Mishpat Ivri
MISHPAT IVRI
This article is arranged according to the following outline:
definition and terminology"religious" halakhah and "legal" halakhah
Common Features
Distinguishing between "Religious" and "Legal" Halakhah – Ritual and Civil Law
law and morals
de-oraita and de-rabbanan
Distinguishing Between the Two Categories
Legal Consequences of the Classification
the basic norm and the sources of jewish law
Three Meanings of the Expression "Source of Law"
The Literary Sources of Jewish Law
various classes of informative sources of law
from the written law until the period of the tannaim
from the tannaitic period until the redaction of the talmud
the post-talmudic period
The Historical Sources of Jewish Law
The Legal Sources of Jewish Law
The Basic Norm of Jewish Law
the different periods of jewish law
jewish law – a law of life and practice
Introduction
The Religious and National Character of Jewish Law
The Jewish Judicial System – the Scope of Its Jurisdiction
The Available Sanctions of the Jewish Judicial System
The Prohibition on Litigation in the Gentile Courts
Arbitration and the Jurisdiction of Lay Jewish Tribunals
The Judicial-Political Position and Social-Fiscal Relations
the evolution of jewish law
the evolution of jewish law reflected in its literary sources
the different branches of jewish law
Illustrations of Development and Change in the Different Branches of Jewish Law
laws of obligation
administrative law
conflict of laws
criminal law
Classification of the Different Branches of Jewish Law
the sources of law
general
the laws of property
the laws of obligation
the laws of tort
family law and inheritance
criminal law
the laws of procedure and evidence
mercantile law
public and administrative law
conflict of laws
public jewish leadership in the development of jewish law
Introduction
The King's Law
Local Jewish Government
the relationship between jewish law and foreign law
Introduction
Reciprocal Influences
Recognition of Foreign Legal Rules
the era of emancipation
Inner Spiritual and External Political Changes
The Abrogation of Jewish Judicial Autonomy
Continuance of Judicial Autonomy in the Eastern Jewish Centers
Consequences of the Abrogation of Judicial Autonomy
the period of jewish national awakening
Ha-Mishpat ha-Ivri Society and Mishpat ha-Shalom ha-Ivri
Jewish Law in the Rabbinical Courts
matters of procedure and personal status
other fields of the law
Jewish Law and the Hebrew Language
The Legal System in Ereẓ Israel Preceding the Establishment of the State of Israel
jewish law in the state of israel
The Official Position Assigned to Jewish Law
matters of personal status
the rabbinical courts
the general courts
legislative provisions contrary to jewish law
"who is a jew?" – answered according to jewish law
legislation conforming with ritual law
The "Unofficial" Application of Jewish Law in the State
independence of the israel legal system
legislation based on jewish law principles
legislation contrary to jewish law
jewish law in the case law of the general courts
jewish law in the case law of the rabbinical courts
Attitudes toward Jewish Law in the Law of the State
Modes of Integration
Legal Creativity
Development in the Status of Jewish Law in the Israeli Legal System
the foundations of law act, 5740 – 1980
basic laws: human dignity and freedom; freedom of occupation
legislation consistent with jewish law
jewish law in the case law of general courts
influence of israeli law on jewish law
the rabbinical courts
definition and terminology
The term mishpat Ivri (מִשְׁפַּט עִבְרִי) is now generally accepted as embracing only those matters of the *halakhah (Jewish law) whose equivalent is customarily dealt with in other present-day legal systems, that is, matters pertaining to relations between man and man and not the precepts governing the relationship between man and his Maker. This definition diverges from the original meaning of the Hebrew term mishpat or mishpatim. Used in the sense of a system of laws – like the English term "law," or the German term "Recht" – the term refers not only to matters between man and man (in the sense of jus, ius humanum) but also to the precepts between man and his Maker (in the sense of fas, ius divinum). Thus for instance in Exodus 21:1 the words ve-elleh ha-mishpatim are stated by way of introduction to chapters 21, 22, and 23, which deal not only with matters of civil and criminal law but also with the laws of the sabbatical year, the Sabbath, first fruits, and so on.
Another Hebrew term for law is the word dinim (sing. din), used to designate matters included in the fourth mishnaic order, Nezikin (see Deut. 17:8; Ḥag. 1:8; Naḥmanides, Gen. 34:13). The term comprises two main classes of laws, namely dinei mamonot and dinei nefashot. The concept of dinei mamonot corresponds to but is not identical with "civil law," since it is wider than the latter in some respects (see Sanh. 2:2 and see below) and narrower in others, excluding, for instance, that part of family law dealing with what is ritually permitted and prohibited, the laws of usury, and so on. (Subject to this qualification, the term civil law will be used below and in the other articles on Jewish law as the equivalent of dinei mamonot.) The concept dinei nefashot takes in that part of the criminal law dealing with matters that call for capital and certain other forms of corporal punishment. (The term dinei kenasot relates to matters which are part of dinei mamonot; see *Obligations, Law of.) However, even the term dinim does not exclude matters concerning the precepts between man and God, as is evident from the concept of dinei issur ve-hetter – ritual prohibitions and permissions.
The reason for the absence in Hebrew sources of an accepted term describing legal norms pertaining exclusively to relations between man and man – for instance in the sense of "English law" or "Swiss law" – lies in the basic fact that both the laws applicable between man and man and the precepts concerning man and God have a single and common source, namely the *Written and the *Oral Law. This fact further asserts itself in the phenomenon that all parts of the entire halakhic system share and are subject to common modes of creation, thought, and expression, as well as principles and rules (see below). This, however, constitutes no hindrance to the acceptance of the term mishpat Ivri in the sense here described. The term first came to be used in this sense around the beginning of the 20th century, when the Jewish national awakening – which to some extent stimulated also the desire for a return to Jewish law – prompted a search for a Hebrew term to designate that part of the halakhah whose subject matter paralleled that which normally comprises other legal systems. What was sought was a suitable term that would circumscribe the bounds of the legal research and preparatory work to be undertaken. Thus there was accepted the term mishpat "Ivri," in the same way as safah "Ivrit" and later also medinah "Ivrit." Today the term mishpat Ivri, as defined above, is generally accepted in all fields of practical legal life and research in the sense here described. In the Knesset legislation use is made of the term din Torah (authorized English translation, "Jewish religious law": see, e.g., sec. 2, "Rabbinical Courts Jurisdiction (Marriage and Divorce) Law," 1953); this Hebrew term is inaccurate as far as the distinction between de-oraita and de-rabbanan (see Mishpat Ivri: De-Oraita and De-Rabbanan) is concerned.
"religious" halakhah and "legal" halakhah
Common Features
The "religious" and the "legal" norms of the halakhah share certain common features, a fact that finds expression in a number of ways (and accounts for our use of inverted commas since the halakhah does not recognize the concept of special "religious" law, which is used here in its modern sense). In the talmudic discussions the same theoretical argumentation, terminology, and modes of interpretation that are applied to a matter of civil law are applied also to matters concerning, for instance, the Sabbath, the sacrificial cult, and ritual purity and impurity. Many legal principles are common to both parts of the halakhah. Thus for instance the laws of *agency apply in the same way to matters of *hekdesh, *terumah, and the slaughter of the paschal sacrifice, as they do to matters of marriage, divorce, recovery of debt, and so on. Moreover, the essential legal principle underlying the principal-agent relationship – that "a person's agent is as himself " – was derived by the scholars from the scriptural passages dealing with matters of the paschal sacrifice and terumah (Kid. 41b, etc.), and it is in relation to the laws of prayer that the solitary mishnaic reference to the above principle is made (Ber. 5:5). "Religious" directives are often found to be based on "legal" directives. This is illustrated in the discussions on the question of whether a person who has acquired the right to no more than the fruits of his neighbor's field, may, when bringing the first fruit, read the Bikkurim portion which includes the passage, "And now, behold, I have brought the first fruit of the land, which Thou, O Lord, hast given me" (Deut. 26:10), since this involves a declaration that the land is his. The answer is made dependent on the elucidation of a question of legal principle, whether acquisition of the fruits (kinyan perot) is as acquisition of the body (kinyan ha-guf; Git. 47b) – an elucidation which has important consequences in all fields of Jewish law.
To their common origin must also be attributed a mutual interaction between the two parts of the halakhah, with directions pertaining to the "religious" field supplementing lacunae in the "legal" field. This is illustrated in the law concerning the father's duty to maintain his children. In the takkanah of Usha, as finally accepted, it was laid down that the duty extended to children until the age of six years. In practice it sometimes happened that a father failed to maintain his minor children above the age of six and in such an event the court compelled the father to do so by applying two rules pertaining to the laws of charity: first, that a person who has sufficient for his own needs may be compelled to give charity if there is a poor man in need; secondly, that as regards the giving of charity, "the poor of a person's own household take precedence over the poor of his town, and the poor of his town over those of another town," and of all the poor the father's children are the nearest to him (Ket. 49b; Sh. Ar., yd 251:3; eh 71:1). Another illustration is found in the post-talmudic development regarding the establishment of an obligation by way of the promisor's vow or oath or undertaking on pain of ban to give or do according to his promise – whose fulfillment is imposed on him as a religious duty. This method was employed especially in the case of obligations which were incapable of being established in terms of the "legal" rules of the halakhah, such as an obligation relating to something not yet in existence (Rema, Ḥm 209:4), or one tainted with the defect of *asmakhta (Sh. Ar., Ḥm 207:19) and so on (see *Obligation, Law of).
Distinguishing between "Religious" and "Legal" Halakhah – Ritual and Civil Law
A study of the halakhic sources reveals that the halakhah, notwithstanding its overall unity, distinguishes materially between the two main fields of its subject matter, between "matters of mamon" or "mamona" and "matters not of mamon" or "issura" (lit. "prohibitions," i.e., ritual law). Although the concepts of issura and mamona are not coextensive with the modern concepts of "religious" and "legal" law (see above), the material distinction made between them exerted a decisive influence on the evolutionary path taken by that large part of the halakhah embraced in the term mishpat Ivri. The first manifestations of the distinction date back to the time of Bet Shammai and Bet Hillel (Yev. 15a–b; Eduy. 1:12 – "If you have permitted in a matter relating to the stringent prohibition of incest, shall you not permit in civil matters (mamon) which are less stringent?") and in the course of time it became entrenched in many fields of the halakhah, as illustrated in the following examples: As regards the freedom of stipulation, the principle was laid down that "when a person contracts out of the law contained in the Torah, a stipulation which relates to a matter of mamon is valid but one that relates to a matter not of mamon is invalid" (Tosef., Kid. 3:7–8). The explanation is that the legal order prescribed by the Torah in civil matters was not enjoined in the form of a binding obligation (i.e., jus cogens), but as conditional on the will of the parties (i.e., jus dispositivum; Naḥmanides, Nov. bb 126b) except in cases of a stipulation inimical to personal freedom or the public weal (for details see *Contract). In case of an illegal contract the rule is that a contract whose fulfillment involves the transgression of law shall not be enforced, but transgression of a "religious" prohibition does not deprive the contract of legal validity and it will be enforced by the court; hence, "if a person sells or gives on the Sabbath, and certainly on festivals, even though he should be flogged, his act is effective" and an obligation undertaken on the Sabbath is similarly valid, "and a kinyan performed on the Sabbath (i.e., kinyan sudar, see *Acquisition) is valid, and the writing and handing over take place after the Sabbath" (Yad, Mekhirah 30:7).
The distinction between issura and mamona also has an important bearing on the question of legislative authority in Jewish law. While such authority was to some extent limited in matters of issura, it remained fully effective in matters of mamona (see *Takkanot). So far as the legislative authority conferred on the public and its leaders was concerned, this never extended beyond matters pertaining to the civil law and criminal-police offenses (see *Takkanot ha-Kahal). The distinction is also an important factor in the binding force of custom, particularly as regards the basic principle that "custom overrides the law," which is applicable in matters of the civil law exclusively (see *Minhag). Similarly, different rules and principles of decision were laid down for civil and for ritual matters. A basic principle is that matters of ritual law are not to be learned from matters of civil law and vice versa, for the reason that on the one hand ritual matters are by their very nature of greater stringency than matters of the civil law, while on the other hand the rule that "the burden of proof rests on the person seeking to recover from his fellow" applies to civil but not to ritual law. Flowing therefrom are a number of rules applicable to matters of the ritual law only (for instance, that in certain circumstances "the majority is not followed in civil law matters"; bk 46b). It was likewise accepted by all scholars that the rule of *dina de-malkhuta dina has no application to matters of ritual law (Tashbeẓ, 1:158, and see below), since all the reasons given for the adoption of the doctrine are relevant only to matters of the civil law. Thus the halakhah represents a unitary system of law with both its "religious" precepts and "legal" directions sharing a common origin and theoretical propagation as well as mutual principles and rules, the one part supplementing the other. At the same time the halakhah, as crystallized during its different periods, evolved a clear distinction between matters of issura and those of mamona, the latter being the counterpart of a substantial part of the subject matter of modern legal systems. This material distinction lent the legal part of the halakhah, which was the more sensitive and subject to the influence of changing social and economic realities, a wide flexibility and capacity for development.
law and morals
Jewish law, like other legal systems, distinguishes between legal norms enforced by sanction of the courts and moral and ethical norms lacking such sanction. However, Jewish law also recognizes the existence of a special reciprocal tie between law and morality, a tie that stems from the common origin of both concepts in Judaic sources. The Pentateuchal commands, "Thou shalt not kill" and "Thou shalt not steal" (Ex. 20:13), are enjoined with the same finality as "Thou shalt love thy neighbor as thyself: I am the Lord" (Lev. 19:18), and the common origin of the concepts of law and morality remained a guideline for Judaism in all periods and generations (see, e.g., Bertinoro, Avot 1:1). The stated tie finds expression in the fact that from time to time Jewish law, functioning as a legal system, itself impels recourse to a moral imperative for which there is no court sanction, and in so doing sometimes prepares the way to conversion of the moral imperative into a fully sanctioned norm. An illustration is to be found in the law of tort, where there are cases in which the tortfeasor is legally exempt from the payment of compensation – whether for lack of necessary causality between his act and the resultant damage, or because he acted with license, or for other reasons – yet with reference to many of these cases the rule was laid down that the person occasioning damage to another "is exempt according to the laws of man but liable according to the law of Heaven" (bk 6:4; bk 55b; and codes), or "he is exempt according to the law of man but his judgment is entrusted to Heaven" (Tosef., bk 6:6–17). Liability according to the law of Heaven means, according to some scholars, that although the court should not compel compliance by regular sanction it "should bring pressure to bear on him, verbally, without compulsion" (Yam shel Shelomo, bk 6:6); others held that the court should exercise no constraint – not even verbal – but should inform the individual: "We do not compel you, but you shall have to fulfill your duty to Heaven" (ibid.). Hence even the adjuration that the duty to Heaven must be fulfilled is addressed to the individual concerned by the court.
An instance of the conversion of a moral imperative into a legally sanctioned norm is to be found in the direction to act li-fenim mi-shurat ha-din (i.e., leniently, beyond the requirements of the law). In the Talmud this direction does not generally carry the import of a norm fortified by some form of sanction, and means only that it is fitting for the person who has a concern for his manner of conduct not to base his deeds on the strict letter of the law but to act leniently beyond the requirements of the law (as in the matter of restoring lost property or that of paying compensation for damage resulting from an erroneous opinion: bm 24b and 30b; bk 99b). As regards the talmudic matter concerning the exemption of workers from liability for damage caused by them – even though they are unable to prove the absence of negligence on their part – the posekim were divided on whether or not this involved an enforceable duty to act beyond the requirements of the law (Mordekhai and others; see Baḥ, Ḥm 12:4). In the post-talmudic era the direction to act li-fenim mi-shurat ha-din became, according to the majority of scholars, a full fledged legal norm enforced in certain instances by the court (for instance in the case of a wealthy litigant; Baḥ, loc. cit. and Rema, Ḥm 12:2). See also *Law and Morality.
de-oraita and de-rabbanan
Jewish law, in fact the entire halakhah, distinguishes between two categories of law, expressed in the two Aramaic terms deoraita ("of the Torah") and de-rabbanan ("of the scholars"). The second category is sometimes also termed mi-divrei soferim (a term which has an additional meaning, see Sanh. 88b, but is normally used as the equivalent of de-rabbanan) or takkanat ḥakhamim.
Distinguishing Between the Two Categories
Classification of the halakhic rules into these two categories is beset with many difficulties and has been the subject of much scholarly discussion and research (see Z.H. Ḥayyut (Chajes), Torat ha-Nevi'im, s.v. "Torah she be-al peh"; Ḥ. Al-beck, Mavo ha-Mishnah (1959), 49–53). Certainly the rules expressly stated in the Pentateuch are de-oraita, while those clearly originating from the enactments or decrees of the scholars are de-rabbanan. More difficult is classification of the rules deriving from one of the different modes of Pentateuchal Midrash (exegesis, see *Interpretation). Maimonides held that any such rule was not to be considered de-oraita unless the interpretation accorded with a tradition from Moses at Sinai and the Talmud specifically lays down that the rule is de-oraita (Sefer ha-Mitzvot, rule no. 2). Nahmanides held that such rules were de-oraita except when the Talmud specifically determines that the midrashic derivation of a particular rule amounts to no more than asmakhta, in which event the rule is de-rabbanan (Hassagot ha-Ramban le-Sefer ha-Mitzvot, ad loc.). Naḥmanides' opinion was accepted by a majority of the scholars (many of whom interpret Maimonides' view in a manner which tends to reconcile it with that of Naḥmanides). This, however, still does not constitute an adequate distinction, since there are halakhot which are regarded as de-oraita even though they are linked to particular scriptural passages by way of asmakhta alone, and there are also many halakhot which are regarded as de-oraita even though they do not originate from the legal source of Midrash (but from some other legal source, such as *sevarah). Nor does classification of the halakhah into de-oraita and de-rabbanan necessarily have a bearing on the antiquity of a particular law, since it is possible that a law classified as de-rabbanan had its origin in a particularly ancient takkanah, whereas a later law may be classified as de-oraita because of its derivation from the interpretation of Pentateuchal passages. There are many institutions whose classification into one or other of the two stated categories occasioned doubt to the scholars of different periods, for instance, in the following matters: *ketubbah (Ket. 10a; 110b); the husband's right to inherit his wife's property (Ket. 83a; Bek. 52b; and see *Succession); the husband's duty to maintain his wife (Ket. 47b; and see *Maintenance); kinyan meshikhah (bm 47b); and modes of acquisition deriving from trade custom (Kesef ha-Kedoshim, Sh. Ar., Ḥm, 201:1) and other matters. There is accordingly no absolute and exhaustive classification of the halakhah into de-oraita and de-rabbanan and the only method of determining the class to which a particular law belongs is an examination of the Talmudic and post-talmudic literature to determine the manner in which such law was classified by the sages of the Talmud and scholars who decided and codified the halakhah.
