Law of Return
Law of Return
LAW OF RETURN
LAW OF RETURN , law passed by the Israel parliament (Knesset) on July 3, 1950, the anniversary of the death of Theodor *Herzl. The Law of Return is one of the earliest and most significant of the basic laws of the State of Israel. Declaring that every Jew has the right to settle in Israel as an oleh (de-fined as "a Jew immigrating to Israel for settlement"), it gives legislative confirmation to the age-old Jewish yearning for return to Zion, previously embodied in the *Basle Program (1897), in Article 6 of the *Mandate for Palestine (1922), and in Israel's *Declaration of Independence of May 14, 1948. The law actually sanctioned the existing situation, for, as the official explanatory note pointed out, the Israel Provisional Council of State had, in its first legislative act (the Law and Administration Ordinance, 1948), abolished all restrictions on Jewish immigration and retroactively validated the immigration of every Jew who had, at any time, entered the country – even in contravention of the Mandatory regulations. In the words of the then prime minister, David *Ben-Gurion, in presenting the bill to the *Knesset for first reading:
This law lays down not that the State accords the right of settlement to Jews abroad but that this right is inherent in every Jew by virtue of his being a Jew if it but be his will to take part in settling the land. This right preceded the State of Israel, it is that which built the State.
The main provision of the law (section 1), as passed by the Knesset, is accordingly declaratory in nature: "Every Jew has the right to come to this country as an oleh." In keeping with the purposes of the law, this status of oleh is also accorded to all Jews who had entered the country as immigrants before the law came into force and to all Jews born in the country, whether before or after the law's coming into force (section 4), as well as to any Jew who goes to Israel other than as an immigrant and subsequently expresses his desire to stay and settle in Israel (section 3(a)).
Denial of Oleh's Visa
An oleh's visa may be denied only in cases in which the minister of immigration (later the minister of the interior) is satisfied that the applicant is engaged in activity directed against the Jewish people or is likely to endanger the public health or the security of the State (section 2 (b)). However, a person may not be regarded, for the purpose of this restriction, as endangering the public health on account of an illness contracted after his arrival in Israel (section 3 (b)). Experience indicated that there was another category of persons to whom it was not desirable to give an unrestricted right to settle in Israel as olim, namely, wanted criminals who took refuge in Israel or those who intended to continue a life of crime there. The Knesset hesitated to restrict the absolute right of every Jew to aliyah and was conscious of the possibilities of rehabilitation of wayward Jews inherent in Israel society. Nevertheless, on Aug. 23, 1954, it adopted an amendment to the law, empowering the minister of the interior to withhold an oleh's visa from"a person with a criminal past, likely to endanger the public welfare" (Law of Return (Amendment) 1954).
The Law of Return further provided the principal method of acquiring Israeli nationality, for the Nationality Law, 1952, prescribes that (with certain exceptions) every oleh under the Law of Return shall be an Israeli national (section 2 (a)).
The provisions of the law have given rise to a number of legalproblems that have come under review by the Israel Courts, in particular the definition of a Jew for the purposes of the law (see *Jew). Does the definition of the halakhah (Jewish religious law) apply, as in cases of personal status, namely, whoever is born of a Jewish mother or has been duly converted to Judaism; or does the term include any person who bona fide declares himself to be a Jew? In the leading case of Rufeisen v. Minister of the Interior ((1962) 17 PD 2428), the Supreme Court adopted neither of these definitions. It held that, as the Law of Return is a secular enactment, "a Jew" is to be interpreted as Jews in general ordinarily understand it. The court accordingly decided that the law did not apply to a person who, although born a Jew, had subsequently converted to Christianity (see also *Apostasy).
The courts have also been occupied more than once with the question of "criminal past" under section 2(b)(3) of the law as amended in 1954. In the case of Jonavici v. Minister of the Interior ((1958) 33 pe 415), the court held that, where the minister has reached the conclusion, on the basis of proof, that a criminal past exists, the question whether such past is likely to endanger the public welfare is one for the minister's discretion. Further, a person may have a criminal past though convicted only once, depending on the seriousness of the offense. The court has also held, by a majority, that "having a criminal past" is not necessarily synonymous with having previous criminal conviction, though it cannot be proved without some evidence of a criminal act previously committed by the applicant: Gold v. Minister of the Interior ((1962) 17 pd 184(6)). The validity of this majority ruling is, on formal and other grounds, to be regarded as doubtful.
