interest in these forms of transaction, and therefore they are part of Jewish law. This topic deserves separate clarification, and it will be clarified elsewhere. Here we will only note that, so far as I know, no one proposes reciting the blessing over Torah study for the study of secular law, or alternatively refraining from reciting it for the study of the Hoshen Mishpat section of Jewish law.

I do not mean to argue here that because the prevailing legal arrangements do not correspond to Torah law, there is necessarily a contradiction between the Torah and general law. On the contrary, part of the monetary arrangements in current law can be incorporated into the halakhic framework, precisely by means of stipulating contrary to what is written in the Torah, or by the authority of the public, custom, the law of the kingdom, and the like. But such an argument proves only that some of the arrangements current in Israeli law are not necessarily forbidden according to Jewish law. Precisely for that reason, however, there is no way to see this as a drawing from, or influence of, Hebrew law upon Israeli law.

It follows that, from the standpoint of aims, the laws of the Torah are not ‘law’ in the accepted sense. The Torah’s aims are not only to preserve fairness and public order, or to realize the wishes of the parties to some contract. Even in what appears on its face to be a kind of civil law, it turns out that Jewish law has additional aims.

An example that clarifies this matter is the Torah’s law of evidence. There are various restrictions on evidence in Hebrew law, and one of the well-known ones is the disqualification of relatives from testimony. The words of Maimonides are well known (Testimony 13:15), based on the Talmud (Bava Batra 159a), that the Torah disqualified the testimony of relatives not because of the fear that they are lying, but because it is a scriptural decree (and the example of Moses and Aaron is well known). The disqualification is a purely Torah-halakhic principle, a scriptural decree. At the end of his remarks Maimonides concludes from this that a friend and an enemy are fit for testimony (although they are disqualified from judging), for the Torah decreed only concerning relatives.

From conversations I have had with several scholars of Hebrew law, I learned that there is a common tendency among them to interpret this law as an extension of suspicion—or, in legal terminology, as transforming it from a criterion of evidentiary weight into a criterion of admissibility. But this argument has no justification. The language of Maimonides himself clearly points against such an interpretation. He writes that even with respect to ordinary relatives (not only Moses and Aaron), there is no concern of falsehood—apparently because a person does not commit a wrong when it brings him no benefit. If Maimonides had wished to say that there is here a legal extension of suspicion, he should not have said that the disqualification is not based on suspicion, but rather that it applies even in cases where suspicion is absent. Beyond that, according to this interpretation, Maimonides’ conclusion concerning a friend and an enemy is not understandable, since the same consideration would apply there as well.

It should be noted here that according to most later authorities there is, at the Torah level, no principle that the law makes no distinctions at all. Torah laws are all understood as principles with an essential rationale. Therefore, closing loopholes—such as extending the law out of mere concern—is the task of the sages, not of Torah law itself.[11] Beyond the added understanding of the nature of the disqualification of relatives, the very claim that closing loopholes is not the concern of original Jewish law itself hints at a non-legal conception of Jewish law. The purpose of Torah laws is not social order, and therefore suspicions—which are an integral part of imposing social order—are not included in them.

Another example is the rule that a person cannot incriminate himself. A widespread assumption among jurists is that the basis of this rule lies in what is today called ‘the right to remain silent.’ In the American ‘Miranda’ decision, Justice Warren (who was apparently the first to bear responsibility for this interpretive distortion)[12] explicitly refers to the Talmudic rule as it appears in Maimonides. But anyone who knows anything about Jewish law is astonished by this interpretation. Whereas the right to remain silent is based on arguments of rights, limits on interrogation, and the like, in Jewish law this is a rule in the law of credibility: a person is not deemed credible about himself, for good or for ill. Even if he comes and testifies about himself on his own initiative, that testimony will not be accepted. As I understand from experts, there is not a single legal system in the world that would refuse to accept a person’s testimony about himself when brought on his own initiative before the court (for many jurists, confession is ‘the queen of evidence’). If so, the halakhic rule cannot serve as a source for the practice of any legal system.

It therefore seems that this misunderstanding is based on the same erroneous conception of Jewish law as ‘Hebrew law.’ The assumption is that there are no ‘religious’ principles in the legal portion of the Torah, and that it is simply a legal system.

To illustrate the difference, let us propose an explanation for the disqualification of a litigant himself (and likewise of relatives; see, for example, Ritva responsum no. 52) on the basis of procedural rules. There is an entire family of laws that require separation of powers within the court. Thus, for example, a witness cannot become a judge[13] and vice versa. Similarly, one may understand that the litigant cannot turn into a witness.[14] Raising this explanatory possibility is meant to sharpen the fact that Jewish law does not necessarily have a legal character. Admittedly, rules of procedure exist in every legal system, but their rationales are based on simple considerations.[15] Here there is a rule belonging to procedure, but its reasons are not necessarily found on the legal plane. According to the explanation proposed here, the participants in the judicial act take part in a religious act, and the various roles among them must not be mixed. Such a rule has no—and cannot have any—parallel in other legal systems.

It is important to note that in these cases (confession to the commission of an offense, testimony of relatives, and the like) we are in a situation where the truth is completely known and clear, and nevertheless we are prevented from judging accordingly, for certain ‘religious’ reasons.[16] If so, evidence in Jewish law is not merely a condition for discovering the truth.

Let us now turn to another context, which can also explain the ‘religious’ role of the law of evidence. It is clear that the requirement of two witnesses in the criminal law of Jewish law is constitutive rather than merely clarificatory (in legal terminology: substantive, not merely evidentiary).[17] In this sense, the witnesses in the Torah’s criminal law are like the witnesses to marriage, who are witnesses to the existence of the thing itself. Without witnesses, there is no liability to punishment at all. The rule that a person cannot incriminate himself is only one example of this. The court does in fact believe him, and yet does not convict him.[18] If punishments were intended solely to deter offenders and impose order, the need for two witnesses—as well as the inadmissibility of self-confession—would be incomprehensible.

It is highly plausible that such a system of evidentiary law cannot serve as a source for a civil legal system whose aims are the imposition of order and justice.

Another example (also a familiar one) is the halakhic requirements for carrying out criminal punishment. In order to punish someone, he must sin in the presence of two witnesses who are fit to testify; there must be prior warning given immediately before the act, specifying the offense and the punishment; and he must answer the warning witnesses that he knows all this and is acting nonetheless. This is a fantastic situation that in practice almost entirely prevents the implementation of criminal punishment. The halakhic requirements concerning an idolatrous city and the stubborn and rebellious son are even far more fantastic, and therefore entirely impracticable (according to one of the tannaim, these two cases never occurred and never will occur). Regarding all capital punishment, the sages already said that a Sanhedrin that executed once in seventy years is called destructive (and in practice, the law of confinement in a special cell was intended to plug the loophole that was created). In robbery, which is a blatant violation of social order, Jewish law imposes no punishment at all. The robber simply returns the stolen property—and that is all. But what of social order? Does anyone recommend drawing from this law and implementing it in current law?

