“I’m in the East, but My Law Is from the West”: The East-West Dilemma in the Israeli Mixed Legal System
“I’m in the East, but My Law Is from the West”: The East-West Dilemma in the Israeli Mixed Legal System
Israel is counted among the “classical mixed jurisdictions” that suits F.P. Walton’s definition from the beginning of the twentieth century: “Mixed jurisdictions are legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law” (Walton  1980: 1, as cited in Tetley 1999; see also Walton 1899: 291; Palmer 2001: 7–10, 17ff.). Yet the civil law–common law mixture is only one element in the broader puzzle of Israel’s legal identity. Put simply, what makes Israeli law “Israeli”? Even before independence, the Zionists were obsessed with the question of how to fashion the legal order and the law in the future Jewish state, and these concerns continue to bewilder Israelis. This ongoing debate on the “Israeliness” of Israeli law is marked by the tension between East and West. This East-West dilemma does not correspond directly to the Jewish-Arab conflict, nor to the Jewish internal quarrel between Ashkenazi and Sephardi (or Mizrahi) Jews.1 Instead, it indicates the tension between the universal—Westernlike—character of Israeli law and the wish of many Israelis to express in their laws the identity and culture of the Jewish state located in the Middle East.
This chapter has two aims: the first is to analyze the current debate on the character of Israeli law, demonstrating the dominance of the East-West dilemma in Zionist and Israeli legal discourse from as early as the turn of the twentieth century to the present; the second is to demonstrate the manner in which the Zionist movement and later the State of Israel handled this delicate and complex problem until the 1980s, silencing the quarrel by avoiding as much as possible any political or legal discussion of the issue while paying symbolic tribute to the Jewish East-West dilemma.
The chapter has two parts. The first describes the East-West dilemma, its history, and three of its expressions: the Israeli attitude toward Europe (and Western law in general), the Israeli approach to the East, and the indecision concerning modern Jewish identity. The second part of the chapter analyzes the Zionist and Israeli praxis of cultural silencing and explains the importance of the symbolic presence of Jewish Eastern law within modern Israeli Western law.
The East-West Dilemma in Modern Jewish Culture and Law
The legal tension between East and West is, in fact, rooted in one of the two deepest dilemmas of modern Jewry: the shape of Jewish culture in the modern secularized world. (The other problem is, of course, that of modern anti-Semitism.) The gradual political emancipation during the past 250 years and the ongoing process of secularization forced the Jews—first in Western Europe and later in other parts of the world—to find a way to remain Jewish while abandoning traditional Judaism: both the religious faith and the traditional way of Jewish life. This question has confounded modern Jewry for 250 years and is still a major source of cultural and political controversy in Israel.2
The legal field was one arena in which the cultural dispute took place as many Zionist lawyers strove to mold a legal system that would be both Jewish and progressive (an adjective that they used to describe a Western-oriented system). Their idea, born in the early twentieth century, was to use Jewish law as a major source of the legal system for the Jewish state-in-the-making. For that purpose, a new term was coined: mishpat ivri (Hebrew law). The scholars who created this expression did not intend to discuss the law of the ancient Hebrews, but rather to distinguish between the general (religious) Jewish set of commandments and the body of legal norms (themselves part of Jewish law) that seemed fitting for incorporation into the future Jewish state.
