Liberalizing the Law in the Land of the Lord: Limits to the Americanization of Israeli Religious Jurisprudence (original) (raw)

Religious law, religious Courts and human rights within Israeli constitutional structure

International Journal of Constitutional Law, 2006

Israeli constitutional law-religion and constitution-personal law-religious courts-religious freedom-principle of gender equality-equality between spouses-jurisdictional contest between religious and secular judicial systems. The Supreme Court of Israel held recently that religious courts must apply statutory principles of equality between spouses, unless the parties have expressly consented to the application of religious law. 1 This decision brings to the forefront the tensions inherent in a highly volatile constitutional structure in which secular and religious courts, both part of one legal system, sometimes come into conflict, and exposes the dangers of such a clash of authorities.

Constitutionalism, Law and Religion in Israel a State’s Multiple Identities

Journal of Civil & Legal Sciences, 2016

In the first chapter the historical relationship of Judaism and Zionism was discussed, while the second discusses the constitutional conflict between Jewish and the democratic character of the State of Israel. The third chapter analyzes the millet system of religious laws (inherited from the Ottoman Empire) for both Jews, as the religious majority, and for different minorities. The main question is, whether or not this pluralist legal system can be considered as liberal, providing equal rights, and what other alternatives are feasible in Israel today. The more general constitutional question behind the legal one is, whether or not the Jewish and the democratic character of the State of Israel based on Zionism can be consolidated.

constitutionalism-law-and-religion-in-israel-a-states-multiple-identities-2169-0170-1000169.pdf

This paper addresses the question of how the State of Israel deals with legal pluralism of different religious groups regarding status rights. Law and religion are two competing cultural systems that constitute individual and collective identities, as well as social interaction. In the history of Israel, a religiously as well as ethnically deeply divided society, various individual and collective religious and national identities have developed. These issues are reflected in the constitutional regulations, as well as in the different legal systems of the country, existing parallel to each other.

LAW, STATE, AND SOCIETY: LAW AND RELIGION IN ISRAEL

2023

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.

Jewish Law and Matters of State: Theory, Policy, and Practice

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...

Law and identity in Israel: a century of debate

Comparative Legal History, 2020

Since the early days of Zionism, the role of law, its practice and how it generated many of the fundamental dilemmas that challenged the struggling nascent community have been intriguing. Although different figures throughout Zionist and Israeli history have sought to exclude law from some of the central debates that occupied the public arena, it still has played a unique and essential role in the story of Israel. Nir Kedar's Law and Identity in Israel: A Century of Debate incorporates and compares some of the fascinating stories that reflect the discussions on law and weaves them together into a vibrant plot. This book contains three major sections, all of which provide different angles on the complex question of what is the Israeli law that has persisted through the robust national history since the late nineteenth century. Moreover, each section ponders whether there is an independent, uniquely Israeli law and whether it is possible to construct such a law. Kedar's main claim is that the story of Israeli law is, in fact, the story of Zionism itself. As he demonstrates, many of the problematic dilemmas that trouble Israel today are actually very similar to contemporary debates with which the Zionist movement and its jurists grapple: that is, the basic paradigm of Jewish and Israeli identity and culture. Another claim central to the book (and extensively analysed in the second part) is that the content of Israeli law is very difficult to pinpoint (2). First, given the Israeli circumstances, it is hard, even risky, to define a national culture, and it is no less difficult to express this complex framework in terms of legal norms. Kedar fiercely argues that, as Israel is built on contradictions and conflicting agendas, any major decision impacting outstanding fundamental questions could threaten the integrity of Israeli society. Second, law is the proper arena for neither cultural debates and identity issues nor their clarification. The law of each country is connected with the culture and history of that country. However, it is almost impossible to define what that 'national law' really means. As the book explains, every national culture has legal norms that reflect some of its common presumptions. Yet these presumptions still cannot turn any state law into a particular national law. Therefore, Kedar's ambitious panoramic view reflects on the complexity of the different meeting points between identity and culture throughout the Zionist and Israeli experience. Kedar clearly advocates for leaving these issues outside the scope of Israeli law. The place for these kinds of controversies, he argues, is the intellectual sphere of Israel's ongoing political-cultural debate, the education system and other areas of the social framework, but not the Knesset (the Israeli parliament) and most certainly not the Court. Every time the collective national community has

CUSTOMARY LAW, RELIGION AND LEGAL PLURALISM IN ISRAEL: ISLAMIC LAW AND SHARI'A COURTS IN CONSTANT MOTION

Revista General de Derecho Publico Comparado, 2019

Similar to the colonial reality, some States maintain a compartmentalized arrangement of their societies, where religious groups are subjected to communal laws that form part of the 'official' State legal system. These same States endorse these 'parallel' legal systems as a means to keep control over competing communities. Israel is one of these States. Ethno-religious communities in Israel are for the most equipped with their own communal courts, where communal judges sit. Any attempted reforms in personal status law are tainted in the Israeli context by the majority versus minority cleavage between Jews and Arabs. The focus of this paper is therefore to explore how, within a state-endorsed pluralist legal framework, minority religious systems evolve, navigate and reform, emphasizing the role played by actors in the judicial process, in particular judges (qadis) sitting in shari'a courts and adjudicating on family law cases.