Legal Consequences of the Classification
A basic divergence between the two categories of law occurs when there is doubt or dispute as to the applicability or scope of a particular rule in certain circumstances: in a de-oraita matter a stringent approach is required, whereas a lenient approach is indicated in a de-rabbanan matter (Beẓah 3b; Av. Zar. 7a). In some cases the scholars laid down alleviations of the law as regards a de-rabbanan legal obligation, even in the absence of any doubt as to the existence of such an obligation (for instance as regards recovery of the ketubbah money; Tosef., Ket. 13 (12):3 and Ket. 110b; see also *Conflict of Laws) when special circumstances justified such leniency (Ket. 86a; Rashbam, bb 132b). In general, however, the scholars "imparted to their enactments the force of rules of the Torah" (see Git. 64b–65a; Ket. 84a). When the scholars saw the need for introducing a basic legal institution into daily life, they sometimes even enforced a rule of the rabbinical law more restrictively than a rule of the Torah. For this reason it was laid down that the parties may not stipulate for the payment of a lesser *ketubbah amount than that determined by the scholars, notwithstanding the rule of freedom of stipulation in civil matters, even those pertaining to the de-oraita law (Ket. 56a). The rule that a legal obligation classified as part of the rabbinical law has the same legal efficacy as a de-oraita obligation is of special importance in view of the fact that so many of the rules in all the different branches of Jewish law belong to the de-rabbanan category (particularly those concerning the modes of acquisition, and the laws of obligation and tort). Any diminished regard for the standing and validity of a rule of the rabbinical law would have entailed the possibility of a far-reaching effect on the manner of execution and enforcement of such rules (see detailed discussion in Radbaz, 1,503).
the basic norm and the sources of jewish law
Three Meanings of the Expression "Source of Law"
Every legal system gives occasion for inquiry into the sources of its law (fontes juris, Die Quellen des Rechts). The expression "source of law" has three principal meanings, which may be distinguished as literary, historical, and legal sources of law.
The literary sources of law (in German, Die Erkenntnisquellen des Rechts) are those sources which serve as the recognized and authentic literary repository of the various rules and directions of a particular legal system for purpose of ascertaining their content.
The historical sources are those sources which constitute the historical-factual origin of particular legal norms. Legal research is largely concerned with an investigation of the historical sources of the directions comprising a particular legal system, of the various influences of one legal system on another, and other similar questions. The historical sources of law, in the wide sense of the expression, may also include any economic, social, moral, or other factor that led to the creation of a particular legal norm and there are many instances of laws which were enacted in answer to particular economic or social needs.
The legal sources (in German Die Entstehungsquellen des Rechts) are the sources of law and means of creating law recognized by a legal system itself as conferring binding force on the norms of that system (see J.W. Salmond, Jurisprudence (1966), 109ff.).
The distinction between a legal and a historical source of law is of a material nature. The quest for the legal source of a particular norm is aimed at ascertaining the source from which the latter derives the force of law, that is, the principle within the relevant legal system which serves to confer binding validity on such a norm. Thus it is possible to ascertain that a norm has its legal source in statute or precedent and so on, without any need to be concerned with the factual background or historical origin of such a norm. Salmond states: "This is an important distinction which calls for careful consideration. In respect of its origin a rule of law is often of long descent. The immediate source of a rule of English law may be the decision of an English court of justice. But that court may have drawn the matter of its decision from the writings of some lawyer, let us say the celebrated Frenchman, Pothier; and Pothier in his turn may have taken it from the compilations of the emperor Justinian, who may have obtained it from the praetorian edict. In such a case all these things – the decision, the works of Pothier, the Corpus Juris Civilis, and the Edictum Perpetuum – are the successive material sources of the rule of English law. But there is a difference between them for the precedent is the legal source of the rule, and the others are merely its historical sources. The precedent is its source, not merely in fact, but in law also. The others are its sources in fact, but obtain no legal recognition as such" (op. cit., p. 109).
The historical sources of law play only an indirect role in the evolution of a legal system, as factors which either offer a possible course to follow by way of imitation (as in the absorption of a principle from a different legal system) or create a need for the further development of such a legal system (as in the case of particular economic or social conditions). On the other hand, the legal sources play a direct role in the evolution of a legal system, serving as the sole means to add to, subtract from, or vary in any other way the existing norms of that system. This division of the sources of law into three classes is valid also for the Jewish legal system.
The Literary Sources of Jewish Law
various classes of informative sources of law
The literary sources of a legal system constitute, as already mentioned, authentic sources for the ascertainment of its legal norms. Thus, for instance, the laws of a country may be ascertained from its official Statute Books. Similarly, knowledge of the law may also be gathered from what is called "the literature of the law." This includes the literature in which the law is discussed or interpreted, although that literature itself is not recognized as an authoritative and authentic source from which binding legal norms may be ascertained (e.g., legal textbooks and articles: see Salmond, op. cit. 112, n. C). From a certain standpoint even general literature may contribute greatly toward a better knowledge of a legal system. Thus, if an author gives a historical-economic description of a particular period and mentions bankruptcies and the imprisonment of debtors, it may be possible to learn from this that it was customary at that time to imprison a debtor for the nonpayment of his debt; this may be deduced from the contents of a book even though the author dealt only incidentally with the legal aspects of that subject. In this regard, both the literature of the law and general literature must be approached with caution and the degree of the author's accuracy and objectivity carefully examined in each case. These informative sources avail also in Jewish law. While its authoritative literary sources are the most important informative class, both literature of the law and general literature serve the important function of filling in the social and economic background to many legal norms. They are of added importance – subject to the above cautionary remarks – in relation to those periods when there were few authoritative literary sources, as was the position in Jewish law until the literary redactions undertaken in the tannaitic period. The different literary sources of the halakhah are briefly reviewed below in a general manner. (These are separately discussed elsewhere in greater detail; see, e.g., *Mishnah; *Talmud.)
from the written law until the period of the tannaim
The Bible is not only the source of authority of the whole of the Jewish legal system (see below), it is also its first and foremost authoritative literary source. It contains legal directions which date from patriarchal times onward and are dispersed in specific books and chapters of the Pentateuch (Gen. 23:3–20; 31:41–43; Ex. 20–23; Lev. 5; 18–21; 24–25; 27; Num. 27:35–36; Deut. 1; 4–5; 15–17; 19–25). The next authoritative literary source is represented by the Books of the Prophets and the Hagiographa. From these information may be gained on the laws concerning the modes of acquisition (Ruth 4; Jer. 32 and see tj, Kid. 1:5; 60c), the monarchy (i Sam. 8; i Kings 21), suretyship (Prov. 6:1–5; 11–15, et al.), the laws confining criminal responsibility to the transgressor (ii Kings 14:6), and so on. It may be noted that the Prophets and Hagiographa contain scant material of a legal nature. The attention of the prophets and chroniclers was mainly directed to the numerous internal and external wars of their times, to moral, social, and religious problems. Therefore the silence of these sources on different matters of the law cannot be interpreted as pointing to the absence of a legal order on such matters.
Much of the accumulated knowledge of Jewish law in the above period and for some time after can be found in the informative sources termed literature of the law and general literature. These include the *papyri (such as the Elephantine papyri of the fifth century b.c.e.), the *Septuagint (end of the third century b.c.e.), the writings of *Philo (first half of the first century), the writings of Josephus (the period of the Temple destruction), the *Apocrypha (from the fourth century b.c.e. until the year 200), and other works. This literature contains some halakhot which are identical to those quoted in talmudic literature and others which are sometimes contrary to it. This may indicate a possible development in certain norms of Jewish law or it may also be that this literature preserved halakhot that appeared in talmudic sources which are no longer extant. Great care is needed in deducing conclusions from this literature: sometimes it represents the viewpoint of small sects or even a single individual; sometimes it may show the influence of a surrounding legal system (as in the case of the Elephantine papyri); sometimes the particular author gathered a rule of Jewish law from a translation and not in its original form (as did Philo in making use of Greek translations); and sometimes the description of certain matters reveals a blatant tendentiousness (see, for instance, Jos., Ant., 4:279 (ed. Schalit) note 174; ed. Shor, note 3).
from the tannaitic period until the redaction of the talmud
This period, spanning the lives of the tannaim and amoraim, gave rise to literary creations which constitute the classical sources of Jewish law and the starting point, until this day, for the study or discussion of any matter in it. Extant from tannaitic times are the following: compilations of halakhic Midrashim (see *Midreshei Halakhah and *Interpretation); the Mishnah – compiled by Judah ha-Nasi and constituting the post-Mosaic "Corpus Juris" of Jewish law – and the *Tosefta (see *Codification of Law); other authoritative tannaitic literary sources are the *Beraitot included in the two Talmuds, and *Megillat Ta'anit which includes, besides descriptions of political and military events, halakhic and legal material. Authoritative amoraic literary sources are the Jerusalem Talmud and the Babylonian Talmud, which include commentaries and expositions on the Mishnah, memrot (new halakhot of the amoraim), ma'asim (i.e., cases, see *Ma'aseh), questions and answers, takkanot, and gezerot as well as rules of decision (see *Codification of Law).
the post-talmudic period
The following are the three main branches of the post-talmudic literary sources of Jewish law commencing from the geonic period:
(1) The Perushim and Ḥiddushim – commentaries and novellae – to the Mishnah and Talmud (as well as the other talmudic literary sources). The commentary literature represents the efforts of the scholars to elucidate the earlier literary sources with a view to facilitating the study and understanding of them; the classic commentary is that of *Rashi on the Babylonian Talmud (11th century). The novellae literature is a product of the study and comparison by the scholars of different sources and their reconciliation of contradictory statements within the talmudic literature, in the course of which new interpretations and halakhot were derived; the classic novellae are those of the *tosafists to the Babylonian Talmud (12th and 13th centuries). Of these two literary branches the commentaries represent the earlier development, which reached its peak in the 11th century (i.e., as regards commentaries on the TB; the commentaries on the tj date from the 16th century onward), only then to be followed by the novellae, which have continued to be written until the present day.
(2) She'elot u-Teshuvot – the responsa prudentium of Jewish law. The responsa literature represents the decisions and conclusions written down by halakhic scholars in answer to written questions submitted to them. For the major part of the post-talmudic period these questions came either from dayyanim who sat in judgment over the litigants in their own community and found it necessary to turn to the outstanding halakhic scholars in the area for the solution to difficult problems, or they arose from disputes between the individual and the community, or between different communities, which came directly before the competent scholars of the particular area. The responsa represent legal decisions on concrete questions arising in daily life and served as the main vehicle for the creativity and evolution of Jewish law in post-talmudic times. This body of literature is the case law of the Jewish legal system, estimated to include a total of approximately 300,000 judgments and decisions (see also *Ma'aseh; *Responsa).
(3) The Codes (see in detail under *Codification of Law).
Besides these three main sources two other classes of literary sources belonging to this period may be mentioned: first, the collections of bonds and deeds (see *Shetarot), i.e., forms of written documents in use at various times during this period and serving to order the legal relations between parties in different fields of the law – such as deeds of sale, indebtedness, lease, marriage, and ketubbah; secondly, the collections of takkanot, particularly the takkanot enacted by the community and its leadership, namely takkanot ha-kahal. In addition, there is the auxiliary literature of Jewish law consisting of various works of aid and reference, which may conveniently be classified into five categories: (1) works of introduction to the Talmud or to the halakhah in general (such as the Iggeret R. *Sherira Ga'on; the Sefer ha-Keritot of *Samson b. Isaac of Chinon; et al.); (2) encyclopedias of the halakhah (such as Paḥad Yiẓhak by Isaac *Lampronti and, more recently, the Enẓiklopedyah Talmudit, etc.); (3) biographies of the halakhic scholars (such as the Sefer ha-Kabbalah of Abraham ibn Daud; first part of Shem ha-Gedolim of Ḥ.J.D. Azulai); (4) bibliographies of halakhic works (such as the Oḥar ha-Sefarim by Benjacob, the second part of Shem ha-Gedolim by Ḥ.J.D. Azulai); and (5) lexicons and dictionaries (such as He-Arukh by Nathan b. Jehiel of Rome; the Arukh Completum by A. Kohut; Levi's Wörterbuch; and Jastrow's Aramaic Dictionary of the Talmud). The main literary source in the post-talmudic period, however, remained the Talmud while around it and in continuation thereof there grew up a vast and profound literature in the form of all the aforementioned branches, sources, and auxiliary works.
The Historical Sources of Jewish Law
It is possible to point to the historical background of many norms of Jewish law – to the economic, social, and moral conditions leading to their creation (particularly in the case of the norms originating from takkanot), or to the influence of a different legal system (see below) and similar historical influences. General research on such historical sources is to be found in various works dealing with the history of the halakhah and some special research has been done on this subject (latterly, for instance, Y. Baer, Yisrael ba-Ammim; idem, in: Zion, 17 (1951/52), 1–55; 27 (1961/62), 117–55). Ascertaining the precise historical sources of a particular legal norm is often a formidable task which offers no assurance that the correct answer will be found. Some proffered answers lie in the realm of mere conjecture and are unacceptable without adequate further investigation and proof (see for instance the strictures of G. Alon in his Meḥkarim, 2 (1958), 181–247).
The Legal Sources of Jewish Law
There are six legal sources of Jewish law (as regards the Written Law see below): (1) kabbalah ("tradition"), based on "tradition transmitted from person to person" back to Moses from God (Avot 1:1; arnibid.; Yad, Mamrim 1:2; Maim., Introd. to Comm. Mishnah); it is materially different from the other legal sources of Jewish law, since it is not subject to change or development but is, by its very nature, static and immutable, whereas the other legal sources are dynamic by nature and mainly serve as the means toward the continued creativity and evolution of Jewish law; (2) Midrash ("exegesis" and "interpretation"), embracing the norms derived from interpretation of the Written Law and of the halakhah in all periods, and to a certain extent also taking in other principles relating to interpretation of deeds, communal enactments, and so on; (3) takkanah and gezerah, representing the legislative activities of the competent halakhic authorities and public bodies in every generation; (4) minhag, representing the legal norms derived from custom in all its different forms; (5) ma'aseh, representing the legal norms derived from judicial decision or the conduct of a halakhic scholar in a particular concrete case; (6) sevarah, representing the legal norms originating directly from the legal-human logic of the halakhic scholars.
The last five of these are recognized in Jewish law as being capable of both solving new legal and social problems and changing existing legal norms, when this need arises from the prevailing economic, social, and moral realities. In making use of these legal sources the halakhic scholars continued to shape and develop the Jewish legal system, which gave direction to the daily realities of life while being itself directed by them. This task the halakhic scholars carried out with a constant concern for the continued creativity and evolution of the halakhah, tempered at the same time by the heavy responsibility of preserving its spirit, objective, and continuity. This twofold assignment is entrusted in Jewish law to the halakhic scholars in every generation: "the judge that shall be in those days" (Deut. 17:9 and Sif. Deut. 153), in accordance with the fundamental principle that "the court of Jephthah is as that of Samuel … for the contemporary judge is in his generation as the judge who was in earlier generations" (Eccles. R. 1:4, no. 4; Tosef., rh 2 (1):3; rh 25b). No supra-human power – such as a heavenly voice or the prophet acting as bearer of the divine vision – has ever had any authority or influence in the determination and decision of the halakhah (Sifra, Be-Ḥukkotai 13:7–8; bm 59b; tj, mk 3:1, 81d; for further particulars see *Authority, Rabbinical).
The Basic Norm of Jewish Law
As already mentioned, by the legal sources of a legal system is meant those sources which that legal system itself recognizes as valid sources from which its legal norms derive their binding force. Whence do these legal sources themselves derive their authority and validity? How and by whom have they been recognized as having the efficacy to determine and introduce legal norms into the legal system concerned? Salmond (loc. cit.) states (111–2): "There must be found in every legal system certain ultimate principles, from which all others are derived, but which are themselves self-existent. Before there can be any talk of legal sources, there must be already in existence some law which establishes them and gives them their authority… These ultimate principles are the Grundnorm or basic rules of recognition of the legal system." Thus the direct legal source of a municipal bylaw is the authority of the municipality to make bylaws; the bylaw has legal validity because parliament has delegated power to the municipality to make bylaws, while there exists a further rule – the Grundnorm – which determines that an act of parliament has binding authority in the English legal system.
So in any legal system there is to be found a chain of delegation of power extending from the ultimate legal value – the Grundnorm – to lower ones. The source of authority of the ultimate legal principle must be sought beyond the concepts of law and within the confines of history, religious faith, and beliefs, and the like: "But whence comes the rule that acts of parliament have the force of law? This is legally ultimate; its source is historical only, not legal. The historians of the constitution know its origin, but lawyers must accept it as self-existent. It is the law because it is the law, and for no other reason than that it is possible for the law itself to take notice of " (Salmond, op. cit., p. 111).
In the above-mentioned sense the basic norm of the Jewish legal system is the rule that everything stated in the Written Law is of binding authority for the Jewish legal system. The basic norm of Jewish law therefore not only expresses the concept of the delegation of power, but it is actually woven into the substantive content of the Written Law, the latter constituting the eternal and immutable constitution of Jewish law. This norm is the fountain of authority and starting point for the entire halakhic system with all its changes and evolution throughout the generations, and it is this norm that delegates authority to the legal sources of Jewish law rendering them valid means toward the continuing creativity and evolution of the latter. The source of authority of this basic norm itself is the basic tenet of Judaism that the source of authority of the Torah is divine command. In considering the matter from the aspect of Judaism as a whole it has to be said that there cannot be seen in it a system of legal norms isolated from and independent of other constellations of norms. All these constellations of norms have a single and uniform ultimate value, namely divine command as expressed in the Torah given to Moses at Sinai. Hence even the pre-Mosaic laws mentioned in the Written Torah – for instance concerning circumcision and the prohibition on flesh torn from a living animal, robbery, incest and so on – have binding force "because the Holy One commanded us through Moses" (Maim., Comm. Ḥul. 7:6) and because at the time the Torah was given "Israel entered into a covenant to observe them" (Rashbam, Gen. 26:5).
The exclusive authority to interpret the Written Law and ensure its continuing evolution was found by the halakhic scholars to be delegated, in the Written Torah itself, to the halakhic scholars of every succeeding generation. Such authority they derived from a number of Pentateuchal passages, particularly Deuteronomy 17:8–11, in which the resolution of problems and disputes arising from time to time is entrusted to the teachers and judges in every generation (see also *Authority, Rabbinical). In this and in other passages the halakhic scholars found not only their general authority to resolve problems but also the appointed means, that is the legal sources, wherewith to reach this goal (see Yad, Mamrim 1:2; Maim., Introd. to Comm. Mishnah). Further particulars of Pentateuchal passages as a basis for the various legal sources of Jewish law are given elsewhere under the heading of each legal source.
the different periods of jewish law
Jewish law has a history extending over a period of more than 3,000 years. For reasons of convenience and, to a certain extent, for historical and substantive reasons, this may be divided into two general periods, each with its own further sub-divisions; the first covering the time from the Written Law until the closing of the Talmud, the second from the post-talmudic period until the present day. This division between talmudic and post-talmudic halakhah has no bearing on the matter of the continuing creativity and evolution of Jewish law. Such creativity not only continued uninterruptedly after the closing of the Talmud but, as regards volume and literary output, even gathered momentum in certain fields of the law. The significance of the closing of the Talmud as a historic turning point in Jewish law finds expression in the degree of authenticity attributed to the talmudic halakhah, which was accepted in Judaism as the authoritative expression and rendering of the Oral Law: "All matters stated in the Gemara … must be followed … and have been agreed to by all Israel" (Maim., Introd. to Mishneh Torah). Until the redaction of the tannaitic literary sources – and to some extent even of the amoraic – the Written Law was the direct source according to which the law was applied by the dayyan. After the redaction of the talmudic literary sources the Written Law still remained the constitution of Jewish law, but the Mishnah, the halakhic Midrashim (midreshei halakhah), the two Talmuds, and the remaining talmudic literature became the direct sources according to which all matters of Jewish law were decided. The talmudic literature became the starting point for any study or discussion of Jewish law, and retained this status even after Jewish law was enriched – in the course of some 1,500 years – by many additional literary creations which, in comprehensiveness, orderly arrangement, and convenience of use, overtake the talmudic literature. The first great period of Jewish law is further distinguished by the fact that in this period Jewish law acquired its characteristic lines and forms of legal thought and expression, and the fact that in this period there were evolved and consolidated the legal sources which served as the vehicle for the creativity and development of Jewish law in this and in the post-talmudic period.
