ANNA RATAJ
THE INTERACTION BETWEEN RELIGIOUS
AND SECULAR LAW IN ISRAEL
Anna Rataj*
Jagiellonian University in Kraków, Poland
Abstract. The paper is about interference between religious and secular law in Israel as an example of
interaction of national legal systems. This example is unique, because it shows the coexistence of two legal
systems in one state – the religious and the secular one. How is it possible?
No formal written Constitution
Israel does not have a formal written Constitution. There are 11 Basic Laws that can be considered as
a constitution in the material sense. Why was it impossible to enact a formal written constitution within
65 years of the existence of the State? This phenomenon is strictly connected with the constant struggle
between followers and opponents of enacting the traditional Jewish law as a law of the State. There are
political and religious environments, which aspire to the transformation of Israel into a Halachic state, but
the modern Israeli society claims for democracy and human rights.
Religious law vs. secular law
According to the Declaration of Independence and Basic Laws, Israel is a Jewish and democratic state.
The coexistence of both concepts seems contradictory. Democracy means freedoms and Jewish character
of the state means following Jewish religion and tradition. There are areas of life which are regulated only
by religious law. For example, marriages and divorces belong to religious courts. Though Israeli law seeks to
provide equal protection to all of its citizens.
State of compromises
In such legal situation it is not possible to act without compromises. The most important role in arbitrating between secular and traditional law plays the Israeli Supreme Court. It is a difficult task to preserve
democratic rights and freedoms when trying not to infringe religious and traditional values. Therefore,
almost every judgment of the Supreme Court is a compromise.
Keywords: Israel, Jewish law, rabbinical courts, marriage, divorce
A. INTRODUCTION
Israel is a unique example of interaction of national legal systems: it shows the coexistence of two
legal systems in one state – the religious and the secular one. Israel is a parliamentary democracy,
which adheres to the rule of law and the protection of human rights. However, according to the
* Anna Rataj graduated from the Jagiellonian University with Master in Law (2009) and Bachelor in Jewish Studies
(2011) as well as from the University of Heidelberg with LL.M. (2010) and from the Krakow Conservatory of Music with
the major in Piano (2009). Currently she is a Ph.D. student at the Jagiellonian University. For preparing her dissertation
on the “Israeli Supreme Court” she was awarded with a scholarship from the Israeli Ministry of Foreign Affairs and with a
Two-Year Research Grant from the Polish National Centre of Science. Her academic interests comprise constitutional law,
comparative constitutional law, Israeli law and Jewish law.
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Declaration of Independence of 14th May 19481 and to Basic Law: Human Dignity and Liberty
of 17th March 19922, Israel is both a Jewish and democratic state. This implies the obligation to
protect rights of non-Jewish citizens, whereas maintaining the Jewish character of the state,
which is reflected in many aspects of everyday life. The concept of Jewish and democratic state
has historical meaning and relates to Judaism as a religion which enabled the Jewish nation
to survive two thousand years without own state, but also declares that Israel belongs to the
family of democratic countries that provides tolerance to people regardless nation, religion or
background.
This paper considers only selected aspects of problems that arouse from the coexistence of
religious and secular norms in Israel.
B. LEGAL SYSTEM IN ISRAEL – SELECTED ASPECTS
1 . Se c ular and relig ious law
The coexistence of two legal systems in Israel is a consequence of Israel being a Jewish and
democratic state.3 However, those systems are not equal: the religious law applies only when
secular law states that explicitly and only in limited situations.4 In case of conflict between both
systems, the secular law is binding and religious law has to recede.
a) Secular law
In Israeli law there are remnants of different legal systems that were present at the territory of
the State of Israel throughout the last century, i.e. Ottoman Empire (including the Mejelle – the civil
code of the Ottoman Empire) and British Mandate. The Israeli legal system is based on common
law and incorporates some elements of civil law.
Despite the assertion in the Declaration of Independence from 1948, Israel does not have
a formal constitution as a one written document. Since enacting two new basic laws on human
rights in 1992, its 11 Basic Laws are regarded as a material constitution. This statement has been
expressed in the most significant judgment of the Israeli Supreme Court, i.e. in the Bank HaMizrachi judgment from 1995.5 Along with the Declaration itself, they provide a framework of political
and legal system. However, many important issues remain unregulated. Therefore, Israeli positive
law is enriched by the jurisprudence, in particular by the case law of the Israeli Supreme Court.
