Chapter Seven: Judicial Imperialism

It is fascinating to discover that despite their diametrical approach to values, the attitude of both systems to their place and role in Israeli reality is almost identical: both endorse an unmistakable rhetoric of judicial imperialism. This trend creates problems for consumers of both systems, and is a unique and major source of distress for people who personally experience normative duality. This dual judicial imperialism narrows the range of options available to a public wishing to resort to the norms of both systems.

First, each system maintains, at least at the rhetorical level, that its scope is total. Some religious sayings (which are admittedly philosophical declarations rather than halakhic injunctions) claim, “Turn it (the Torah) and turn it, for everything is in it,”[80] and “nothing exists that was not intimated in the Torah.”[81] At the same time, in a conceptualization borrowed from the religious domain, Chief Justice Barak holds that “the law fills the earth.”[82] Both legal systems, then, pretend to regulate all aspects of reality, leaving nothing uncovered.[83]

Second, is the totality of law at the theoretical-philosophical level expected to be concretized in reality? Does the legal policy of these competing systems direct judges to actually decide on every question placed on the public agenda? Here too, both systems give similar answers. Chief Justice Barak states, as a matter of policy, that the Court is required to refrain from ruling only in a small number of cases, because “without the judge, no law is kept.”[84] Halakhah has also shown a tendency to expand its scope over the last decades through a novel use of the notion of da’at Torah. Da’at Torah was once perceived as the pronouncement of the community’s sage, the learned rabbi. Its power stemmed from the rabbi’s relative advantage as an educated man.[85] Later, da’at Torah came to be accepted as a kind of divine inspiration, requiring the public to grant it special meaning.[86] Recently, we have seen the concept develop in a legally binding direction: da’at Torah is sometimes placed beside “halakhic ruling” as an alternative normative product, equally important,[87] or perhaps even more so.[88] The problem, however, is that the topics and issues on which da’at Torah is demanded and supplied are not at all defined (in striking contrast to the restriction and limitation of the content of issues included in the classic halakhic code, the Shulkhan Arukh).[89]

Third, the imperialism characterizing both legal systems is also manifest in their attitudes toward one another. Some of Halakhah’s consumers question the binding validity of Israeli state law. The religiously observant sometimes publicly verbalize their contempt for state courts and their incumbents, and contemporary halakhists tend to support the view that recourse to state courts should be forbidden.[90] Many, whether ultra-Orthodox or religious-Zionists, hold that the courts of the Jewish state should be viewed as “Gentile courts.”[91] The halakhic and cognitive implications[92] of these statements create profound discord with the surrounding reality for most observant Jews. This pertains not only to religious judges, lawyers, and jurists, but also to the wider public of religious and ultra-Orthodox Jews, including their rabbis, who all routinely resort to Israeli courts. Nor do rulings of state courts recognize the value of Halakhah as a vibrant legal system in a multicultural state.[93] Claims have been voiced stating that the legal system seeks to restrict the influence of halakhic norms on Israeli reality.[94] Both systems claim exclusivity in the regulation of reality, thereby hinting at the illegitimacy of the other.

80. Mishnah Avot 5:22, and Avot de-Rabbi Nathan, Version B, ch. 27, s.v. u-mah-hu.
81. This formula, although used quite routinely, does not appear in the sources in this form and meaning. The meaning of the talmudic formulation closest to this notion, “is there anything written in the Hagiographa to which allusion cannot be found in the Torah?” (TB Ta’anit 9a), is entirely different. Rashi ad locum explains: “Because the Torah is the foundation of the Prophets and Hagiographa, and all rely on the Torah.”
 
82. Aharon Barak, “Judicial Philosophy and Judicial Activism” [Hebrew], Tel Aviv University Law Review 17 (1993): 475, 477.
 
83. See the opinions of Justices Aharon Barak and Menachem Elon in HCJ 1635/90, Zerzevski v. The Prime Minister et al., PD 45(1)749. Despite his categorical opposition to the approach that presumes the totality of state law, Justice Elon seems to have adopted an approach that presumes the totality of Halakhah. Reacting to Justice Barak’s view that “there is no action that is not covered by the law,” Justice Elon states: “My colleague’s opinion is correct and appropriate with only a slight change, namely, wherever the term ‘law’ appears, it should be replaced by the term ‘Halakhah.’ Halakhah is indeed a system of prohibitions and dispensations covering all human actions. Concerning every action, it may be said whether it is allowed or forbidden according to the Halakhah; there is no ‘halakhic vacuum’” (767). For an extensive discussion of questions bearing on the scope of both legal systems, see Yedidia Z. Stern, “The Halakhic Approach on Political Affairs” [Hebrew], Mishpat Umimshal 4 (1997): 215, 217-229. In a private conversation, Justice Elon clarified he had not intended to support the totality of Halakhah, but only to state that the scope of Halakhah is broader than that of state law.
 