The first general period can be subdivided in six eras: (1) the biblical age (up to the time of Ezra and Nehemiah, about the middle of the fifth century b.c.e.); (2) the period from Ezra and Nehemiah until the age of the zugot (up to 160 b.c.e. approximately), the greater part of which is customarily described as the age of the soferim ("the scribes"; see N. Krochmal, Moreh Nevukhei ha-Zeman, ed. Rawidowicz, 56, 194), but latterly the use of the term as descriptive of the scholars of this period only has been criticized (see Kaufmann, Y., Toledot, 4 pt. 1 (1960), 481–5); (3) the age of the zugot ("the pairs"; from 160 b.c.e. up to the beginning of the Common Era), which takes its name from the five pairs of leading scholars who headed the battei din during this period (the names of the zugot, of whom the last pair were Hillel and Shammai, are given in Ḥag. 2 and Avot 1); (4) the age of the tannaim (up to 220 c.e.) which spans the activities of six generations of tannaim, from *Gamaliel the Elder (grandson of Hillel) and his contemporaries to *Judah ha-Nasi (redactor of the Mishnah). The generation succeeding R. Judah (that of R. *Ḥiyya Rabbah and his contemporaries) saw the transition from the tannaitic age to that of the amoraim. Besides the Mishnah, there are extant from the end of this period also collections of halakhic Midrashim, the Tosefta, and other tannaitic literary sources; (5) the age of the amoraim embracing the activities of five generations of amoraim in Ereẓ Israel (until the end of the fourth century c.e.) and eight generations of amoraim in Babylon (up to the end of the fifth century). Extant from this period are the Jerusalem and Babylonian Talmuds; (6) the age of the savoraim (up to the end of the sixth century or, according to some scholars, the middle of the seventh century). This age must be regarded as the closing part of the talmudic period since the savoraim were mainly occupied with completing the redaction of the Babylonian Talmud and determining rules of decision (see *Codification of Law).
In the second period there are two main subdivisions, the age of the geonim and the rabbinic age, but the latter may be subdivided into six further categories. (1) The age of the geonim (from the end of the age of the savoraim until approximately the middle of the 11th century). The name is derived from the official title by which the heads of the academies of *Sura and *Pumbedita were known during this period. For most of this period the Babylonian academies remained the spiritual center of Jewry as a whole and most Jewish communities assigned absolute legal validity to the decisions and responsa of the geonim. For internal Jewish and external political reasons, the ties of the Babylonian geonim with the centers of learning that had arisen in North Africa and Spain became loosened towards the end of this period and, commencing from the middle of the 11th century, the phenomenon of a single spiritual center for the various centers of Jewish life came to an end and each of the latter began to rely on its leaders and teachers. This new reality was to exercise a great deal of influence on the subsequent modes of development of Jewish law, evidenced, for instance, in the proliferation of local custom and legislation (see *Takkanot; *Takkanot ha-Kahal; *Conflict of Laws). The geonim were instrumental in converting the Babylonian Talmud into the source according to which the halakhah was decided for all Jewry. In addition, this period saw the first flowering of the division of the post-talmudic literary sources of Jewish law into its three branches which exist until the present day – namely the commentaries and novellae, the responsa, and the codes (see above). Among the better-known geonim are R. Yehudai, R. Amram, R. Saadiah, R. Samuel b. Hophni, R. Sherira, and Sherira's son, R. Hai. Of the well-known figures of this period who did not officially hold the title of gaon, mention may be made of R. Aḥa (Aḥai) of Shabḥa, author of the Sefer ha-She'iltot, and R. Simeon Kayyara, author of the Halakhot Gedolot (see *Codification of Law). (2) The rabbinic age, which followed, was itself divided into three periods: (a) The period of the rishonim (the "early" scholars), from the middle of the 11th century (the time of Isaac Alfasi) until the 16th century (the time of Joseph Caro and Moses Isserles). This was the golden period of the rabbinic age in which were compiled the classic creations in all three branches of the post-talmudic literary sources of Jewish law: Rashi's commentary on the Talmud and the novellae of the tosafists; the codes of Isaac Alfasi, Maimonides, Jacob b. Asher, Joseph Caro, Moses Isserles, and others; the responsa collections of Solomon b. Abraham Adret (Rashba), Meir (Maharam) of Rothenburg, Asher b. Jehiel (Rosh), Isaac b. Sheshet Perfet (Ribash), Simeon b. Ẓemah Duran (Tashbeẓ), Joseph b. Solomon Colon (Maharik), and others. This was also the period in which the main part of the communal enactments was produced. It embraces the rise and decline of Spanish Jewry, and its close saw the initial flowering of several other Jewish centers – particularly in Ereẓ Israel and Poland-Lithuania – whose outstanding scholars were to make a great contribution to Jewish law, especially to its codification and to its responsa literature.
(b) The period of the aḥaronim (the "later" scholars), from the time of Joseph Caro and Moses Isserles until the coming of emancipation around the end of the 18th century. The legal creativity reflected in the three above-mentioned literary sources of Jewish law was continued in this period, particularly in the field of the responsa, which reached a peak of activity. From this period there have also come down numerous collections of communal enactments (such as the Pinkas Va'ad Arba Araẓot, Pinkas Medinat Lita, Takkanot Mehrin, and others).
(c) The period of the abrogation of Jewish judicial autonomy. The era of emancipation, which brought in its train the abrogation of Jewish judicial autonomy, represents a turning point in the evolution of Jewish law. This period may be further subdivided: from the end of the 18th century until the beginning of the 20th century, i.e., until the period of Jewish national awakening; from the beginning of the 20th century until the establishment of the State of Israel in 1948; from the establishment of the State of Israel onward.
jewish law – a law of life and practice
Introduction
For the greater part of its history of over 3,000 years, Jewish law has served the Jewish people while they not only lacked political independence but were for a considerable part of this period deprived of their own homeland – Ereẓ Israel – and dispersed throughout the various countries of the Diaspora. The legal systems of other ancient peoples went into decline as soon as they lost their political sovereignty, eventually ceasing to exist except in scattered archaeological remains. Even Roman law, which has left an imprint upon – and still nourishes – many other legal systems, ceased to exist as a creative law of life and practice after having reached its peak of development in Justinian's Corpus Juris, in the middle of the sixth century. In the case of Jewish law, the position is otherwise. Despite loss of political independence and lack of physical tie with the homeland, the Jewish people retained judicial autonomy and Jewish law not only did not decline, but it experienced most of its creativity and structural evolution – the Babylonian Talmud and all the other post-talmudic creativity – after the exile. Two factors explain this unique phenomenon: an internal one resting on the substance and nature of Jewish law and its place in the cultural life of the Jewish people, and an external one resting on the general juridical-political outlook that was common in the political history of the nations among whom the Jews lived up to the 18th century.
The Religious and National Character of Jewish Law
Of the two above factors, the internal one is the more important, based as it is on the character of Jewish law which is both religious and national. It is a basic tenet of the Jewish faith that the source of Jewish law – like that of the entire edifice of the halakhah – is divine revelation; in the same way as the Jew is commanded in the Written Law to uphold the "religious" precepts – those pertaining to man's relations with the Almighty, such as the laws of the Sabbath and the festivals, the laws of kashrut and the like – so he is commanded in the Torah itself to uphold the "legal" precepts – those pertaining to man's relations with his fellows, for instance in matters concerning the laws of labor, tort, property, and different matters of the criminal law. The Ten Commandments enjoin observance of the Sabbath and "Thou shalt not steal," or "Thou shalt not murder," equally – as it were in the same breath. Hence, just as the vitality of the "religious" life remained unaffected by the people's exile, so the "legal" life continued to have unabated validity, and questions arising in both fields were brought before the same court or halakhic scholar for decision.
In addition to its religious character Jewish law has also been the national law of the Jewish people and its entire development has been the creative invention of this people. In this regard Jewish law differs from other legal systems, such as the Canon law or Muslim law, which were created and developed by followers of the faith – Catholic or Muslim – among many different nations. Notwithstanding its dispersion, the Jewish people continued to exist as a nation – not only as a religious sect – and constantly sought recourse to Jewish law, which it regarded as a part of its national assets through which to give expression to its essential being and character in all fields of its internal social and economic life.
The Jewish Judicial System – the Scope of Its Jurisdiction
A precondition for the practical application of a legal system is the existence of an effective judicial machinery to administer and carry out the law. The Pentateuchal law provides express and detailed instructions for the maintenance of a judicial system (Ex. 18:21–27; Deut. 16:18; see also *Bet Din) and a Jewish judicial system has always existed, even in the absence of Jewish political sovereignty and in all countries of the Diaspora. The Jewish court (bet din), alongside the various institutions of Jewish autonomy (the exilarch, the community, inter-communal organizations), provided the mainstay of Jewish internal autonomy from the destruction of the Temple until the period of emancipation. The scope of Jewish judicial autonomy underwent change from time to time depending mainly on the attitude of the ruling power under whose protection the Jews lived.
After the destruction of the Temple, Jewish judicial autonomy was restricted for a short period in Ereẓ Israel (according to talmudic tradition jurisdiction over capital punishment (dinei nefashot) was abolished 40 years before the destruction (Shab. 15a; tj, Sanh. 1:1, 18a; 7:2, 24b), but in practice the Jewish courts apparently did deal with such cases at least until the destruction). Soon, however, autonomy was fully restored and the time of R. Gamaliel, R. Akiva, and their contemporaries was one of the most creative periods in the history of Jewish law. Later, with the decrees of Hadrian and the revolt of Bar Kokhba, Jewish judicial autonomy was faced with another crisis (tj, Sanh. 7:2, 24b), but by the end of the second century c.e., autonomy had already been fully restored (see Alon, Toledot, 1 (19583), 129f.). The Babylonian Jewish center enjoyed wide judicial autonomy from an early period, and one of its main institutions was the Jewish court. After the decline of the Babylonian center the Jewish courts in all other centers continued to exercise the judicial function in matters between Jews. The halakhic scholars and communal leaders sought to impose a strict internal discipline in order to insure that all disputes between Jews would be aired before the Jewish judicial institutions. At the same time, they made every effort to obtain charters of privileges from the various rulers under whom they lived in order to insure the independence of Jewish law and the grant of powers of compulsion to the Jewish courts and internal authorities (see below).
The jurisdiction of the Jewish courts extended first and foremost to most civil law matters such as property, obligations, tort, family and succession law, and also to matters concerning the administration of local Jewish government at the hands of the representative communal and intercommunal institutions – such as election to the latter bodies, tax imposition and collection, relations between the individual and the community, and the like (see below). This measure of judicial autonomy was generally extended (up to the 18th century), even in times and places of restriction of the rights of Jews. In many centers such autonomy extended even to criminal matters, varying from place to place in its scope and modes of execution. In certain places it also extended to capital offenses, particularly with reference to *informers (e.g., in Spain, see Resp. Rashba, 1:181; 5:290; Resp. Rosh, 17:1, 8; Zikhron Yehudah, 58 and 79; Resp. Ritba, 131; Resp. Ribash, 251; in Poland – see Resp. Maharam of Lublin, 138, etc.; see also *Capital Punishment); in other places it extended merely to religious offenses, offenses against property, and police administrative offenses.
The wide range of matters over which the Jews enjoyed autonomous jurisdiction may be gathered from a study of the responsa literature containing decisions given by the leading halakhic scholars of different periods on concrete questions arising from the daily realities. Thus, out of some 1,050 responsa of *Asher b. Jehiel – one of the leading scholars of German and Spanish Jewry in the second half of the 13th century and the beginning of the 14th – one-fifth (about 200) deal with precepts concerning man and God (such as the laws of prayer, festivals, forbidden food, and the like) and the remaining four-fifths with Jewish law (i.e., matters for the greater part included in Sh. Ar., eh and Ḥm). Of the latter group, some 170 questions deal with matters of Jewish family law (marriage and divorce, parent and child, and the like) and the rest, more than 600, are concerned with all other "legal" branches of Jewish law (civil, criminal, and public-administrative; see Elon, Mafte'aḥ, introd. (Heb. and Eng.)). A similar ratio of subject matter is found to be more or less constant in all the responsa literature up to the 16th century, and slightly different in that of the 17th and 18th centuries, where the percentage of matters concerning religious law is somewhat higher. A material change can be detected in the responsa literature from the 18th century onward – following the era of emancipation, which saw the abrogation of Jewish judicial autonomy – and by far the greater part of these responsa deal with matters of religious precepts and family law, with a modest and minor place reserved for the remaining branches of Jewish law.
The Available Sanctions of the Jewish Judicial System
Within the framework of judicial autonomy described above the Jewish courts and competent authorities of the self-ruling bodies had the power to impose sanctions. These too varied from place to place and from period to period. The ordinary means of compulsion were attachment of property, monetary fines, and corporal punishment. In certain centers there were even Jewish prisons under the control of Jewish institutions and supervised by Jewish wardens (see *Imprisonment). At times the autonomous Jewish authorities had to seek the assistance of the central authorities in carrying out the sanctions imposed by the Jewish courts, especially so in case of the death sentence. A common and most effective sanction was the *ḥerem, the quality and severity of which varied from place to place and also according to the nature of the offense and the degree of compulsion required. The use of this sanction was essential in circumstances where the Jewish authorities lacked the normal attributes of sovereignty, and it served as a most effective deterrent and means of compulsion in view of the self-centered living and residential conditions of the Jewish collectivity as an autonomous group. A person on whom the ban was pronounced was to a greater or lesser extent removed from the religious and social life of the community, and the stringent consequences of this sanction induced many halakhic scholars to refrain from its imposition except in the most difficult and serious cases.
The Prohibition on Litigation in the Gentile Courts
A striking expression of the religious and national character of Jewish law is to be found in the prohibition on litigation in the gentile courts (arkaʿot shel goyim), to which the halakhic scholars and communal leaders attached the utmost importance. The first mention of this prohibition was made soon after the destruction of the Temple, when Jewish judicial autonomy was for a short period restricted by the authority of Rome (see above). It was laid down that there was to be no resort to the gentile courts not only when the material law applied in the latter courts differed from Jewish law but even when their law on a particular matter was the same as that applied in the Jewish courts (Git. 88b). Resort to the gentile courts was regarded as prejudicial to the existence of Jewish judicial autonomy and the prohibition served as a protective shield insuring the uninterrupted existence of such autonomy throughout the period of Exile; any person transgressing the prohibition was "deemed to have reviled and blasphemed and rebelled against the Torah of Moses our teacher" (Yad, Sanhedrin 26:17, based on Tanḥ. Mishpatim, 3). Contrary to the general principle that every rule of the civil law (mamonot) is jus dispositivum, so that in respect of it a man may contract out of the law of the Torah, it was laid down by a majority of halakhic scholars that the parties to a transaction may not mutually agree to submit their dispute to the jurisdiction of a gentile court, and also that resort to the gentile courts is not justifiable on the principle of dina de-malkhuta dina ("the law of the land is law"; Naḥmanides on Ex. 21:1; Resp. Rashba, vol. 6, no. 254; Tur and Sh. Ar., Ḥm 26:1, 3).
In the political and social realities of the different centers of the dispersion it was not always fully possible to enforce this prohibition. As early as the middle of the ninth century Paltoi Gaon laid down that it was permissible to institute proceedings in a gentile court against a party aggressively and obdurately refusing to appear in a Jewish court (B.M. Levin (ed.), Oẓar ha-Ge'onim, bk, Resp. no. 227). It was decided that in such a case the plaintiff, after first obtaining leave of the Jewish court, might prosecute his claim in the gentile court, "in order not to strengthen the hands of the powerful and violent who do not obey the law" (Yad, Sanhedrin 26:7 and Radbaz thereto; Tur and Sh. Ar., Ḥm 16:2, 4). At times resort to the gentile courts was permitted in certain matters in which the central authorities had a special interest, such as disputes over land (Resp. Rema, no. 109), governmental taxes, and currency (Finkelstein, bibl., pp. 361f.). Some of the halakhic scholars permitted recourse to the gentile courts when this was agreed on by both parties (Resp. Maharam of Rothenburg, ed. Cremona, no. 78; Finkelstein, op. cit., pp. 153, 156 and n. 1; Sma, Ḥm 26 n. 11 and Taz thereto; see also Siftei Kohen, Ḥm 22, n. 15). In different periods there were communities and places where Jews scorned the prohibition, but in general the halakhic scholars and communal leaders firmly stood guard over the authority of the Jewish courts by enacting special takkanot and adopting sharp countervailing measures against those who thus undermined the autonomy of Jewish jurisdiction (see Assaf, Battei ha-Din …, 11, 17–18, 24, 109–13; Elon, in: ilr 2 (1967), 524–7; as regards recourse to the gentile courts from the period of the emancipation onwards see below).
Arbitration and the Jurisdiction of Lay Jewish Tribunals
The aim of preventing recourse to the gentile courts as a means of preserving Jewish judicial autonomy induced the halakhic scholars to maintain judicial institutions composed of Jewish judges, even if the judgments of the latter were not based on Jewish law, or were based on this law in slight measure only. Institutions of this kind were arbitral bodies and lay tribunals in their various forms.
The arbitral body had its origin in the second half of the second century (R. Meir and other tannaim: Sanh. 3:1–3), when Jewish judicial autonomy was restricted, as we have already noted, by the decrees of Roman imperial rule following the Bar Kokhba revolt. The courts were destroyed and those which remained were deprived of the power of compulsion. In these circumstances the scholars directed the people to the institution of *arbitration, in which ro'ei bakar ("herdsmen," simple folk untutored in the law) could also sit and adjudicate in accordance with their own good sense and understanding. In order to give such adjudication a Jewish form, the scholars laid down that the arbitral body should be composed of three arbitrators (Sanh. 3:1), like the Jewish court which was always composed of at least three dayyanim (ibid. 1:1; and see *Bet Din) and unlike the position in Roman law where there was generally a single arbitrator. Even after the restoration of judicial autonomy, arbitration continued to fulfill an important function alongside the regular judicial institutions, and its rules and procedures were prescribed by the halakhic scholars (see also *Compromise).
