The development of national consciousness depends on the rule of law. The rule of law does not flourish in Israel. Knesset Speaker Ruby Rivlin once said Israel is governed by a “gang of the rule of law” – a gang that makes the law. He said this in an interview referring specifically to former Supreme Court President Aharon Barak.

If everything is justiciable, nothing is firm

How can it be otherwise given Judge Barak’s imperial dictum that “everything is justiciable”? This dictum enables the Court to prescribe the beliefs and values and therefore the national consciousness of the Jewish people. The Court now routinely hands down decisions that violate the Jewish heritage – on marriage, conversion, and even whether Judea and Samaria belong to the Jewish people. It was the Barak Court that legitimized the Sharon government’s expulsion of 8,000 Jews from Gaza on the fallacious ground that Gaza is “belligerent occupied territory.” Prime Minister Netanyahu adopted Barak’s post-Zionist ruling by endorsing an Arab-Islamic state in Judea and Samaria!

Rivlin was right: A “gang” makes the rule of law in Israel. I call it a democratically elected despotism sanctified by an unelected judicial oligarchy. The people of Israel are being denationalized. The founders of the state abandoned Jewish law and adopted a hodgepodge of foreign laws – British, European, and American. This has emasculated the Jewish people and eroded their national consciousness.

Rabbi Kopel Kahana, who taught at Jews’ College, London, warned almost 60 years ago that by severing the Jewish people from their own legal heritage, their own political, economic, and social history will be largely unintelligible. In his book The Case for Jewish Civil Law in the Jewish State, he predicted that fewer and fewer Jews will understand their past, [or even] how their forefathers related to each other in daily life, their way of thinking, [and] their aspirations. Do you ever hear a prime minister relate his policies to Jewish thought and practice?

No clear sense of purpose

Ignorant of their legal heritage, Israel’s ruling elites can have no clear sense of national consciousness and purpose. Their decisions will be more subject to foreign influence, will lack coherence and direction. At stake is a people’s intellectual and moral solidarity, their ability to withstand adversity.

“By turning to our own system of law,” says Rabbi Kahana, “instead of borrowing from other systems, the State of Israel would give expression to the inner feelings of its citizens.” “The more we delve into Jewish law and into its history the more we find there the reflection of the creation of our own national ideas.” These are the ideas that sustained the Jewish people through centuries of humiliation, torture, and decimation. This noble heritage enabled the Jewish people to despise their despisers.

Rabbi Kahana’s “plea for the acceptance of Jewish law is not based only on the idea of tradition; it is an appeal for the recognition of the Jewish people’s instinctive feeling that their law is founded on ethics and justice.” Even in Israel’s secularized legal code, we find the Wage Delay Prohibition Law (1955), the Prohibition of Defamation Law (1962), the Severance Pay Law (1963), and the Right to Privacy Law (1981) – all based on Torah.

However, to borrow piecemeal from diverse legal systems to meet various needs and fleeting circumstances without reference to well-established unifying principles can only result in bewilderment as well as resentment and social tensions. Conversely, when the legal order accords with a people’s abiding sense of justice and national consciousness, the laws will not be felt as arbitrary or coercive. Respect for law will then follow, as will mutual confidence and social harmony.

Rule of law: civil v. religious

To facilitate the acceptance of Jewish law by secular laymen, Rabbi Kahana focuses on Jewish civil law (Mishpatim), in contradistinction to religious law (Hukim). Hukim are laws which would be disparaged as unreasonable by man’s sensual nature and by the non-Jewish world, such as the prohibition of pork or the scapegoat used for the Day of Atonement. The reasons for these laws are unknown and not intended to be known. They relate to “commandments” and concern the relationship between man and God.

In contrast, Mishpatim are those laws which, if were they not contained in the Torah, would have been prescribed by human intelligence, such as the prohibition of theft and murder. In other words, Mishpatim are laws that can be explained in a rational manner, for they concern the affairs of man and his neighbor. In fact, one meaning of the term “Mishpat” is “an act of judgment.” This is why the expression “judgment” and not “commandment” is used in Jewish civil law.

The civil law

Jewish civil law covers the largest domain of the Halakha, and in no other area is the human intellect allowed so much freedom to decide according to the insights of the judge and the circumstances of the case. “A judge has nothing to guide him but that which he sees with his own eyes” (Sanhedrin 6b). His aim is to unite truth and goodness by reasoned inquiry.

Jewish civil law, says Rabbi Kahana, is so rational that the term “imposition” will not be found where Mishpat is introduced in the Torah. The Talmud requires the teacher to explain Mishpat solely on the basis of reason. Jewish civil law not only requires public officials to understand the laws they have to administer; it also “exhorts the people to realize that it is for them also to learn its rules and principles, so that they know what are the rights and duties of individuals in relation to their neighbors and the community at large.”

To appreciate the rationality of Jewish law, contrast English law on which Israel’s Supreme Court still heavily relies. English law lacks systemic consistency. In certain cases judges have upheld laws over against morality; in others they have upheld morality over against the law. The subject is discussed by Professor Moshe Silberg, a former Deputy President of Israel’s Supreme Court (one of its few members educated in Jewish law).

Two instructive illustrations

Silberg begins by citing two cases that occurred in the nineteenth century.

[The first] involved two Frenchmen who had immigrated to London, and one of them, a priest by profession, had been stricken with syphilis. His colleague cured him through the use of various drugs, and he sued him for twenty pounds as the fee for curing him. The defendant did not deny the facts. He admitted that he had been fully cured, thanks to the attention of the claimant who was an expert.

He argued, however, that his colleague was not legally permitted to attend to him because … no one was allowed to practice medicine in London … unless he was licensed by the medical association. He therefore claimed that his cure of syphilis was a violation of the law, and that one could not claim to be paid for doing something which transgressed the law, that one had to do it without a fee! The Court did not recognize this argument, and ordered the defendant to pay the full amount of the claim.

In the second instance, which was tried the same day and by the same judge, the claim was for payment of the cost of a certain fabricated article – bricks. The defendant claimed that the bricks did not conform to the size prescribed by law, and that it was, therefore, forbidden for the seller to sell them, and that he could not, therefore, claim their price. The Court accepted the argument and dismissed the claim.

Why the distinction?

Silberg comments that no one to this day is clear as to the difference between the two decisions, “except for the relative emotional difference between the ingratitude of the person who was cured and a merchant’s refusal to pay.” After examining more recent cases of English law, Silberg states that, “Two mutually contradictory tendencies played on the loyalties of the judges: the desire to defend the validity of the legal proscription on the one hand, and the desire to grant redress to the aggrieved claimant on the other.”

However, had the judges followed Jewish law in such matters, then the recipient of illegally dispensed goods or services would be compelled to render payment to the aggrieved claimant, but who would then be fined to that (or a greater) amount for violating the law. Jewish law will therefore oblige a man to pay a prostitute her agreed fee although the liaison is illegal. As one commentator put it:

Why should a dishonest fornicator indulge himself for free at the expense of another? The court will oblige him to pay the sum agreed upon, in order that he should not have the sin of dishonesty added to that of immorality.

According to Silberg, “there is no legal system in the world, ancient or modern, in which the principles of morality and law are so intertwined as in Jewish law.” Alas, this statement will not be taken seriously by Israel’s ultra-secular Supreme Court. Tainted by multiculturalism, the Court is busy eroding the national consciousness of the Jewish people.

*Update of a transcript of the Eidelberg Report, Israel National Radio, July 26, 2010.