Thus, both the law of evidence (at least in the criminal part of Jewish law) and the laws of punishment were not intended solely to deter and punish offenders, at least not directly. It appears that they have additional religious purposes, as in the other areas of Jewish law. As I have shown elsewhere, even the hierarchy among punishments does not withstand tests of legal reasonableness.[19]

Here too, jurists will tend to explain the matter on the basis of considerations rooted in legal logic (for example, that concern over error in imposing a drastic punishment such as death is what leads Jewish law to require witnesses as a constitutive condition of punishment, and the like). But these explanations generally do not withstand the halakhic test, and certainly not according to all views. For example, when the conditions for a death sentence are not met, the court places the offender into a confinement cell, where he slowly dies of hunger. This is a harsher punishment, and no less cruel and drastic, than the regular halakhic death penalty. Why then is there no requirement here for all the halakhic conditions that are required for imposing capital punishment? Moreover, most of these restrictions apply even to punishments less drastic than death, such as lashes and fines.

3. The Metaphysical-Religious Infrastructure of Jewish Law

Another decisive difference between Jewish law and other legal systems is that at its foundation lies a very unique metaphysical, and even ontological, infrastructure, derived from its religious context. This difference does not lie in the content and character of that infrastructure, but in its very existence. Civil legal systems assume at their base concepts of justice, values, and various norms. By contrast, Jewish law assumes at its foundation, beyond norms and values, also a legal-spiritual ontology and a metaphysical substratum. This fact finds expression in many different contexts.

For example, one may show that the halakhic conception of the concept of ownership is not merely legal. The relation between a person and his property is not merely a legal definition, but a metaphysical bond, of which the legal ramifications are only consequences.[20] This relation obligates a person to ensure that his property observes the Sabbath (the resting of his animal). There is also a view that this relation disqualifies him from testifying concerning his own property (see Sanhedrin 10a: a person is considered related to his ox). Ownership of a slave or an animal, just like the marital bond, removes the prohibition on non-priests eating terumah. According to many views, ownership also obligates a person to pay when his property causes damage (merely because his property caused the damage, and not because of negligence in guarding it). If this is so in matters of ownership, then in marriage all the more so it cannot be understood as a legal contract, but rather as the creation of a metaphysical bond that has legal ramifications. Indeed, every legal status-creation in Jewish law is a metaphysical entity, not merely a legal definition.[21]

In light of all this, it is not clear what one can learn from the ways in which Jewish law relates to property law or to marital relations, and then apply in general law.

The Torah’s ontology also differs from the accepted one with respect to the existence of various spiritual entities. Above we mentioned the difference regarding the ontological status of legal concepts and entities (such as ownership, legal status, and the like). But Jewish law is different also in that there exists an entire spiritual system, headed by the Holy One, blessed be He Himself, that operates in the background of human halakhic activity.

The existence of the Holy One, blessed be He, and His spiritual agents in the background of the halakhic system can have very many consequences. For example, the rule that a person cannot incriminate himself, like all the restrictions we mentioned regarding the law of evidence (the disqualification of relatives as witnesses, and the like) and regarding the punishment of a person (warning, acceptance of warning, and so forth), certainly seems to be based on the assumption that the Holy One, blessed be He, will make up what is lacking, so that the guilty will in any case receive their punishment.

Within Jewish law itself there are punishments entrusted to Heaven, and human halakhah determines for which offenses one is punished also by death at the hands of Heaven and by excision. The sages teach us that even in our own times, when court-administered punishments have ceased, heavenly punishments have not ceased. If so, the task is not ours to complete, though neither are we free to desist from it. In such a conception, the role of the halakhic judicial system is only partial.

Can such approaches be implemented in a system that does not accept this metaphysics? What rational system would forgo punishing a robber, or require prior warning and its verbal acceptance as a condition for punishment?

4. The Value Infrastructure of Jewish Law

Even apart from the metaphysical differences, on the value plane underlying Jewish law there are conceptions that are religious at base, and not necessarily moral in the accepted sense.

For example, the attitude to animal suffering—which was the subject of the Supreme Court case concerning force-feeding geese—may derive from moral consideration for the suffering of another living creature, or from a desire to educate the abuser toward better character traits. But within a religious conception it may also express an attitude toward another creature that is likewise the handiwork of the Holy One, blessed be He. This may yield consequences radically different from those of the accepted moral conception, both more stringent and more lenient. If so, why should one wonder that judges do not cite—and certainly do not rely upon—sources whose underlying infrastructure is of this kind?

One may reasonably assume that similar differences will arise regarding the issue of the attitude toward the human person himself. From the standpoint of Jewish law, such an attitude is based on theological foundations—for example, seeing the human being as the image of God. These lead to ethical conclusions that may differ from accepted morality.[22]

A clear example of such a conception is found in Radbaz’s interpretation of Maimonides, Laws of Sanhedrin, chapter 18, law 6 (see also the responsa of Rabbi Yosef ibn Migash, sec. 186), where he writes that a person’s body is not his own property, and therefore his confession regarding offenses he committed cannot be regarded like a litigant’s admission concerning money (since his body is not given over to his control, his punishment too is not in his hands, unlike money). These words of Radbaz are often cited in the context of organ donation, euthanasia, or suicide.[23]

This is a clear example of a religious and metaphysical conception that determines halakhic legal norms. Is it reasonable to demand that the legal system in Israel implement such conceptions?[24] At most, one can expect a creative and selective adaptation of several approaches in certain issues, adjusted to the values of liberal democracy. If so, what is the Jewish significance of such an approach? Is there any real drawing from Jewish law here?

5. The King’s Law

The manifestly non-legal character of Jewish law, to which I have pointed here, may lead to a reasonable fear that in a society governed by the halakhic judicial system, anarchy may arise both in relations between people and in the relation between human beings and God. Therefore Jewish law contains several mechanisms, such as the king’s law, or the authority of the court to punish outside the strict law ‘according to what the hour requires,’ public custom, communal enactments, and so forth.

The relation among all these systems, both among themselves and between them and basic Jewish law (Torah law), is very complex, and there are several approaches to explaining it. But what is common to all these systems is that they judge according to rules that are more practical than those found in ideal Jewish law. These rules are closer to straightforward human reason and to prevailing morality. The reason is that these rules are intended to achieve social order and prevent wrongdoing (both social and religious).

Thus, although the Holy One, blessed be He, is supposed to fill the gaps in the law of punishment so that the sinner does not profit from his sin, we are commanded to ‘help Him’ in this. But from the affirmative we may infer the negative: ideal Jewish law was not intended to achieve social order, and therefore its principles are not necessarily built so as to achieve such order.

