12/08/2009

What Minister Neeman Did and Did Not Say

Background: Justice Minister Yaakov Neeman is being roundly criticized for suggesting that Jewish law form the basis of law in Israel. [Links: Ynet, Ynet English, Jpost, Forward, and, for contrast, YWN and DB - who misses the point]

My first thought was that the reactions were generally coming from opposition MKs and Labor rebels, and it's their job to oppose the sitting government, which includes Ne'eman. Statements from folks lke Amnon Rubenstein are also to be expected, as anything that can be construed to threaten the authority of the judicial establishment would naturally get his britches in a twist.

However, the more I read that Ne'eman is calling for "talibanization" of Israel and undermining democracy and the principles of Zionism, the more I realized that there's a real danger here. Part of it is simply that I do not wish to see Neeman construed as something that he most clearly is not. Ya'akov Ne'eman is an ehrliche yid and a ben Torah. When he quoted from the daf yomi in his speech, it is because he learned it (several years ago, he regularly attended my brother-in-law's daf yomi shiur at Chovevei Tzion in Jerusalem). He's a regular attendee of Rav Usher Weiss's Thursday night shiur in Ramot. He's also a founding partner of Israel's largest and by many counts leading law firm, Herzog, Fox & Neeman. He was appointed justice minister because of his impeccable credentials and character. He does not affiliate with any political party. (To spell it out more clearly, I consider Ya'akov Neeman to be a great man, a role model, and a symbol of everything that is right with religious Zionism).

The context of the speech was a congress honoring Rav Dr. Ratzon Arussi. Rav Arussi, in addition to being the torch-bearer of Rav Yosef Qafih's halakhic approach, has set up an alternative to the court system where disputes can be adjudicated in accordance with Jewish law. From the perspective of the courts, this is no different than any of the other forms of arbitration available (numerous well known lawyers and retired judges serve as arbitrators in civil suits, even very high profile ones). To a large degree, the overburdened court system welcomes the relief that these forms of arbitration provide. From a halakhic perspective, as Rav Ovadya pointed out at the congress, it is preferable to adjudicate before a beit din than before a secular court.

One dimension of what Neeman was saying is that he wants to see this phenomenon increase. He likes the idea of this form of arbitration. It should be noted that this form of arbitration is for civil cases and only applies when both litigants agree to this form of arbitration. It is not "theocratic" or anti-democratic because nobody is coercing anyone else to do anything, and, in the case of arbitration, there need not be any Jewish laws on the books in order for such arbitration to work. Furthermore, civil law is not the same as ritual law. We're dealing with cases or torts - property damages, negligence, personal injury, inheritance, contracts, and the like. This law is no more "religious" than British, Ottoman, or Roman law in terms of its superficial content; like any other legal system, however, the laws reflect the values of the culture that produced it.

Even if one were to consider that Neeman was talking about actual legislation of Jewish law, and I do not think he was, this is still a far cry from calling for a halakhic state. The role of Jewish law in Israel has been debated since before the founding of the state, and, ironically, until Menachem Elon (whose 5-volume work on Jewish law was not perceived as being contradictory in any way to his serving as a justice on and ultimately president of the Israeli Supreme Court), generally promoted by secular jurists who wished to "deritualize" halakha. There is an entire department at Hebrew U dedicated to this study, which is a bona fide part of Israeli law. Neeman emphasized that Jewish law has much to contribute to contemporary legal discourse and that it is capable of serving as a basis for a complete civil law.

The "bit by bit" part of Neeman's speech was saying either that:
a) slowly, more people would begin to use batei din like R. Arussi's for arbitration.
b) slowly, new Israeli legislation would incorporate elements of Jewish law as part of the democratic process of legislation by elected officials.
The fact that he insisted that it happen slowly makes it clear that he is not interested in revolution or overthrow of the existing law,only that Israeli society/ law keep itself open to Jewish law and move in that direction through established processes.

Bottom line, though, he was talking about CIVIL LAW. Not about banning pork from Israeli supermarkets or enforcing Shabbat blue laws. He was talking about Choshen Mishpat, not Orach Chayim or Yoreh De'ah, or even Even ha-Ezer.
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