After a whirlwind tour of the Israel Museum, we ended DAY FOUR of our trip at the Knesset, Israel’s House of Parliament. The sky was overcast, but the weather proved doubly unusual (for Jerusalem in May) when we found ourselves standing in an unrelenting downpour while we waited in line to clear security. Before entering the building itself, we walked through an enormous courtyard lined with cypress trees and flag poles. Once inside, we were introduced to Hannah, our tour guide, who took us to the second floor for a brief introduction on the history of the institution, the meaning behind its name, and the various parties that the house represents. Our guide emphasized the fact that the origins of the institution are linked to a moment “far back” in Jewish history, one that begins with the definition of beit knesset, “a house of gathering.” The name itself is derived from an assembly of 120 rabbis, also known as the Anshei Knesset HaGedolah, “the men of the great assembly,” who convened in Jerusalem following their return from the Babylonian exile in the fifth century BCE. These rabbis were responsible for composing ritual prayers, sealing the Biblical canon, establishing the Jewish calendar, and democratizing Jewish education by making the Torah accessible to Jews who were not part of the priestly class. These achievements were recorded and preserved in the Talmud, but the credibility of the assembly’s existence and the chronology of events is debated among historians.
Despite these uncertainties, it is fair to say that the primary focus of this assembly was to solidify various aspects of Jewish belief and practice in response to the community’s exile, the end of the prophetic era, and the destruction of Solomon’s temple. Considering my immediate context, however, I began to ask myself how this account of the first “great assembly” was relevant to the contemporary Knesset that I was standing in? Furthermore, why does the main political institution of a secular state, which prides itself on being a “faithful mirror of the population…[that] represents all the sectors of Israeli society: right and left, religious and secular, Jews, Moslems and Christians, Druze and Circassians…under a single roof in full equality,” feel so closely linked with this particular aspect of Judaism’s religious history? Although there is no clear cut answer, these questions illuminate an issue addressed in my previous blog—the fact that Israel, according to the Declaration of Establishment, is both a “Jewish and secular state.” The implications of the “Jewish” component are not only ambiguous, but also widely interpreted, especially in terms of how religious laws shape Israeli identity and public life. Whether the “Jewish” component is to be understood from a secular or religious perspective, as either a religious or secular identity, is inconclusive, but if Israel is a Jewish state whose laws are informed by the halakha, then what is the place of non-Jews? More specifically, how does this affect the relationship between Jews, particularly those who do not adhere to the state-sanctioned norms of Orthodox Judaism and those who are strictly observant?
Katz, Levinsohn, Levy, and Schweid all address this dissonance from a sociological and cultural level, but what role do political and legal institutions have in perpetuating a conflation or a strict segregation between religiosity and secularity, “Jewishness” and “Israeliness” on a national level? Let us turn to the “Declaration of Establishment of the State of Israel” to get a sense:
THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.
This excerpt is significant to for various reasons. The most obvious being that it alludes to liberal democratic values as crucial aspects of state-building, but what is the added value of these goals by referencing the “prophets of Israel”? In a guest lecture by Benny Porat, assistant professor in the faculty of law at Hebrew University, we were guided through the various implications of such statements in order to better understand how Israel is both a Jewish and secular state from a legal perspective.
According to Porat, what makes the relationship between state and religion a unique case in Israel—in terms of its judicial system—is the fact that Judaism is a law-based religion. The focus of this worldview is therefore correct practice, rather than belief. These practices are laid out in the halakha, “the path” or a set of principles that elaborate on the laws in the Torah, particularly on matters of sex, marriage, food, and community governance. These laws are to be followed on a daily basis and are integral to all aspects of religious, domestic, and civic life. Porat suggests that these Jewish laws are a direct source of inspiration for secular Israeli law, but “Jewish law” itself is a complicated term. As previously mentioned, the halakha establishes a set of norms regarding what people should and should not do from a religious perspective, but there is also an element of civil law and practices (matters of jurisprudence, contracts, and court procedures) that, as Anat Scolnicov points out, have served as a platform for religious Jews to argue for the complete autonomy of Rabbinical Courts in Israel, despite the presence of a secular constitutional system from which these institutions have derived their legal authority. These tensions are by no means easily resolved. According to Porat, however, it is an inherently Jewish ideal to establish and maintain “a nation that fulfills the vision of divine law.” With that in mind, is it possible to distinguish the halakha from the secular laws established by the state?
Daniel Sinclair argues that halakhic law and liberal democracy are both fundamental to the modern state of Israel. The relationship between them, however, is not without its complications. Although the ethos of the state is “primarily secular and liberal in nature,” the halakha has an official role in Israeli law (i.e. to address matters of personal status). More specifically, to address matters of family law, such as marriage, divorce, and conversion to Judaism, all of which falls under the jurisdiction of Rabbinical Courts. Since the establishment of Israel in 1948, the Knesset has maintained the Ottoman law, which states that “in matters of marriage, divorce, and alimony and maintenance, substantive religious law will apply, regardless of whether civil courts have jurisdiction.” Furthermore, “different religious courts—Jewish Rabbinical, Muslim, Druze—have either exclusive jurisdiction or concurrent jurisdiction with civil courts.” That said, the secular judicial system has allowed various religious group in Israel to address family law within their own legal institutions with little to no intervention by the state.