In comparison with Jewish law, the alternative systems—such as the king’s law and punishment outside the strict law—operate according to ‘principles of justice and equity,’ but these express nothing essentially distinctive from the ‘heritage of Israel.’ Usually these are universal principles of justice and norms, and as such they will also be found in foreign systems.

In these systems we encounter a phenomenon that is seemingly puzzling. Although at times these systems operate only after the fact, they possess greater power than the ideal court system. For example, after ordination ceased, the Talmud (for example in Bava Kamma 84b) establishes that courts in our time no longer have the authority to adjudicate criminal law, to punish offenders, or even to judge monetary cases that are not common.

Yet alongside this reduction in the formal powers of the court, a process takes place of significantly increasing its non-formal powers. In several responsa among the medieval authorities (see, for example, the Rashba responsum brought below), it emerges that because courts in our time do not operate according to original Torah law, they are freed from the limitations of the original and ideal Torah laws. De facto, the court today has authority like that of a king, or of a court that punishes outside the strict law, in order to fence breaches that are expected to arise (see, for example, the wording of the Tur, Hoshen Mishpat, at the beginning of sec. 2).

This phenomenon of punishment outside the strict law requires clarification. From where are the rules drawn according to which such punishment is imposed? There are various limitations, such as the consent of a sage to enactments of the community, in order to ensure that they do not act against Torah law or unfairly. But these limitations themselves have no clear source, and especially there is no clear source according to which that sage can determine what conduct is proper and what conduct is not.[25] It seems that these guidelines are established according to universal human morality. The matter resembles the commands ‘you shall do what is right and good’ or ‘you shall be holy.’ The Torah gives no guidance as to what ‘the right and the good’ is, or what ‘holy’ is. It relies on natural human morality.

In light of the foregoing, one should not be surprised by the fact that a considerable portion of halakhic effort in the responsa literature is devoted not to clarifying the position of Jewish law in the area under discussion, but precisely to the question of how the halakhic limitations can be bypassed and one can act according to natural equity and the needs of the hour. Usually the answer is that if the court and the public are not acting according to strict Torah law, then the limitations of the original ideal Jewish law do not apply to them, and they may do what seems to them required for the public good.

A clear example, one among very many, of such situations and such attitudes is found in Rashba responsum, part 4, sec. 311. A community that had received autonomy from the kingdom—including the authority to judge and punish bodily and monetarily as they saw fit—turned to him. Their question was whether to validate the testimony of a woman and a minor, or of relatives. And this is his language:

These matters seem simple to me: you are permitted to act as seems proper in your eyes. For those things you mentioned were said only of courts that judge according to Torah law, such as the Sanhedrin or the like. But one who is charged with the ordering of the state does not judge according to the laws literally written in the Torah, but according to what he needs to do as the time requires, with the permission of the government. For otherwise, they would impose neither bodily nor monetary penalties, since fines are not adjudicated in Babylonia, nor in uncommon matters… Likewise, one would not be flogged or punished on the basis of his own statement, because as a matter of law a person cannot incriminate himself; and even if there are valid witnesses, he is not flogged unless they warned him, for a court administers lashes only after warning. But all these matters apply only in a court that operates according to the Torah… These matters seem simple to me: you are permitted to act as seems proper in your eyes. For those things you mentioned were said only of courts that judge according to Torah law, such as the Sanhedrin or the like. But one who is charged with the ordering of the state does not judge according to the laws literally written in the Torah, but according to what he needs to do as the time requires, with the permission of the government. For otherwise, they would impose neither bodily nor monetary penalties, since fines are not adjudicated in Babylonia, nor in uncommon matters… Likewise, one would not be flogged or punished on the basis of his own statement, because as a matter of law a person cannot incriminate himself; and even if there are valid witnesses, he is not flogged unless they warned him, for a court administers lashes only after warning. But all these matters apply only in a court that operates according to the Torah…

All the more so, you, since the essence of the agreement was only to do what seems proper in your eyes, as is written in the letter of enactment that you mentioned. And this matter is simple among us and in all places where there is an enactment among them on these matters.

If so, the essence of post-Talmudic law rests on natural justice and equity, and not necessarily under the constraints of Torah law. But the rules of natural equity are not unique to Hebrew law. Noahides too are supposed to act according to them. Therefore, the king’s law—or the law of the court in our time—is likely to resemble the practice of foreign legal systems.

A sharp and surprising expression of this phenomenon may be seen in the book of Rabbi Meir Dan Plotzki, Hemdat Yisrael, booklet Ner Mitzvah, folio 100, where he discusses the question whether in Noahide law there exists a rule that a person is not believed on the basis of his own confession. In the course of his discussion there he writes as follows:

We have written to prove that Maimonides, of blessed memory, also holds like the view of the Sefer HaHinukh—that a Noahide is executed on the basis of his own confession. This follows from what he wrote in the above Laws of Sanhedrin, that Joshua’s killing of Achan on the basis of his own confession was under the king’s law; and we clarified there that the king has no greater power to judge than that found in the laws of the Noahides, and one who is not liable under Noahide law the king too cannot punish… We have written to prove that Maimonides, of blessed memory, also holds like the view of the Sefer HaHinukh—that a Noahide is executed on the basis of his own confession. This follows from what he wrote in the above Laws of Sanhedrin, that Joshua’s killing of Achan on the basis of his own confession was under the king’s law; and we clarified there that the king has no greater power to judge than that found in the laws of the Noahides, and one who is not liable under Noahide law the king too cannot punish…

Rabbi Meir Dan Plotzki argues that the king’s law operates according to the rules of Noahide law. The reason is, as we have seen, that in both these cases the systems are legal systems in the accepted civil sense, and their purpose is the achievement of social order. They do not presuppose a metaphysical or theological infrastructure, and they do not rely on the Holy One, blessed be He, to close the gaps of law. Consequently, their purpose is to discover the truth and act accordingly. Hence the law of evidence is limited only by the need to discover the truth, and there are no additional ‘religious’ limitations. The king’s law and the laws of the Noahides are therefore legal systems in the full sense of the word, whereas Jewish law is not.

Here we witness a phenomenon opposite to the tendency of proponents of Hebrew law. They wish to draw from Hebrew law into current law, whereas Rabbi Meir Dan Plotzki directs us to the law of the Noahides in order to derive from it the king’s law. According to the picture described here, basic human law is universal in principle (even though there may be several different systems of justice), and the uniqueness of original Jewish law is not legal at base but religious.

In light of the distinction proposed here, we must examine the aspirations of the proponents of Hebrew law. Do they seek to draw from the ideal system, pure Jewish law, or rather is their desire focused on assimilating the king’s law and the ‘practical’ court system into Israeli law and legislation? Very often the literature of ‘Hebrew law’ does not sharply distinguish between the two. This is unlike the world of yeshiva study, which is very careful about this and deals mainly with ideal Jewish law. Even so, it seems that the discussion in these two contexts must proceed differently.

