Sealing the Law
Even if the court does not abandon the principles of justice and equality tomorrow, the “Jewish Law” Bill imparts the intention of its creators – religion takes precedence over democracy
Yesterday, MK Nissan Slomiansky (The Jewish Home), chairman of the Knesset Constitution Committee, received approval to bring the Proposed Bill Foundations of Law - the Principles of Jewish Law to a second and third reading in the Knesset. This law grants Jewish Law a preferred status within the Israeli legal system. The original language of the bill requires judges to look, first and foremost, towards Jewish Law to fill any lacunae (gaps in the law) when determining cases.
Ostensibly, judges would rarely need to fill a lacuna and only in exceptional cases will they have to reference Jewish law. Therefore, upon first glance, this law would not seem to be dramatic. However, a closer look raises a number of fundamental difficulties and concerns.
Even today Jewish law is a source for legislation and judicial decisions in Israel. However, the original language of the bill changes the pre-existing relationship by calling on the Israeli system to incorporate the entirety of Jewish law. This proposal would neither filter nor differentiate between different legal principles, nor would it adapt Jewish law to the current Israeli legal system, thereby pushing aside essential legal principles, the most important of which are equality and human dignity.
The primary concern is that compelling judges to refer to a legal system that is not based on equality will harm human rights. Israeli legislation already discriminates against women, the LGBTQ community and more; discrimination that is especially prevalent in, although not confined to, laws regarding personal status. The concern is that directing judges and courts to interpret legislation according to Jewish law will dramatically increase the scope of discrimination against these groups.
The current iteration of the proposed law partially rectifies this issue. The bill’s language was changed following widespread criticism and concerns, including from coalition parties, about the bill’s potential to violate the principles of equality. Currently, the law dictates that, alongside judicial referral to the traditions of Israel (which includes contemporary cultural and philosophical sources), verdicts are subject to the principles of freedom, integrity, justice, and peace. These changes are supposed to ensure the protection of the principles and values in modern Israeli law.
However, we should not feel calmed by these compromises. This is because the “Jewish Law” Bill was not created in a vacuum. We must understand it in the broader context in which it was promoted. Even if the court does not abandon the principles of justice and equality, principles that serve as the basis of Israeli law, tomorrow this law re-orients Israeli values. The writers of this law, even with the linguistic changes, are guiding courts and general society to prefer the Jewish religion over the State of Israel’s democratic values (with equality at its helm).
When we look at the context of the Israeli legislator today, we see that the “Jewish Law” Bill is just one small component in a much broader trend. Over the past few years, we witness a worrisome trend of violations on freedom of religion, freedom from religion, and Jewish pluralism. In the courts, there have been verdicts that limit alternative kashrut (extra-rabbinical kosher supervision), pluralistic mikveh (ritual bath) services, opening businesses on Shabbat, and more. Similarly, in the Knesset, bills to expand rabbinical courts’ jurisdiction have been proposed.
More specifically, we can notice an increase in tendencies towards separation and exclusion; tendencies that violate women’s rights to equality and dignity. There are many and various examples of exclusion: from educational segregation in institutions of higher learning and professional development; increased and growing gender segregation in the army (just last week the army announced that there will be decorated fences to separate male and female soldiers in public spaces in the army); to segregation in the general public space such as on buses, in schools, etc.
A country that claims to be democratic and pluralistic, especially one as diverse as ours, needs to respect the way of life of all of its different groups, and promise that despite religious and other differences between the groups, everyone’s rights will be guaranteed and lifestyles respected.
We need to allow religious and traditional groups to live according to their religious beliefs as well as others to live free from any religion; everyone according to their own tradition and preferences. We must strike the ideal and correct balance between different groups and ensure that everyone's rights, mainly equality and dignity, are protected. Does "the Jewish Law" Bill intrinsically violate this balance? It’s unclear. However, when viewed alongside the other trends, there is a big concern that it does.
The author is the Director of ACRI’s Policy Advocacy.
Published (with minor editing) in Yediot Aharonot, on 1.5.2018.