Around the Web

Here are some important law-and-religion news stories from around the web:

Friedmann, “The Purse and the Sword”

This month, the Oxford University Press will release “The Purse and the Sword: The Trials of Israel’s Legal Revolution,” by Daniel Friedmann (Minister of Justice in Israel from 2007-2009). The publisher’s description follows:

The Purse and the Sword presents a critical analysis of Israel’s legal system in the context of its politics, history, and the forces that shape its society. This book 9780190278502examines the extensive powers that Israel’s Supreme Court arrogated to itself since the 1980s and traces the history of the transformation of its legal system and the shifts in the balance of power between the branches of government. Centrally, this shift has put unprecedented power in the hands of both the Court and Israel’s attorney general and state prosecution at the expense of Israel’s cabinet, constituting its executive branch, and the Knesset–its parliament. The expansion of judicial power followed the weakening of the political leadership in the wake of the Yom Kippur war of 1973, and the election results in the following years. These developments are detailed in the context of major issues faced by modern Israel, including the war against terror, the conflict with the Palestinians, the Arab minority, settlements in the West Bank, state and religion, immigration, military service, censorship and freedom of expression, appointments to the government and to public office, and government policies. The aggrandizement of power by the legal system led to a backlash against the Supreme Court in the early part of the current century, and to the partial rebalancing of power towards the political branches.

Mahler, “Politics and Government in Israel”

 

This month, Rowman & Littlefield releases “Politics and Government in Israel: The Maturation of a Modern State,” by Gregory S. Mahler (Earlham College).  The publisher’s description follows:

This balanced and comprehensive text explores Israeli government and politics from both institutional and behavioral perspectives. After briefly discussing 1442265353Israel’s history and the early development of the state, Gregory Mahler then examines the social, religious, economic, cultural, and military contexts within which Israeli politics takes place. He makes special note of Israel’s geopolitical situation of sharing borders with, and being proximate to, several hostile Arab nations. The book explains the operation of political institutions and behavior in Israeli domestic politics, including the constitutional system and ideology, parliamentary government, the prime minister and the Knesset, political parties and interest groups, the electoral process and voting behavior, and the machinery of government. Mahler also considers Israel’s foreign policy setting and apparatus, the Palestinians and the Israeli-Palestinian conflict, the particularly sensitive questions of Jerusalem and the Israeli settlement movement, and the Middle East peace process overall. This clear and concise text provides an invaluable starting point for all readers needing a cogent introduction to Israel today.

Stopler on Religious Establishment, Pluralism and Equality in Israel

Gila Stopler (NYU School of Law) has posted Religious Establishment, Pluralism and Equality in Israel—Can the Circle be Squared? The abstract follows.

Israel’s constitutional structure purports to combine strong establishment of the Orthodox Jewish religion in the state with respect for liberal values such as pluralism equality and liberty. Whereas the establishment of the Orthodox Jewish religion is achieved through laws regulations and administrative power, liberal values that are only partially enshrined in law, are mostly defended and articulated by the Israeli Supreme Court. Focusing on the internal conflicts within the Jewish majority the article will show how the power granted to the Orthodox Jewish religion by the state has been used to circumvent liberal values and will examine the role of the Israeli Supreme Court in ameliorating this problem. It will argue that although in countries in which religion and the state are separated a ‘hands-off’ approach to pluralism may be sufficient to protect liberal values, in a country such as Israel with a strong religious establishment a more activist approach, which will be termed ‘egalitarian pluralism’ is required. The article will argue that an egalitarian pluralist approach is needed in order to maintain Israel’s dual commitment to its nature as a ‘Jewish and Democratic’ state and will assess and critique the partial implementation of this approach by the Israeli Supreme Court.

Triger on Civil Marriage and Non-Marital Cohabitation in Israeli Rabbinical Courts

Zvi H. Triger (U. of Alabama School of Law) has posted Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court. The abstract follows.

The only form of marriage that is recognized under Israeli law is religious marriage. Following the Supreme Court’s ruling in the landmark 1963 Funk Schlesinger case, Israeli authorities must register couples who got married abroad as married. Many couples who wish to avoid the religious monopoly on marriage and divorce choose this rout. However, they are utterly wrong in thinking that they achieve freedom from religion by doing so.