The cultural enthusiasm of the early Zionist lawyers should also be understood in light of the legal-intellectual environment of the time, when the historical and nationalist schools of legal thought were still very much à la mode. Developed by jurists such as Friedrich Karl von Savigny in early nineteenth-century Germany, the historical-cultural-nationalist perception of law spread throughout Europe in the course of the next decades and regained new impetus toward the end of the century. The 1892 new edition of Savigny’s famous Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (originally published in 1814) was especially influential in fin-de-siècle Central and Eastern Europe (von Savigny  1892). As Assaf Likhovski (1998: 341) rightly points out, “Hebrew law was born out of an affair between German Professors and Zionist students.”3
At an early stage, the enthusiastic Zionist lawyers found that the task of creating modern Hebrew law was not easy, because it entailed cultural and intellectual dilemmas characteristic to processes of legal borrowing.4 First, they had to decide on their attitude toward Europe and European law. Europe was the place from which most Jews emigrated and the place to which they were affiliated by powerful historical and cultural bonds. Most Israelis saw themselves (and still do) as Europeans and believed that their culture and law should be European based, especially because they perceived European law and culture as superior to other cultures and laws. Thus, most Israelis assumed their laws would have the European shape of constitution and legal codes and the content of the law would be heavily influenced by Western legal principles and norms. Furthermore, Israelis cherished the Western ideas of democracy and the rule of law and saw them not as mere political procedures but as substantial components of their national identity. Israelis love to say that their political community is as democratic as it is Jewish. Thus, the question Israeli lawyers asked themselves was never whether to abandon Western law, replacing it with Jewish or “Israeli” law, but actually which of the two main European legal traditions Israel should embrace: the Anglo-Saxon tradition or one of the continental Romano-Germanic traditions.5
Conversely, Europe was also the continent of the Jews’ lachrymal past, the place of exile, oppression, and persecution. It was the vale of tears from which they were expelled and where they were almost annihilated during the Holocaust. For these reasons, the new Israelis wanted to turn their back on Europe and create their own culture and law. In 1938, Moshe Silberg, a distinguished Israeli lawyer who would become a justice on the Israeli Supreme Court, rejected the idea of the German or even Swiss civil code as a model for the law of the future Jewish state, because “for us Jews, there is nothing more abominable than the German spirit” (Silberg 1981: 198).
Likewise, the Zionist lawyers had to resolve their rapport with the East. On the one hand, their return to the East was a return not only to the geographical Zion but also to the conceptual Zion—the ideal of creating a model society according to the lofty principles of the biblical prophets. The East was also the cradle of Western civilization. The great civilizations of Egypt and Mesopotamia, and later the great Muslim empires, possessed sophisticated legal systems and gave humanity science and technology, the monotheistic idea, and biblical morality. The East, then, was a veritable treasure house of symbols and laws. Early Zionist jurists believed that the Jewish renaissance would lead the awakening of the East. Consider for example this open letter published in 1910 by the young Samuel Eisenstadt (1910: 208, as cited in Likhovski 2006: 144), who would become a prominent figure in the Hebrew law movement:
History calls us … [to] look to the shores of the Arab sea and the rivers of India! Great and ancient Eastern nations awake from the slumber of the ages and fight for their liberty. A commotion of revival is heard in the halls of ancient culture, in the halls of the biblical world. A new and enlightened society is being formed on the shores of Asia and in its laws and social customs, the spirit of religion is reflected in its pure Eastern form.… The East longs and yearns for the revelation of a stern and original Eastern law, which sucks and feeds from the sources of Eastern religion. To such and eastern society … we should bring our advanced law, the law of the ancient Semitic nation, the first and foremost of the enlightened nations of western Asia.
As can be seen from this paragraph, young Eisenstadt and his comrades held orientalist views that were both romantic and belittling. They admired the East but at the same time saw it as a backwater, and they conceived of Muslim and Ottoman law as nonrational, chaotic, and generally unsuited to the Jewish state-in-the-making. Eisenstadt wrote his open letter while he was still in Russia. The encounter of these young romantic jurists with the harsh reality of the Jewish-Arab conflict bolstered their suspicion toward the East and Eastern law, thereby strengthening their Western legal and cultural orientation.6
But the main problem of the Hebrew law movement was the complex relations between Israel and Judaism. The Zionist movement was, of course, the Jewish national movement, and as such, it emphasized Jewish cultural and collective identity. Zionism—like all national movements—was a revolutionary movement that sought to break with the past and revolutionize all aspects of Jewish public life. Thus, Zionism developed a complicated—not to say schizophrenic—attitude toward Judaism: Zionism was a national movement that wished to remind the Jews of their individual and collective identity, and at the same time, it sought to revitalize Judaism. Israel suffers from the same schizophrenia. It depicts itself (even in its laws) as a Jewish and democratic state. However, it is not clear what Jewishness means here; that is, what does it mean to be Jewish in Israel? Religious Jews claim that to be Jewish means to be a religious Jew, a Jew who believes in the tenets of Judaism and lives according to the commandments of Jewish religion (known as halakha). Most Jews, however, in Israel and abroad, do not see themselves as religious people though they identify themselves as Jewish. In the same manner, what Jewish law (or Hebrew law) means in today’s Israel is not clear: How is it related to ancient Jewish law or to Jewish culture in general? How will it reflect both Jewish (“Eastern”) and modern (“Western”) values?