Of interest is the evolution of the institution of adjudication by lay judges (hedyotot, i.e., persons untutored in Jewish law; the term also has the meaning of judges tutored in the halakhah but lacking *semikhah ("ordination"; see, e.g., Git. 88b), a distinction that must be borne in mind). The precise origin of this institution is disputed by scholars; one opinion is that it dates from before the destruction of the Temple, while others hold that it too developed after the Bar Kokhba revolt and the withdrawal of autonomous jurisdiction from the Jewish courts (see Elon, op. cit., p. 529). Lay jurisdiction was likewise designed to ensure that the people would bring their disputes before Jewish judges – even if the latter were not versed in the law – rather than resort to the gentile courts. These tribunals were composed of three members, one of whom had to be gamir – i.e., to have acquired some knowledge of the halakhah – while the other two had to be persons fit at least to understand any matter explained to them (Sanh. 3a, Rashi and Nov. Ran ad loc.). The scholars bestowed on the lay tribunal authority to deal with all matters of civil law, to the exclusion of criminal matters (Sanh. 3a and Piskei Rosh thereto, 1) along with power to compel the appearance of the parties (Piskei Rosh thereto, 2; Tos. to Sanh. 5a; Tur, ̣m 3:3; Sh. Ar., Ḥm 3:1). In order to prevent resort to the gentile courts at all costs in post-talmudic times the scholars laid down that in any community where not even one gamir was to be found, three laymen could make up the tribunal even if none of them possessed this minimal qualification, provided that they were "fit and God-fearing persons, spurning corruption and equipped with sense and understanding"; such tribunals could deal also with criminal matters, in cases of great need and after much prior forethought and consultation (Resp. Rashba, vol. 2, no. 290). The existence of tribunals composed entirely of lay judges is confirmed in other historical sources (see, e.g., the Valladolid takkanot of 1432, in Finkelstein, bibl., pp. 356–7), and the validity of such courts was halakhically recognized (Rema, Ḥm 8:1).
In general, the major part of the legal hearings, in disputes between individual Jews and between the individual and the communal authorities, took place before a court composed of three dayyanim expert in Jewish law and deciding in accordance therewith (a court of this kind called simply, bet din; Resp. Rashba, vol. 1, no. 1010); however, in most Jewish centers there were also lay tribunals functioning alongside these courts as a permanent judicial institution (a court of this nature being referred to as bet din shel hedyotot; Rashba loc. cit.). Many factors – social, economic, standards of knowledge and education – determined the measure of resort to lay tribunals. Their judges (known by different names: tovei ha-ir, berurei tevi'ot, berurei averot, piskei ba'alei battim, parnasim, zekenim, etc.) generally based their decisions on communal enactments (see *Takkanot ha-Kahal), trade usages (see *Minhag), appraisal, justice, and equity (see, e.g., Resp. Rashba, vol. 2, no. 290; vol. 3, no. 393 et al.; Resp. Maharshal, no. 93; Resp. Rema, no. 33) and at times even upon a particular branch of a foreign legal system (Beit ha-Beḥirah, Sanh. 23a concerning "courts in Syria"; see also takkanot of the Leghorn community: S. Toaff, in: Sefunot, 9 (1964/65), 190f.). Sometimes lay tribunals turned to halakhic scholars for their opinion and advice (Zikhron Yehudah, no. 58). In some places the limits of their jurisdiction were clearly defined. Mention is made of a tribunal composed of tovei ha-ir which dealt with tax matters (Resp. Rosh, no. 7:11). At times there was a predetermined division of matters over which the different courts were to have jurisdiction; thus a takkanah of the Lithuanian community prescribed that the courts of the communal leaders were to deal with matters of monopolies as well as certain tax and penal matters, and the dayyanim of the community with matters of civil law (Pinkas ha-Medinah [Lita], no. 364); in a takkanah of the Leghorn community it was laid down that all matters of trade, insurance, and the like were to be dealt with by the communal leaders (adonei ha-ma'amad) judging in accordance with the general law as regards trade customs, but that matters of marriage and divorce, inheritance, mortgage, interest, and the like were to be dealt with according to Jewish law (Toaff, in: Sefunot loc. cit.).
The lay tribunals were originally and primarily instituted for the purpose of preventing resort to the gentile courts and also so as to enable certain matters of trade and the like, which were dependent on local custom, to come before a tribunal of merchants and professional experts. These tribunals tended, however, to gain in influence and to assume jurisdiction in additional matters, notwithstanding the existence of courts composed of dayyanim learned in the law. The halakhic scholars regarded this development as posing a threat to the ordered evolution of Jewish jurisdiction and application of Jewish law (see, e.g., Resp. Maharyu, no. 146). The fact that these tribunals tried matters according to appraisal and a subjective feel for justice, rather than according to any fixed legal rules, led the scholars to apprehend the danger of possible partiality and perversion of justice, especially since the tribunals were generally composed of the leaders and wealthy members of the community with the poorer and less influential members of society almost completely unrepresented. Strong criticism to this effect was often expressed by the scholars (see, e.g., Keneh Ḥokhmah, Derush ha-Dayyanim, pp. 25f.; Derushei ha-Ẓelah, 3:12–4). However, such criticism never challenged the basic existence and positive merits of an institution which served as a vital additional means of preventing recourse to the gentile courts. For this reason adjudication by lay tribunals was also held to "accord with the Torah," even if it had not always the same merit as adjudication by the courts of dayyanim, and only "the practice in a few places to turn without hesitation to the gentile courts is actually contrary to the Torah and amounts to a public profanation of the Divine Name for which those who act in this way will have to account" (Sefer ha-Zikhronot, 10:3). To do so was to undermine Jewish judicial autonomy. (In Sh. Ar., Ḥm the matter of lay tribunals (ch. 8) is clearly distinguished from the stringent prohibition on recourse to the gentile courts (ch. 26); see also M. Elon, in: ilr, 2 (1967), 529–37.)
The Judicial-Political Position and Social-Fiscal Relations
The national-religious character of Jewish law, and the profound awareness that a zealous watch over this inalienable asset would ensure the continued existence and unity of the Jewish people, thus constituted the primary element in the application of Jewish law in the daily life of the Jewish people even when dispersed in exile. Yet it may be asked how it proved possible for the Jews to maintain judicial autonomy under the political sovereignty of the governments under whose rule they lived, and what motivated the state authorities to respond to the demand of the Jewish collectivity for its own autonomy. The answer lies in the second of the two factors mentioned above, that is the judicial-political concepts of government and jurisdiction as these were common up to the 18th century, and the fiscal and social relations between the central authorities and the different strata, including foreigners, who dwelt under their rule. The judicial system was based on the individual's adherence to one of a number of distinctive groups with different legal systems which were recognized by the state. Unlike modern centralistic states, the medieval state was corporative in nature and comprised of a series of autonomous strata and bodies, such as the nobility, the burghers, the guilds, etc. The latter frequently competed with one another and some of them with the central authority, and the Jewish community was often the object of rivalry among these different strata, bodies, and the central authority. This political-legal reality rendered possible the existence of an autonomous Jewish group with its own judicial autonomy. The central authority, as well as the different strata and bodies amidst whom the Jews lived, regarded it as their "duty" and right to impose on the Jews heavy taxes in return for the privileges of settlement and residence. The collection of such taxation from each individual involved many difficulties, especially as the Jews were counted as members of a separate and foreign national group. The authorities accordingly found it convenient to impose an aggregate tax on the Jewish collectivity as a whole and for this purpose to enable the latter to be a unitary autonomous body, functioning in such manner that its leaders would bear the responsibility of producing the total amount of the tax apportioned and collected by each community from among its individual members. The existence of an autonomous public Jewish body also made it possible to give directions and conduct negotiations on other state rights and obligations through the recognized leaders of this body. Considerations of faith and religious opinions held by the Christian rulers may also have contributed to the grant of autonomous Jewish jurisdiction (see H.H. Ben-Sasson, Perakim be-Toledot ha-Yehudim bi-Ymei ha-Beinayim (196), 90–91).
In this manner a zealously pursued desire of the Jewish people coincided with the existence of external historical conditions and factors to enable this people to preserve its religious and national law as a law of life and practice, faithfully served and interpreted by Jewish courts throughout the dispersion. The preservation by the Jews of their national law has been the main factor in the preservation of Jewish national existence. In the words of Y. Kaufmann (Golah ve-Nekhar), "It was judicial autonomy which truly made of the Jewish nation in exile 'a state within a state'" (1 (1929), 518) and "This autonomy derived from the striving of the nation to embody in its life the ideal of the Torah to the utmost limits. It derived especially from the striving to uphold the Jewish legal system, the Law of the Torah, and to base thereon the order of internal life. For this reason the ancient autonomy was fundamentally a judicial autonomy" (ibid., 2 (1930), 312).
the evolution of jewish law
A material feature of Jewish law is the fact of its ever-continuing evolution. This is the logical and necessary outcome of the fact of Jewish law's being a living and practical law, since constant evolution is a characteristic feature of every living thing whether it is discernible during the passage from one state to another or only clearly distinguishable in the perspective of history. It will be clear to anyone taking up the halakhah that he has before him one large unit in which the earlier and later, the basis and the construction, are all interwoven and arranged according to subject matter with no particular regard shown for historical-epochal distinctions. The halakhic scholars rightly considered that Jewish law was of a nature which required them to unite and integrate the various periods of the halakhah into a single, all-embracing epoch of unitary halakhah, and not to divide and differentiate between different stages and periods. This is a legitimate and accepted conception in any system of legal thought, especially in a legal system which, by its very nature, deems the existing body of laws to be the starting point for its own renewal and further development. This is also largely true, as regards, for instance, the development of most of English law. However, this conception does not in any way bar the scholar from examining each and every one of the institutions of Jewish law in historical perspective, with a view to determining the different stages of development they may have undergone. Moreover, an examination of such different stages of development and of the legal sources through which these stages were integrated into the fabric of Jewish law will reveal that the halakhic scholars themselves frequently emphasized the changes and development through which one or other institution of Jewish law had passed. This is evidenced in their resort not only to takkanah – a means of expressly adding to or changing the existing law – but also to Midrash and the other legal sources of Jewish law (see M. Elon, Ḥerut ha-Perat…, 12 (introd.), 261–4).
Submission to Jewish law and the Jewish courts brought in its wake an unending creative development of the Jewish legal system. Social realities and economic exigencies change from period to period, and among the special conditions of the Jewish people must be included the social and economic variations that marked the different centers of the dispersion. Even when the Jewish people had possessed a single political center – and later on a spiritual center – there had existed a various and widely scattered Diaspora; however, geographical dispersion really began to impress its mark more critically at the end of the tenth and the beginning of the 11th century when the one center, the Babylonian, which had until then held sway over the entire Diaspora, declined and a number of centers made their appearance side by side and successively in North Africa, in Spain and Germany, in France and Italy, in Turkey, Egypt, and the Balkan countries, in Poland-Lithuania, and elsewhere. It is certainly true that despite the geographical scattering, Jewish scholars everywhere dealt with the same talmudic and rabbinic sources and that very often contact, personal and by correspondence, was also maintained among the different centers. But the variations in the social, commercial, and economic life of the Jews in each center, their communal organization and representative institutions in each locality, their relationship with the gentile environment and the state authorities – all these from time to time gave rise to problems for some of which the existing Jewish law provided no express solution and for some of which it was necessary to find solutions which differed from those provided by the existing law. At times the influence of local conditions led to the absorption of undesirable legal principles which were contrary to the spirit of Jewish law and did not serve to advance the system of law as a whole. To the extent that such foreign principles deviated from the fundamental doctrines of Jewish law they generally came to be rejected in the course of time (see, e.g., *Imprisonment, *Imprisonment for Debt).
Thus Jewish law continued to evolve as a law of life and practice, giving direction to the daily realities while being itself directed thereby. The phenomenon of a legal system which demands that the determination of its law and its solutions to legal problems be founded on the past while answering the manifold needs of every succeeding generation is found to be true of Jewish law in all periods of its history, both in the time of Jewish political sovereignty and during the long period when this was absent but the Jewish people enjoyed judicial autonomy in Ereẓ Israel, in Babylonia, and in all the other countries of the dispersion. This demand was satisfied through the ever-continuing evolutionary development of the institutions of Jewish law and through preservation of the central concept of each institution which constituted the common factor of all the different stages and changes through which it passed. (For illustrations of such development, see Authority, *Rabbinical; *Capital Punishment; *Contract; *Ha'anakah; *Hassagat Gevul; *Imprisonment for Debt; *Lien; *Limitation of Actions; *Obligation, Law of; *Surety; *Taxation. See also *Interpretation; *Ma'aseh; *Minhag; *Sevarah; *Takkanot; *Takkanot ha-Kahal; and see M. Elon, Ḥerut ha-Perat …, 12 (introd.), and 255ff.)
Since the development of Jewish law was the outcome of the practical application of the latter in daily life, it follows that in places where there was diminished submission to Jewish law and its courts system there was a corresponding falling off in the creative development of this legal system, as is evidenced, for instance, in the case of Italian Jewry in certain periods (Resp. Rambam (ed. Leipzig), pt. 1, no. 140, p. 26; Sefer ha-Zikhronot, 10:3). This was, however, an uncommon phenomenon until the 18th century and the era of emancipation. Thereafter, with the abrogation of Jewish judicial autonomy, Jewish law was to a far lesser extent a law of practice and this was to lead to a far-reaching diminution in the creativity of Jewish law (see below).
the evolution of jewish law reflected in its literary sources
Sefer ha-Zikhronot (loc. cit.) emphasizes that recourse to the Jewish courts is of importance not only for the continuance of the creative development of Jewish law itself but also for the enlargement of its literature. A study of the various matters with which halakhic literature has dealt at different times shows that the part of the halakhah which was of practical application came to occupy an increasingly and incomparably larger place than the part that was not of such application.
The Mishnah as compiled by Judah ha-Nasi contains six orders, each of which treats one basic branch of the halakhah, and together they embrace the whole halakhic system. In the two Talmuds, the literary creations following immediately upon the Mishnah, the following phenomenon is apparent: the Babylonian Talmud, unlike the Jerusalem Talmud, contains no Talmud on the order of Zera'im (apart from the tractate Berakhot dealing with prayers and benedictions). There is no doubt that the Babylonian amoraim, like those of Ereẓ Israel, studied all the six orders of the Mishnah and their deliberations on Zera'im are largely scattered throughout the tractates of the other orders. That no Babylonian Talmud was edited for this order is due to the fact that the rules therein stated – "precepts which are dependent on the land" (these being applicable only in Ereẓ Israel), such as the laws of shevi'it (the Sabbatical Year) and pe'ah (the corner of the field) – were not of practical concern in Babylonia, whereas in Ereẓ Israel itself, where these rules were actually applied, a Talmud on this order was compiled and edited. In the post-talmudic period the overwhelming part of the halakhic literary creativity was also concentrated on the "precepts contemporaneously in use," that is on the branches of the halakhah which were of everyday use and not on the laws connected with the "precepts dependent on the land," with the Temple, ritual purity, and the like. It is found that sometimes even theoretical study itself was centered around the practical orders – Mo'ed, Nashim, and Nezikin – and those tractates of the other orders containing precepts in contemporaneous use – such as Berakhot, Ḥullin (concerning the laws of ritual slaughter and kashrut), and Niddah (concerning ritual purity of women) – were arranged together with these three orders (see Beit ha-Beḥirah (ed. Jerusalem, 19652), Introd. to Ber., p. 32). In geonic times many monographs were written on various halakhic subjects, most of them on strictly legal topics and part on matters of ritual law, the majority of both kinds dealing exclusively with the laws of everyday use. These monographs were primarily compiled for practical use in the battei din.
This phenomenon recurs in two branches of the post-talmudic literature – in the responsa and in the codifications – and to a certain extent also in the third branch, the commentaries and novellae. Thus Alfasi included in his code only those laws then operative and not, for instance, the laws of the order of Kodashim (except the tractate Ḥullin in which the topics discussed remained of contemporaneous significance). The only one to deviate from this path was Maimonides in his code, Mishneh Torah. He sought to restore the halakhah to its original dimensions by including in his code even matters of faith and belief, which he formulated in legal style. However, this undertaking was unique and in all subsequent codifications, such as Piskei Rosh, Arba'ah Turim, and Shulḥan Arukh, the example set by Alfasi was followed and only the rules in current application were included. The responsa literature also deals overwhelmingly with practical questions of the law and not with matters of ritual purity and defilement or sacrifices. This is obviously due to the fact that problems arose, and were referred to the leading halakhic scholars for solution, only in the area of the practical day-to-day application of the law. In the commentaries and novellae alone is there found any more extensive discussion of the "theoretical" branches of the halakhah, but even here the greater part is devoted to practical halakhic matters. This is one explanation for the fact that commentaries and novellae to the Jerusalem Talmud were written only from the 16th century onward, following the renewal of the Jewish settlement in Ereẓ Israel in this period. (It is noteworthy that in latter times – before and since the establishment of the State of Israel – there has been greatly increased creativity in the field of the laws pertaining to the order of Zera'im, in all three literary branches of the halakhah, clearly because these laws have once more come to be of practical significance.) While it is true that at all periods Jewish law was frequently studied in purely theoretical manner, as Torah for its own sake, and an appreciable literature was created to this end, yet such study and literary creativity represent no more than embellishments of the main core, aids to the knowledge of Jewish law for everyday use in practical life.
the different branches of jewish law
Illustrations of Development and Change in the Different Branches of Jewish Law
In the different periods of its history Jewish law has comprised all the branches of law customary in other legal systems although from time to time changes of a structural nature took place. The institutions of Jewish law in all its different branches underwent, as already mentioned, an ever-continuing process of creative development. In some fields – for instance property, family and inheritance, procedure and evidence – this process was of no material consequence as regards the framework or content of a particular branch of the law, notwithstanding any changes in its principles. In other fields the process had a more material effect as regards the content and classification of an entire branch of the law.
laws of obligation
A change of this nature took place, for instance, in the field of the laws of obligation. The original Jewish law fundamentally and unequivocally rejected any form of enslavement of the debtor's person as a means towards realizing the creditor's rights (see *Execution, Civic). Consequently there arose the need to find a strong alternative means of ensuring the fulfillment of an obligation in the form of an encumbrance on the debtor's property, which found expression in a right of lien over the debtor's property automatically conferred on the creditor upon creation of the obligation. For this reason an obligation in Jewish law had essentially a real character because the creditor was afforded a right of a real nature in the debtor's property, and in consequence of this many rules belonging to the field of property law came to be applied also to the laws of obligation (see *Lien; *Obligation Law of)., In the course of time, the nature of the contractual obligation in Jewish law underwent a substantive change, one that found expression in a series of basic innovations introduced and given recognition in successive stages; these included the possibility, contrary to the laws of property, of establishing an obligation with regard to something not yet in existence; the possibility of establishing an obligation whether or not the property in the debtor's possession at such a time was capable of satisfying the debt, and a long series of further developments (see *Contract). Such a substantive change in the subject matter of a legal institution is an important factor in its classification or reclassification as belonging, for instance, to the field of the laws of obligation rather than the laws of property.
administrative law
A different phenomenon is evidenced in the field of administrative law, for the central subjects of this branch changed almost completely in consequence of the material changes in the nature of public Jewish leadership and administration in different periods. Whereas in ancient times the institutions of public law determined relations between the individual leader – the king (see *King and Kingdom), the *nasi, the exilarch – and the people, new social realities spurred the development of a pervasive system of administrative law based on collective leadership, elected or appointed. The representative and elective institutions of local Jewish government and intercommunal organization were built up on the principles of Jewish law, and the halakhic scholars as well as the communal leaders were called upon to resolve (the latter by way of communal enactments) the numerous problems arising in the field of administrative law. These related, among others, to the determination of relations between the individual and the public authority, between the latter and its servants; to the composition of the communal institutions and the methods of election and appointment to the latter and to other public positions (see *Public Authority); to the modes of legislation of the community and to the legal administration of its institutions (see *Hekdesh; *Takkanot ha-Kahal); to the imposition and collection of taxes (see *Taxation), and to many additional problems concerning economic and fiscal relations in the community. This wide range of problems was dealt with in a very large number of responsa and communal enactments, in the course of which the halakhic scholars and public leaders developed a new and complete system of public law within the framework of the halakhah.
conflict of laws
In the field of the conflict of laws development came mainly in consequence of periodic migratory movements and social changes in the life of the Jewish people. The conflict of laws is not usually regarded as a distinct branch of Jewish law, because of the substantive nature of Jewish law as a personal law purporting to apply to each and every Jew wherever he may be – even beyond the territorial limits of Jewish sovereignty or autonomy. From this it naturally follows that in Jewish law no importance attaches to the fact, as such, that a contract between two Jews is scheduled to mature in a different country than that in which it was concluded – a fact that is normally the staple source of problems arising in the area of the conflict of laws. Nevertheless, the fact that for the greater part of their history, the Jews enjoyed their judicial autonomy under the political sovereignty of the foreign ruler with his own legal system, and especially the fact of the geographical dispersion of the various Jewish centers, inevitably caused the Jewish legal system to be confronted with many fundamental problems relating to the conflict of laws. There developed in Jewish law the phenomenon of a multiplicity of takkanot and customs relating to the same legal subject but varying in content from place to place. To some extent this phenomenon was also present in talmudic times, but it assumed significant proportions only from the tenth century onward when there ceased to be a single Jewish center exercising hegemony over the other centers of the Diaspora. The result of the rise of many centers was the proliferation of local takkanot, customs, and legal decisions, which brought in train the problem of the choice between different laws – not between Jewish law and any other law, but between the rules deriving from differing customs and takkanot within the Jewish legal system itself. Similarly, as a result of the close contact between Jewish law and the various legal systems of the nations amidst whom the Jewish collectivity lived, there evolved the principle of dina de-malkhuta dina and, flowing from this, various rules pertaining to the field of the conflict of laws.
criminal law
A different and completely opposite trend is evidenced in the field of criminal law. During those periods when the Jewish people enjoyed full judicial authority, it is possible to point to the existence of important principles and great creativity extending also to the criminal law (see *Penal Law; *Punishment). However, the scope of application of this branch of the law was already substantially narrowed around the time of the Temple destruction, and in consequence it reflects a diminished creative continuity and a smaller framework. It is true, as already mentioned, that in some places Jewish judicial jurisdiction extended even to capital offenses but in most centers the criminal jurisdiction of the Jewish courts was confined to offenses against property, administrative offenses, and the like. On the whole the lack of sovereignty deprived the Jewish people of the media required for the proper implementation of criminal jurisdiction and of suitable conditions for its organic development. All these factors therefore stunted the growth of the functional framework and content of this branch of Jewish law.