In a 2006 landmark decision the Supreme Court held that the rabbinical court system has jurisdiction over the divorce of couples who got married in civil marriages abroad. While they do not need to have a full religious get procedure, the rabbinical court has exclusive jurisdiction over the dissolution of civil marriages of Jews. The Court’s decision was based on halachic principles, and was pre-approved by a panel of the rabbinical court.

However, rabbinical courts have been ignoring the Supreme Court’s injunction concerning the application of a speedier, more liberal divorce procedure in the dissolution of civil marriages, and they insist on performing a full Jewish get procedure. This article presents this trend, analyzes this phenomenon and offers tentative and preliminary speculations as to the reasons for and the direction of these developments.

Israel’s Rabbinical Court Jails Husband Indefinitely for Refusing to Divorce Wife

A fascinating story from Israel. According to the Jerusalem Post, the country’s Supreme Rabbinical Court of Appeals has ordered that a man be imprisoned indefinitely for refusing to grant his wife a bill of divorce, or get, under Jewish law. Tzivya Gorodetzki sued her husband, Meir, for divorce in 2001. Under Israeli law, religious tribunals have exclusive jurisdiction over marriage and divorce, so the case went before a rabbinical court, or beit din, which ordered Meir to give Tzivya a get. Under Jewish law, a divorce is effective only when the husband voluntarily gives the wife a get. Otherwise, the wife is an agunah, or “chained woman,” who may not remarry.

This is where things became interesting. Meir refused to give his wife the get. To punish him for contempt, and to encourage him to change his mind, the rabbinical court sentenced him to prison, where he has been for the last 10 years, the maximum term the rabbis could impose. Prison authorities tried various methods to make him relent, including solitary confinement, but nothing worked. Fearing that Meir would flee the country after his release, Tzivya went back to the beit din and asked it to extend Meir’s sentence indefinitely. In what the Post calls a “groundbreaking ruling,” the rabbinical judges complied. “The keys to your release are in your own hands,” the chief rabbinical judge told Meir at the hearing, “through the fulfillment of your obligations as a Jew. Release your wife and then you will receive your freedom.”

Accommodating religious law in a civil legal system is often problematic. Values clash, and it is difficult to know how much authority to give religious tribunals.  Countries adopt different approaches. From the outside, this particular accommodation seems extreme. Granting religious courts the power to imprison people indefinitely is no small matter. As I understand it, Israel’s Supreme Court has reserved the right to review the decisions of religious tribunals for compliance with Israel’s Basic Law, though rabbinical courts dispute this. I wonder if the Supreme Court will have an occasion to review this ruling.

No More “Back of the Bus” in Israel

From Reuters yesterday, an article about a recent protest against segregated seating on public buses in Jerusalem. A group of women entered Bus No. 56 through the front door and sat in the front seats. The problem is that No. 56 runs through an ultra-Orthodox neighborhood that frowns on the public mixing of the sexes. In fact, until very recently, women on Bus No. 56 were told to enter through the rear door and sit in the back. Only this year, the Israeli Supreme Court ruled that women traveling on public buses cannot be told to sit in the back, and signs now say that people have a right to sit wherever they want. Segregation continues, however. Whatever secular law requires, many ultra-Orthodox Jews in Jerusalem — and not only men, according to the article — believe that the Torah forbids the mixing of men and women on buses; other Torah experts dispute this. The author draws on the protest to highlight the increasingly bitter divide between secular and religious Jews in Israel. – MLM

Einhorn on Jewish Law and the Excavation of Tombs

Talia Einhorn (Tel Aviv University) has posted Israeli Law, Jewish Law and the Archaeological Excavation of Tombs. The abstract follows. –YAH

The paper discusses the conflict in Israel between the public interest in archaeological research and the religious convictions that human remains, once buried, should not be touched. The conflict is exacerbated by urban development, which, in this ancient land, necessitates rescue excavations of tombs, thus bringing the problem to a head. The article examines, first, the rules of Jewish law, which, the author contends, have made it possible to accommodate the interests of the living, and, secondly, the scientific value of the archaeological excavation of tombs, using recent examples as illustrations. The author concludes that Jewish law could be interpreted and applied more flexibly and could then be reconciled with Israeli law. However, even if such a development were not to take place, then, in keeping with democratic values, government officials and the courts would be required to follow the policies established by the legislator, a balance between the conflicting interests having already been embodied in the law.

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