Crime and Punishment

Torah Law

It is a mitzvah from the Torah that all judicial deliberations should be carried out before judges who decide according to the laws of the Torah, as it is written (Exodus 21:1): “These are the laws that you must set before [the Israelites].” And even if by chance, in a certain matter, the decisions of the non-Jewish judges are similar to that of the Torah, it is forbidden to sit in judgment in front of them, for the mitzvah is to clarify all disputes before a court which receives its authority from the Torah (Gittin 88b). And thus has the Rambam written (Laws of Sanhedrin 26:7): “One who decides according to the laws of the non-Jews or in their courts, even though their laws are similar to the laws of Israel, is [considered] a ‘rasha’ (wicked), and it is as if he has cursed and abused, and raised his hand against the Torah of Moshe Rabbeinu.”

The Status of the State of Israel’s Courts

Regretfully, the courts of the State of Israel are considered “non-Jewish courts” since their legal system does not receive its authority from the Torah of Israel. True, “dina d’malchuta dina” (the law of the land is the law), in other words, it is permitted for a government which is accepted by its citizens to legislate laws and amend regulations. However, this is on the condition that the court’s basic obligation to Torah principles remains in tact. But when the legal system obtains its values and way of thinking from non-Jewish sources, they are considered “non-Jewish courts”. Indeed, there were Rabbi’s and judges who were of the opinion that everything is dependent on public approval, and just as two people who have a dispute are allowed to decide between themselves to settle the argument by the flip of a coin, so too, they can decide to be judged by non-Jewish law. However, according to the vast majority of Jewish law arbiters, the non-religious courts in Israel have the status of “non-Jewish courts,” and, without a special ‘heter’ (permission), it is forbidden to bring a case before them. The mere fact that such courts exist is a terrible insult to the Torah. “Woe to them, to mankind for their disregard of the Torah!”

What the Rabbis Have to Say

Rabbi Tzvi Pesach Frank, of blessed memory, who served as the Av Beit Din in Rabbi Kook’s Beit Din before being appointed Chief Rabbi of Jerusalem, wrote: “It is simple and clear that these judges [and courts] are “non-Jewish courts” in all respects, and anyone who goes to them raises his hand against the Torah of Moshe, and anyone who strengthens them will have a bitter end” (Tzitz Eliezer 12:82). This was also the opinion of Rabbi Isaac Herzog, the Chief Rabbi at the time of the establishment of the State of Israel: “Now, when the Jewish nation dwells in its homeland and regretfully judges according to foreign laws, it is a thousand times worse than an individual or a Jewish community who brings their cases before non-Jewish courts…who knows what the results will be from such a shameful and humiliating situation” (‘HaTorah v’Ha’Medina’ vol.7). This is also the opinion of the ‘Chazon Ish’, Rabbi Eliezer Waldenberg, the Rishon l’Tzion, Rabbi Mordechai Eliyahu, and the Rishon l’Tzion, Rabbi Ovadiah Yosef shlita.

A Devastating Blow to Israel

Rashi, according to Midrash Tanchuma (Exodus 21:1) wrote: “He who brings Israel’s law-cases before the heathens defames the Name of the Lord and pays honor to the name of the idol [in the name of which the heathen court administers justice], thereby giving it undue importance, as it is said, (Deut.32:31) “For their rock is not as our Rock that our enemies should be judges over us, which implies: when our enemies are judges over us (i.e. if we make them judges over us) it is testimony to the superiority of that which they reverence (their idol).” Today, we aren’t confronted with real idol worship, but from a conceptual perspective, we are challenged by foreign beliefs. Anyone who supports another judicial system unavoidably weakens and damages the Jewish nation. As it is written further on in our Torah portion “Do not make a treaty with [these nations] or with their gods…and it will be a fatal trap to you” (Exodus 24:32-33).

If at the time of the establishment of the State there were still Jews who could doubt the severe consequences of the prohibition, today, everyone can clearly see the severity of the crime and the magnitude of its punishment, and how all the words of the Torah and its warnings are true and valid. I will present for you a concise summary of rulings of the Supreme Court of Justice which damaged the foundations of the Jewish nation’s existence. It is fitting to read this summary on Shabbat, Parshat ‘Mishpatim’ (laws), as an up-to-date commentary on the Torah.

Damage to the Jewish Identity of the State

At first, the Rabbinical courts were authorized to determine Jewish identity. In a slow but sure process, the non-religious courts took control of this domain, and in a series of decisions, dealt a blow to the Jewish identity of the State: 1) The courts have consistently stripped the State of Israel from the values of Shabbat, permitting more and more public desecration of Shabbat (movie theatres, suburban shopping-centers, etc.). 2) The Knesset passed the “Law of the Foundations of Judgment”, according to which, any legal question that Israeli law has not decided, the courts will determine in accordance with Jewish law. In actuality, however, the Supreme Court has emptied this law from all substance. 3) The courts have damaged the values of the Jewish family by recognizing, under certain circumstances, homosexual “marriages’, and the adoption of children by homosexual couples. 4) In contradiction to the Torah, the courts decided that Jewish identity is determined also by one’s father. 5) They recognized the conversions of the Reform movement outside of Israel. 6) They recognized in practice (de facto) civilian marriages conducted outside of Israel. 7) The courts damaged the status of Hebrew being the country’s official language by nearly placing Arabic on the same level. 8 ) The courts prevented the disqualification of the Balad Party, in contrast to the opinion of the Elections Committee which disqualified them twice, according to the ‘Basic Law of the Knesset’ which prohibits parties that reject the Jewish identity of the State.