84. HCJ 1635/90, Zerzevski v. The Prime Minister et al., at 773.

85. In this context, see Gershon C. Bacon, “Da’at Torah and Birthpangs of the Messiah” [Hebrew], Tarbiz 52 (1983): 497.
 
86. Thus, for instance, R. Abraham Shapira, the former Chief Rabbi of Israel, holds that the sage enjoys a status similar to that of the prophet regarding the assessment of reality. See his “Rabbinic Authority” [Hebrew], Tehumin 8 (1987): 363-364. In his view, the appeal to da’at Torah is suitable after attempting to solve the problem by applying common sense.
 
87. See, for instance, Shalom Dov Wolpo, Da’at Torah: On the Situation in the Holy Land [Hebrew] (Kiryiat Gat: n.p., 1981), based on conversations with the late leader of the Habad movement, R. Menachem Mendel Schneersohn of Lubavitch. Throughout the book, the terms “da’at Torah” and “halakhic ruling” are used interchangeably. In his preface, the editor states: “We considered it our duty to publish this book and inform Torah students concerning the explicit halakhic view.” He also states that returning the occupied territories and entering into peace agreements is halakhically forbidden (8). In the introduction, the editor states that da’at Torah, which is the subject of the book, rests on three elements: the rabbi’s vast halakhic knowledge; his knowledge about the military, defense, and political situation, and the fact that “God is with him” (17-19).
 
88. Concerning the halakhic ruling issued by rabbis identified with religious-Zionism, which called on IDF soldiers to refuse orders if required to retreat from occupied territories in Judea and Samaria, R. Israel Rosen states: “It is well known that the famous proclamation is entitled  ‘da’at Torah’…. Let me clarify from the outset that the concept of da’at Torah is far more valid than a ‘ruling’ or a ‘law’ and overrides them…. Da’at Torah is never explained; it is like an angelic decree and relies on rabbinical authority and on faith in the sages…. Da’at Torah is the message resonating in the greatness of ‘a sage is preferable to a prophet’…. We can definitely enter into halakhic discussions concerning the limits of compliance with the kingdom [state law], but da’at Torah cannot be contested.” Israel Rosen, “Da’at Torah Is above a Ruling” [Hebrew], Hatsofeh, 20 May 1994.
 
89. Jacob Katz holds that the term da’at Torah “is meant to confer legitimacy on the halakhist’s role, beyond the usual domain of halakhic procedure.” He illustrates this through historical examples of the halakhist’s new functions beyond the halakhic realm. See Jacob Katz, “Da’at Torah: The Unqualified Authority Claimed by Halakhists,” in Sagi and Safrai, Between Authority and Autonomy, 95.
 
90. See, for instance: “The prevalent view among contemporary halakhists is that the rulings of Israeli courts, although made by Jewish judges, do not abide by the law of the Torah but by a legal system that Torah law considers alien. Since this forestalls the Torah’s tendency to solve all legal questions according to Jewish law, recourse to them [state courts] is forbidden not only on grounds of ‘before them and not before laymen’ but also on grounds of ‘before them and not before idolaters’.” See Eliav Shochetman, “The Halakhic Status of Israeli Courts” [Hebrew], Tehumin 13 (1992-1993): 337, 346.
 
91. Yaakov Ariel, the Chief Rabbi of Ramat Gan and a religious-Zionist leader, writes as follows: “All halakhists, including religious-Zionist ones, view it [the judicial system and all its components—Y. Z. S.] as arka’ot [Gentile courts], which Halakhah strictly forbids.” See Yaakov Ariel, “Not at a Crossroads: ‘The Beginning of Our Redemption’ through the Test of Time” (Hebrew), Tsohar 5 (2001): 95, 108 (note 15).
 
92. The late Justice Haim Cohen related to a directive published at the time by then Chief Rabbi Ovadia Yosef concerning the prohibition of turning to the courts: “The most disgraceful aspect of this directive is its timing. It is symptomatic of the disrespect and the contempt that has recently characterized the attitudes of religious circles and their spiritual and political leaders toward the judiciary or, if one may say so, this is a supposedly halakhic form of deriding and denigrating the judges of Israel. Its timing attests to a link - not even concealed -to the abuse and invective poured upon ‘secular’ judges throughout the ultra-Orthodox press. This is nothing but a softened and revised, though very authoritative, version of the slander and the public defamation of the judiciary in the public sphere.” Haim Cohen, “Gentile Courts and Jewish Values,” Mishpat Umimshal 4 (1997): 299, 300.
 