If the desire is to draw from the ideal system, this demand seems unreasonable, since Jewish law generally does not accord with liberal-democratic values. Even if some points of compatibility can be found, this still does not amount to a substantive assimilation of Jewish law into Israeli law, since similar principles may be found in other legal systems as well. This is an accidental compatibility of values, not genuine halakhic influence.

As for the desire to draw from the practical law that was practiced over the generations, or from the king’s law, we have seen that this itself is not Hebrew law unique in its content, but mainly in the limitations it takes upon itself (from its point of view, Jewish law is chiefly a constraining factor, and less a guiding source). On this plane, Jewish law has no uniqueness beyond what is accepted in other legal systems. If so, even in this case there is no substantive significance to integrating halakhic principles into current law.

The uniqueness of the Hebrew system, insofar as it exists at all, lies chiefly in the particularistic religious dimensions that cannot be absorbed into systems whose character differs essentially from that of Jewish law. The conclusion that follows is that ‘principles of justice and equity’ do not, in any essential sense, belong to the ‘heritage of Israel’; and ‘principles of the heritage of Israel’ (= particularistic religious principles) are not ‘principles of justice and equity.’ The Foundations of Law Act, one of the outstanding ‘achievements’ of the Hebrew law approach, is nothing but an empty clause. It is no wonder that it is not implemented, for it cannot be implemented at all (see the last chapter).

Thus, the remaining problem is only a declarative one. It is reasonable to assume that no one expects judges in the State of Israel to decide and rule on halakhic questions.[26] Therefore, it is clear that the criticism regarding the neglect of Hebrew law concerns mainly the absence of citations (selective, of course) from halakhic sources that would serve as an illustrative ornament to a judicial ruling.

It seems likely that the principal reason for this is simply ignorance. There is no doubt that one could bring authorities from Jewish law for almost any ruling. But is it reasonable to demand of the average Israeli judge—even if the sources of Jewish law and its method were as familiar to him as the roads of Nehardea—that he do so? It is clear that the reason for this does not depend only on informational deficiencies of some kind (though these too exist). Its basis lies in the absence of commitment, on the one hand, and the distinctly religious background of Jewish law, on the other. Is there any difference between the values of the average Israeli judge (and of Israeli society generally) and those of his American or British counterpart? Why should the Israeli judge rely on a system of principles most of which is utterly foreign to him—both informationally and in terms of values—instead of other systems much closer to his heart?

C. The Question of the Religious Value of Establishing Hebrew Law

Proponents of Hebrew law address their argument to two opposing sides: 1. toward the legal system, on two planes—the question of cultural failure and the question of legal validity; 2. toward the religious public—a Torah-halakhic demand to take an active part in the effort to integrate Hebrew law into the general system.

There are therefore two planes on which one may discuss the value of integrating Hebrew law into the general legal system: one may ask whether this would benefit the legal system and society generally, even according to members of the community who do not feel bound by Jewish law. In addition, one may ask whether such a tendency has religious value—in other words, whether the Torah would gain from such integration. This is a relevant question for members of the community who are committed to Jewish law.

Until this point we have dealt mainly with the first question. In this chapter we will address the other side of the coin: the question of the religious value of such integration, which by its very nature is a question of a halakhic-Torah-religious character. This question is complex, and every point in it is like mountains hanging by a hair. Because of the limits of space, I shall indicate only the main headings that should be included within the framework of any discussion of this question.

1. Is there religious value in declarative quotations taken from Hebrew law? In my humble opinion, the religious value of quotations taken out of context is almost nonexistent. It is told of Rabbi Yitzhak Hutner that he referred to the establishment of the Chief Rabbinate in Israel and said that one must distinguish between two kinds of revolutions: the Soviet revolution, in which they murdered the Tsar; and the British ‘revolution,’ in which they imprisoned the queen in a palace of gold with abundant wealth and honor, but without any real content or authority. In his view, that is what the State of Israel did to the rabbinate. It seems that accepting the approach of the proponents of Hebrew law would do the same to Jewish law. Quotations from it would appear in every judicial decision and statute, but it would bind no one.
2. Is there value in the observance of Torah commandments when they are observed as part of the Israeli legal system?

It is important to note that this is not, in fact, the focus of the Hebrew law approach at all. Its proponents are not concerned with coercion, but with identification. The proper question to ask in this context is whether the legislators, judges, and members of the public who demand such a move and work for it thereby fulfill a religious-halakhic obligation. In addition, there is room to discuss whether such integration would lead to more meaningful public identification.

Family law is a good example of this problematic issue. It entered (at least partially) into Israeli law, and according to everyone there is in this some value of coercing observance of commandments (certainly not of bringing hearts closer). But this is precisely why it arouses such great anger, and therefore also why it is slowly falling apart. It is surely difficult to express astonishment at one who does not believe in these laws and ask why he does not accept them merely because they are part of Jewish law. The integration of family law is a clear sectarian religious interest, and expresses no substantive trend of integration.

3. On the plane of the halakhic significance of observing commandments and refraining from transgressions, one should direct attention to Maimonides in Laws of Kings 8:11. Maimonides writes there that the observance of commandments by a resident alien, when it is not based on divine command in the Torah given at Sinai, has no religious value. The force of these words applies to Jews as well, as several later authorities have already noted (see the Frankel edition of the Mishneh Torah, in the index). It therefore emerges that even if commandments do not require specific intention, they do require principled commitment. Admittedly, there are commandments whose value lies in the state they create, in their result, and not necessarily in the act itself. Moral commandments are clear examples of this, though not necessarily the only ones. The value that a person not be murdered, or that money not be stolen, is not nullified if one who refrains from murder or theft does so for foreign reasons (that is, not halakhic ones). But, as stated, our concern here is not with the moral parts of Jewish law, but with its ‘religious,’ particularistic parts. In any case, since the classification of commandments into different categories is far from clear, the question of the religious value of their observance reappears with even greater force.[27]
4. In the background of the discussion of religious value stand other questions as well, such as the question of the status of the civil courts. The meaning of this question is whether the legal systems in the State of Israel have halakhic standing, and are therefore bound by Jewish law (at least from the standpoint of Jewish law), in which case there is value in their ruling according to Jewish law; or whether they have the status of external courts, and their validity would not change even if they were to act according to Jewish law. This question has already been discussed at length elsewhere, and this is not the place to expand on it.[28]
5. It is clear that the public question has broader dimensions, some of which also touch upon the very Religious-Zionist worldview concerning the state and its institutions. One may ask whether there is indeed any value in identifying the general legal system with Jewish law, or perhaps rather in emphasizing that this is a different system, operating by virtue of a different authority, not bound by Jewish law and not even recognizing it as a binding source. What value is there in hybridizing Jewish law within such a system? Seemingly, there is great value precisely in sharpening the fact that this is a different system, one that has no halakhic legitimacy. This serves to emphasize that some of its actions stand in contradiction to Jewish law, and therefore it has no legitimacy in those contexts. From this point of view, the conclusion that the state system should be left in place, while alternative systems should be established that operate by and according to Torah law, is no less reasonable than the approach of Hebrew law—to put it mildly.
6. A final point in this chapter concerns the question of the religious value of integrating relevant parts of Jewish law while detaching them from the whole within which they appear. Very often such integration lies at the sting of the claim made by proponents of Hebrew law. Such situations may create a two-sided problem: a religious side and a legal side.

