Beyond the need to judge according to the laws of the Torah, it is also necessary that the judges themselves be Jewish judges * The secular courts in Israel are considered “courts of the gentiles,” and it is forbidden to bring cases before them * No government has the authority to categorically abolish the mitzvah of adjudicating according to Torah law before Jewish judges * On the other hand, the harsh words of Maimonides should not be applied to someone who supports the secular legal system * Torah scholars and legal professionals bear a great responsibility to clarify Torah law in depth * Quite a few judicial decisions have harmed deterrence against the enemy and the IDF’s ability to defend Israel and defeat the enemy
The Hebrew Legal System
As part of the commendable initiative to dedicate the Shabbat of Parashat Shoftim to “Shabbat of Hebrew Law,” rabbis, Torah and legal scholars, judges and rabbinical judges will speak in synagogues throughout the country about the vital importance of the values of Hebrew law to the Jewish identity of the state. As part of this, I will repeat the foundations of the mitzvah and the heavy price of violating it (the main points according to Peninei Halakha, “The Nation and the Land,” Selections, 6:7–8):
The Torah commanded: “And these are the ordinances that you shall set before them” (Exodus 21:1). Beyond the need to judge according to the laws of the Torah, our Sages explained (Gittin 88b) that the judges themselves must also be Jewish judges. Even when gentile judges rule on a particular matter according to the Torah, it is forbidden to bring a case before them. We can learn from this that when the judges are not personally committed to the values of the Torah, even when many times they rule in accordance with Torah law, ultimately their rulings will differ, since they are not faithful to the values of the Torah.
The Attitude Toward the Secular Courts in Israel
The position of the overwhelming majority of rabbis is that the secular courts in Israel are considered “courts of the gentiles,” and it is forbidden to bring cases before them, since their legal system is not based on the Torah of Israel. This is despite the principle that “the law of the kingdom is the law” (dina de-malkhuta dina), and that the government is permitted to enact laws and regulations, and even the rabbinical courts must take these laws into consideration as binding.
However, no government has the authority to categorically abolish the mitzvah of adjudicating according to Torah law before Jewish judges. Therefore, every dispute should be adjudicated before judges who rule according to the Torah (see Maimonides, Sanhedrin 26:7).
As Rabbi Yitzhak Herzog, the Chief Rabbi of Israel at the time of the establishment of the state, wrote: “Now, when the people of Israel dwell in their land, and to our great sorrow it judges according to foreign laws, the matter is a thousand times more serious than an individual or community in Israel who goes to be judged in the courts of gentiles… And the consequences of this disgraceful and shameful situation—who can foresee them?” (HaTorah VeHaMedinah, Volume 7; A Constitution for Israel According to the Torah, Vol. 1, pp. 148, 152). Rabbi Tzvi Pesach Frank, Tzitz Eliezer (12:82), the Chazon Ish (Sanhedrin 15:4), Rabbi Ovadia Yosef (Yabia Omer, Yechaveh Da’at 4:65), and Rabbi Mordechai Eliyahu (Techumin 3, p. 244) likewise held this position.
Not only that, but according to many Rabbinic authorities, the harsh words of Maimonides also apply to the secular courts in Israel, and to those who go before them: “Anyone who judges according to the laws of the gentiles and in their courts, even though their laws are like the laws of Israel—behold, this person is wicked, and it is as though he has blasphemed and raised his hand against the Torah of Moses our teacher” (Sanhedrin 26:7).
Those Who Hold That There Is No Prohibition
On the other hand, there are Torah scholars and legal professionals who have questioned the prohibition and its serious implications, arguing that whatever the public decides has validity, and that the public is permitted to decide to adjudicate according to human reasoning and different legal systems that have proven successful in modern countries (Judge Prof. Rabbi Menachem Elon, Hebrew Law, Part 3, pp. 1605–1607; Judge Prof. Rabbi Yaakov Bazak, Techumin 2, pp. 523–527; and Prof. Rabbi Yitzhak Brand).
The Shared Responsibility
It appears that although this situation—in which the courts of the State of Israel judge according to a foreign system—constitutes a terrible desecration of God’s name, the primary blame does not rest on the shoulders of the secular legal professionals. This is because even if they wanted to conduct themselves according to Hebrew law, the educational foundation for establishing a legal system according to the Torah has still not been prepared.
We have not yet trained judges for this. We still do not have a consolidated position regarding court procedures, evidence, criminal prosecution, contract law, labor law, public law, taxation, corporations, and the like. In the yeshivas, the laws that were practical from the days of the Tannaim, Amoraim, Rishonim, and the early Acharonim are studied, but unfortunately, there is no engagement with the law appropriate to the conditions of today’s society and economy (apart from several institutes that have clarified various subjects).
Therefore, it is correct to say that the Israeli legal professionals did not deliberately turn their backs on Torah law. Rather, because they believed that they would not succeed in maintaining a modern society and economy according to Torah law, they turned to the legal system that was already prevalent in the country, whose beginnings were in Turkish laws and whose principal foundation was English law. From that point onward, they continued building the legal system according to the vast experience accumulated in the legal systems of democratic countries, through the work of hundreds of thousands of legal professionals who, through a process of clarification, experimentation, error, and correction, created an advanced system suited to modern society.