93. As noted in ch. 3 above, cases wherein the judiciary chose to fill statutory lacunae by recourse to the “principles of Israel’s heritage” are hard to find. The use of Jewish legal sources is usually confined to religious judges (obviously except when the law in force relies directly on religious sources, such as family law). The Court often resorts to comparative law, drawing examples from all over the world, but does not look for inspiration in “its own backyard.” Chief Justice Barak stated that in principle, the halakhic dimension is one of the two main features of the State of Israel as a Jewish state (the other being the Zionist dimension). This statement may prove important in changing the feeling now prevalent among both the religiously observant and secularists, that state law does not recognize Halakhah, but this interpretation has yet to be concretized in a significant yield of legal rulings. See Barak, Constitutional Law, 330-331.
 
94. As is the case, for instance, in the context of court rulings seeking to limit the authority of the rabbinical court. The deeper layers of this controversy emerge, in fascinating ways, in HCJ 3269/95, Yosef Katz v. The Regional Rabbinical Court in Jerusalem, PD 50(4) 590. The case hinged on the rabbinical court’s authority to issue a “refusal writ” against a man who had refused to try a case that did not deal with personal law before it. Is the rabbinical court allowed to act on such issues as a private court, bound by Torah law (unlike its usual, authorized functioning as a state institution)? Justice Yitzhak Zamir points to the fact that the rabbinical court is a government institution, created by the State of Israel. Justice Zvi Tal views the rabbinical court as part of a long chain of rabbinical courts abiding by Torah law since “time immemorial.” In his perception, the laws of the State of Israel merely grant official authorization to the endeavor of the rabbinical courts, which had existed before the establishment of the state. Indeed, this authorization extends only to the substantive authority handed over to the rabbinical courts by the law (namely, issues of personal law), but this does not detract from the power of these courts to implement Halakhah in other issues, beyond the explicit authorization of the state. Justice Zamir, who is joined by Justice Dorner, dissents: the rabbinical courts did exist in the Diaspora and in the Land of Israel before the creation of the state, but “this makes no difference. Every public body, including every court, can presently wield only the authority that the law confers on it today. Even if in the past its authority was much broader, it cannot retain this authority if the present law has narrowed it” (par. 15). Furthermore, “even if the rabbinical court is allowed to perform a certain act by Halakhah or by tradition … this is not enough for this court to have the authority to do so. As a state institution, the rabbinical court must act within the authority it has been granted within state law”(par. 14). Justice Tal finds this formulation infuriating: “In order for the actions of the rabbinical court on matters of marriage and divorce to be recognized and accepted by all, even by the most radical ultra-Orthodox, the rabbinical court of the State of Israel must be a rabbinical court for all intents and purposes, as it has been since the days of Moses. Otherwise, it will become a kind of ‘puppet rabbinate,’ like those ‘puppet rabbis of the kingdom’ in Tsarist Russia, who were not considered spiritual leaders and served as registrars of marriage and divorce, births and deaths, with no one taking their ‘rabbinic’ status seriously. The Halakhah itself does not recognize a strange creature of this kind, a rabbinical court devoid of authority, unauthorized to deal with all matters in the Torah and in life, but only with one issue” (par. 2). The controversy between Justice Zamir and Justice Tal appears to be deep and fundamental: it deals with the rabbinical court’s source of legitimation, and only then with its scope. According to Justice Zamir, on any issue except marriage and divorce, the court functions as an arbiter, whose authority follows from the parties’ agreement to appear before it. By contrast, Justice Tal holds that the authority of the courts rests on divine law, as agreed in Jewish tradition since time immemorial. In his view, requiring the parties’ signature on an arbitration writ is not a condition of the rabbinical court’s authority, which ensues naturally from Halakhah. The only purpose of the arbitration writ is to enable the use of state instruments to enforce the ruling on those trying to evade it. Justice Zamir wishes to bind the rabbinical court by state frameworks, whereas Justice Tal views these frameworks only as an additional, later feature, added to the central characteristic of the rabbinical court as a halakhic institution according to Jewish law. The practical implication of this controversy touches on the very core of the rabbinical court’s ability to regulate reality according to halakhic principles; according to the majority decision, the rabbinical court cannot issue a compelling halakhic ruling on matters beyond its realm of authority (barring the absence of the parties’ signature on an arbitration writ) even when the parties appearing before it are observant Jews. Furthermore, it also states that the refusal writs issued by the rabbinical court are invalid. According to Justice Tal, the rabbinical court is allowed to exercise the full force of Torah law (even barring agreement to the arbitration), including the implementation of religious sanctions, such as issuing a refusal writ. Finally, Justice Tal’s objection to the involvement of the Court in an issue that seems to him unnecessary is worth noting: “the duty of mutual respect between judicial instances requires that the Court should apply restraint when interfering in the activity of the rabbinical court, without pushing aside and curtailing the latter’s authority” (par. 1).