We may illustrate this with one point from the laws of bailees. The contract between the bailee and the depositor includes several obligations. An unpaid bailee is required to compensate the depositor only if he was negligent. But the bailee is also obligated to take an oath, in order to enable the depositor to clarify what happened to the object. The same is true of a paid bailee and of a borrower. Let us now suppose that Israeli law were to adopt the laws of bailees, even as a default arrangement. It is clear that we could not impose an oath in court, and certainly not an oath in the name of God upon a Jew who does not believe in Him at all (nor would such an oath have any value for discovering the truth). Can one still say that a paid bailee is liable for theft and loss? After all, the contract is a single whole, and when one part of it is removed, what value do all the rest retain?

There is here a problem of religious value, but this is also a legal problem. Such a contract would not be fair to the depositor. He loses some of his rights, while his obligations remain unchanged.

D. Example: The ‘Do Not Stand Idly By Your Neighbor’s Blood’ Law, 5758 – 1998[29]

As a summary of our discussion, let us deal with a clear example that sharpens a number of the points that have arisen thus far. The ‘Do Not Stand Idly By Your Neighbor’s Blood’ Law, 5758 – 1998, is undoubtedly the clearest example of moral borrowing from the values of Israel’s heritage by means of legislation (rather than by judicial decision). In this there has been a notable success for the proponents of the Hebrew law approach, and it seems that the religious public—and probably the general public as well, for otherwise the law would not have passed—sees in this legislation a welcome influence of Hebrew law on the legal system. Yet this very case raises the question of to what extent one can truly speak here of an influence of Hebrew law. For the law passed only because the legislators and those they represent identified with it morally, not because of commitment to Jewish law. In this chapter we will attempt briefly to demonstrate the various problems raised by our discussion thus far precisely through a successful case of assimilating Hebrew law into Israeli law.

The essence of the ‘Do Not Stand Idly By Your Neighbor’s Blood’ Law, 5758 – 1998, is the demand for active intervention in response to another person’s distress. In a considerable number of Anglo-Saxon legal systems (continental systems differ in their approach, and most of them include what is called a ‘Good Samaritan law’), the approach is that although helping another person in distress is certainly an important value, such assistance should not be legally required (with sanctions imposed for noncompliance) within the framework of law. According to these approaches, law may demand only refraining from causing harm, but not rescuing someone from harm that came upon him through no fault of the rescuer.[30]

Jewish law, by contrast, adopts an activist approach, and the very command "do not stand idly by your neighbor’s blood" indicates this. This halakhic obligation is so strong that it may be demanded even where the rescuer pays a heavy price for acting. The rescuer’s violation of the Sabbath for the sake of saving a person in danger, surrendering his property, and according to certain authorities even risking the rescuer’s own life for the sake of the other, are such prices.

I would like to open the discussion specifically with the religious value of this law, which addresses the religious public. Religiously speaking, there is no doubt that this is a clear case of a moral commandment whose purpose is the state it seeks to achieve (the prevention of harm), and the importance of the rescuer’s intention for the sake of Heaven is secondary (though not necessarily negligible).

With respect to a public that is not committed to observance of the commandments, all the foregoing arguments remain in force. A jurist who does not believe in imposing an active obligation on the citizen will not be persuaded merely by the fact that Jewish law does indeed impose such an obligation. Conversely, if he does identify with this activist halakhic principle, then he does not need Jewish law to persuade him of what his own moral and value commitments already instruct him. If so, it is not clear what the added value is of the fact that Jewish law too instructs us this way. Is the adoption of such a principle really a drawing from the ‘heritage of Israel’?

In fact, one can argue much more than this. First, it should be noted that it is not at all clear whether the principle of "do not stand idly by your neighbor’s blood" belongs to the ‘legal’ part of Jewish law, or whether it is merely a commandment incumbent upon the rescuer, and not a legal obligation toward the rescued person.[31] In Jewish law there are no sanctions against one who did not directly cause harm but merely refrained from rescue. If so, in this respect what is involved here is not a full ‘legal’ obligation, but rather an obligation of a more religious-moral character. Yet the main novelty of the law lies precisely on the legal plane. The value that sees an obligation to save people is not really in dispute; the law’s novelty lies solely in bringing that value into a framework that imposes sanctions. Many oppose such legislation precisely for this reason (see the article mentioned above). If so, in this case the position of the opponents of the law seems actually more in line with the spirit of Hebrew law.

Yet despite all this, it seems that this is a good example of an essential difference mentioned above between the metaphysical infrastructure of Jewish law and civil law. Jewish law assumes that there is One who will exact retribution from one who stands idly by his neighbor’s blood. Even if the court does not punish him, the Holy One, blessed be He, will eventually exact punishment from him. But in a civil system that does not take into account factors beyond itself, there is certainly room not to learn from Jewish law, and instead to establish a sanction or punishment for one who violates the law.

From this consideration one may raise again the question of religious value with respect to this law. Is a religious person indeed supposed to strive for the principle "do not stand idly by your neighbor’s blood" to appear in Israeli law? It seems that the required answer is: no. Jewish law teaches us that punishments should not be imposed for this, and that we should leave the handling of such a person to the Holy One, blessed be He. In fact, there is a very general problem here: any punishment that is not imposed by the Torah is contrary to Jewish law. Corporal punishment is a prohibited injury, monetary punishment involves the prohibition of theft, and imprisonment too is hardly a ‘great commandment.’

It should be noted that although there is room for the sages and the community to enact various enactments, this is mainly where one sees that the times are morally breached. I do not think that in our own time there is any exceptional problem regarding people’s sense of obligation to help others when they are in distress (this was also argued by Members of Knesset Haggai Merom and Dedi Zucker in the discussion before the Constitution, Law and Justice Committee).[32] Beyond that, such an enactment, even if it is needed, does not amount to drawing from Jewish law, but rather to an external addition to it.