Damage to the Rabbinate and Rabbinical Courts

1) In a series of rulings, the Supreme Court interfered in the judgment of municipal Rabbis concerning issues of kashrut – a fact which weakened the status of the official Rabbinate, while strengthening the unauthorized, private kashrut organizations. 2) They obligated the religious courts to determine monetary issues in accordance with non-religious law. 3) They prohibited official religious courts from acting as arbitrators in accordance to the ‘Law of Arbitration’.

Damage to the Importance of Settling the Land

For over 150 years there has been a national struggle between the Jews and the Arabs over the Land of Israel. In order to redeem and settle the Land, the ‘Keren Kayemet’ was established, and afterwards, the State of Israel. However, the Supreme Court, in a gradual process, hinders the ability of the State of Israel to fulfill its mission. 1) The Supreme Court prohibited the government from allocating state-owned land for settlement exclusively by Jews. 2) Prohibited giving incentives to Jewish communities in the Galilee and Negev (“making the Galilee and Negev Jewish”), thereby nullifying the ideals which accompanied the Zionist movement from its inception. 3) Even in regards to the designation of lands owned by the ‘Keren Kayemet of Israel’, which were purchased with Jewish money, as a result of deliberations in the Supreme Court, the Attorney General, Mr .Mazuz, instructed not to give further preference to Jewish settlement. 4) As a result of a petition by ‘Peace Now’ the Supreme Court quickly intervened and demanded the evacuation of Jewish outposts in Judea and Samaria, while breaking the rules of deliberation which obligate a legal process between claimants on the land, before a district and magistrates court. 5) The court prohibited the State from allowing crop-spraying aircraft to shower pesticides on illegally-planted plots of land by Bedouins in the Negev, despite this being a proven method of restraining their seizure of State-owned lands. 6) The courts obligated the State to divert the route of Nahal Hevron (Hevron stream) in the northern Negev at the cost of 30 million shekels, claiming that the sewage stemming from the Palestinian Authority bothers the illegal Bedouin outpost ‘Um-Bitin’ which is located next to the path of the stream. 7) In the latter part of his first term as Prime Minister, the courts prohibited Binyamin Netanyahu from closing the ‘Orient House’, claiming that his government was a ‘provisional government’. On the other hand, when Ehud Barak was in the final stages of his government, the courts deferred a similar petition to prohibit the ‘peace’ talks in Taba.

Damage to Israel’s Security

Regarding this issue, I will also mention only a few of the rulings of the Supreme Court of Justice: 1) Prohibiting the “shaking-up” of suspects caught by the Shabak (Secret Service), including cases of “ticking-bombs”. 2) Abolishing the procedure of “human shields” which has saved the lives of many soldiers. 3) In a decision which in principle approved “targeted assassinations” (of a terrorist or commander who is about to carry out an attack), the Supreme Court placed a number of severe restrictions which tie the hands of the I.D.F. 4) Disqualified a law passed in the Knesset (!) which permitted the incarceration of ‘hard’ terrorists for a period of two weeks before seeing a judge, even though this procedure was intended to improve the ability to obtain information from them. 5) In contradiction to the position of Israeli Security Forces, in a number of cases the Supreme Court instructed the dismantling and relocation of sections of the ‘Security Fence’ or of settlement’s security fences, knowing fully that this would likely cause a security danger. 6) The opening of Highway 443 and other roads and roadblocks in Judea and Samaria to Arab transportation.

It should be noted that occasionally, the mere fact that the Supreme Court begins to deliberate on certain petitions, causes the government to withdraw from its plans. For example: The Supreme Court held deliberations on petitions brought by leftist groups against the reduction of the supply of gas, electricity, and other goods to Gaza, and as a result of this, the Attorney General, Mr. Mazuz, instructed the government to give up its plans.

The Most Anti-Semitic

In this summary, not all the decisions which have damaged the Jewish identity of the State of Israel and its security have been listed, but suffice it to say that today, the justice system is the institution which causes the most damage to the values of Judaism and Zionism in Israel.

The Land of Israel in the Torah Portion

In our Torah portion appears the mitzvah of settling the Land of Israel and its borders, and together with this, the warning not to be drawn after foreign beliefs, and not to allow someone who is not a ‘ger toshav’ (resident alien) to live in the Land, “since they may then make you sin to Me” (Exodus 23;20-33). By correcting the justice system, we will be able to fulfill the mitzvah of settling the Land properly, thereby improving the world through righteousness and mercy.

The Tikkun

The responsibility for this situation lies not only on those who support the non-religious system of justice, but also on those who study Torah, for not having jumped to offer an alternative judicial system for modern society and commerce. It is incumbent upon all those yeshiva students who learn the tractates of ‘Nashim’ and ‘Nezekin’ to rethink, to learn the laws of the Torah seriously, not only for the purpose of debating, but rather to figure out the practical laws which stem from them. In light of the issues studied, to examine the legal decisions of non-religious courts in Israel and abroad – not to predetermine that all their decisions are unacceptable, and also not to attempt to “squeeze” the halachic issues so that they fit into the non-religious laws. Rather, to criticize that which needs to be criticized fairly and honestly, to accept that which is suitable, and to set-up a vision of justice for ‘tikkun olam’.

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