1
Declaration of Independence of the State of Israel, 14th May 1948, published in Official Gazette: Number 1; Tel Aviv,
5 Iyar 5708, (14th May1948), p. 1. The English version can be found on the official Knesset (Israeli parliament) website:
[01.04.2013] http://www.knesset.gov.il/docs/eng/megilat_eng.htm
2
Basic Law: Human Dignity and Liberty of 17th March 1992, passed by the Knesset on the 12th Adar Bet, 5752 (17th
March, 1992) and published in Sefer Ha-Chukkim No. 1391 of the 20th Adar Bet, 5752 (25th March, 1992); the Bill and an
Explanatory Note were published in Hatza’ot Chok, No. 2086 of 5752, p. 60. Full text in English can be found on the website:
[01.04.2013] http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm
3 See above references to Declaration of Independence and Basic Law: Human Dignity and Liberty
4 M. Elon, ‘The Jewish Law: History, Sources, Principles, part IV’ (The Jewish Publication Society, 2003)
5
United Bank HaMizrachi vs. Migdal Cooperative, Supreme Court of Israel, 1995 C.A. 1908/94, full text of the judgment in English is available on the website: [01.04.2013] elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf
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Sitting as the High Court of Justice, the Supreme Court plays an important role in shaping the Israeli
unwritten constitution and interpreting law. This refers not only to secular, but also to religious law.6
b) Religious law
Israel adopted some religious normativities as part of its positive law.7 There are also regulations
that refer to the religious norms in some aspects of life. Because Israel is declared as a Jewish state,
Jewish religious law (Hebr. Halacha) is applicable as far as Jewish citizens are concerned. However,
being also a democratic state obliges Israel to provide equal rights for non-Jewish citizens of Israel.
Therefore, in some aspects of life (foremost in family law and law of personal status), also religious
law of other communities (Muslim, Christian and Druze) is applicable.
2 . Co urt system
The court system in Israel has a complex structure. Besides the general law courts8, the Israeli
legal system recognizes various types of tribunals, the most important of which are the military
courts, the labour courts, and the religious courts. The religious court system was established already by the Palestine Order-in-Council in 1922.9 After the establishment of the State of Israel, the
Moslems, the Druze, the Jews, and the Christian communities were given special rights regarding
judiciary and special courts were established: rabbinical courts for Jews, sharia courts for Muslims
and Druze as well as ecclesiastical courts for Christians.10 The religious court system is financed
by the State and its mainly scope of jurisdiction is limited to matters of marriage and divorce.11
The most significant role among Israeli religious courts have Jewish religious courts.12 Their
structure, procedure and qualifications of judges is regulated in the Dayanim Act of 1955.13 There
are 12 district rabbinical courts and the Higher Rabbinical Court with the seat in Jerusalem.14 The
religious courts are managed by the Ministry of Religious Services.15 The judges of rabbinical courts
are appointed by the Committee presided by the Minister of Justice.16 The courts have exclusive
6 Most significant judgments of the Israeli Supreme Court are available online in English on the website: [01.04.2013]
http://elyon1.court.gov.il/eng/home/index.html
7 A. S. Hofri-Winogradow, ‘A plurality of discontent: legal pluralism, religious adjudication and the state’, ( Journal of
Law and Religion, Volume 26, number 1, 2010-2011), p. 57
8 Hebr. Beit mishpat (‫)טָּפְׁשִמ תיֵּב‬
9 Palestine Order-in-Council from 10th August 1922, issued by The King’s Most Excellent Majesty George V, King of the
United Kingdom (part of which was the British Mandate in Palestine). Full text in English can be found on the website:
[01.04.2013] http://unispal.un.org/UNISPAL.NSF/0/C7AAE196F41AA055052565F50054E656
10 More information can be found on the website: [01.04.2013] http://www.jewishvirtuallibrary.org/jsource/Politics/
judiciary.html
11 For more information visit the website: [01.04.2013] http://www.llrx.com/features/israel3.htm
12 Hebr. Beit din (‫ןיד תיב‬‎)
13 Dayanim are rabbinical court judges. Full text of the Dayanim Act in Hebrew is available on the website: [01.04.2013]
http://www.nevo.co.il/law_html/law01/070_001.htm
14 More information available at the Rabbinical courts website in Hebrew: [01.04.2013] http://www.rbc.gov.il/Pages/
default.aspx
15 Further information on Ministry of Religious Services can be found on the website: [01.04.2013] http://www.dat.gov.il/
16 See Dayanim Act of 1955 at the website: [01.04.2013] http://www.nevo.co.il/law_html/law01/070_001.htm
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jurisdiction over marriage and divorce of Jews and have parallel competence with district courts in
matters of personal status, alimony, child support, custody, and inheritance. Religious court verdicts
are implemented and enforced in the same way as the civil court’s decisions.17
3 . Chief Rabbinate of Israel
The Chief Rabbinate of Israel is the supreme authority for Jewish citizens of Israel as far as religious law is concerned. Its status is regulated in the Chief Rabbinate of Israel Law of 5740-198018.