Classification of the Different Branches of Jewish Law
Like other legal systems, Jewish law has its own distinctive basic principles pertaining to each of the different branches of the system. Sometimes these principles are unique to Jewish law and characterize its approach to matters such as personal freedom and the rights of the individual, the substance and nature of legal and moral obligations, the concept of ownership of property, the essential nature of judicial jurisdiction, modes of proof, and other fundamental questions. In other cases the principles of Jewish law correspond to parallel principles in other legal systems. Such differences and similarities are dealt with elsewhere under the heading of the subject to which they pertain.
A full enumeration of the articles on Jewish law appearing in this Encyclopaedia is given below, some articles being repeated since they pertain to more than one branch of law:
the sources of law
Authority, *Rabbinical; *Codification of Law; *Interpretation; *Ma'aseh; *Minhag; *Mishpat Ivri; *Sevarah; *Takkanot; *Takkanot ha-Kahal.
general
*Agency, Law of; *Asmakhta; *Conditions; *Ḥazakah (in part); *Law and Morals; *Legal Person; *Majority Rule; *Legal Maxims; *Mistake; *Noachide Laws; *Ones; *Shetar; *Slavery.
the laws of property
*Acquisition; *Gifts; *Hazakah; *Hefker; *Hekdesh; *Lost Property, Finder of; *Maẓranut; *Ona'ah; *Ownership; *Property; *Sale; *Servitude; *Slavery; *Ye'ush.
the laws of obligation
*Antichresis; *Assignment; *Contract; *Gifts; *Ha'anakah; *Hassagat Gevul; *Labor Law; *Lease and Hire; *Lien; *Loans; *Maritime Law; *Meḥilah; *Obligation, Law of; *Partnership; *Pledge; *Sale; *Shalish; *Shi'buda de-Rabbi Nathan; *Shomerim; *Surety; Unjust *Enrichment; *Usury.
the laws of tort
*Avot Nezikin; *Damages; *Gerama; *Nuisance; *Theft and Robbery (civil aspects); *Torts.
family law and inheritance
*Adoption; *Agunah; *Apostate (Family Law); *Apotropos; *Betrothal; *Bigamy; Child *Marriage; *Civil Marriage; *Concubine; *Divorce; *Dowry; *Embryo; *Firstborn; *Husband and Wife; *Ketubbah; *Levirate Marriage and Ḥaliẓah; *Maintenance; *Mamzer; *Marriage; *Marriage, Prohibited; *Mixed Marriage (Legal Aspects); *Orphan; *Parent and Child (legal aspects); *Rape; *Succession; *Widow; *Wills; *Yuḥasin.
criminal law
*Abduction; *Abortion; *Adultery; *Assault; *Blood-Avenger; *Bribery; *Capital Punishment; *City of Refuge; *Compounding Offenses; *Confiscation; *Crucifixion; *Expropriation and Forfeiture; *Contempt of Court; *Divine Punishment; *Extraordinary Remedies; *Fines; *Flogging; *Forgery; *Fraud; *Gambling; *Hafka'at She'arim; *Ḥerem; *Homicide; *Imprisonment; *Incest; *Informer (legal aspects); *Oppression; *Ordeal; *Penal Law; *Perjury; Police *Offenses; *Punishment; *Rape; Rebellious *Son; *Sexual Offenses; *Slander; *Sorcery; *Suicide; *Talion; *Theft and Robbery (criminal aspects); *Usury; *Weights and Measures (criminal aspects).
the laws of procedure and evidence
*Admission; *Arbitration; *Attorney; *Bet Din; *Compromise; *Confession; *Evidence; *Execution (Civil); *Extraordinary Remedies; *Ḥerem; *Imprisonment for Debt; Limitation of Actions; *Oath; *Pleas; *Practice and Procedure (Civil and Penal Law); *Shetar; *Witness.
mercantile law
*Acquisition; *Agency, Law of; *Contract; *Hafka'at She'arim; *Hassagat Gevul; *Imprisonment for Debt; *Labor Law; *Lease and Hire; *Legal Person; *Loans; *Maritime Law; *Minhag; *Obligations, Law of; *Ona'ah; *Partnership; *Sale; *Shalish; *Shetar; *Shomerim; *Takkanot; *Takkanot ha-Kahal; *Taxation; *Usury. (The articles enumerated above are all mentioned under other branches of the law, but are grouped together here because of the commercial elements they contain.)
public and administrative law
*Confiscation, Expropriation, and Forfeiture; *Dina de-Malkhuta Dina; *Hekdesh; Public *Authority; *Takkanot ha-Kahal; *Taxation.
conflict of laws
*Conflict of Laws; *Dina de-Malkhuta Dina; *Domicile.
It may be added that classification of the subjects comprising a legal system is a task beset with difficulties, particularly so in the case of the Jewish law, and calls for the exercise of much care. Thus, for instance, certain institutions of Jewish law are classified both under the laws of property and the laws of obligation because of the close connection between these two branches of the law. This is true also as regards the classification of criminal matters, which in Jewish law do not always conform to those customarily classified in other legal systems as part of criminal law. It is questionable whether the classification of subject matter in one legal system is appropriate for another and any automatic application to Jewish law of the classification adopted in another legal system is especially liable to be misleading. To a certain extent the special legal terminology of Jewish law also influences the manner of classification of its subject matter (see for instance the definitions above of the terms mishpat Ivri, issura, mamona, and others). The difficulties entailed in the classification of Jewish law into defined legal branches derive in part from the fact that during the periods when the foundations of the various rules of Jewish law were laid, the system knew only a classification of a most general nature. This is reflected in the Mishnah and in the remaining halakhic literature of the tannaitic period and also in the two Talmuds. A more definitive and detailed classification of Jewish law came only with the compilation of Maimonides' code, the Mishneh Torah, and some of the subsequent codes. A classification of the subject matter of Jewish law in keeping with the character and spirit of this legal system is possible only after deep and careful study of its different institutions. For these reasons the above classification is not to be regarded as final and absolute.
public jewish leadership in the development of jewish law
Introduction
The halakhic scholars and the battei din filled the central role in the development of the Jewish legal system. In addition, an important creative role was filled by the public leadership and representation of the Jewish people in all the different institutional forms it assumed throughout the history of the Jews: from the kings, the nesi'im, and exilarchs down to the elected or appointed representatives of the community.
The King's Law
The fundamentals of the laws concerning the king and his kingdom are enjoined in the Pentateuch (Deut. 17:14–20, dealing mainly with the duties of the king and his modes of conduct), in the first Book of Samuel (ch. 8, in which the prerogatives of the king and the duties owed him by the people are defined), and in other biblical passages (see for instance i Kings 21, concerning the matter of Naboth's vineyard). The scholars also learned about the powers of the king from certain biblical statements concerning leaders of the people other than the kings (see for instance Josh. 1:18 concerning rebellion against the kingdom; cf. Sanh. 49a). The king was vested with wide powers in the legislative (see *Takkanot), judicial, and executive fields, with authority to deviate in various matters from the rules as laid down in the halakhah. His authority was not confined solely to fiscal and economic matters relating directly to the rule of the kingdom, such as taxation and the mobilization of manpower or property, but extended also to the field of criminal law. In the latter field he had authority, for instance, to impose the death sentence on a murderer, despite the existence of formal defects in the evidence against him, when this was required "for the sake of good order in accordance with the needs of the hour" (Yad, Melakhim 3:10; 5:1–3 ibid., Roẓe'aḥ 2:4; and Sanhedrin 14:2, 18:6).
The king's law represents the earliest determination in Jewish law of a creative factor not directly attributable to halakhic scholars, and the halakhah conferred similar creative authority on the various other post-monarchic institutions of central Jewish government. Thus for instance it was said of the exilarchs who headed the internal Jewish government in the Babylonian exile that "they take the place of the king" (Yad, Sanhedrin 4:13, based on Sanh. 5a and Rashi ad loc.) and that the king's law applies "in every generation… in favor of the leaders of each generation" (Beit ha-Beḥirah, Sanh. 52b; see also Mishpat Kohen, no. 144). The question of the relationship between the regular law and the king's law is often the subject of discussion in halakhic literature, particularly of the post-talmudic period. R. Nissim b. Reuben *Gerondi explains the parallel existence of the two systems on the basis that justice administered according to law, while correct and ideal, does not always answer the social and other needs of the hour, and that this function is filled by administration of the king's law; for this reason Scripture enjoins the king to have the Torah with him always, "that his heart be not lifted up above his brethren" (Deut. 17:14–20), because inasmuch as he is not always subject to the law he must at all times, when making use of his powers, take particular care to ensure that he does not deviate from the general object of the Torah and its principles of justice and equity (Derashot Ran, Derush no. 11). All subsequent creative authority permitted in Jewish law to deviate, in certain cases, from the rules of the halakhah was subject to this above basic requirement (see Minhag; Takkanot ha-Kahal). In later periods different scholars found a legal basis for the authority of the king's law in the idea of an agreement between the king and the people in terms of which the latter allows the king his prerogatives in all matters falling within the king's law in return for his undertaking to guard and protect the people (see Z.H. Chajes, Torat ha-Nevi'im, ch. 7 "Melekh Yisrael"). This idea was apparently the influence of the commonly accepted medieval theory which based the validity of the king's law on a consensus of the people, a theory which different halakhic scholars also adopted as a basis for the doctrine of dina de-malkhuta dina.
Local Jewish Government
Creativity in the legislative field of Jewish law is also evidenced at the local governmental level. The halakhic sources relating to the early part of the Second Temple period already mention certain legislative powers entrusted to the townspeople (Benei ha-Ir, see Tosef., bm 11:23; bb 8b). From this modest beginning there developed, at a much later stage, a wide legislative creativity at the hands of the autonomous governmental institutions of the Jewish community and intercommunal organizations. This was expressed in the takkanot ha-kahal, enacted, particularly from the tenth century onward, in all fields of the civil, criminal, and administrative law. As in the case of the king's law, it was possible for these enactments to be contrary to a particular rule of the halakhah, and the scholars determined ways to ensure that such enactments remained an integral part of the overall Jewish legal system. One of their principal means was to check that the enactments did not conflict with the Jewish law principles of justice and equity. Another contribution to Jewish law, not directly attributable to the halakhic scholars, was that which resulted from participation of the public in some of the institutions of Jewish jurisdiction, such as arbitration and the lay tribunals (see above). Although at times these jurisdictional institutions were prejudicial to the orderly evolution of Jewish law, it may nevertheless be accepted that the generally harmonious cooperation that existed between these institutions and the halakhic scholars enabled the public leaders to make a significant contribution toward the forging of a stronger link between Jewish law and the realities and problems of everyday life. This in turn was a spur to the further development of Jewish law.
the relationship between jewish law and foreign law
Introduction
The question of the relationship between Jewish law and foreign law has two aspects. First, the extent – if any – of reciprocal relations and influence of the one on the other in a manner leading to the integration into the one legal system of legal directives deriving from the other; secondly, the extent of the recognition – if any – given to a directive of a foreign legal system, without such recognition involving any integration of the directive into the host system. These are two separate but related aspects, for recognition by the host system of the validity of a foreign legal principle entails, in certain cases, some measure of recognition – witting or unwitting – of the correctness of the foreign principle and of the possibility that the contents of the host legal system may be influenced in a manner leading to the integration of a foreign legal principle into its own framework.
Reciprocal Influences
From the 17th century onward a great deal of research in Jewish law has been devoted to the subject of mutual influence between Jewish law and other legal systems (latterly see B. Cohen, bibl., Introd. and ch. 1). More than any other, this field of research has been particularly conducive to the adoption of an apologetic approach – in the form of both an over-emphasis on the influence of foreign law on the Jewish legal system and exaggeration of the influence of Jewish law on other legal systems. Moreover, the influence of one legal system on another is no easy matter to prove because of the possibility that similar circumstances may have led to the evolution of like institutions in different legal systems, uninfluenced by each other. However, in general it may be said that there were reciprocal relations and influences between Jewish law and the surrounding legal systems or that of the nation under whose political sovereignty Jewish law functioned in any particular period of its history. The fact that the Jewish collectivity lived its social and economic life in accordance with its own law, yet all the while was under the patronage of many different nations with their own legal systems, inevitably left the mark of Jewish law on the other legal systems. The reverse process applied equally: the halakhic scholars were familiar with the law applied in the general courts of the land and sometimes even recommended the adoption of a foreign legal practice which commended itself to them (see, e.g., Elon, Mafte'aḥ 425; Pesakim u-Khetavim, no. 83; Resp. Israel of Bruna, no. 132). In certain cases the halakhic scholars recognized the particular social efficacy of certain aspects of the foreign law (see *Derashot Ran, Derush no. 11) and sometimes they were not even deterred from lauding the gentile administration of justice when they found this superior to that of the Jews (Sefer ha-Ḥasidim, no. 1301). To some extent directives of the foreign law were absorbed by Jewish law by means of the legal source of custom (see *Minhag). When absorption of a foreign principle did take place, such a principle underwent a process of internal "digestion" designed to accommodate it to the general principles and objectives of Jewish law. If in particular social circumstances a foreign principle was occasionally absorbed which conflicted with the fundamental doctrines of Jewish law, such a principle was usually rejected in the end by the Jewish legal system (see, e.g., M. Elon, Ḥerut ha-Perat…, pp. 238–54, 259f.).
Recognition of Foreign Legal Rules
The much-discussed subject of the validity in Jewish law of the provisions of a foreign legal system centers on the doctrine of dina de-malkhuta dina, which holds that the law of the land is law and must be followed. The earliest formulation of the doctrine was made in the Babylonian Exile by the amora Samuel as appears from some of the legal explanations given for its entrenchment. An unqualified recognition of the provisions of the foreign law pertaining to civil matters – dinei mamonot (in matters of ritual law the doctrine of dina de-malkhuta dina never applied; Tashbeẓ, 1:158 and see above) – would have constituted a serious danger to the orderly evolution of the Jewish legal system and may well have rendered it of theoretical interest only. As the main means of averting this danger many halakhic scholars restricted the scope of the above doctrine – contrary to the plain meaning of some talmudic halakhot – by holding it applicable solely to certain matters falling within the sphere of relations between the central authorities and the public, such as taxation, expropriation of property for governmental purposes, and the like. Such restriction was expressly justified on the ground that extension of the doctrine to all matters of civil law would lead to "nullification of all the laws of Israel" (Beit ha-Beḥirah, bk 113b). Even the scholars who in principle extended the doctrine beyond matters concerning relations between the authorities and the public (see Resp. Rashba, vol. 1, no. 895; Nov. Naḥmanides, bb 55a; Nov. Ran and Nimmukei Yosef ibid.; Sefer ha-Terumot 46:8, 5), did not always carry this out in practice (see Resp. Rashba, vol. 6, no. 254) and some scholars restricted the scope of the doctrine in other ways (see Teshuvot Ḥakhmei Provinẓyah (ed. A. Sofer), pp. 426f.; Siftei Kohen, Ḥm 73, n. 39). The halakhah was decided according to the view that restricted the application of the doctrine solely to certain matters concerning relations between the authorities and the public (Rema, Ḥm 369:11).
The proliferous and ever-continuing creativity evidenced in talmudic and post-talmudic Jewish law offers eloquent proof of the fact that the doctrine of dina de-malkhuta dina remained only a marginal aspect of the Jewish legal system. Indeed, by their judicious use of the doctrine, the scholars rendered it a contributory factor toward the preservation of Jewish judicial jurisdiction, since qualified recognition of certain matters of foreign law enabled the Jewish collectivity to adapt itself, in the required and necessary manner, to the conditions of the gentile environment. The attitude of Jewish law toward a different legal system is determined, first and foremost, by its basic objective of safeguarding its own continued existence and, flowing therefrom, autonomous Jewish jurisdiction with all that it entails. As long as the realization of this objective is not endangered, no obstacle presents itself in Jewish law to resorting in certain cases, as the need arises, to a rule deriving from foreign law. Even then, however, such recognition is given only to the extent that the rule of the foreign law is not in conflict with any of the fundamental Jewish law principles of justice and equity. For this reason Jewish law attributes no validity to the law of the land with regard to a directive which does not apply equally to all but discriminates between different citizens, since any directive of this nature "is robbery" (Yad, Gezelah 5:14). Similarly, Jewish law holds the imposition of a monetary fine on the whole public, on account of the transgression of a few individuals, to be "absolute robbery" because such conduct contraverts the principle which prohibits the imposition of a collective fine and vicarious criminal responsibility (Resp. Ribash Ha-Ḥadashot, no. 9; in support the following references are cited: Gen. 18:25; Num. 15:22; Pes. 113b; see also Deut. 24:15 and ii Kings 14:6).
the era of emancipation
Inner Spiritual and External Political Changes
On the eve of emancipation and the end of Jewish autonomy, substantial changes began to manifest themselves in Jewish law which were crucial to its development. As already indicated, two basic factors account for the survival of Jewish law as an operative law, even when it was deprived of its single territorial center and political sovereignty: the first the internal discipline of traditional Jewish society which regarded itself enjoined from a national-religious point of view to preserve Jewish law as a living force, and the second the political circumstances of the corporative medieval state. Both these elements now underwent a decisive change. At the same time as the rise of pressures for equality of rights for all, including Jews, the governments of Europe in turn deprived the Jewish community of the mandatory jurisdictional rights of the Jewish courts, even in matters of civil law; the use of the ḥerem as well as other means of execution were forbidden. But the main factor for the progressive ending of the living practice of Jewish law was the social-spiritual change that began to assert itself among the Jewish people. The Jewish community, which had hitherto regarded the halakhah as the supreme value of its existence, split into a society part of which remained traditional while part no longer regarded itself as bound to the observance of the Torah and its precepts, and this decisively weakened the internal factor of a religious imperative to order daily practical life in accordance with Jewish law. This substantive change in the spiritual outlook of the Jewish world carried with it also a disregard for the national element in Jewish law and not only did the leaders of the community not oppose the abolition of Jewish judicial autonomy but a good number of them welcomed the ending of the "separation" between the Jewish and the general public, regarding it as promising achievement of the hoped-for freedoms and equality of rights as well as organic integration into the vibrant Europe of the emancipation era.