Sinclair and Scolnicov both highlight several case studies where deliberation between the secular and Rabbinical courts was required in order to resolve disputes relating to family law, primarily divorce and alimony cases where the protection of women’s rights were in question. Scolnicov is particularly critical of Rabbinic jurisdiction and the potential for its violation of religious freedom and human rights, especially the equality of women in matters of divorce (e.g. the “chained wife”). Scolnicov argues that despite these ethical concerns, “the religious courts view their authority as emanating from a religious normative system” that not only precedes the state, but is also “intrinsically valid, regardless of whether it is recognized by the secular law of the land.” Therefore, two normative systems of law that are not only central to Israel’s legal identity, but also somewhat self-sufficient, find themselves at an impasse.
So, why is it that marriage, divorce, and conversion are governed exclusively by Jewish law? Why not resolve the issue by establishing legal procedures for marital and family law that are exclusive to the secular judicial system and that all Israeli citizens have access to? Although this seems like a simple solution, the situation cannot be repaired by a quick fix or further segregation. The political reason for this is the “Rabbinical Courts Jurisdiction (Marriage and Divorce) Law” of 1953, which has entitled Rabbinic Courts to address matters of family law as they see fit. This alone has made it difficult for the secular courts to step in and amend certain cases (e.g. Levi v. District Rabbinical Court of Tel-Aviv-Jaffa) where the Rabbinical Courts have failed to satisfy the state’s injunction regarding state protection of women’s equality and principles of natural justice.
To address these issues more thoroughly, we must also account for the cultural and theological dimensions of this debate. Porat argues that marriage and conversion are generally considered to be private actions, but they are moments in Jewish life that directly affect the entire public. These life-cycle events are therefore “entrance gates to the Jewish collective” that religious leaders feel they must regulate in order to maintain a sense of Jewish unity. Thus, the primary concern among Rabbinical Courts is to preserve a certain standard of “Jewishness,” in the religious sense. We see examples of this on a daily basis throughout Israel, from the regular closure of shops and public transportation to observe Shabbat on Fridays and Saturdays, to the abundance of kosher restaurants, or the legal formalities in determining the legitimacy of one’s conversion to Judaism if they wish to make aliya.
An important question that Scolnicov addresses in his article, which relates to this discussion (and will hopefully tie my ideas together), is whether religious or secular courts have ultimate authority in the state of Israel, particularly in matters of personal status? Although the level of legal autonomy granted to religious institutions within the secular state of Israel raises flags concerning potential violation of Israel’s Basic Laws, some Israelis (particularly the strictly observant) believe that the state is not Jewish enough. In other words, more religious laws and practices could be integrated into public life if we are to adequately characterize Israel as a “Jewish state.” Miriam Woelke, an inside blogger who discusses relevant issues within the Orthodox and haredi communities living in Mea Shearim, argues that Israel is a “State for JEWS,” rather than a “JEWISH state.” In other words, Israel is “not a jewish as we think” because the government is attempting to “eradicate anything Jewish” in the country with secularism. She argues that “many secular Jews prefer to be just like all the other nations but don’t realize that no Jew can escape his destiny.” What is this “destiny” she is referring to? Her blog seems to imply that to be a Jew is to accept that there are particular means (i.e religious laws) for achieving a fully observant life. These laws should not only guide, but also govern all understandings of “Jewishness,” regardless of secular principles. Although this seems to be a tall order, we can observe this tension in defining Israeli-Jewish identity from a legal standpoint by calling attention to the various responses to the demand for civil marriage in Israel by non-observant Jews. Rabbinic Courts argue that a union such as this must remain under religious jurisdiction, because the only law to be applied to these matters is “the law of the Torah.”
A question that should undergird any analysis of this situation should ask: “the law of the Torah,” according to which community and what interpretation? Although Reform and Conservative Judaism are prominent in the U.S. and Canada, the “status quo” in Israel is the Orthodox tradition. Therefore, if you wish to marry, you must do so according to Orthodox rituals and if you wish to convert to Judaism, or make aliya, the only form of Judaism that is valid and officially recognized by Rabbinic Courts is orthodoxy. This indicates that the road to defining “Jewishness” in Israel as a plurality of opinions, practices, and beliefs is near impossible to resolve, despite the effort to do so by way of a secular judicial system that aims to strike a balance between the liberal and democratic right to freedom of religion and the “complete equality of social and political rights to all inhabitants irrespective of religion, race or sex.”
Scolnicov, Anat. 2006. “Religious Law, Religious Courts and Human Rights within Israeli Constitutional Structure.” International Journal of Constitutional Law 4: 732-740.
Sinclair, Daniel. “Halakhah and Israel.” In Modern Judaism: An Oxford Guide, edited by Nicolas de Lange and Miri Freud-Kandel, 352-362. Oxford: Oxford University Press, 2005.
The “Great Assembly”:
* Also see, The Knesset: Parliament of Israel—visitor’s guidebook
Miriam Woelke, Israel as a “State for JEWS”: