Israel considers using 'Hebrew law' in courts

The idea of making principles derived from "Hebrew law", including the Jewish bible, a basis for court judgments is gaining traction in Israel to the dismay of leaders of the country's Arab minority and liberal Israeli Jews.

Proponents of the change say it will be applied only rarely and not translate into coercion of secular Israelis to follow Halacha, the Jewish equivalent of Sharia. Critics see the idea as a step backward towards religious chauvinism that could harm the rights of Arabs and women.

The proposal is spearheaded by Nisan Slomiansky, a member of the Knesset from the far-right coalition partner, the Jewish Home party, and was discussed this week by a parliamentary committee advancing the proposed Nationality Law, a controversial bid to give priority to the Jewish character of the state over democratic values — a move that, among other things, would strip Arabic of its status alongside Hebrew as an official language.

At Mr Slomiansky's behest, a stipulation was inserted requiring courts to make rulings "in accordance with the principles of Hebrew law" in instances not covered by existing Israeli law or legal precedent. Mr Slomiansky is also advancing separate legislation, known as the "Hebrew Law" bill to the same effect.

Yedidia Stern, an academic affiliated with the Israel Democracy Institute who backs the proposal, says Hebrew law would be applied only when there is a "lacuna" or gap in existing law. "It is mainly symbols as opposed to practical issues. It's a symbol that yes, we can go to American law or British law but we also have our own traditional law, which is Jewish law."

While politicians are still arguing over the wording of the Nationality Law bill, the Hebrew Law bill is ready for the first of three readings in parliament. Analysts say there is a good chance it will gain majority endorsement, with declared support for its principle from the right-wing Kulanu party.

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In defining what is meant by "principles" of Hebrew law, Mr Slomiansky says they will derive from the Jewish bible, the Mishna, a written compilation of rabbinic teachings dating back to the second century AD and the Talmud, studies which elaborate on the Mishna dating to the 5th century AD.

Both secular and religious Arab leaders are alarmed by the proposals. Knesset member Yusuf Jabareen, who comes from a left-wing, secular background, says they constitute "another degradation of our rights and legal status. We would like Israeli law to depend on universal values, human rights and democracy but not religious issues and content. It's another exclusion of our community and of general universal values. It affects everyone who cherishes universal values. It might lead to discrimination, to giving preference to Jews over non-Jews. We don't know who will be the justice to interpret Hebrew law and which interpretation he will make."

It could also lead to discrimination against women, he added.

Safwat Farig, deputy head of the moderate branch of Israel's Islamic Movement, termed the proposal "no good, dangerous and harmful to people who don't get protection from the government or state institutions".

"The government discriminates against Arabs and it is clear there is racism among the police," he said. "At the workplace, there is favouritism towards Jews. The only place where there still is some feeling that if you are an Arab Muslim facing a Jew you are equal is the court. Now in the court they are going to introduce religious elements that will harm minorities. They always spoke of a Jewish democratic state but it is turning into a Jewish and undemocratic state."

Mr Slomiansky, however, denies his proposal will lead to the forcing of religious practice on secular Jews.

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"We are not talking about a situation of if it passes tomorrow than everyone will have to put on phylacteries and every woman will have to go to the mikva," he said, referring to a small box containing biblical inscriptions that Jewish men are required by religious law to wear during morning prayers and to the bath observant women immerse themselves in to purify themselves after menstruation.

"We want a judge who has no solution in the existing law ... to look at what the Hebrew law says on the matter and try to adopt it." Hebrew law was ahead of other systems in providing for a day of rest, severance pay and paying employees on time, he said. "It contains beauty, wisdom and sense," Mr Slomiansky told the Jerusalem Post.

Nor does he accept that it could discriminate against Arabs. "If you learn from Jewish law to give a day off, then the Arab will also get a day off. The same for paying an employee on time. These principles apply to everyone and beyond that we are a Jewish state. We give rights and obligations to everyone who lives here but we are a Jewish state."

But Dan Yakir, legal counsel for the Association for Civil Rights in Israel, said "ancient" Hebrew law did not address modern democratic values, and might even contradict them. And it would "definitely" cause harm to the Arab minority.

"We know there are racist laws in Jewish law, laws that give priority to Jews, and this cannot dictate what we do in 2017 regarding the right to equality of all citizens in Israel," Mr Yakir said. "There are beautiful values like taking care of the stranger and there are other commandments which contradict these. Any judge can construe the law according to his views. That is why it's so dangerous."