The Rabbinate has jurisdiction over many aspects of Jewish life in Israel. Its jurisdiction includes
personal status issues, such as marriage and divorce, as well as Jewish burials, Conversion to Judaism, Kashrut and kosher certification, emigrants, supervision of Jewish holy sites and overseeing
Israeli Rabbinical courts.19 Rabbinical courts apply Halacha – Jewish religious law – and the Chief
Rabbinate of Israel sets guidelines on interpretation of Halacha. In general, it is responsible for
Jewish aspect of Israel.
C. FAMILY LAW AS AN EXAMPLE OF INTERACTION
OF RELIGIOUS AND SECULAR LAW
1 . Mar riage and divo rc e a ccording to Hal acha
The most important act regulating marriage and divorce in Israel is Rabbinical Courts Jurisdiction
(Marriage and Divorce) Law of 5713-1953.20 According to its provisions, marriage and divorce of
Jews in Israel who are Israeli residents and citizens are within the exclusive jurisdiction of Rabbinical
Courts. The Law further provides that marriage and divorce of Jews in Israel must be conducted
under Jewish law (Halacha). In accordance with Jewish law, a marriage may end only upon divorce
based on both spouses’ free mutual consent, or upon death. Jewish divorce will be recognized as
valid on condition that the husband grants his wife a writ of divorce (Hebr: get) and she accepts
it. Rabbinical Courts do not have the authority to terminate a marriage, but they may issue orders
for the parties to try to resolve their differences or to effectuate a divorce.21
17 Y. S. Kaplan, ‘Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious and
Constitutional Law’ (Middle East Law and Governance 4-2012), p. 1–68.
18 Chief Rabbinate of Israel Law from 19th March 1980, passed by the Knesset on the 2nd Nisan 5740 (19th March 1980)
and published in Sefer Ha-Chukkim No. 965 of the 11th Nisan, 5740 (28th March 1980), p. 90. Full text in English is available
on the website: [01.04.2013] http://www.israellawresourcecenter.org/israellaws/fulltext/chiefrabbinateisrael.htm
19 Chief Rabbinate of Israel Law of 5740-1980, article 2
20 Rabbinical Courts Jurisdiction (Marriage and Divorce) Law from 26th August 1953, passed by the Knesset on the
15th Elul 5713 (26th August 1953) and published in Sefer HaChukkim No. 134 of the 24th Elul5713 (4th September 1953), p.
165. Full text in English is available on the website: [01.04.2013] www.knesset.gov.il/review/data/eng/law/kns2_rabbiniccourts_eng.pdf
21 The Marriage and Divorce Law of 5713-1953, see above
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2 . Civil m arriage
In Israel, a civil marriage is non-existent. There is no possibility to get married out of religion
in Israel, because marriages are in charge of religious courts. The only possibility to obtain a civil
marriage is to get married abroad.22 Such a marriage is forbidden ex ante, but valid ex post, provided it is valid in the country where it has been concluded. The reason for this solution is the
public interest in validity of such a marriage. It can be retroactively recognised by the Ministry of
the Interior by registering it on a special list upon presenting a foreign marriage certificate. As a
result of it, a marriage becomes valid. Couples married in that way are recognised as “married”
by the State of Israel.