To conclude, I would like to illuminate the problematic nature of taking part of Jewish law into civil law. Yair Eldan, in the article mentioned above, resorted to arguments based on his own renewed interpretation of Scripture in order to anchor the law in the Torah, but not in Jewish law, since in the rabbinic-halakhic context there is no such possibility. He himself notes there briefly that such an interpretation distorts the original halakhic meaning. This is thus an example of selectively drawing values from Torah sources while distorting their intent according to traditional interpretation, solely in order to create a common basis for dialogue between religious and secular people (as he writes in the introduction to his article), or between Hebrew law and general law. Here it is clear that the main thrust of such a trend is the cultural declaration, and not the substance of the commandment, which is primarily halakhic. As we have already noted, it was precisely because of this declaration that the opposition of those unwilling to rely on Torah-religious sources arose. If so, it seems that the ‘Do Not Stand Idly By Your Neighbor’s Blood’ Law, 5758 – 1998, is not an example of drawing from Hebrew law as such, but at most of selective reliance on Torah sources that has only cultural-declarative significance, if any.

E. General Perspective: Between Aharon Barak and Immanuel Kant

Advocates of Hebrew law operate on three fronts. On the public front, they argue that it is unfitting to be cut off from the halakhic cultural heritage of the Jewish people. This argument is indeed directed to the legislator and the judge, but it is conducted through public discourse. On the legal front, they argue that after the enactment of the Foundations of Law Act, a judicial decision that does not take account of Hebrew law when it supplies an answer in a case of a lacuna in the law is unlawful. This argument is addressed, of course, mainly to judges and less to legislators. And finally, within the religious public itself, there is a common demand directed at Torah research institutes, and especially at those who serve as judges in civil courts in Israel, that it is fitting and important to try to integrate as many principles as possible from Jewish law into existing legislation and case law.

In fact, the first claim is nothing more than an expression of sorrow over the very detachment of most of the public in Israel from the world of Jewish law. It is reasonable to assume that integrating various halakhic rules into legal systems will not bring any citizen back to observance of the commandments, and quotations torn from their context certainly will not do so. Even a merely cultural demand is unfair toward one who simply does not believe in the metaphysical and religious infrastructure of Jewish law.

The second claim is disputed among jurists, and we dealt with it briefly above. It would be naïve to think that the legal system specifically would recognize what Israeli society generally does not recognize: that Jewish law (including its ‘religious’ parts) is the building block of the ‘principles of justice and equity of the heritage of Israel,’ and that it is the very foundation of Judaism, as Saadya Gaon put it: our nation is a nation only through its Torahs.

As for the third claim, which is directed to the religious public and concerns a religious duty to strive to integrate as many halakhic principles as possible into the legal system, it seems that this demand has no real religious value. Even when a religious value is adopted into Israeli law, what is generally involved are moral principles whose adoption does not constitute a substantive drawing from Jewish law. Family law is the exception. It constitutes a clearly religious interest, not a trend to influence the character of the state, and for this reason it is also steadily fading away.

From our discussion thus far, a deeper explanation emerges for the reasons Hebrew law is not being absorbed into Israeli public culture. It seems that the fact that the general public opposes integrating particularistic elements of Jewish law into the legal system does not necessarily indicate that this public opposes those values themselves. Its implicit claim—which is also the source of its opposition—is that these are particularistic religious values, and that whether they are observed or not is not a matter for law, but for the decision of each individual. According to this approach, Jewish law in all its parts is not really a legal system. At its foundation lie metaphysical and theological principles that bind only those who accept them, and it is very difficult to separate them from its moral-value infrastructure. This is, of course, the opposite of the approach of proponents of Hebrew law, who regard Jewish law as a legal system in every sense.

These differences of outlook have ancient roots in the history of thought. It is difficult not to notice the resemblance to Immanuel Kant’s attitude toward Jewish law and toward Judaism generally. Kant (in his book Religion within the Boundaries of Mere Reason) understood Judaism as a body of statutory laws on which the constitution of the state was built. He thought that moral additions were attached to them over time, but were not part of them. Therefore Judaism, in essence, is not a ‘religion’ but rather a social collective that organized itself together and conducts itself according to those laws. The fact that these laws are based on a theocracy, and that the Jews worship the ruler of the world who makes no claims upon conscience, does not make this system of laws into a religion. All the commandments are of a kind that a state constitution could seize upon and impose as coercive laws, because they concern only external acts.[33]

Kant effectively empties Judaism not only of its moral contents, but also of its ‘religious’ contents. The reason lies in his view that moral contents derive only from reason and are therefore universal. As emerges from this article, there is a considerable measure of justice in his claims (though not for his own reasons). Indeed, the ‘principles of justice and equity’ are universal. Even if their historical source lies in Judaism, today it is difficult to see them as an essentially Jewish characteristic.

In the modern world, due to Christian and other influences (among them also Kantian ones), the accepted conception of the term ‘religion’ places it mainly upon two components: morality and religious feeling (religiosity). But Judaism certainly does not claim to stand by Christian criteria. The main current within Judaism does not regard religious experience, or religiosity, as the constitutive foundation of Jewish religiosity. To the dismay of many, morality too does not occupy a central place in Judaism. I do not mean to claim that Judaism does not require moral commitment; but it is clear, at least as an empirical phenomenon, that this is not the constitutive foundation of Judaism. It is hard to ignore the widespread attitude according to which a person who violates the Sabbath is not religious, whereas a person who keeps the Sabbath but steals or lies is a religious person who has failed.

Many condemn this distortion, and with some justice. But there is a deep and true point that lies at the base of these images. Judaism stands primarily upon its ‘religious’ foundations, and its attitude to morality is more peripheral—not because morality does not exist within it, but because commitment to it is a general human commitment. An immoral person diminishes his human stature, and not necessarily his religious stature. The ‘principles of justice and equity’ may come out of the ‘heritage of Judaism,’ but they do not belong to it (in Jewish law they are called the law of the Noahides, and it is not likely that advocates of Hebrew law are demanding that what guide law and justice in Israel be Noahide law).[34] The adoption of these principles is certainly desirable, but it does not constitute a genuine drawing from the principles of Judaism, or from Jewish law, except in a very embryonic and indirect sense. Clearly, they may also be taken from foreign sources, and there is no significance to the question of their source. By contrast, the ‘religious’ commandments do not have only moral content, but also—and chiefly—another content. These certainly do not belong at all to the ‘principles of justice and equity,’ but to another category of particularistic principles, whose inclusion in a secular legal system is nothing but a farce.

Kant’s critics—some of whom did not know Judaism (and certainly not Jewish law) better than he did, and most of whom were not committed to it at all—erred here more than he did. They adopted the Christian concept of ‘religion’ just as he did, but for apologetic reasons wanted to bring Judaism too under the wings of that foreign definition. They did not want to see themselves as unconditionally bound by Jewish law, and therefore placed the contents they poured into it—namely morality and religious feeling—above the normative laws, that is, above the observance of the commandments. In this sense, Kant, far from Judaism, was more correct than his critics. In my humble opinion, the approach of proponents of Hebrew law—most of whom are committed to Jewish law and know it well—suffers from a similar failure. It is precisely Aharon Barak, and the outlook he represents, who grasp more correctly (at least from their standpoint) the spirit of Jewish law.

