In Absence of ‘Clear Laws’, Courts Turn to Torah Law in Proposed Bill

“Be sure to keep the commandments, decrees, and laws that Hashem your God has enjoined upon you.” Deuteronomy 6:17 (The Israel Bible™)

The Knesset plenum on Monday approved in a preliminary vote a proposed law which explicitly adds the principles of Jewish law to the sources of complementary laws in Israel’s legal system, for the court to turn to when it finds no answer to a legal question requiring a decision on a given legislation, in case law or in an analogy.

Called the “Foundations of the Law 5727-1987” amendment, it was submitted by MK Nissan Slomiansky (Habayit Hayehudi) et al. The bill passed in its first reading with 36 for and 30 against.

The explanatory notes accompanying the bill read: “The Foundations of the Law, 5740-1980, enacted in 1980, determines the obligation to turn to sources in our Jewish heritage when deciding on a legal question that has no decision in legislation or in case-law.”

“However, the use of the law over the years has been very limited,” the notes suggest, “since the reference [in the original law] to ‘the principles of liberty, justice, integrity and peace of the Jewish heritage’ is unclear and can be interpreted broadly. Therefore, the bill seeks to explicitly mention the term ‘Principles of Jewish Law’ as an interpretative source to which the court may appeal in a case of a Lacuna.”

Lacuna, or Non liquet (Latin for ‘it is not clear’), is a situation where there is no applicable law to decide a given case. Lacuna (gap, void, defect, want, loss) is used to indicate a gap in the law.

MKs from the Joint Arab List objected to the bill on the grounds that it is yet another step in the direction of making Israel a Jewish state at the expense of its non-Jewish citizens. However, in reality, the bill actually offers judges the opportunity to cherry pick from an enormous body of laws – Jewish halacha – where one may find support for absolutely every imaginable position and its opposite.

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