3 . Fam ily co ur ts jur is dic tion within family law
Family courts are part of an ordinary courts system which is regulated in Basic Law: The Judiciary.23 They act according to the Family courts law of 1995.24 Family courts are in charge of every
legal situation that involves family members, however they cannot decide on marriage and divorce
because this issues are reserved exclusively for religious courts. It is possible to file a claim regarding
divorce to the family court. Although the divorce itself belongs to the jurisdiction of the rabbinical
court, in the situation when the claim has been filed to the family court, it has jurisdiction concerning
alimony, child custody, and division of property.25 Family courts are an attempt to assure balance
to rabbinical courts, which tend to favour men over women in matters of a divorce, because the
act according to Halacha. Family courts in turn are not bound by religious law and can take care
also for women’s rights, following the provisions of secular law of the State of Israel.
An important role in jurisdiction regarding family law has the Israeli Supreme Court. It hears
petitions from final decisions of the Higher Rabbinical Court and gives guidelines for lower courts
in its cases regarding family law issues.
D. CONCLUSION
Israel faces many problems arousing from its specific legal system. The fact that the country
is officially declared as a Jewish and democratic state causes additional complications connected
with the duty to apply the religious law to some aspects of life. The interaction between religious
and secular law in Israel can be perceptible especially in matters of family law. Nonetheless, Israeli
legal system seeks to provide equal protection to all of its citizens, following the rule of law.
22 Today the most popular destination for Israeli citizens who wish a civil wedding is Cyprus.
23 Basic Law: The Judiciary from 28th February 1984, passed by the Knesset on the 25th Adar Alef 5744 (28th February
1984) and published in Sefer Ha-Chukkim No. II 10 of the 4th Adar Bet, 5744 (8th March 1984), p. 78. Full text in English is
available on the website: [01.04.2013] http://knesset.gov.il/laws/special/eng/basic8_eng.htm
24 Family Courts Law from 31st July 1995, passed by the Knesset on the 4th Av 5755 (31st July 1995) and published in Sefer
Ha-Chukking No. 11 of the 7th August 1995. Full text in Hebrew is available on the website: [01.04.2013] www.knesset.gov.
il/.../law/kns13_familycourt.pdf
25 Family courts law of 5753-1995, see above
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B i b l i o g ra phy
Books:
M. Elon, ‘The Jewish Law: History, Sources, Principles, part IV’ (The Jewish Publication Society, 2003)
A. S. Hofri-Winogradow, ‘A plurality of discontent: legal pluralism, religious adjudication and the state’, (Journal
of Law and Religion, Volume 26, number 1, 2010-2011)
Articles:
Y. S. Kaplan, ‘Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious
and Constitutional Law’ (Middle East Law and Governance 4-2012)
Legal acts:
Palestine Order-in-Council from 10th August 1922, issued by The King’s Most Excellent Majesty George V, King
of the United Kingdom (part of which was the British Mandate in Palestine).
Declaration of Independence of the State of Israel, 14th May 1948, published in Official Gazette: Number 1; Tel
Aviv, 5 Iyar 5708, (14th May1948), p. 1
Rabbinical Courts Jurisdiction (Marriage and Divorce) Law from 26th August 1953, passed by the Knesset on the
Elul 5713 (26th August 1953) and published in Sefer HaChukkim No. 134 of the 24th Elul5713 (4th September
1953), p. 165
15th
Basic Law: The Judiciary from 28th February 1984, passed by the Knesset on the 25th Adar Alef 5744 (28th February
1984) and published in Sefer Ha-Chukkim No. II 10 of the 4th Adar Bet, 5744 (8th March 1984), p. 78.
Basic Law: Human Dignity and Liberty of 17th March 1992, passed by the Knesset on the 12th Adar Bet, 5752 (17th
March, 1992) and published in Sefer Ha-Chukkim No. 1391 of the 20th Adar Bet, 5752 (25th March, 1992)
Family Courts Law from 31st July 1995, passed by the Knesset on the 4th Av 5755 (31st July 1995) and published
in Sefer Ha-Chukking No. 11 of the 7th August 1995
Cases:
United Bank HaMizrachi vs. Migdal Cooperative, Supreme Court of Israel, 1995 C.A. 1908/94
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