We shall conclude with two quotations that speak for themselves. The first is from Judge Y. Englard:

We still maintain the view that the religious character of Jewish law [note well: not Hebrew law] is its soul. Once this is taken from it, its very essence is taken as well. We reject the assumption that the halakhic solution to an interpersonal dispute possesses a distinctly Jewish character unmatched in other systems. The distinctive character is expressed not in the continuity of a substantive principle, but in the continuity of tradition—that is, of the sources and of the acceptance of their binding authority together with their metaphysical burden.[35]

The next quotation is taken from the words of Rabbi Yehezkel Abramsky, in the booklet Dinei Mamonot. Thus he writes (p. 4):

Hebrew law, which sets the scales of justice throughout all corners of life, in every place and at every time, from eternity to eternity, is revealed among us inwardly through feeling and inclination of the heart, and outwardly through law. This middle point, which is the intellectual and moral luminary of Hebrew law, can be grasped only through religious Talmudic concepts, and no one can apprehend it unless he investigates and expounds it through the same interpretive measures by which the Torah of everlasting testimony is expounded. But whoever engages in monetary law by way of comparison, comparing every phenomenon in the Torah of Israel to similar phenomena in the law books of the Romans and the like, does not hear the voice of God that fills Hebrew law, because of the noise of the Roman spirit throbbing within him. For one does not judge the Torah of the God of the spirits of all flesh by laws and judgments enacted by a human being of one spirit and one inclination, just as one does not examine the light of the sun by the light of a candle. Hebrew law, which sets the scales of justice throughout all corners of life, in every place and at every time, from eternity to eternity, is revealed among us inwardly through feeling and inclination of the heart, and outwardly through law. This middle point, which is the intellectual and moral luminary of Hebrew law, can be grasped only through religious Talmudic concepts, and no one can apprehend it unless he investigates and expounds it through the same interpretive measures by which the Torah of everlasting testimony is expounded. But whoever engages in monetary law by way of comparison, comparing every phenomenon in the Torah of Israel to similar phenomena in the law books of the Romans and the like, does not hear the voice of God that fills Hebrew law, because of the noise of the Roman spirit throbbing within him. For one does not judge the Torah of the God of the spirits of all flesh by laws and judgments enacted by a human being of one spirit and one inclination, just as one does not examine the light of the sun by the light of a candle.

[1]       My thanks to Dr. Benjamin Brown for a number of useful comments that contributed to refining this article.

[2]       Although the legal discussion lies beyond the scope of this article, let us make several comments about it. First, the President of the Supreme Court argues consistently that in practice there are almost no lacunae in the law, since it is almost always possible to derive or infer the law in the cases under discussion by various methods. Therefore, in his opinion, there is almost never any obligation to apply the above section of the Foundations of Law Act.

        As we shall see below, there is another problem with this demand: in fact, there are no ‘principles of justice and equity of the heritage of Israel’ at all. ‘Principles of justice and equity’ do not belong to the ‘heritage of Israel’ (even though they generally derive from it), and the ‘heritage of Israel’ is not, in any essential sense, included within ‘principles of justice and equity.’ From this is derived Aharon Barak’s second claim, which identifies the composite concept ‘a Jewish and democratic state’ with one of its partial components: ‘a democratic state.’ This is indeed a logical absurdity, but whoever formulated the law in this way invited it upon himself.

        It should further be noted that the demand on the legal plane seemingly has a more valid support than that found in the Foundations of Law Act. The opening of the two Basic Laws enacted in the early 1990s states: ‘This Basic Law is intended 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.’ It is difficult to dispute that the values of Judaism include halakhic values, even if not only such values. But even this claim cannot be decisive. Although the identification between commitment to Jewish law and Judaism (as an essential worldview, not as a biological fact) seems entirely valid, it is clear that a considerable part of the secular public in the state does not see matters this way. At best, such people do not identify Jewish law as a necessary part of Judaism, and therefore not as part of the Jewish character of the state. It would therefore be naïve to think that the legal system specifically would adopt this (justified) identification.

[3]       Parashat HaShavua, 139 (Ha’azinu 5764), the Hebrew Law Department of the Ministry of Justice and Sha’arei Mishpat College. On this matter see also the remarks of Menachem Elon, cited in his article ‘Further on the Study of Hebrew Law,’ Mishpatim, 8, from p. 135 onward.

[4]       See also Menachem Elon’s article, ‘Further on the Study of Hebrew Law,’ Mishpatim, 8 (1978), p. 99.

[5]       Yitzhak Englard, ‘The Study of Hebrew Law—Its Essence and Its Aims,’ Mishpatim, 7 (1977), p. 64.

[6]       A sharp dispute about this between Elon and Englard appears in Elon, loc. cit., note 2. For additional sources on this issue, see notes 3, 4, 6, and 10 in Englard’s article.

[7]       Elon, in the article mentioned above at note 11, challenges Englard’s claim and brings a contrary example. But it seems that his objection is formal, while Englard’s claim is a generalization that is quite close to the truth.

[8]       See Yaakov Blidstein’s article, ‘Jewish Law—The World of Jewish Normativity,’ in Journey to Jewish Law, ed. Amichai Breholz, Yediot Aharonot and Sifrei Hemed, Tel Aviv, 2003.

[9]       See, for example, Yedidya Z. Stern’s article, ‘Halakhic Rulings on Questions of State Policy,’ Position Paper 18, The Israel Democracy Institute; and the same author’s ‘Openings for Halakhic Renewal in Matters of Religion and State,’ in Journey to Jewish Law. For one problematic aspect of this article, see my own article ‘The Expertise of the Halakhic Decisor as an Evaluator of Reality,’ Tzohar, 7 (Summer 2001), pp. 21-33.

[10]      Thus, for example, Elon briefly argues this in the article mentioned above, p. 100.

[11]      For discussion of this issue—which specifically tends to qualify the conception that the Torah contains no laws that are merely instrumental—see Lekah Tov by Rabbi Yosef Engel, sec. 8, and more. At the root of the matter lies the understanding that Torah law inheres in the legal object, whereas fences and extensions, by their very nature, relate to the acting person (see, for example, Atvan DeOraita by Rabbi Yosef Engel, principle 10).

[12]     Miranda v. Arizona, 384 U.S. 436 (1966), p. 458.

[13]      See Rashbam’s explanation of this law in Bava Batra 114a, which ties it to the principle of separation of roles in the court. There are, admittedly, other explanations as well (see the Talmudic Encyclopedia, entry ‘A Witness Cannot Become a Judge’). This principle explains several additional laws as well, though this is not the place to elaborate.