Therefore, the harsh words of Maimonides mentioned above should not be applied to someone who supports the secular legal system.
The Responsibility for Rectification
Torah scholars and legal professionals bear a great responsibility to clarify Torah law in depth, and on its basis, to examine the various legal systems in the world—the good and the bad within them; to examine the system of laws and regulations practiced in the State of Israel; to consider what should be approved and what should be changed; which regulations should be enacted; and what should be adopted from the legal experience of developed countries.
The Sin and Its Punishment
Nevertheless, in practice, since the secular legal system draws its values from Western society with all its ills, it is impervious to the values of the Torah, the nation, and the Land, and systematically deprives the Jewish people of their values, rights, land, and national mission.
Even the Torah scholars who agreed to the existence of the Israeli legal system did not agree that it should be alienated from the values of the Torah and its laws. This alienation is also contrary to the law enacted by the Knesset: the “Foundations of Law Act,” according to which, regarding any legal question that Israeli law has not decided, the court should turn to the values of Israel’s heritage. In practice, the Supreme Court has emptied this law of its content.
The result is that the legal system is alienated from the values of the Jewish people, and it is the institution that most harms the Jewish identity of the state, its security, and its ability to settle the Land.
And although many legal professionals personally have respect and affection for national and Jewish values, because these values do not have a solid expression in the system of laws and legal precedents, in practice, in their legal work, they deprive the State of Israel of its national, and religious, values.
Harm to Israel’s Security
For nearly three years already, the State of Israel has been engaged in a difficult and multi-front war, and during this period, judicial decisions have been made that have harmed deterrence against the enemy, and the IDF’s ability to defend Israel, and defeat the enemy.
Let us mention several of the court’s decisions:
1) It prohibited enhanced interrogation techniques of terrorists by the Shin Bet, even in situations of a “ticking bomb,” except in extreme cases.
2) It abolished the “neighbor procedure” for arresting terrorists, a method that saved the lives of many soldiers.
3) It imposed severe restrictions that tie the IDF’s hands and prevent it from harming terrorists who are about to carry out an attack.
4) It struck down a law enacted by the Knesset that permitted “hard-core” terrorists to be detained for two weeks without seeing a judge, despite the security need to extract information from them.
5) Contrary to the position of the security establishment, in many places the court ordered sections of the security barrier, or the fences surrounding communities, to be dismantled and moved, and also ordered roads to be opened and roadblocks removed, while clearly knowing that this could cause a security risk.
6) It prevented and restricted the possibility of revoking the citizenship of terrorists.
7) It ordered the state to allow family members of terrorists from Gaza to enter Israel, in order to receive medical treatment.
8) The court prohibits or delays the demolition of terrorists’ homes, something that could reduce terrorist attacks.
9) It effectively led to the cessation of deporting terrorists abroad (although it did not prohibit this completely).
10) It struck down the law that denies benefits to the parents of adolescent terrorists.
The Damage to Victory in the War
Many times, the very fact that the High Court of Justice begins hearing certain petitions causes the governmental system to retreat from its plans.
For example: the High Court held hearings on petitions by the left against reducing the supply of fuel, electricity, and various necessities to Gaza, and as a result, in several cases, government legal advisers instructed the government to halt its plans.
Likewise, following High Court hearings, the use of dart rounds and artillery fire in Gaza was halted, the use of white phosphorus was stopped, the rules of engagement against the terrorists in Gaza were changed, and in practice, the “perimeter” was abolished.
All of this greatly harmed deterrence, and assisted the terrorists in preparing the murderous attack on Simchat Torah.
One of the most serious decisions of the legal advisory system during the Iron Swords War was the prohibition against the IDF carrying out an effective siege on parts of the Gaza Strip. In doing so, it indirectly caused the deaths of many soldiers, and undermined the ability to achieve victory.
Harm to the Jewish Identity of the State
Let us also mention some of the decisions that harmed the Jewish identity of the state:
1) The legal system harmed the status of the Hebrew language as the official language of the state, while almost equating the Arabic language with it.
2) The system prevented the disqualification of anti-Zionist parties and candidates from running for the Knesset, contrary to the position of the Central Elections Committee, which relied on Basic Law: The Knesset, which prohibits a party that denies the Jewish identity of the state from running.
3) The court thwarted government decisions and laws enacted by the Knesset that were intended to deport African infiltrators from the country.
4) The Attorney General prevented the state from opposing Arab family reunification on demographic grounds of preserving the Jewish majority, allowing it to oppose such reunification only on security grounds—and even that was approved by the High Court by a razor-thin majority.
Unfortunately, the list is very long, and there was not enough space to mention many additional examples of the damage caused by the legal system concerning the settlement of the Land and matters of halakha and the rabbinate.
This article appears in the ‘Besheva’ newspaper and was translated from Hebrew.