The Abrogation of Jewish Judicial Autonomy
With the beginning of this transformation relating to the continued existence of Jewish judicial autonomy, a number of the leading halakhic scholars gave voice to their concern and warned about the religious and national dangers inherent in yielding up this autonomy. Thus R. Ezekiel *Landau railed against the frequent recourse to the gentile courts, a practice so prevalent that "all three pillars of the world are shaken: the Law, Truth, and Peace" (Derushei ha-Zelaḥ, 8:14; 22:24). R. Raphael Cohn, spiritual leader of various communities in Poland-Lithuania and Germany in the 18th century, devoted much effort in the latter years of his life toward the preservation of an autonomous Jewish legal system and all it entailed. Acknowledging the new reality of a laxity in Torah observance by a section of the Jewish public, he emphasized that the neglect of recourse to Jewish judicial jurisdiction was the most serious defect in non-observance of the laws of the Torah, and he particularly criticized those members of the Jewish public who saw the abrogation of such Jewish jurisdiction as a step toward equality of rights and duties (see Zekher Ẓaddik, pp. 7, 8, 20).
These political and spiritual changes, which were increasingly manifest in the course of the 19th century, left their impress upon that part of Jewry that continued to preserve the religious tradition. As regards Western and Central European Jewry, recourse to the general courts rapidly became widespread and common to all Jewish circles. Traditional Jewry of Eastern Europe still preserved for some considerable time its connection with Jewish law and brought its disputes to the rabbi and his bet din for din Torah. However, the decisions of the rabbinical courts became more and more arbitral awards and compromise settlements, lacking the semblance of judgments under a living and organic law, and in the course of time, here also, resort to the general courts grew increasingly frequent. Even the halakhic scholars reconciled themselves with the new situation of the lack of judicial autonomy and justified it on the principle of dina de-malkhuta dina – quite contrary to the attitude taken by the scholars in earlier periods (see, e.g., Kelei Ḥemdah, Mishpatim, no. 1, and see above). The main and greater part of Jewish law in civil and criminal, administrative and public matters, came to be treated as if it were rules "not contemporaneously applied" and now studied merely theoretically. The only sphere of Jewish law that continued to be practiced was a part of family law, the arrangement of marriage and divorce in accordance therewith. In this field, involving the laws of prohibitions and permissions, a powerful internal discipline continued to govern traditional Jewry and to some extent also those who did not observe religious precepts. However, recognition by the central authorities of such marriage and divorce varied from country to country in the Diaspora.
Continuance of Judicial Autonomy in the Eastern Jewish Centers
An interesting phenomenon is the fact that to some extent Jewish law continued to develop as a living law among Oriental Jewish communities in Turkey, North Africa, and elsewhere. This phenomenon is partly explained by the different political circumstances of the Ottoman Empire in the 19th and 20th centuries, but was also an outcome of the determined struggle waged by Oriental Jewish communities, as in Algeria for instance, to retain their judicial independence in the face of efforts by the central authorities to impose on them the general law of the land. A demonstrative expression of this reality is the fact that even in the 19th century the responsa literature of this Jewry continued to occupy itself to a very large extent with matters of the Ḥoshen Mishpat arising from actual events in everyday life, while the responsa literature of European Jewry of this period is very poor in this respect and even then is more of a theoretical study than a consideration of practical problems.
Consequences of the Abrogation of Judicial Autonomy
The abrogation of Jewish judicial autonomy carried with it two far-reaching consequences with regard to the world of Jewish law. In the first place, Jewish law's dynamism as a living law of practice was greatly inhibited and its organic development suffered a marked curtailment. It was unfortunate for Jewish law that this development occurred in the course of the 19th century, a period which saw a revolution in social, economic, and industrial life that left a decisive imprint on different legal fields. The other consequence was the loss, by the greater part of the 19th-century Diaspora communities, of the former deep national and religious awareness that daily practical life, ordered in accordance with Jewish law, in all fields, became as an integral part of the way of life of the Jewish people. This consequence, as was later to become apparent, carried even more fateful implications for Jewish law than those stemming from the first-mentioned consequence.
the period of jewish national awakening
Ha-Mishpat ha-Ivri Society and Mishpat ha-Shalom ha-Ivri
The Jewish national awakening and the rise of Zionism also evoked a change in the mental attitude of the Jewish people toward Jewish law. Soon after the *Balfour Declaration the Ha-Mishpat ha-Ivri Society was founded in Moscow. Its members – drawn from all sections of the Jewish public – regarded the return of Jewish society to Jewish law as an aspect of national renaissance parallel to the building of the Jewish homeland and revival of the Hebrew language. Among the goals set by the society was the preparation of suitable literature on Jewish law and the establishment in Jerusalem of an institute – within the framework of a university – for research into that law preparatory to its adoption in the future Jewish state. In the editorial introduction to the first volume of the journal Ha-Mishpat ha-Ivri (Moscow, 1918) it is noted that "the 'legal' halakhah has been integrally bound up with the 'religious' halakhah… [yet]… over the last decades a process has begun of separating out our law from its religion and ethics, and we intend to continue this process in order to prepare our law for a secular existence." The pursuit of this object was and still is a controversial one and its desirability as well as manner of achievement remain central problems relating to the integration of Jewish law into the legal system of the State of Israel (see below).
In 1909–10, on the initiative of the head of the Palestine office of the Zionist Organization, Mishpat ha-Shalom ha-Ivri was established in Jaffa as a judicial institution for the adjudication of disputes between Jews in Ereẓ Israel. In the course of time district tribunals were established in a number of places and over them a supreme tribunal. Between the years 1918 and 1936 rules and regulations were issued containing directives as to judicial organs, procedure, evidence, and so on. The first head of Mishpat ha-Shalom ha-Ivri was Arthur *Ruppin and the writer S.Y. *Agnon served as its first secretary. Mishpat ha-Shalom ha-Ivri functioned as an arbitral body and its work was facilitated by the enactment of the Arbitration Ordinance in 1926, which recognized the submission of disputes not only to individual arbitrators but also to an existing "arbitration tribunal" (see *Arbitration). It worked alongside the official bodies, first of the Ottoman Imperial government and later of the Mandatory power, and alongside the rabbinical courts. Mishpat ha-Shalom ha-Ivri did not, however, achieve its goal. Its main activities were confined to the years 1920–30 and after this date the number of cases brought before it began to wane. All in all it cannot be said to have produced any real harvest of Jewish law in consequence of its deliberations and decisions. Some of the reasons for this were objective, such as the tribunal's lack of powers of compulsion and the fact that it provoked sharp criticism from the rabbinical courts, the leaders of national religious Jewry, and respected scholars such as S. *Assaf who were opposed to the existence of fixed judicial bodies outside the framework of the rabbinical courts and in opposition to them. Mainly, however, its lack of success was due to the fact that not only did it not assume to decide according to the existing halakhah as set out in the Shulhan Arukh Ḥoshen Mishpat and the subsequent halakhic literature, but it possessed no system of norms, either of Jewish law or generally, upon which to act. In fact, proceedings before this tribunal were much like inquiries by laymen based on generally conceived principles of justice and equity, ethics and public good, since the judges were for the larger part persons of general education only, without any legal training or specific knowledge of law (see P. Daikan, Toledot Mishpat ha-Shalom ha-Ivri, and bibl. there cited; J. Yonovitz, Introd. to S. Assaf, Ha-Onshin … (1922), 5–6).
Jewish Law in the Rabbinical Courts
At the beginning of the 20th century the rabbinical courts in Ereẓ Israel displayed a total lack of central organization. With the establishment of the Chief Rabbinate in 1921, most of the rabbinical courts came to organize themselves within the framework of this institution. In matters of personal status, the rabbinical courts were assigned exclusive jurisdiction as regards marriage, divorce, and "probate" of wills, and concurrent jurisdiction as regards maintenance, succession, etc. (all other areas of the law remained within the jurisdiction of the general Mandatory courts). The task of this supreme halakhic institution was pictured by its first head, Rabbi *Kook. After outlining the important creative role played by the battei din in all periods, through the enactment of takkanot, he went on to add that "in our renewed national life in Ereẓ Israel there will certainly sometimes be great need to make important takkanot which, as long as they are consented to by the majority of the competent scholars and are then accepted by the community, will carry the force of a law of the Torah" (Ha-Tor, 1 (1921), nos. 18, 21–22). To some extent the rabbinical courts were equal to this important task in matters of procedure and personal status, but in all other areas of Jewish law almost nothing was achieved.
matters of procedure and personal status
An important takkanah enacted immediately in 1921 established the Rabbinical Supreme Court of Appeal, thus introducing a regular appellate tribunal which had not previously existed in Jewish law (see *Practice and Procedure). That this takkanah rendered the appellate court an integral part of the Jewish legal system was made clear in a judgment of the Rabbinical High Court of Appeal of Jerusalem which rejected the contention that no right of appeal existed in Jewish law, holding that "the right of appeal has been enacted by a rabbinical takkanah, the force of which is as that of a rule of our Holy Torah" (opd, p. 71).
At first the rules of procedure in the rabbinical court left much to be desired, but improvement followed upon the publication in 1943 of procedural regulations by the Chief Rabbinate Council. These included detailed provisions on the initiation of proceedings, on procedure during the hearing, rules of evidence, modes of appeal, and on other matters. A series of forms were also appended, among them statements of claim, summonses of parties and witnesses, applications for appeal and so on. In part these regulations were based on Jewish law and in part they showed the influence of existing practice in the general legal system. An innovation in Jewish law was the detailed rules laid down concerning the payment of various court fees and the adoption of children. The most radical innovation introduced by the above regulations involved an engagement by the rabbinical courts to distribute the estate of a deceased person in accordance with the provisions of the Succession Ordinance of 1923, which prescribed an order of distribution treating husband and wife and son and daughter in terms of equality. In 1944 a number of takkanot were enacted introducing further important changes: the customary minimum sum of the ketubbah was increased; the levir refusing to grant the widow of his brother ḥaliẓah was rendered obliged to maintain her until releasing her (see *Levirate Marriage and Ḥaliẓah); an important takkanah imposed on the father the legal duty to maintain his sons and daughters up to the age of 15 years and not merely until the age of six years in accordance with talmudic law (see *Parent and Child; M. Elon, Ḥakikah Datit…, 157ff.).
After 1944, however, creativity by way of takkanot ceased almost entirely, except for three additional takkanot enacted by the Chief Rabbinate in 1950 (the principal one involving a prohibition on the marriage of children under the age of 16 years; see *Child Marriage). This may be regarded as a matter for great regret since a number of urgent problems in the area of personal status still await solution by way of takkanah (such as certain cases of hardship for the *agunah, problems relating to the joint property of the spouses, and other matters). On the other hand, there has since the 1940s been halakhic creativity in the area of personal status by means of interpretation as applied in actual cases. In this manner, for instance, there was innovated the substantive principle giving a woman, upon divorce, the right to receive over and above her ketubbah a certain additional sum, called "compensation." The amount thereof varies with the circumstances, one of the important considerations in its determination being the need to award the woman part of the property acquired in the course of the marriage through the joint efforts of the spouses (see M. Elon, Ḥakikah Datit…, loc. cit.).
other fields of the law
In fields of the law other than personal status the rabbinical courts were assigned no jurisdiction under the general law of the land, and the bearers of the halakhah initiated no real effort toward adaptation of the Jewish legal system to the contemporary social and economic needs of Ereẓ Israel Jewry. The call to the people to submit their disputes in civil matters to the rabbinical courts by way of arbitration brought a very restricted response, even from the religious section of the community. Hence, except in a few exceptional cases, no evidence is to be found in the judgments of the rabbinical courts of any creative activity in the overwhelming part of the civil law. One notable exception is represented by a leading judgment given in 1946, in a matter concerning the laws of evidence, when a marriage was entered into before two witnesses in the absence of a rabbi. As violators of the Sabbath both witnesses were incompetent (Sh. Ar., Ḥm 34:2, 24) and since they were the only witnesses the marriage stood to be regarded invalid according to Jewish law. On the man's death, this was the contention raised by the remaining heirs of the deceased in opposition to the woman's claim to the widow's share in the estate of the deceased. The court, however, recognized the validity of the marriage, holding the witnesses to have been competent: "For reasons of religious transgression… and bearing in mind the fact… that libertarianism has increasingly spread for general and universal reasons, transgressions of this kind are not likely to affect the credibility of witnesses… who act almost unwittingly. The disqualification of transgressors as witnesses arises from the fear that their evidence will be false… and therefore in such cases the credibility of a witness is largely determined by reasons of time and place. If it is clear to the court that the person is not one who is likely to lie for the sake of deriving a benefit, he is to be admitted as a competent witness" (opd, p. 137). This decision of principle was essential to the proper administration of justice under present day social realities in which a substantial part of the public is not religiously observant, and it is carried out in practice by the rabbinical courts.
Jewish Law and the Hebrew Language
It is appropriate that the quest for the restoration of Jewish law as a law of practice be compared with the struggle for the revival of Hebrew as a spoken language. From one aspect the latter represented the more difficult task. Ever since the beginning of the Diaspora, Hebrew had served almost exclusively as a literary language, not spoken in the common pursuits of everyday life, and as a result of emancipation it came to be further and further removed from life – even the spiritual and cultural – of the Jewish people. Many of the faithful followers of the Zionist movement in its early stages entertained doubt about the possibility of using Hebrew in modern conditions: "Who among us knows sufficient Hebrew to ask for a train ticket in this language?" asked Herzl, who contemplated a Jewish state without Hebrew as its commonly spoken language (The Jewish State, ch. 5). Yet an inner awareness that the use of Hebrew in the social, economic, and cultural life of the people was a prime requisite without which there could be no complete national revival led eventually to Hebrew becoming not merely a holy tongue, but the national language, written and spoken, of the Jewish people returning to its homeland. As a result of the untiring efforts of individuals and public bodies expressions and terms were coined and style and forms created, largely drawn from the ancient treasure houses of the language, and in this manner there flowered a modern living language based on and preserving continuity with the ancient holy tongue.
In other respects the possibility of restoring Jewish law was more limited than the revival of Hebrew, which is not so dependent on political sovereignty or assistance from the ruling authorities and is more closely connected with individual inclination and the wishes of interested bodies; legal norms encroach more on the realm of philosophy and ideological outlook than do the byways of a language and the task of restoring Jewish law demanded more comprehensive study and preparation than did the revival of Hebrew. Yet it is conceivable that these obstacles to the restoration of Jewish law could have been overcome by a determined effort. To a large extent the political autonomy of the Jews in Ereẓ Israel in the pre-state period was similar to that enjoyed by the Jewish people in the Diaspora until emancipation, an autonomy which also allowed for judicial independence. Moreover, by far the greater part of the subject matter with which Jewish law deals – such as obligations, property, public administration, and so on – is free of fundamental religious or ideological dispute. However, emancipation had produced a weakened religious and national consciousness of the need for daily life to be ordered in accordance with Jewish law, and all sections of the population displayed an irresolute apathy toward the preparation of Jewish law for its historic task. It is true that research was undertaken and books were written by scholars such as A. *Gulak, S. *Assaf, and A. *Freimann, which were of importance for the scientific research of Jewish law. But the required auxiliary literature of the law, written in convenient form with the law phrased and classified in accordance with modern legal concepts and terminology, was not prepared, nor were possible solutions to modern legal problems for which Jewish law has no ready or adequate existing answer, although it allows for one to be found by way of takkanah or any other of its recognized creative legal sources.