The Supreme Court was much occupied between 1968 and 1970, in Shalit's Case ((1970) 23 pd 477), with the problem of the status of infant children, born in Israel, of a Jewish father and a non-Jewish mother. (For details see *Jewish Identity.) The Supreme Court, unprecedentedly composed of nine of its ten members, held by a majority of five against four that, since the registration of the particulars prescribed to be notified under the Registration of the Population Law is not evidence of the correctness of such particulars but is, rather, of a statistical character, the registration officer is in duty bound to register them as notified and requested by the person required by law to furnish them.
In the wake of the political controversy aroused by the Shalit decision and upon the initiative of religious circles in the country, the government decided to propose amending legislation so as to clarify that, for the purposes of civil registration and of status under the Law of Return, a Jew is a person born of a Jewish mother or converted to Judaism. The provisions of this bill, as presented to the Knesset and still more as finally adopted, ranged, however, beyond this salient provision, in order to meet the demands of secular circles that the non-Jewish partners, children, or grandchildren of Jewish olim should not suffer differential treatment in respect of material rights and privileges accorded to such "olim," including rights under the Nationality Law (Law of Return (amendment no. 2), 5730 – 1970, enacted in March 1970). These provisions do not extend to a person who, being a Jew, has voluntarily adopted another faith. Likewise, the limitations and conditions applying to a Jew or an oleh under the Law of Return or any other relevant enactment apply equally to any person claiming the immigrant rights above referred to. This legislation omits any substantive definition of the concept of conversion to Judaism, and it is accordingly contended that the law does not prescribe a conversion satisfying halakhic requirements.
The Law of Return (Amendment No. 2) 5730 – 1970
Section 4b of the Law of Return (Amendment No. 2) provides that: "For purposes of this law, 'Jew' means 'a person who was born of a Jewish mother or converted to Judaism and who is not a member of another religion.'" The law did not state that the terms "Jew," or "converted," were to be interpreted in accordance with the halakhah, or any other criterion. In using these terms without defining their precise meaning the Knesset circumvented the controversial question of "who is a Jew," and the question continued to be disputed, among the public at large and, specifically, among the justices of the Israeli Supreme Court. According to Justice Elon, despite the failure to stipulate that these terms were to be interpreted "in accordance with the halakhah" the amendment explicitly unified Jewish religion with Jewish nationality, and thereby restored the halakhic litmus test in the defining of Jewishness, in addition to extending the rights under the law to family members as well, even when they themselves did not answer the statutory definition of a Jew. This gives expression to the compromise effected by the Israeli legislator, by expanding the circle of those entitled to benefit from the Law of Return, while limiting the contents of the word "Jew," even for purposes of the Population Registry.
who is an "apostate"? The two new provisions include situations in which Jews change their religion or subscribe to another faith in addition to their Judaism. The question of who is an apostate ["mumar"], and what beliefs transform a person into an apostate, was adjudicated by the Supreme Court in the Beresford case (hc 265/87, Beresford v. the Interior Ministry, pd 43(4) 793). In that case, two Jews were members of the "Messianic Jews," a group of Jews who believed that Jesus was the Messiah. Viewing themselves as full-fledged Jews, they requested to immigrate to Israel under the Law of Return. In light of the aforementioned provisions, the Ministry of the Interior refused to recognize their right to immigrate by force of the Law of Return. The petitioners' central argument was that, so long as they were not formally recognized by anotherofficial religion, they remained Jews. The Court (Justice Menachem Elon) examined their claim in accordance with previous rulings regarding this issue, i.e., that the term "member of another religion" as used in the Law of Return, must be examined according to the criteria of the other religion. In doing so, he rejected the petitioners' claim that the crux of the issue was the faith of the individual in question, and not whether or not they are officially recognized by another religion (hc 563/77 Dorflinger v. the Interior Minister, pd 33(2) 97). The Court based itself on an examination of the basic principles of the Christian faith, as opposed to those of the Jewish faith, an examination of the faith of the "Messianic Jews" sect, as reflected in its publications, as well as on opinions submitted by experts on Christianity and Comparative Religion. The Court focused on the similarity between this group and the sects of Messianic Jews that existed during the earliest days of Christianity, who constituted Christianity's beginnings. Noting that those groups were rejected from Judaism during the second half of the first century ce, the Court ruled that, nowadays, faith in Jesus constituted rejection of Judaism.
