Language:
Hebrew
Year of publication:
2020
Titel der Quelle:
דיני ישראל; שנתון לחקר המשפט העברי
Angaben zur Quelle:
לד (תשפא) 391-428
Keywords:
Judaism and state
;
Rabbinical courts
;
Justice (Jewish theology)
;
Civil law
Abstract:
The article discusses whether rabbinical judges adopt state law and rulings,even when, in their opinion, they run counter to the dictates of justice. Thearticle examines the halakhic conceptions that presume the fundamentalacceptance of civil law by means of a range of halakhic tools, by which thearticle will explore the influence of such dictates on halakhic rulings. Wewill not only examine the individual halakhic considerations employed bythe rabbinical judges to determine the weight to be given to the dictatesof justice, we will also investigate the interpretive tools that they use. Thearticle will also seek to show how the rhetoric of the dictates of justice mightconceal more fundamental positions: the basic rejection of state law, or itssubstantive internalization.Opinions differ on this issue. Some rabbinical judges are of the opinion thatthe adoption of state law is subject to the dictates of justice. Several of themrefuse to rule in accordance with state law when its content seems unjustto them, while others maintain that even when the content of state law isjust, if its application in the specific case before them will lead to an unjustoutcome, then it is not to be validated.Other rabbinical judges, however, maintain that state law is to be validatedby force of “dina de-malkhuta” (the law of the land) or “minhag ha-medinah”(the local custom), even when the law or its application are opposed to thedictates of justice. One of the arguments given for this is that it is the natureof any law to be liable to cause injustice in a minority of cases; consequently,it should not be invalidated for such a reason.An analysis of these positions serves for us as the foundation for a discussionof deep aspects pertaining to the meeting between halakhah and state law,especially in the State of Israel. Our research reveals that, at times, rulings arecharacterized by a certain rhetoric, while concealing a different conceptionbelow the surface: adoption, or aversion and opposition.To generalize: between the lines of the deliberations on the question of theadoption of state law that is opposed to justice, the article seeks to cast lighton a complex stratum of mechanisms for filtering and acceptance regardingthe relationship between halakhah and state law and rulings. This crucialquestion has accompanied halakhah for generations and has only intensifiedin the complex juridical reality in the State of Israel.
Note:
With an English summary.
URL:
אתר את הפרסום בקטלוג המאוחד של ספריות ישראל
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