The impact of supreme court rulings on the halakhic status of the official rabbinical courts in Israel

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Abstract

The privilege of exclusive State recognition, grants of legal powers … seem to exact a rather heavy price on the Rabbinate, paid in loss of independence and religious freedom (Izhak Englard, 1987). INTRODUCTION The fascinating and arguably tragic combination of religion and state in Israel is most visible in issues surrounding the official rabbinical courts. Usually when we think about this matter, we think about substantive law: “marriage and divorce of Jews in Israel is conducted according to Torah law” – that is, halakha. However, the combination of halakha and law has another interesting and perhaps less-known aspect: the halakhic significance, for better or worse, of the fact that the official rabbinical court operates by virtue of Israeli law. From the point of view of halakha, does a rabbinical court that operates by virtue of Israeli law have an advantage over private rabbinical courts that do not? Over the years, such a claim has been established, but because of events of recent years in the area of jurisdiction of the rabbinical courts, this claim has become problematic. I refer in particular to the ruling of the Israeli Supreme Court, sitting as the High Court of Justice (HCJ) in the Amir case, that the rabbinical court must not litigate in areas that do not concern marriage and divorce, even if the parties have appointed it as an agreed-upon arbitrator to litigate their civil suit. Jewish Law and/or Israeli Law: The Debate on the Grundnorm of the Official Rabbinical Courts One month after the verdict in the Amir case, the Great Rabbinical Court ruled in a technical matter resulting from an arbitration agreement. During the debate, the court could not refrain from discussing the HCJ ruling in the Amir case. In addition to threatening to retroactively cancel bills of divorce (gittin) that had already been granted (a threat that was indeed carried out), the rabbinical judges responded by saying the following: We must note, in parentheses, that the ruling of the HCJ is a severe blow to the status quo and to the relations of the rabbinical court with the civil courts. The rabbinical courts were not born with the establishment of the state. These courts have existed since the revelation on Mt.

Original languageEnglish
Title of host publicationInstitutionalizing Rights and Religion
Subtitle of host publicationCompeting Supremacies
PublisherCambridge University Press
Pages224-240
Number of pages17
ISBN (Electronic)9781316599969
ISBN (Print)9781107153714
DOIs
StatePublished - 1 Jan 2017

All Science Journal Classification (ASJC) codes

  • General Social Sciences

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