Nonetheless, Justice Elon rejected the determination that the phrase "member of another religion" in the Law of Return must be examined according to the criteria of the other religion, ruling rather that it must be examined according to the criteria of Jewish Law. Hence, if a Jew voluntarily changes his religion, he forfeits the legal and social rights associated with communal and familial affiliation, as for example in inheritance law. He likewise forfeits his tribal inheritance in the Land of Israel (Rabbi Natronai Gaon, ninth century c.e., as well as other sources – see Oẓar ha-Ge'onim (ed. Levin), Kiddushin, Responsa Section, p. 30ff.). The apostate's affiliation with the Jewish People is retained only with respect to duties associated with personal status. In addition, Jewish Law states that an apostate should not be labeled a Jew (Resp. Mahari Bruna, 135 [15th century, Ashkenaz]).
The Court relied on the comments of Rabbenu Menahem ha-Meiri, which seem more suited to the wording of the law, excluding from the definition of Jew anyone who is "a member of a different religion" (Bet ha-Behirah, to Avodah Zarah 26b, p.61;idem., Horayot 11a, p. 275; Southern France, 13th century):
Any Jew who left the Jewish religion and joined a different faith shall for all purposes be considered by us as a member of the religion he joined, except as regards divorce and betrothal and all other matters associated with marriage, as shall be explained. All the same, that person's son is a full-fledged non-Jew even regarding divorce and betrothal.
Further on in its judgment, the Court cited sources viewing an apostate as one who has parted from the ways of the Jewish community and has abandoned that community (see *Apostate). It concluded that, certainly, the apostate has none of the "social or legal rights" granted to Jews as Jews, such as those inherent in the meaning and content of the Law of Return. That law grants rights based on one's affiliation with the Jewish People and being part of Jewish society and the Jewish community. It grants no rights to those who have abandoned that community, which is how the apostate was defined. The apostate, having "parted from the ways of the Jewish community," is no longer to be classed as our "brother" (Lev 25:25) (pp 828–829 of the judgment).
In this judgment, Justice Aharon *Barak disputed Justice Elon's argumentation, while arriving at the same operative result – i.e., that the petitioners were members "of another religion" and hence not entitled to rely on the Law of Return. According to Justice Barak, despite its amendment in 1970 (see above ), the criterion for interpreting the Law of Return with regard to determining the applicant's "Jewishness" was neither the criterion of the "other religion" nor that of Jewish law, but rather a secular criterion. This secular criterion was based on a secular-dynamic conception, of which the halakhic components were a component, combined with other subjective elements related to the subjective perceptions of the candidate for aliyah, national conceptions, etc.
who is a "convert"? According to the Religious Communities (Change) Ordinance, 1927, an act of conversion performed in the State of Israel is valid only when a certificate of approval is issued by the chief rabbi of Israel. By dint of this authority granted to the chief rabbi, a special rabbinical court system was established in the State of Israel to deal specifically with conversion, in addition to the regular rabbinical court system (see *Bet Din).
