Jewish and Religious Law in the Israeli Legal System Flashcards
(33 cards)
Describe the relationship between Jewish law and Israeli law.
Tense relationship — finding the right place for Jewish law in Israeli law is one of the fundamental challenges of the Israeli legal system and society.
Jewish law.
The national religious legal system of the Jewish people.
Israeli law.
The prevailing legal system of the State of Israel.
Torah.
Broad term encompassing the corpus of Jewish religious wisdom, including Halakha, Jewish philosophy, Kabbalah, and Jewish religious poetry.
Halakha.
Normative parts of the Torah (for example, the laws of holy days, the laws of prayer, marital law, and the law of torts).
Jewish law.
The Halakhic parts of regulating legal issues (torts, contracts, family law, evidence).
What is the main Halakhic literature?
Biblical law (Pentateuch), Mishnah, Talmud, the Code of Maimonidess, and Shulhan Arukh.
Two unique key features of Judaism.
Judaism is a law-based religion; and Judaism creates an overlap between religion and nationality.
How is Judaism a law-based religion?
The basic criterion of Jewish religious life is living in accordance with a detailed, comprehensive law on a daily basis.
How does Judaism create an overlap between religion and nationality?
It is not possible to become a religious Jew without belonging to the Jewish nation.
What are the two competing visions regarding the nature of the desirable character of Israeli law?
Developing an Israeli legal system inspired primarily by Jewish law heritage; and developing an independent eclectic Israeli legal system.
What are the two categories of getting inspiration from Jewish law?
Complete absorption; and partial absorption.
Complete absorption.
Main areas of complete absorption of Jewish law includes marriage and divorce and conversion to Judaism.
Why are the areas of marriage and divorce governed exclusively by Jewish law?
Marriage and divorce are the entrance gates to the Jewish collective — if someone gets married outside of the Jewish faith, it affects the identity of their children. Marriage and conversion are private actions which directly affect the entire public.
Rabbinical Courts Jurisdiction (Marriage and Divorce) Law.
Matters of marriage and divorce of Jews in Israel shall be under the exclusive jurisdiction of rabbinical courts in accordance with Jewish religious law. Where a suit for divorce between Jews has been in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including maintenance for the wife and for the children of the couple.
How are there problems with same-sex marriage as a result of the rabbinical courts’ jurisdiction over marriage and conversion?
There is no option for same-sex marriage. If there is a gay couple that wants to get married, they have to go to another country or another country’s embassy to get married there, and then will be recognized as married in Israel under private international law.
How are there problems with the presumption of community property as a result of the rabbinical courts’ jurisdiction over marriage and conversion?
Upon divorce, dividing of the couple’s assets between them should be equal but currently is not. Ongoing attempts of the Supreme Court to force rabbinical courts to act according to the doctrine of presumption of community property.
How are there problems with civil marriage as a result of the rabbinical courts’ jurisdiction over marriage and conversion?
Since 2010, civil marriage is available in Israel exclusively to people who do not belong to one of the recognized religious communities. There is an ongoing debate of whether the option of civil marriages should be opened to the entire population.
What is the definition of a Jew?
The secular definition is based on self-determination (speaking Hebrew, joining the Israel Defence Forces), while the religious orthodox definition is based on immersion, circumcision, and acceptance of Halakhic duties.
The Law of Return
Every Jew has the right to come to this country as an immigrant. For the purpose of this law, “Jew” means a person who was born of a Jewish mother (a religious Jewish definition) or has become converted to Judaism, and who is not a member of another religion (a secular Jewish definition).
What are the two paths to partial absorption?
Legislation and Supreme Court rulings.
What are some areas of legislation where Jewish law has been partially absorbed?
Good samaritan obligations; unjust enrichment; and euthanasia.
How has Jewish law influenced good samaritan legislation?
In other jurisdictions, there is no duty to rescue but under Jewish law, there is a legal duty to rescue. Based in Leviticus 19:16. Lo Ta’amod ‘al Dam Re’ekha Law.
Lo Ta’amod ‘al Dam Re’ekha Law.
A person is obliged to proffer assistance, when able to do so without endangering himself or his fellow, to a person who, in close proximity, and following a sudden event, is subject to a serious and immediate danger to his life, his person, or his health.