The Legal System in Ereẓ Israel Preceding the Establishment of the State of Israel
The unique legal system in force in Ereẓ Israel under the British Mandatory regime was a factor which might have served as a strong stimulus toward the integration of Jewish law into the legal system of the state about to be established. The principles which governed the Mandatory legal system were set out in Article 46 of the Palestine Order in Council of 1922. In accordance with this, on the eve of the establishment of the State of Israel there was crystallized a legal system nourished by a number of legal systems: the Mejelle, based on Muslim religious law; various Ottoman laws embracing principles of French law and other legal systems; Mandatory ordinances based on English law; law based on the English common law and doctrines of equity introduced into the Mandatory legal system, in cases where the existing system provided no solutions to concrete problems. In addition, matters of personal status were to a considerable extent dealt with under the religious law of the different communities recognized by the general law. This was a legal system composed of a number of disparate elements and created a situation inviting its own replacement by a homogeneous legal system.
jewish law in the state of israel
The Official Position Assigned to Jewish Law
On the establishment of the State of Israel, Jewish law continued to occupy the same official position in the legal structure of the state as it had done in the pre-state period. The Law and Administration Ordinance of 1948 prescribed that the law in existence on the eve of establishment of the state should remain in force (sec. 11), with the practical result that officially Jewish law was incorporated in the area of personal status only. At the same time the Hebrew language celebrated its final victory, even in a formal sense, and section 15b of the above ordinance repealed any provision in any law requiring the use of English, thus making Hebrew the language of the state, of its law, and of its everyday life.
matters of personal status
The jurisdiction of the rabbinical courts was defined in a Knesset law of 1953 which, save for one or two changes, entailed no substantial departure from the existing situation. It gave the rabbinical courts exclusive jurisdiction in matters of *marriage, *divorce, and ḥaliẓah; as regards the wife's claim for maintenance, jurisdiction is given to the court to which the wife applies – the rabbinical or the district court. In this and in other laws there were also prescribed the circumstances in which the rabbinical courts have concurrent jurisdiction in other matters of personal status (see *Adoption; *Apotropos; *Maintenance; *Succession).
the rabbinical courts
Matters entrusted to the jurisdiction of the rabbinical courts are naturally dealt with in accordance with Jewish law. In the course of their activities these courts have given decisions introducing a number of important innovations in Jewish law, such as a married woman's right to the income deriving from the pursuit of her own profession, and recognition of the existence of mutual pecuniary rights between spouses married abroad in a civil ceremony only, and so on (see M. Elon, Ḥakikah Datit…, 166–72). In certain matters the law prescribes that the rabbinical courts too must decide in accordance with the general law. In the Succession Ordinance of 1923 provision was made for the treatment of son and daughter, husband and wife, on terms of equality as regards the division of certain kinds of property on succession, and the Women's Equal Rights Law, 1951, extended the directive to all other property. Some of the other main provisions of this law are the following: men and women are equated as regards all legal acts; the father and mother are given natural guardianship of their children; a married woman is given full capacity of acquisition during marriage and retention of her rights to property acquired by her prior to the marriage. In addition this law allows the litigants, if they are above the age of 18 years, to consent to having their case tried according to the laws of their community. It also states that its provisions shall not affect any halakhic prohibition or permission relating to marriage or divorce. In the main its provisions accord with the position under Jewish law as it has evolved (for instance as regards equal rights on succession), a notable exception relating to the husband's right to the fruits of his wife's melog property (see *Husband and Wife). A law of 1955 prescribes the status and manner of appointment of rabbinical court dayyanim and, except for two variations, its provisions correspond closely to those laid down in the Judges Law, 1953. (As regards two variations see M. Elon, Ḥakikah Datit…, 47–49.)
the general courts
In matters of personal status concerning Jewish parties the general courts are also required to decide according to Jewish law, except when a law of the state makes express provision on the matter. As already mentioned, the general courts have jurisdiction in all matters not entrusted to the exclusive jurisdiction of the rabbinical courts. Matters of marriage and divorce may also be pronounced on by the general courts, either when the problem arises incidentally to the matter before the court (for instance in a claim by the wife for maintenance there may arise incidentally thereto the question of the validity of her marriage), or in a matter brought before the Supreme Court sitting as a High Court of Justice. Possibly a rabbinical court and a general court, even though both apply Jewish law, may arrive at entirely different conclusions. Thus, for instance, the general courts first resort to the principles of private international law before applying Jewish law and therefore may recognize a marriage entered into abroad as valid in accordance with the law of the country concerned, even when it is invalid according to Jewish law. In addition the general courts apply only substantive Jewish law and not its laws of evidence and procedure, thus for instance admitting the testimony of the parties themselves and that of their relatives.
legislative provisions contrary to jewish law
Legislation in the area of personal status contrary to Jewish law is reflected in a number of provisions, scattered in various Knesset laws, which confer on the commonly reputed spouse ("wife" as well as "husband") numerous rights. These provisions relate to rights of a social-economic nature (pensions, tenants' protection, and so on), rights under the Succession Law, and include also the right conferred on a woman to give her child born of the man reputed to be her husband the latter's family name, even without his consent. These rights were held by the Supreme Court to extend to the commonly reputed spouse even though the latter (or even both parties) be validly married to another (except with regard to the right of succession, which is only available if, upon the death of one of the parties who have lived together as husband and wife in a common household, neither is then married to another). The explanation that the above enactments were made in order to alleviate the hardship which is sometimes suffered by a couple who are unable to marry on account of Jewish law prohibition (for instance in certain cases of the agunah) is indeed weighty and hope may be expressed that the Chief Rabbinate will speedily find solutions to these problems. Nevertheless, it does not seem to justify the institution of the reputed spouse with its threat to the orderly existence of the family unit. This institution is the subject of controversy in Israel society and there are recent indications of a tendency by the Supreme Court to limit its scope (see M. Elon, Ḥakikah Datit…, 119–54).
"who is a jew?" – answered according to jewish law
In March 1970 an amendment to the Law of Return of 1950 incorporated into this law a most material principle of Jewish law. This law, which ensures for every Jew the right to come to Israel as an oleh and automatic citizenship from the moment of his arrival, was amended to define the term "Jew" as a person born of a Jewish mother or converted to Judaism, who is not a member of a different religious faith. This definition, including the latter part, is entirely in accord with Jewish law. A Jew converted to a different faith remains a Jew as regards his personal status and all this entails – such as the need for him to grant a divorce to his Jewish wife – but he is deprived of various religio-social rights and is not numbered as a member of the Jewish community (i.e., he cannot be counted toward *minyan and so on); for this reason he is also deprived of the rights of a Jew under the Law of Return. The stated definition applies also for purposes of registering an individual's Jewish nationality (le'om) in the population register and related documents, including the identity card (see also *Jew).
legislation conforming with ritual law
In addition to the already mentioned cases, Israel law is also based on the halakhah – in the wide sense of the term – in a number of different matters. Thus in 1948 the Provisional Council of State enacted that the supply of kasher food be ensured to all Jewish soldiers of the Israel Defense Forces; a law of 1962 prohibits the raising, keeping, or slaughtering of pigs in Israel except in specified areas (populated mainly by non-Jews) and for certain other limited purposes; the provisions of the Law and Administration Ordinance of 1948 (as amended) lay down that the Sabbath and the Jewish festivals shall be prescribed days of rest in the state (but do not prohibit labor on such days, such matters being ordered in certain respects in the Hours of Work and Rest Law of 1951) and allows non-Jews the right to observe their own Sabbath and festivals as days of rest.
The "Unofficial" Application of Jewish Law in the State
independence of the israel legal system
As already mentioned, Jewish law is reserved no official place in the Israeli legal system, except in matters of personal status. The proposal (made by P. Daikan on the eve of the state's establishment and subsequently raised again by others) that Israel law be freed from its dependence on the English common law and principles of equity and that Jewish law be resorted to in any case of lacuna in the law of the state (see above, Art. 46 of the Palestine Order in Council) was not accepted. Until the present time there is to be found in two Laws only, the Succession Law of 1965 and the Land Law of 1969, a provision (entitled "Autarky of this Law") which excludes the operation of the aforementioned article 46 in all matters with which the relevant law is concerned. None of the other laws so far passed by the Knesset proclaims its own independent operation. To some extent such independence has been established in the case law in consequence of decisions by the Supreme Court to the effect that the post-1948 English case law does not have binding force in Israel law as does that of the pre-1948 period, and even reliance on the pre-1948 English case law is also gradually diminishing.
legislation based on jewish law principles
In some measure law in the State of Israel follows the principles of Jewish law even in areas where the latter system has not officially been rendered applicable. In the introduction to a draft bill for one of the early comprehensive laws there were set out the general legislative guidelines adopted for the entire area of the civil law. The legislative policy thus enunciated assigned to Jewish law the status of "the main but not the only or binding source" and enumerated the existing legal and factual position in Israel as well as the laws of other countries as additional sources (Draft Bill for a Succession Law, published by the Ministry of Justice in 1952). To some extent this policy has been adhered to in practice and some of the matters enacted in accordance with the principles of Jewish law are the following: the possibility of separate ownership of dwellings in a cooperative house (see *Ownership); the prohibition of delay in the payment of wages (see *Labor Law); the right of the dismissed employee to severance pay (see *Ha'anakah); the legal arrangement concerning imprisonment for debt; the laws of bailment (see *Shomerim), and so on. Particular reliance on Jewish law is to be found in the provisions of various Knesset laws in the area of family law, relating among others to the following matters: the duty of a person to maintain, besides his wife and children, also his other relatives (on the Jewish law principle of obliging a person to uphold the mitzvah of ẓedakah; see *Maintenance); in matters of guardianship that the minor's own good is the primary consideration and that "the court is the father of all orphans" and a complete departure – expressed in various provisions – from the Roman law concept of patria potestas (see *Apotropos); in matters of succession Jewish law is followed in the conferment of equal rights on all children of the deceased whether born in or out of wedlock, in the solution provided to the problem which arises in the case of commorientes (see *Succession), in acceptance of the Jewish law institution of a shekhiv mera will (see *Wills), and in the provision made for maintenance out of the estate of the deceased (see *Widow).
legislation contrary to jewish law
In contrast, there are Knesset laws containing provisions which are – without any real justification – contrary to the position taken by Jewish law. Some of the matters so enacted are the following: the right of the creditor to turn directly to the surety even without initial agreement to this effect (see *Surety); the right of a party to plead prescription of a claim along with an admission as to the existence of the debt (see *Limitation of Actions); the automatic administration of an oath to all witnesses whereas Jewish law leaves the matter to the discretion of the court (Resp. Ribash, no. 170; Tashbeẓ, 3:15; Rema, Ḥm 28:2; for further illustrations see Elon, in: ilr, 4 (1969), 80–140).
jewish law in the case law of the general courts
The decisions of the courts, particularly of the Supreme Court, represent a further channel through which the influence of Jewish law is brought to bear on the Israel legal system. In numerous decisions of the Supreme Court diverse legal matters have been dealt with by way of a comparison between the position under the general law and Jewish law respectively, the two systems sometimes leading the judges to the same conclusion and sometimes otherwise. In some cases Jewish law has been quoted for the purpose of construing legal terms and definitions and on occasion Jewish law has constituted the primary legal source relied on by the Supreme Court, even in areas in which Jewish law is not expressly rendered applicable. This integration of Jewish law through the case law of the general courts is of great practical significance from the aspect of the confrontation between Jewish law and the legal problems that arose before the courts in the 1950s and 1960s.
jewish law in the case law of the rabbinical courts
A noteworthy phenomenon is the existence of a proliferous case law of the rabbinical courts, in diverse areas of the civil law, in matters coming before these courts as arbitral bodies. Some 30% of the judgments of these courts published since the middle of the 1960s deal with matters unrelated to personal status and concern, for instance, labor law, contracts, copyright, partnership, pledge, administrative law, and so on. These offer an instructive insight into the manner in which concrete questions of everyday life are dealt with in accordance with Jewish law and represent an important contribution to the solution of modern social and economic problems (see, e.g., *Contract; *Ha'anakah; *Labor Law; *Public Authority).
Attitudes toward Jewish Law in the Law of the State
Integration of Jewish law into the legal system of Israel is sometimes opposed because it entails a "secularization" of the halakhah since the acceptance by the state of a Jewish law principle does not stem from recognition of the binding validity of such a principle from the religious point of view, but is dictated by purely human and national interests. The argument views that by such integration the Knesset's own binding authority substitutes itself as the source of authority of any Jewish law principle it has adopted, and that neither the Knesset nor the general courts possess the necessary qualifications postulated by the halakhic system for deciding any of its rules. This view is decried by a decisive majority of religious Jewry and its spiritual leaders, who consider that the halakhah does not become secularized for the mere reason that the theory of the general law may hold a change to have taken place as regards the basic norm of a particular halakhic rule. It is argued that neither the Knesset nor the courts purport – nor indeed is it possible for them to do so – to decide the halakhah within the religious meaning of such activity; that not only is the halakhah not prejudiced by its integration into the legal system of the state, but the halakhic system itself commends that the legal order in the Jewish state shall, even if not based on religious faith, correspond with the substance of Jewish law and its principles of justice and equity rather than be founded on other legal systems. For some generations now this middle path has been followed by a decisive majority of religious Jewry, also with regard to other fundamental Jewish values, as with the revived use of the holy tongue in everyday secular life and with the settlement of the holy land even without observance of the religious precepts. The declared attitude of non-observant Jewry also favors the assignment of first priority to the reception of Jewish law principles when these are in keeping with present-day social and economic needs (see, e.g., the statement made in the session of Nov. 29, 1965, by Knesset members belonging to almost all political parties with reference to the Gift Law and Pledge Law Bills (Divrei ha-Keneset, v. 44, pp. 24–36)). It should be borne in mind that except in the area of family law the subject matter of Jewish law is generally free of fundamental public dispute of a religious or ideological nature.
The integration of Jewish law into the legal system of Israel is of importance to the former since it has a vital need to contend with the problems of practical everyday life as the only means toward the restoration of its former, almost unbroken, creative and evolutionary function, and this in its natural environment – the Jewish state and its legal system. Such an integration of Jewish law is no less important for the legal system of the state. Israel legislation is of an eclectic nature, the legislator choosing as he sees fit from many different legal systems. There is well-founded apprehension that this must necessarily result in a lack of homogeneity and lead to contradictions in Israel law due to the absence of a common axis around which the entire legal structure may revolve. A legal system so constructed moreover lacks roots and a past. If, as the revival of Hebrew proved, a people's language has to lean on history and foundations, then a priori a people's legal system requires roots and a past on which to draw for sustenance and growth. The absence of these requisites in Israeli law accounts for the large number of Supreme Court decisions evidencing resort to numerous legal systems in a search for solutions to legal problems. The appointed way for the emerging legal system of the Jewish state to take root, to find the common denominator for its laws as well as the homogeneity it requires, is for it to become linked and integrated in the proper way with historical Jewish legal thinking and creativity.
Modes of Integration
Achievement of the desired integration of Jewish law with the Israel legal system demands strict observance of the rule that in all legislative activity preference be given to every principle of Jewish law which is in keeping with the existing social and economic exigencies. It is also necessary to ensure that all principles of Jewish law adopted in the laws of the state shall be construed within the spirit of the Jewish sources of law from which they were derived. Finally, it is necessary to lay down a "Jewish version" of the controversial Article 46, to the effect that the Jewish sources of law shall be resorted to in the event of any lacuna in the existing law. The decisions of the Supreme Court and of the rabbinical courts in matters involving Jewish law – not only in the area of personal status but in all its different fields – and a long series of varied research studies undertaken in recent years, point to the fact that it is within the power of Jewish law to contend successfully with the overall range of new problems that arise. In addition, Jewish law occupies a substantial part of the law faculty study curriculum at different universities in Israel and to the new generation of Israel lawyers and jurists Jewish law is no longer a remote and unfamiliar subject. Accelerated research activity in the different fields of Jewish law and the preparation of an auxiliary literature to facilitate study of and resort to the latter will be invaluable aids to the process of integrating the legal system of the State of Israel and Jewish law.
Legal Creativity
During various periods of its history Jewish law has experienced the reality of jurisdiction and legislation existing alongside the jurisdictional and legislative system of the halakhic authority itself – as illustrated by the king's law, jurisdiction of the public leadership, lay jurisdiction, and communal enactments. In numerous matters such jurisdiction and legislation of the Jewish leadership diverged from the rules of Jewish law, but the halakhic system evolved a series of rules and principles which ensured that such jurisdiction and legislation of the public leadership became an integral part of the overall system (see above Takkanot ha-Kahal). It is true that during all the above-mentioned periods the entire Jewish people looked upon Jewish law as the ultimate and binding value, whereas the same cannot be said of the present-day Jewish public, which, in the existing socio-cultural realities, finds itself divided on matters of religious faith and ideological outlook. Yet in this society there have developed certain cultural and social values – such as the restored language and homeland – which exist as the undisputed assets of all. Consequently the hope may be expressed that the acceptance of Jewish law principles into the legal system of Israel in a proper and consistent manner, along with the latter's formation of a tie with Jewish law for purposes of its own supplementation, will ensure that at some time in the future unity and integrity – and thereby continuity as well – will also be restored to this precious cultural and spiritual asset of the Jewish nation, that is, Jewish law.
[Menachem Elon]
Development in the Status of Jewish Law in the Israeli Legal System
Two significant and illuminating developments have occurred over the years in the status of Jewish law in the legal system of the State of Israel, whose common denominator is the entrenchment of the status of Jewish law in the legal system and the obligation to have recourse to and to rely upon it. The first development occurred in 1980, with the enactment of the Foundations of Law Act, 5740 – 1980, and the second with the enactment of the Basic Laws in 5752 – 1992.
the foundations of law act, 5740 – 1980
The Foundations of Law Act, 5740 – 1980, repealed Article 46 of the Palestine Order in Council, 1922–1947, thereby revoking the binding link between Israeli law and English law, and rendering complete the autonomy of the Israeli legal system. Instead of having recourse to English law, the Foundations of Law Act sets forth a different arrangement in cases involving a lacuna in the law, where the court is unable to find an answer to a legal question in the conventional sources of law: "Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide the issue in the light of the principles of freedom, justice, equity and peace of the Jewish heritage" (sec. 1). This was the first fundamental change wrought in the status of Jewish law in the State of Israel, as for the first time the legislator required the judge, in confronting questions to which no answer was available in the regular sources of law, to have recourse to Jewish law, and left no discretion to the judge in this regard.
Opinions are divided on two main issues regarding this section. First, in what cases must the court, pursuant to the provisions of the law, rule in accordance with "the principles of freedom, justice, equity and peace of the Jewish heritage"? Second, what is the nature and essence of these principles of "the Jewish heritage"?
Thus, in the case of Hendeles (cfh 13/80, Hendeles et al. v. Kupat Am Bank Ltd., pd 35(2), 785), the Court discussed the meaning of the phrase "another person's domain" in the Lost Property Law, 5733 – 1973 (see at length *Lost Property). Justice Cohn stated that, when a statute incorporates a given term or phrase borrowed from Jewish law, it is clear that the court must resolve questions that arise in connection with that term by turning to Jewish law. However, while such a term or phrase is to be construed according to its meaning in Jewish law, this does not dictate the concurrent application of the substantive provisions of Jewish law as they relate to that term. This was true, Justice Cohn argued, before the enactment of the Foundations of Law Act, and remains true after its passage. The law establishes that the need to refer to the sources of the Jewish heritage does not arise at all so long as an answer can be found to any question requiring decision "in statute law or case law or by analogy." It is permitted to have recourse to Jewish law in such cases, for purposes of comparison or enrichment; however, such recourse remains optional, by way of obiter dicta, and not obligatory.
Regarding the interpretation of the phrase "the principles of freedom, justice, equity and peace of the Jewish heritage," Justice Cohn (see bibliography, H. Cohn, "Residuary Law," 295ff.) opined that the legislator specifically chose the specific principles enumerated in the section (i.e., freedom, justice, and equity), which have become a part of the Jewish heritage, while rejecting other principles, which the legislator did not include. Moreover, the term "Jewish heritage" implies all those cultural assets created by the Jewish nation, including not only Jewish law, but also extra-legal sources. Any heritage that may be called Jewish, whether on account of the identity of its author or the nature of the bequest, comes within the rubric of the Jewish heritage, even if it is not part of the Jewish religious heritage.
Justice Menachem Elon thought that, "In the event of a lacuna, the aforesaid principles of Jewish law assume the status of a supplementary legal source of the Israeli legal system, to which the court is duty bound to rely upon as a binding legal source" (p. 793). Where doubt exists as to the construction of an existing provision of law, one may turn to other legal systems as a source of inspiration and influence, but not as a binding source. But even in those cases the recourse to Jewish law is primary in importance, and the Foundations of Law Act, which confers a binding status on the principles of the Jewish heritage in the event of a lacuna, strengthens the priority of turning to Jewish law even in cases where a doubt exists as to the construction of an existing provision.
As to the definition of a lacuna, Justice Elon held that: "Legal terms and concepts, which originate in ethical systems and cultural values – such as justice, good faith, public policy and the like – and are found in the Israeli legal system, must be construed according to the basic outlook of Jewish law – an outlook rooted in that law's moral and cultural values… It appears to me that the fleshing out of these value-laden terms, which, apart from their nomenclature, do not refer to any specific, substantive content, involves the filling of a lacuna… Therefore, the aforesaid method of interpretation, adopted by these judges, now constitutes the filling of a lacuna and is not only a matter for construction, with everything that implies" (p. 793).
Justice Aharon Barak disagreed with Justice Elon over the question of how to define a lacuna: "Where Israeli legislation has recourse to such fundamental terms as 'justice,' 'good faith,' 'public policy' and other such value-laden concepts, the task of the court is to infuse them with concrete content according to the statutory purpose and with regard to the actual and ideal conditions of life in Israel. Here, the judge is not at all confronted with a 'lacuna,' since the legislature has stipulated the applicable norm. I therefore can see no possibility in such a case of applying the provisions of the Foundations of Law Act, which contemplates only the filling of a lacuna" (p. 797). Regarding the use of Jewish law as a source for interpretative inspiration in cases of doubt as to a term's interpretation, Justice Barak held one cannot say that such inspiration must come primarily from the principles of Jewish law. Rather, he held, a piece of legislation must be interpreted from within the legislation itself, and where it is influenced by a foreign system, we must turn to that system for interpretative inspiration.
