Accommodating Religious Law with a Civil Legal System: Lessons from the Jewish Law Experience in Financial Family Matters (original) (raw)
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Revista General de Derecho Publico Comparado, 2019
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Israel Law Review, 2000
The tension between the norms of gender equality and religious freedom is a major focus of international human rights debate. 1 States that adopt religious law contend that gender discriminatory religious practices are protected under international law guaranteeing rights of cultural autonomy and religious freedom. Others argue that only discriminatory practices that are not the product of state action but, rather, take place in the private realm of civil society should be accorded such protection. Many women's rights activists, on the other hand, urge the state to actively reform religious law and restructure cultural practices even in the private realm, "not only as a means of ending gender-based restrictions on specific human rights but also as an essential step toward dismantling systematic gender inequality" perpetuated in traditionalist cultures. 2 The larger philosophic issue underlying this debate, how to reconcile universal human rights and multiculturalism, understood as the primacy of group cultural identity as a morally and politically significant category, is complex, but not new. 3 It is the age-old one, as Joseph Raz has put it, "of how to combine the truth of universalism with the truth in particularism." 4 One major locus of this tension today is personal status law. That Jewish personal status law is a topic of intense political and legal concern in Israel is unsurprising, given the absence of a genuine civil law alternative to religious jurisdiction over marriage and divorce.
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Law, State, and Society examines the interaction between state law and non-state law, such as customary law, religious law, and social conventions. This course will examine the relationship between law and religion in contemporary society, exploring the constant negotiation between state law and religious law in Jewish, Muslim, and Christian communities in Israel. It will do so through the theoretical perspectives of law & society and legal pluralism, understanding both law and religion as heterogenous and dynamic social fields that are not completely distinct from one another: law has theological and cultural aspects while religion is also a system of law. Israel shares many aspects of law and religion with other contemporary societies, while featuring unique aspects of being defined as a Jewish and democratic state, where the concepts of nation and religion are conflated, and religion and state are not separate. The Israeli legal system and legal struggles within it provide a fascinating glance into the tensions between state and religion, and between different religious belief groups. The course will examine structural issues like the absence of a formal constitution, Jewish law as part of the sources of state law, and the coexistence of religious tribunals and the system of state courts. It will further explore specific topics like religious orthodoxy and pluralism, marriage and divorce, citizenship and immigration, freedom of religion, management of religious sites, gender equality, adoption and reproductive rights, religious conversion, and religious minorities.
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Journal of Jewish Studies, 2004
I wish to consider a paradox. Family law is often regarded as particularly resistant to change. In Judaism, as elsewhere, family values are considered as at the very core of the culture's ethics. In technical terms, the halakhah views family law not as part of civil law, along with contract and tort, but as a category apart, much of it classified as issur veheter rather than mamona. Yet despite that, the history of Jewish family law has been one of recurrent, and often radical, change. Moreover, that change has often, as I shall argue in this paper, been influenced by the non-Jewish cultural environment. Indeed, in a recent book, Michael Satlow claimed: 1 It is, indeed, a central assertion of this book that in antiquity there was no single concept of 'Jewish marriage': Jews understood marriage, and married, much like their non-Jewish neighbours. On a local level, Jews did attempt to 'Judaise' their marriages, flavouring their local understandings and customs in order to make them seem Jewish.
RELIGIOUS NORMS BETWEEN ETHICS AND LAW: THE DEATH AND AFTERLIFE OF JEWISH DIVORCE LAW
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Journal of Law, Religion and State, 2012
In recent years Jewish religious leaders have often expressed religious opinions in matters concerning the foreign and security policy of the State of Israel. The present article focuses on the internal religious legitimacy of halakhic rulings in these matters and reveals the prerequisites that decisors must satisfy before voicing a binding halakhic opinion on issues concerning the Israeli Arab conflict, peace agreements, Jewish settlements in Judah and Samaria, etc. The article is divided into three parts that answer the following questions: (a) are matters of State policy subject to halakhic norms or are they situated outside the realm of Halakha? (b) does Halakha have a judicial policy seeking to rule on these issues? (c) what are the practical difficulties that decisors face if they wish to rule on them? The article points out the diversity of internal halakhic opinions on the questions under investigation, and outlines an analytical method for a halakhic discussion aimed at ans...
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JURISDICTIONAL COMPETITION AND INTERNAL REFORM IN MUSLIM FAMILY LAW IN ISRAEL AND GREECE
Should a democratic state accommodate the demands of ethno-religious communities for legal autonomy by recognizing and formally incorporating their laws and dispute-resolution mechanisms (particularly in the field of family law) into a pluri-legal framework? Over the last decades, this question, which lies at the heart of the so-called multiculturalism debates (especially as it relates to Shari'a and Muslim communities), has drawn the attention of many scholars, activists, policy makers, and politicians. Multicultural accommodations that bestow on minority groups positive rights to preserve their distinctive religio-legal traditions pose a challenging normative puzzle, especially when well-intended group rights clash with the rights of individuals within those communities. When that happens, whose rights should prevail-those of ethno-religious groups or those of individuals? And what should the liberal state do-sit silently on the sidelines or step in to protect individuals against the "oppressive" practices of their cultural communities? Answers to these questions form the main intellectual fault lines in the multiculturalism literature. Apart from those, 1 such as critical feminists, 2 who categorically reject pluri-legal accommodations in family law, most scholars have suggested that religion or custom-based legal orders might be tolerated if individuals were given the right to choose between religious and secular law and to exit from their cultural communities. The list of democratic countries that recognize and formally integrate religious laws/courts within their legal systems is short. In fact, there are only four such nations: Israel, Greece, India and Ghana.
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Jewish Law in Israel-Hope and Renewal
The article examines Israeli secular courts’ encounters with Jewish law. It focuses on cases decided since the adoption in 1980 of the Foundations of Law statute that authorized courts to consider certain principles of “Israel’s heritage,” when determining the law that governs a case. In 2018 the Knesset amended the statute to make clear that Jewish law (mishpat ivri) is a source of law. This presents a conundrum because, as rabbis have recognized for centuries, much of Jewish law dealing with preserving the social order is impractical. The article finds that some cases have shied away from using Jewish law when they might have used it to fashion a rule of law. Others have found that Jewish law is inconsistent with modern values and have advocated that Jewish law be reformed, even though the secular courts have no authority to make those reforms. In other instances, the courts have assumed that the Knesset did not intend to incorporate Jewish law. Despite these difficulties, a court should look for wisdom wherever it may be found. Any new state is bound to look to its people’s heritage for guidance in creating a new legal order. This is all the more understandable in the case of the Jewish people for whom the study and practice of the vast corpus of Jewish law has been central to its identity for centuries. Justice Silberg, a great jurist and Talmudic scholar, hoped that Israel would find a way to update Jewish law by emptying the barrels of old wine that had become sour and filling them with new wine that would retain some of the aroma of the old. To some extent the Knesset has accomplished this through legislation that is named for concepts in Jewish law, like that prohibiting cruelty to animals. However, the hope expressed in the Foundation of Law statute that courts would use Jewish law to fashion the law remains unfulfilled. Nonetheless, the Knesset’s call to incorporate Jewish law into the law of the state and the courts’ grappling with the rich rabbinic literature give the law-making process a Jewish flavor and help to define Israel as a Jewish state.