Some Observations About Jewish Law in Israel's Supreme Court

Abstract

This Article considers whether the Israeli Supreme Court’s effort to incorporate the parts of Jewish law that deal with secular subjects is internally flawed. The use of Jewish law differs from the use of the law of other jurisdictions. Typically courts rely on other jurisdictions’ precedents to show that a rule is practical, that the court is not overstepping its authority, and that adoption of the rule will lead to interstate or international uniformity. The use of Jewish law does not satisfy the goals. There is concern that the religious elements of Jewish law are pervasive and that much of Jewish law is not well suited for a modern society. This Article considers the approach of looking to Jewish law, not for specific rules that will be applied, but as a storehouse from which one can seek enlightenment. Even under this approach, this Article finds that some Israeli Supreme Court cases have misapplied Jewish law either by taking Jewish law out of context or by reading modern legal concepts into Jewish law. This Article suggests ways that some of these cases could have better employed Jewish law and also describes cases that have properly done so. It concludes that, when used properly, Jewish law can help to link Israeli law to a rich cultural heritage.

Keywords: Jewish law, Israel, comparative law