Welcome controversy, consider the opinion of the minority, examine new laws over time and avoid constitutional revolutions and legal hijackings: These are the conclusions of Hebrew law, which can guide Israel in finding solutions to the legal dispute that is tearing Israeli society apart.
The disputing camps are well-defined: On the one hand is Netanyahu’s right-wing Justice Minister Yariv Levin, who seeks to enact several laws that would strengthen the Knesset, the legislative authority, vis-à-vis the Supreme Court. The most controversial among the proposed laws is the Override Clause, which will allow the Knesset to re-enact a law disqualified by the Supreme Court with a majority of 61 Knesset members. On the other hand, the left-wing opposition claims that such a law would be the equivalent of an anti-democratic coup. Calling to defend the Supreme Court as shaped by former President Aharon Barak, they particularly focus on the authority of the Supreme Court to disqualify laws if they contradict the law of Human Dignity and Liberty.
Since both sides claim to protect democracy in Israel, a reference to a third source is required. This source is the voice of wisdom, emanating from the legal tradition of the Jewish people.
Like the Hebrew language, Israel inherited an ancient legal tradition, voluntarily accepted in the Jewish Diaspora, without the coercive power of a sovereign state. The multiple interpretations of the Scriptures are the defining characteristic of this legal system, which is gathered in the “Oral Torah”—Mishnah, Talmud and Midrashim. This characteristic opens the door to countless controversies. However, “every dispute for the sake of heaven is destined to endure” (Mishnah, Avot, 5): Just as a knife sharpens another knife, disagreements make it possible to clarify the opposing positions and reach precise solutions.
Once, the dispute escalated into actual knives: The students of Shammai attacked the students of Hillel with swords and spears, and according to one version, they even killed some of them to enforce the laws of Shammai (Jerusalem Talmud, Shabbat, Chapter 1:3). Nevertheless, rabbinical sources regard both as “the words of the living God,” but follow the house of Hillel because “they were genial and modest … and they put the words of the house of Shammai before their own” (TB, Eruvin, 13b). By adopting the moderate approach of Hillel, sages softened the biblical law that demanded mutilation of the body of criminals and interpreted “an eye for an eye, a tooth for a tooth” (Exodus, 21:24) as compensation in money (Bava Kama, 84a).
Then and now, Hebrew law has been reluctant to revolutions and embraces gradual changes, which do not cancel the previous rules but adapt them to the new standards of the time. For example, a grand legal revolution occurred gradually and slowly in the Middle Ages. It started in the 11th century when “Our Rabbi Gershom, the Light of the Diaspora” forbade a Jewish man to marry another wife before divorcing his current wife. The ban changed the Jewish family from polygamous, in which a man can marry several wives, to monogamous—one man and only one woman, thus improving the status of women and their children in Jewish society. Surprisingly, the dramatic change was drafted as a regulation (Takkanah) for Ashkenazi Jews. Since regulations are limited in time, some even claimed its validity expired in the year 5,000 (1240).
Despite its modest formal status, the regulation known as “the ban of Our Rabbi Gershom” to prevent polygamy was gradually accepted in the Jewish world. In the 20th century, only one polygamous community remained—that of Yemenite Jews—and they voluntarily took to become monogamous with their immigration to Israel.
Rabbi Gershom’s case proves that a fundamental change in Hebrew law, which has moral and social justification, is accepted throughout the generations. This lesson was ignored by Maimonides (12th century), whose maximalism thwarted his constitutional revolution.
The “Great Eagle” argued that everything was justiciable. His composition Mishneh Torah (Deuteronomy) is a codex, a comprehensive legislative book that creates new legal categories. Following his reputation as a great philosopher and lawmaker, Maimonides claimed exclusivity: “Since a person reads the Written Torah first and then reads in my book and knows from it all Oral Torah and does not need to read another book in between” (Mishneh Torah, Book of Science, Introduction).
Maimonides’s exclusivity demand annoyed his colleagues, who responded with a harsh message: Even the wisest of men has no monopoly on wisdom. And lesser sages than him are also needed to construct a legal system that served the needs of all Jews. Hence, although Maimonides was greatly admired, his rulings were not accepted as binding except among the Jews of Yemen. Even in his native Spain, the Jews followed the judgments of the Ashkenazi Rabbi Asher, who settled in Toledo, and his son Jacob, the author of Four Pillars.
In the 16th century, the maximalist approach suffered another dramatic blow; like Maimonides, Rabbi Jacob Beirav was considered the greatest of the generation. In 1538, he convened the members of the court in Tzfat, and they voted in favor of renewing the Sanhedrin, the ancient Supreme Court. Beirav did not consult the Sages of Jerusalem, a minority compared to Tzfat, but demanded that they acknowledge the new Sanhedrin and his election as head of the Sanhedrin.
A dispute broke out in which principled positions and personal power struggles were mixed. Beirav revealed that Rabbi Levi Ben-Habib, the head of the Sages of Jerusalem, was baptized into Christianity in his youth in Portugal. He hinted that the former convert could not serve as head of the Sanhedrin. At the same time, Ben-Habib demanded a qualified majority to reestablish the Sanhedrin. Furthermore, he accused Beirev of ignoring the right of the minority to voice its opinion before the vote to influence its outcome. In simple words, Beirev was accused of opportunism, which invalidated the legal process.
“A brawl is like a broken water pipe, whose stream of water grows bigger and bigger” (Sanhedrin, 7a). The dispute got increasingly unsolvable to the point of a constitutional crisis since all the parties had conflicts of interest and were unable to act honestly. Rabbis from the Diaspora intervened in the dispute and differed in their opinions until the bold plan faded.
However, a lesson was learned. Rabbi Joseph Karo, who succeeded Beirav in Tzfat, compiled a new codex, Shulchan Aruch (A Set Table, 1563-64). He did not claim to serve as an exclusive adjudicator but ruled according to the opinion of the majority of his predecessors. “Joseph Karo instituted a flexible use of the rules of Hebrew law in a way that does not dictate its results. It was an expression of his respect for his predecessors even when he disagreed with them” (Mor Altshuler, The Life of Rabbi Joseph Karo, p. 345). Indeed, Karo realized that consensus was not a unity of opinions but a unity of hearts, even in a situation of disagreement.
The past will bear witness to the present: The absolutism of the legal genius Barak echoes the arrogance of Maimonides; the reckless behavior of Levin and Knesset member Simcha Rothman, head of the Knesset’s Constitution Committee and the executor of the legal reform, is reminiscent of the hasty conduct of Jacob Beirav and his supporters; And just like then, today’s Supreme Court judges are caught in a conflict of interest; the laws of Levin and Rothman are supposed to limit their authority, and, naturally, they have an interest in canceling them.
The stoppage of the legislation temporarily prevented the impasse and gave a time-out for self-reflection: Did all those involved in the dispute that brought Israel to the brink of a constitutional crisis were driven by principles or ambitions for power and dominance? Did they act on behalf of the public or out of “a dispute that is not for the sake of heaven and is not destined to endure” (Mishnah, Avot 5)?
When writing these lines, political commentators are skeptical about the outcome of the negotiation in President Isaac Herzog’s residence. Yet the efforts can be successful if the parties adopt the spirit of Hebrew law. Our ancient legal system does not acknowledge ideological compromises but specializes in finding practical solutions. At its best, it has managed to keep the unity of the hearts even in the clash of opposing opinions.
Mor Altshuler is a scholar of Jewish history and thought. Her book, “The Life of Rabbi Joseph Karo,” was published by Tel Aviv University Press (2016).
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