[14]      For this reason, some have understood even a litigant’s admission in monetary law as a kind of undertaking, rather than an issue of credibility (see Ketzot HaHoshen, sec. 34, subsec. 4).

[15]      There are also cases in which civil legal systems do not recognize evidence obtained by improper means. However, this clearly stems from the desire to prevent the use of such improper means in the future—the ‘fruit of the poisonous tree,’ in legal parlance. This is an example of what we saw above: apparently similar principles may derive in civil law from clear human considerations, whereas in Jewish law they may express religious-spiritual foundations.

[16]      Admittedly, in monetary law there is a rule that the judge may also decide on the basis of circumstantial estimation, and there is also the doctrine of a suspicious case. But none of this uproots the basic requirement of two witnesses in order to extract money under Torah law. These subjects require a detailed discussion, and this is not the place for it.

[17]      See on this, for example, Rabbi Akiva Eger’s glosses to the Talmud, Makkot 5a, and much more.

[18]      Admittedly, in Maimonides (Sanhedrin 18:6) there are seemingly rational explanations for this law (the concern that the confessor is embittered and wants to commit suicide, and the like). But several commentators have already noted that this rationale does not exhaust the full scope of the rule that a person cannot incriminate himself. Maimonides himself emphasizes twice, before and after this remark, that this law is a scriptural decree. In fact, if we pay close attention, we will see that the expression ‘a person cannot incriminate himself’ does not appear at all in this specific ruling of Maimonides. This wording appears in Maimonides when he codifies all the places where this rule is discussed in the Talmud (Sanhedrin 9 and 15, and Yevamot 25). It seems that here Maimonides is dealing with a different question, namely a law within the law of the court’s punishments: that one does not punish a person on the basis of his own confession. The rule ‘a person cannot incriminate himself’ is broader, and applies even where no discussion of punitive liability is on the table (such are all the examples discussed in the Talmud).

[19]      See my article ‘Giving the Wicked Evil According to His Wickedness—Really?’ Alon Shevut Bogrim, 9 (Iyyar-Sivan 1996).

[20]      For discussion of this point, see my articles: ‘What Is Legal Status-Creation?’ Tzohar 2 (2000); ‘On the Obligation of Compensation for Damage Caused by One’s Property,’ Mishpetei Yisrael – Laws of Torts, Petah Tikva, 2003. See also notes 3 and 4 in my book Two Wagons and a Hot-Air Balloon – On Judaism and Postmodernism, Beit El, 2002.

[21]      See my above-mentioned article, ‘What Is Legal Status-Creation?’

[22]      On this matter see, for example, Yair Lorberbaum’s article, ‘Maimonides on the Image of God: Philosophy and Jewish Law—Homicide, Criminal Law, and the Death Penalty,’ Tarbiz, year 65, no. 4, Elul 1999, pp. 533-556. See also his doctoral dissertation cited there in note 1, and also his recently published book Image of God, Schocken, Tel Aviv and Jerusalem, 2004.

[23]      See, for example, Yossi Green’s book Law and Medicine – Physician-Patient Relations, Tel Aviv, 2003, especially the chapters dealing with the attitude of Hebrew law to these issues. For additional sources see Margaliyot HaYam on Sanhedrin 24a, subsec. 20, and Rabbi Akiva Eger’s glosses there.

[24]      Of course, I do not mean to say that one cannot demand of a judge, or of a citizen, some sort of moral demands. At the same time, it is clear that a moral-legal conception based on the image of God leads to conclusions different from a liberal conception of the human being (despite the widespread—and empty—secular metaphor of ‘the image of God’). See, for example, Lorberbaum’s above-mentioned article.

[25]      For a broad survey regarding communal and general legislation, see Elon’s above-mentioned book, volume 1, chapters 13 and onward.

[26] In Vigoda’s article on the Supreme Court case concerning force-feeding geese, mentioned above, he himself does not propose any decision among the abundance of eclectic citations brought there. Does he expect secular judges—or even religious ones—to do so?!

[27]      The moral value in the observance of moral commandments depends on textual variants in Maimonides’ wording there. But, as noted in the previous chapters, our concern here is mainly with particularistic commandments, not universal ones. In assimilating moral commandments there is no substantive drawing from Hebrew law. This is also the answer to a possible objection from Maimonides’ Eight Chapters regarding the well-known commandments, for which there is value in observing them out of moral identification. His remarks there concern not the question of religious value, but the question of moral value.

[28]      See, for example, the ongoing discussion in the early issues of Tehumin between Rabbi Yaakov Ariel and Judge Bazak, among others.

[29]    On this matter see Yair Eldan’s article, ”Do Not Stand Idly By Your Neighbor’s Blood’—The Development of an Idea and Its Marks on Israeli Society,’ Akdamot, 11 (Tishrei 2001), p. 7. His article does not directly address our discussion. For additional sources see the references there, especially note 58.

[30]      This is a broad and somewhat simplistic formulation, sufficient for our purposes here. There are different formulations of the problematic aspects involved in such legislation, and the reader who seeks further detail is referred to the above-mentioned article.

[31]      In the discussion in Bava Kamma 60b, the question is raised whether a person may save himself with another person’s money. According to some of the medieval authorities, the permission granted him is based on the rescuer’s obligation to save him. This obligation subjects the rescuer’s property to the purpose of rescue, and therefore the person being rescued may also take the property needed for his rescue, even without the rescuer’s permission. Seemingly, there is here a conception of a legal obligation, and not merely a commandment. See on this my article in issue 14 of Tzohar (Spring 2003), and Rabbi Yisraeli’s responsum following the Qibya operation, which is cited there.

[32]      See Eldan, above, pp. 33-34.

[33]      Many, including his students and followers, criticized Kant’s approach and argued that he did not know Judaism sufficiently and that his remarks were influenced by Spinoza. See, for example, Julius Guttmann’s remarks in the chapter ‘Kant and Judaism,’ in his book Religion and Science, Jerusalem, 1956, p. 220; and Hermann Cohen, Religion of Reason Out of the Sources of Judaism, Bialik Institute and the Leo Baeck Institute, Jerusalem, 1972, p. 359; and Shmuel Hugo Bergmann, The Philosophy of Immanuel Kant, Magnes, Jerusalem, 1980, from p. 157 onward, and more.

[34]      See Rabbi Kook’s book Mitzvat Re’iyah, Hoshen Mishpat, sec. 1, for profound remarks on this subject.

[35]      Englard, above note 5, note 123.

        Elon, in the above-mentioned article (see pp. 102-102, and also p. 135 onward), responds with great vehemence to these remarks. For example, on p. 131 he understands Englard’s use of the term ‘metaphysics’ as referring to mysticism. In the present article we have shown, among other things, that this is incorrect. This is not the place to discuss his other arguments as well.