Justice Moshe Landau held that, where a lacuna exists, the court must have recourse to the principles of the Jewish heritage contained in the Foundations of Law Act. However, the legislator avoided referring to Jewish law by name and instead selected the concept, thus far undefined in point of law, of "Israel's heritage." According to Justice Landau, similar to the opinion of Prof. Barak, the very idea that the interpreter must refer specifically to any particular source for answers in the event of a doubt as to the proper construction of a particular term conflicts with the rules of interpretation. Therefore, in his view, the recourse to Jewish law should be to enrich our legal thinking; however, there can be no obligation to turn primarily to Jewish legal sources in order to interpret a legal term the meaning of which is in doubt.
Justice Menachem Elon criticized Justice Barak's highly restrictive approach to the function of the Foundations of Law Act, to the extent of almost divesting it of all legal content:
We take it for granted that one of the basic rules of interpretation is that the legislature does not waste words and that some content must be given to the words it chooses to use. This rule has particular force when an entirely novel law is involved, and utmost force when the statute is a basic statute that occupies an important place in the legal system of the State.… Even before this law became part of the Israeli legal system, the court was at liberty to engage in the worthy task of turning to Jewish Law for the purpose of "expanding the judge's horizons and field of vision, so as to produce additional depth of interpretive creativity." What change has then been generated with the adoption of the statute entitled the Foundations of Law Act? If the response is that Jewish Law will have its day in the event of a lacuna, and if we define lacuna as my distinguished colleague [i.e., Justice Barak] did in the Hendeles case… and if a lacuna does not include what he said it does not include, I would very much like to know when and how it will ever be possible to find a lacuna totally unaddressed in "legislation or judicial precedent or by means of analogy." Is it indeed possible to construe a statute so that the legislator's words are devoid of all legal meaning…? How many debates did the Knesset and lawyers generally have, and how many versions did they draft, before the enactment of this basic statute? Was this solely for the purpose of addressing the problem of a lacuna which has never yet nor will ever likely occur and which, if and when it does occur, will more than likely encounter the refusal of the majority of the court to acknowledge its existence? I wonder. (fh 40/80 Koenig v. Cohen, pd 36(3) 701, 742–743)
In accordance with his interpretation of the Foundations of Law Act, Justice Menachem Elon in many cases turned to Jewish law for the resolution of a variety of legal issues. Thus, for example, Justice Elon had recourse to Jewish law, pursuant to the Foundations of Law Act, for construing provisions of the Succession Law in cases where defects occurred in the writing of a will according to the provisions of that law (fh 40/80 Koenig v. Cohen, pd 36(3) 701, 742–743 – see *Will); to address the question of whether a political agreement between factions in the Knesset which was entered into in the aftermath of the composition of a new government had legal validity (hc 1635/90 Schereschewsky v. Prime Minister, pd 45(1) 749); in determining that the publication of a person's identity in connection with the claim that said person is collaborating with the authorities of the State of Israel is not to be regarded as defamation, even though the society in which that person lives disapproves of such collaboration (ca 466/83 Ajiman v. Dardarian, pd 39(4) 734; see *Slander); to emphasize the importance of pluralism of views in the world of halakhah on an appeal, which was accepted, concerning the decision to reject applications by two party lists from taking part in elections to the Knesset (e1a 2/84 Neiman v. Chairman of Central Elections Committee, pd 39(2) 225); and in many other cases. In general, the courts have tended to use the method of analogy whenever a claim can be made that a lacuna exists in a statute – at times relying upon the Foundations of Law Act, which directs the search for a solution by way of an analogy. It should be noted however that this method was not adopted by Israeli law with the passage of the Foundations of Law Act, and was used even before its enactment.
basic laws: human dignity and freedom; freedom of occupation
In 1992, a highly significant development took place in the status of Jewish law in the State of Israel, with the enactment of two Basic Laws – "Basic Law: Human Dignity and Freedom" and "Basic Law: Freedom of Occupation." These laws have constitutional status, and protect a series of fundamental rights. Section 1a of the law states that: "The purpose of this Basic Law: Human Dignity and Freedom is to protect human dignity and freedom, in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state"; similar wording appears in section 2 of the Basic Law: Freedom of Occupation. These sections establish the obligation to turn to Jewish law in the framework of "the values of the State of Israel as a Jewish and democratic state" in order to interpret the values protected in the Basic Laws (see *Human Dignity and Freedom; *Rights, Human). This has been the most significant development in recent times in the status of Jewish law in the State of Israel, as until 1992 the obligation to have recourse to Jewish law applied, apart from matters of a personal status, only in cases of a lacuna, according to the Foundations of Law Act. With the enactment of the Basic Laws, Jewish law acquired constitutional status, with ramifications for the validity and construction of all the laws in the State of Israel. Jewish legal principles have accordingly been implemented on many occasions by the courts in the course of turning to the values of the State of Israel as a Jewish and democratic state. Thus, for example, the courts have ruled, on the basis of Israel's Jewish and democratic status, that there was no room for active euthanasia in the State of Israel (see Justice Menachem Elon's ruling in 506/88 Shefer v. State of Israel, pd 48 (1) 87; see entries: *Medicine and Law: Euthanasia; *Values of a Jewish and Democratic State). The court similarly ruled that the Execution Law, 5727 – 1967 must be construed so as to permit a debtor's imprisonment only in cases in which it is clear that the debtor is concealing his assets and refuses to pay (hc 5304/92 Perach v. Justice Minister, 47(4) 715, Justice Elon; see *Imprisonment for Debt). It similarly ruled that the severity of an offense of which an accused has been charged is not in itself sufficient to justify his imprisonment until the termination of legal proceedings against him (Cr.A. 2169/92 Suissa v. State of Israelpd 46(3) 388, Justice Menachem Elon; see *Detention).
The key phrase – "Jewish and democratic state" has merited a variety of interpretations. According to Justice Elon, the court is required to examine the principles of Jewish law and the principles of democracy, in order to create a synthesis between the two when interpreting the Basic Laws. Where a number of different approaches exist in respect of the "democracy" component, the approach which befits the "Jewish" component should be adopted (see, for example, the case of active euthanasia, which some democracies permit and others outlaw; in such a case, that approach which is compatible with the "Jewish" approach prevails and active euthanasia becomes outlawed (see the Shefer case, on pp. 167–168, and *Medicine and Law: Euthanasia)). According to Justice Barak: "The values of the State of Israel as a Jewish state are the same universal values that are common to democratic societies, which emerged from the Jewish tradition and history. These values are accompanied by the same values of the State of Israel and which spring from the democratic nature of the state. The combination and synthesis between the two are what has shaped the values of the State of Israel" (see Bibliography, A. Barak, Ha-Mahapeikhah ha-Ḥukatit …, p. 31). It should be noted that Justice Barak has recently attributed more weight to Jewish law in the framework of the relevant sources for interpreting the Basic Laws, and for the construction of legislation in general (see Bibliography, A. Barak, Shofet be-Ḥevrah Demokratit). For a detailed discussion of these Basic Laws, see entries: *Values of a Jewish and Democratic State; *Human Dignity and Freedom; *Rights, Human).
legislation consistent with jewish law
Many of the laws enacted in the State of Israel were inspired by the principles of Jewish law. Thus, for example, the Unjust Enrichment Law, 5739 – 1979, integrated its concepts and principles from Jewish law. The preamble to the law states: "The proposed law adopts the approach of Jewish Law in a number of respects: it entitles a person who improves another person's property to restitution, it adopts the principle that 'One derives a benefit and the other sustains no loss as a factor in exempting the beneficiary from restitution' and it entitles a person who protects another person's property to indemnification for his expenses, with the aim of encouraging acts of rescue" (Draft Bill, 5739, p. 266 – see *Unjust Enrichment).
Another such statute is the Criminal Registry and Rehabilitation of Offenders Act, 5741 – 1981, whose name and provisions are based on the principle of Jewish law that an offender must be assisted to return to the proper and correct path, and not reminded of his previous offenses (see *Punishment).
Yet another law whose name and inspiration emanates from Jewish law is the Good Samaritan Law 5758 – 19985 (whose Hebrew title is taken from the biblical verse Lev 19:16, "You shalt not stand idly by the blood of thy neighbor"), which imposes a duty on any person to assist another person "in whose presence he finds himself, who is, as a result of a sudden incident, in severe and immediate danger to his life, bodily integrity or health, when he has the ability to extend assistance, without endangering himself or the other person" (section 1).
On the issue of the non-extension of the life of a terminally ill patient, the Terminally Ill Persons Act, 5766 – 2005, was enacted, in light of the Supreme Court judgment in the Shefer case, which was in turn based upon principles of Jewish law. Section 1(b) of the law expressly determines, similar to the above stated Basic Laws, that: "This Law is based on the values of the State of Israel as a Jewish and democratic state and on fundamental principles in the field of morality, ethics, and religion." (See *Medicine and Law: Euthanasia.)
The Rules of Evidence Amendment (Cautioning of Witnesses and Annulment of Oath) Law, 5740 – 1980, annulled the previously existing practices, whereby the court used to administer an oath to every witness that appeared before it, adopting instead the approach of Jewish law on this issue. The preamble to the draft bill states:
According to Jewish Law, no person shall take an oath before giving testimony and no witness shall be sworn save in exceptional cases… It is true that we caution the witness to tell the truth… Maimonides, Yad, Shevuot 11:16, emphasizes the severity of the oath: "How do we intimidate him who takes the oath? [The judges] tell him: You must be aware that the entire world trembled when the Holy One blessed be He stated at Sinai: 'You shall not take the name of the Lord your God in vain' (Exod. 20:7). Moreover, for all [other] transgressions in the Torah retribution is exacted only from the violator, while here [in the case of a false oath, it is exacted] from him and from his family… Moreover, retribution is even exacted from the enemies of the Israel [i.e, a euphemism for the Jewish People as a whole], for all Jews are responsible for one another" (Draft Bill, 5740, p. 328).
According to Section 1 of the law: "Notwithstanding anything provided in any other law, a witness about to testify in any judicial or quasi judicial proceeding, shall not be sworn." In place of an oath, the law prescribes the administering of a warning, under which the witness is cautioned to tell the truth only, and is told that if he fails to do so he will be penalized in the manner prescribed by law. According to the law, the court is authorized to administer an oath to a witness if it has reasonable grounds to assume that an oath will assist in discovering the truth; notwithstanding, the witness is entitled to affirm by giving his word of honor in place of an oath – on the grounds of religion and conscience – unless the court is convinced that the witness's refusal to swear is not in good faith (see, at length, *Oath).
For numerous additional laws which are based on Jewish Law, see bibliography, M. Elon, Ha-Mishpat ha-Ivri, p. 1361ff.; idem, Jewish Law (1994), p. 1624ff.
jewish law in the case law of general courts
The application of the principles of Jewish law to judicial decisions continues in our own time. Jewish law continues to leave its imprint in all areas of case law, as indicated in the above discussion of the Foundations of Law Act and the Basic Laws. For a detailed discussion of the principles of Jewish law in the judicial system in the State of Israel, cf. *Imprisonment. As stated, the integration of Jewish law into the Israeli legal system is of great and undisputed importance both for the benefit of Israeli law and for the benefit of the development of Jewish law itself. The best and most accessible means available to judges, attorneys, and law students is by way of judicial decisions of the various courts. It should be noted that judgments which incorporate Jewish law are now translated into the English language, and this project will contribute to the increasing accessibility of Jewish law in a great many countries. Indeed, in the course of the updates that have been made to this edition of the Encyclopaedia Judaica, most of the entries have been enriched by the addition of examples from case law, integrating principles of Jewish law, and these have been incorporated into the new entries. See, for example, *Majority Rule, *Legal Person, *Extradition, *Evidence, *Medicine and Law, *Slander.
Additional changes in the status of Jewish law in the State of Israel, beyond those which appear in the previous edition, shall be detailed below.
influence of israeli law on jewish law
In the relationship between Jewish law and Israeli law, there is also influence in the opposite direction, i.e., the influence of Israeli law on Jewish law. The Supreme Court first dealt with this matter in the Wilozni case (hc 323/81 Wilozni v. Rabbinical Court of Appeals, pd 36(2) 733). The petitioner requested the Court to annul the decision of the Rabbinical Court of Appeals, which ruled that the petitioner must leave the apartment in which he continued to reside alone after his wife had left it owing to the husband's violent behavior, following a judgment for divorce. According to the petitioner, the Rabbinical Court should have ruled that the apartment was regarded as property occupied by the husband, pursuant to the Tenants Protection Law (Consolidated Version), 5732 – 1972, and should therefore be sold as occupied property, and not as vacant property, as ruled by the Rabbinical Court of Appeals. The Rabbinical Court had determined that its ruling was consistent with the provisions of the above-mentioned tenant protection legislation, "which is given halakhic validity like any sitomta (i.e., customary practice) or masi'in al kizatan (i.e., communal enactment)." The Supreme Court (Justice Menachem Elon) relates to this point made by the Rabbinical Court and expands on the subject of the case law of the rabbinical courts and its tendency to adopt principles of law from the general legal system in many cases, and the various methods used for adopting such principles. The first method is based on the principle that "the law of the state is the law" (see: *Dina de-Malkhuta Dina), according to which the rabbinical courts have given effect to different kinds of legal transactions even where these would not be valid under Jewish law. When the principle of "dina de-malkhuta dina" is applied, a rule of the general legal system is given binding force, although the latter does not become part of Jewish law. Rules of other legal systems are incorporated into the Jewish legal system "by means of the legal source of custom; when the public acts in accordance with some legal norm, that norm is in certain circumstances recognized as part of the Jewish legal system, and it may be valid even if it is contrary to a particular regulation of Jewish civil law" (p. 741; see *Minhag). The second means for the absorption of the general law into Jewish law is by way of takkanot ha-kahal (communal enactments), according to which the community legislates, via its representatives, various enactments which become a part of Jewish law. The Talmud refers to this as "masi'in al kizatan" (i.e. communal enactment, lit: "the townspeople may impose penalties for breach of their enactments"; see: *Takkanot ha-Kahal). Justice Elon stresses that "there is a special, fundamental character to the relationship between the Jewish legal system and the general legal system of Israel, in accordance with the principle of masi'in al kiẓatan. Under this principle, various laws in the area of civil, criminal, and public law of the general legal system may actually become part and parcel of the Jewish legal system – in the broad sense of this concept – and not merely recognized by it, as was the case under the principle of dina de-malkhuta dina, nor simply absorbed by it, as was the case with custom" (p. 742). Justice Elon notes the uniqueness of this judgment, which ruled that the provisions of civil legislation (i.e., the Tenants Protection Law) are recognized as part of the case law of the rabbinical courts, not only by virtue of custom, but also under the rule of masi'in al kiẓatan. The implication, in this context, is that the Members of Knesset, elected by the public, who enact Knesset legislation, are capable of promulgating regulations for the benefit of the public, and that these regulations become part of Jewish law, and were even created as part of the Jewish legal system, "in the broad sense of this concept."
In addition to the aforementioned example from section 33 of the Tenants Protection Law, other laws as well have had an impact on Jewish law. Thus, for example, the arrangement in respect of cooperative houses appearing in the Land Law, 5729 – 1969, was recognized by the rabbinical courts. This, notwithstanding that this arrangement regulates the interrelationships between all the apartment owners, a subject already governed by detailed regulations in Jewish law which differ from those prescribed by the relevant sections in the Tenants Protection Law, which came to resolve a public problem of poor housing and does not contradict specific arrangements prescribed in this regard in Jewish law.
A further example is the recognition of the validity of the arrangement for the transfer of rights in land. According to section 7 of the Land Law, 5729 – 1969, in rem rights in immovable property are only transferred via registration in the Land Registry. By contrast, according to Jewish law such rights pass at the time of payment, and in a locale where it is conventional for property transactions to be executed solely via a written document, the rights pass under the terms of the deed. Notwithstanding this difference between Jewish law and Israeli law, many authorities have ruled, on the basis of the principle of "dina de-malkhuta dina" and "minhag ha-medinah" (custom of the state), that proprietary rights – in rem rights in land – pass, in general, upon their registration in the Land Registry, as prescribed by Israeli law. (On the differences between the halakhic authorities in this regard, see further the article of D. Frimer, bibliography, ad. loc.)
the rabbinical courts
As stated earlier, the rabbinical courts must rule in accordance with Jewish law, and pursuant to the general provisions of the general law which expressly apply to them. According to Justice Aharon Barak in the Bavli case (hc 1000/92 Bavli v. Rabbinical Court of Appeals, pd 48(2) 221; see also hc 3914/92 Lev v. Tel Aviv/Jaffa Regional Rabbinical Court, pd 48(2) 491, Justice Aharon Barak), the rabbinical courts are also obligated to rule in accordance with the general law, as interpreted in the rulings of the Supreme Court, on all matters which are not related to personal status, in the narrow sense of this term. Pursuant to this principle, Justice Barak determined that the rabbinical courts are obligated to apply the "presumption of joint property," as developed by rulings of the Supreme Court, in respect of matrimonial property (see *Matrimonial Property). This approach was criticized by Justice Menachem Elon and by additional scholars, who held that no change should be made from the original law, which was that the rabbinical courts are obligated to rule in accordance with the Jewish law and in accordance with the principles of the general law that are expressly applied to them by the legislator. Elon held that the rabbinical courts must rule according to Jewish law, just as rabbinical courts have ruled in accordance with Jewish law throughout the generations. Intervention in the principle of adjudication in accordance with Jewish law is a power reserved for the legislator, after having obtained the consent of the representatives of the Jewish people, as occurred, for example, with the Women's Equal Rights Law and the Rabbinical Courts (Jurisdiction) Law. Generally, the rabbinical court is not called upon to rule according to the general law, nor is it able to do so, because its judges lack the requisite expertise. Justice Elon held that the Supreme Court's intervention in the rulings of the rabbinical courts stymies the development of Jewish law, as developed by the rabbinical courts throughout the generations, because according to this precedent the need to turn to the rabbinical courts is limited only to matters of personal status, and does not enable Jewish law to develop in other branches of law. In addition, Justice Elon held that this ruling creates needless tension between the civil courts and the rabbinical courts, who will find it difficult, and rightfully so, to accept such a broad encroachment upon their authority and freedom of action.
Regarding the presumption of joint property, Justice Elon opined that the rabbinical courts were under a duty to adopt this presumption as part of Jewish law, whether by way of regulation (see *Takkanot) or whether by other means conventionally used in Jewish law, but not in accordance with the binding precedent of the Supreme Court (see Bibliography, M. Elon, "These Are Obiter Dicta…"). Opinions are divided among the judges of the rabbinical court as to the possibility of adopting the presumption of joint property as part of Jewish law (see * Dina de-Malkhuta Dina). With regard to a husband's right to enjoy the proceeds of his wife's usufruct property, the law has now been amended, entitling the court to take account of the wife's income from usufruct property, when determining the amount of maintenance which the husband owes to her (see *Husband and Wife).
[Menachem Elon (2nd ed.)]
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