Traditionally, conversions were under the jurisdiction of the rabbinate. Yet the legal authority of the chief rabbi is limited to the approval of conversions, and only those conversions performed in Israel. There is no explicit legal source that grants any body the authority to perform conversions, nor does the chief rabbi possess the authority to certify the validity of conversions performed abroad. In the judgment in the Shas case (hc 264/87, Shas Movement v. the Population Registry, pd 43(2) 727), there was a majority decision (Justice Meir Shamgar) that "Notification accompanied by a document attesting to conversion to any Jewish community abroad shall suffice to require an individual's registration as a Jew. In this regard, it makes no difference whether that community is Orthodox, Conservative or Reform" (p. 731 of the judgment).
This judgment conflicted with the minority opinion (Justice Menachem Elon) that held that the term "converted" should be interpreted in accordance with Jewish law, as determined and accepted by tradition. The term "conversion" has its source in Jewish law and should therefore be interpreted solely according to Jewish law. Justice Elon added that:
The State of Israel is the home of all Jews, in all their denominations, communities, and varieties, whether in Israel or abroad. The State was established for their sakes, and by virtue of them all it exists…. The State of Israel was established in order to open its gates to all its family, whether close or far, who wish to return to it for the purpose of building the State and establishing themselves therein. Every returning Jew would live in Israel according to his beliefs and his way of life. However, the Knesset, after deep and extensive debate, decided – contrary to the majority decision of the Supreme Court – that the definition of "Jew" in the laws of Israel is based on objective-normative criteria which had been accepted and sanctified throughout thousands of years of the existence of this nation and we must accept the will of the Knesset, which is the will of the historic Community of Israel, based on the rules of the halakhic system, from generation to generation and from time immemorial. I should also add that it is absolutely necessary that the act of conversion be uniform and agreed upon by all the groups of Israel, and that in this crucial matter we operate according to a criterion that can be accepted by all segments of the nation. Only a conversion which conforms to the rules of halakhah would achieve this aim, and in my opinion it would not in any way interfere with the right of every person in Israel to live in freedom and follow his own way of life. Justice Elon concluded his remarks by proposing that "We must… find a way in which we can accept these rules by full agreement because it is the wish of the Knesset, and I am also convinced that it is the wish of the nation" (pp. 737–738 of the judgment).
It should be noted that the decision confined itself to the authority invested in the registration officer and accompanying legal questions. Its background was the petition of a number of people who had undergone non-Orthodox conversions, requesting recognition as Jews for purposes of the Population Registration Law, 5725 – 1965. As such, the decision's immediate ramification applied exclusively to the powers of the registration clerk. The Court therefore refrained from issuing a binding judgment regarding the petitioners' Jewishness for other purposes, such as marriage and divorce, emphasizing the non-application of its ruling for purposes of the Law of Return, and certainly not for purpose of marriage and divorce.
Since the Shas decision, a number of other decisions have been given by the Israeli Supreme Court, further curtailing the exclusivity of Orthodox conversion as the official, recognized conversion for purposes of defining a person's Jewishness in the State of Israel.
Regarding the authority of the rabbinical court to certify the validity of conversions performed outside Israel, in the Plonit case (hc 3023/90 Plonit v. the Rehovot District Rabbinical Court, 45 (3) pd 808), the Court ruled that rabbinical courts do not have jurisdiction regarding conversions performed abroad, except with respect to matters arising by virtue of their incidental authority to determine individual's Jewishness in cases of marriage and divorce. The Pessaro case (hcPessaro (Goldstein) v. Minister of the Interior, 49 (4) pd 661) established that, for purposes of a persons' registration as Jewish, the Religious Communities (Change) Ordinance is similarly inapplicable to conversions conducted inside the State of Israel. In the Na'amat case (hc 5070/95 Na'amat v. Minister of the Interior, 56 (2) pd 721) this holding was expanded, imposing a duty on the registration clerk to register as Jewish a person converted in a non-Orthodox ceremony even where the non-Orthodox conversion was performed in Israel. This judgment held that the power to issue a certificate of conversion – for registration purposes – no longer belonged exclusively to the chief rabbi.