The problem of establishing modern Israeli law on a Jewish legal foundation has two facets: external and internal. The external aspect corresponds to the regular problems of legal borrowing and transplantation, which are similar to the problems that bewildered the Zionists with regard to Western or Eastern law: what should be borrowed from Jewish law, and how it should be transplanted into the modern legal fabric. The internal aspect refers to Jewish law’s special characteristics that hinder the task of turning it into the living law of a modern state.
Borrowing from Jewish law is not an easy task, because Jewish law is a rich and ancient legal tradition composed of many historical and normative layers (compare Kedar 2007a). Judaism, like Islam but unlike Christianity, is an orthopraxy, a “legal religion” in the sense that it is a holistic system composed of countless norms that dictate the life of the believer from the moment he or she wakes until the moment he or she goes to sleep, from birth till death. Jewish law encompasses every aspect of private and public life. It deals with civil, commercial, and public law and even dictates what the Jewish believer may eat, drink, and wear (these are the laws of kashrut—the dietary laws concerning kosher food). Jews call their holistic religious legal system halakha.
The Torah—the first five books of the Bible—is considered by Jews to be the basic source of halakha. But despite the central place of the Bible in Jewish faith and law, halakha mainly progressed through a process of “questions and answers” (in Hebrew: she’elot u’tshuvot, or shut), a process that recalls the Roman institution of responsa. People would ask the rabbis for a halakhic solution to a particular issue, and the rabbis would base their answer on Jewish law. Halakha, therefore, is a set of numerous answers or decisions—a sort of Jewish common law. From time to time, halakha was codified. Some of these codes are very old. In addition to the Bible itself, the Mishna and Talmud should be mentioned. The Mishna was the first compilation of Jewish oral halakha, codified in the early third century A.D. in Palestine by Rabbi Yehuda Hanassi. The Talmud, which was codified around the fifth century A.D. in Palestine and then recodified in the sixth century in Persia, contained the Mishna and rabbinic commentaries on the Mishna that had been gathered in the centuries following its codification (these commentaries are known as the Gemara). Additional rabbinic codes were codified later, during the Middle Ages and in modern times. The most famous and important of them are perhaps Maimonides’s Mishne Tora (completed in 1180) and the Shulkhan Arukh by Rabbi Yossef Karo (published in 1565). The codes (and especially the Talmud) are heavily cited by the rabbis and considered the primary sources of halakha, but over the centuries Jewish law clearly progressed mostly through responsa—the answers and decisions of the rabbis. Borrowing from Jewish law thus is a complicated process requiring many decisions.
Zionist jurists bickered raucously among themselves over questions such as the following: Which of the legal sources of Jewish law should they apply? Should they prefer the codes or the responsa? Is there a preferable line of responsa: one of the Ashkenazi legal traditions or a Sephardi one? Should they prefer the Mishna and Talmud that were compiled in Palestine, or would it be better to adopt modern sources? Should they transplant specific Jewish legal norms or institutions, borrow general “Jewish” legal principles, or perhaps embrace the Jewish legal philosophy and way of reasoning while fashioning their own modern laws by themselves? How free were they to change and update the traditional sources? (Likhovski 1998: 357–61, 368–70; Radzyner 2010: 100–110, 124–32).
Jewish law imposed yet another set of problems on the modern Zionist jurists: a set of internal problems that derive from Jewish law’s specific character and philosophy. I briefly sketch three of these problems: the scope of Jewish halakha and its special form, halakha as a holistic religious system, and the authority of the legislators and judges.
The first internal problem that hampers the incorporation of Jewish law into modern state law lies in halakha itself or, to be more exact, in the scope and form of halakha, which make transforming halakha into a modern legal system very difficult. The halakha is indeed a holistic system, but in fact the use of Jewish law in many vital areas of living is impossible simply because no reference to them occurs in halakha and no central halakhic institution can fill this void with legislation. (Halakha is silent, for example, on constitutional and administrative law as well as in many modern commercial areas of law.) In addition to halakha’s limited scope (by today’s standards), its unique form, which is incompatible with the modern state, must be taken into consideration. Halakha developed as a decentralized and pluralistic system of responsa administered (if this word can be applied to the diffuse evolution of halakha) by generations of rabbis. The responsa are characterized by frequent disagreements among the rabbis and by halakhic questions that remain unresolved. Although the creation of a centralist legislative body of halakha