Recently, the Supreme Court ruled that non-Orthodox conversions performed abroad, after converts had undergone the Israeli conversion course, and then returned to Israel immediately following the conversion, were valid, and that in addition to the duty to register the converts as Jews, they should also be considered Jewish for purposes of the Law of Return. The Court ruled that such conversions should not be viewed as a fiction, and that there was no substantive flaw in the fact that the convert did not remain in the community that had converted him. It should be noted that the minority opinion held that recognition of such a conversion was likely to open a Pandora's Box to anyone who wanted to receive Israeli citizenship easily, something that was likely to lead to inappropriate and uncontrollable consequences (hc 2597/99, Rodriguez-Toshbeim v. Minister of the Interior, 58 (5) pd 412).
The multiplicity of fundamental legal judgments and the plethora of disputes between Supreme Court justices attest to the fact that the law itself is flawed – even after its amendment – to the extent that it does not define precisely what constitutes apostasy, who is "a member of a different faith" and, especially, in that it does not define conversion. In 1997 an attempt was made to arrive at a consensual solution of this issue, acceptable to representatives of all the various streams by way of establishing a special committee, known as the Neeman Committee (after its chairman, Yaakov Neeman), which was established to examine the issue in its entirety, and it also comprised representatives from the Conservative and Reform streams. The committee recommended the establishment of institutes for Jewish studies which would be common to all the streams and which would be responsible for preparing candidates for conversion. The conversion itself, according to these recommendations, would be carried out exclusively by special religious courts established for that purpose by the Chief Rabbinate, and only conversion under its auspices would be recognized in the State of Israel. The recommendations of this commission were endorsed in principle by the Israeli government, and conversion institutions were even established. However, the draft bill intended to statutorily anchor these recommendations did not pass, and the subject has remained without a solution.
[Menachem Elon (2nd ed.)]
S. Rosenne, in: Journal du Droit international, 81 (Eng., 1954), 5–63. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 3:1383, 1418; idem, Jewish Law (1994), 3:1647–51, 1688–90; M. Corinaldi, Dinei Ishim Mishpahah vi-Yerushah – Bein Dat la-Medinah (2004), 264–70; idem, The Enigma of Jewish Identity; The Law of Return – Theory and Practice (Heb.; 2001); H. Cohen, Ha-Mishpat (1997), 490–511; Who Is a Jew, (Compilation, the Ministry of Religion, 1959); Jewish Law Association Studies, vol. 11 (ed. Sinclair, 2000).
Law of Return
LAW OF RETURN
law that allows jews to immigrate to israel and become israeli citizens.
The Law of Return (Hok ha-Shvut) was passed by the Knesset on 5 July 1950. In accordance with the notion that Israel is a Jewish state and the state of the Jews, the law provides that any Jew is entitled to immigrate to Israel and acquire a certificate and status of oleh, an immigrant with automatic citizenship. The law was amended in 1954 to exclude individuals with a criminal past that might endanger public welfare. An amendment in 1970 extended citizenship rights to non-Jewish spouses and children of Jews.
Some Orthodox leaders have called for an amendment to the law that would narrowly define a Jew as one born of a Jewish mother or one who converted according to Orthodox tradition. To many, this proposed amendment makes the debate over Jewish identity so volatile that it threatens the fabric of worldwide Jewish unity. It has sparked passionate debate both in Israel and the Diaspora over definitions of Jewish identity, and has aroused strong opposition from the Jewish Reform and Conservative movements. There have been periodic calls for repeal of the law by some non-Zionists and others who view it as discriminatory. From their perspective, Israel should be a state like any other modern state, without laws that discriminate on the basis of religion or ethnicity.
see also israel: overview.
Ben-Rafael, Eliezer. Jewish Identities: Fifty Intellectuals Answer Ben-Gurion. Leiden, Netherlands: Brill, 2002.
Schochet, Jacob Immanuel. Who Is a Jew?: 30 Questions and Answers About this Controversial and Divisive Issue. New York: Shofar Association of America, 1987.
Shachar, Ayelet. "Citizenship and Membership in the Israeli Polity." In From Migrants to Citizens: Membership in a Changing World, edited by T. Alexander Aleinikoff and Douglas Klusmeyer. Washington, DC: Brookings Institution Press, 2000.
chaim i. waxman