Originally published in Journal of Jewish Studies 34:2.
Aaron Kirschenbaum, (ed.), Diné Israel – An Annual of Jewish Law: Past and Present, Vol. IX. Tel-Aviv University, Tel-Aviv, 1980. Hebrew 229 pp.; English 154 pp. $15.00.
The latest volume of Diné Israel is of the same high standard as its predecessors. The majority of the articles are in the nature of comprehensive surveys of legal topics in which the development of the law is traced from the earliest period down to the present day in the State of Israel. In addition, there is an account in Hebrew by Simhah Meron of Jewish Law in the Law Reports of Israel of 1977-1979, and one in English by Ze’ev W. Falk of News in Israeli Family Law, and a few book reviews in Hebrew.
Aaron M. Schreiber considers the need for an approach to the study of Jewish law in which the Halakhah is seen as influenced to a considerable extent by external factors, instead of viewing it as having a life of its own, as it were, and as a pure science operating entirely on its own terms and by its own logic. For instance, even Elon, who does take history into account, can still say that Jewish law is consistent with the principle that imprisonment for non-payment of debts should never carry any of the characteristics of punishment, but its purpose must only be that of debt collection. This affixing of labels, argues Schreiber, ignores the reality. Imprisonment is imprisonment and causes the same suffering to a debtor and his family whether labelled as “punishment” or as a means of “compulsion”.
Neil S. Hecht and Emanuel B. Quint trace the idea of extra-legal penalties from its first appearance in the Talmud (Sanhedrin 46a) down through the Middle Ages and later. The Halakhah limits capital and corporal punishment, and full ordination (semikhah) is required for a Court to be able to impose penalties involving physical restraint. Yet what the law took away with one hand it gave back with the other, “illegal” penalties becoming legalised, otherwise the Jewish Courts would have been deprived of all power. The authors argue that this extra-legal right was restricted and a careful balance worked out. Yet the final sentence of the article is too sweeping: “By further integrating concepts which assured concern for the dignity of the affected parties and humane alternatives in the imposition of sanctions, they were able to achieve that most desirable objective of Jewish courts of law: the pursuit of justice through just means”. This should surely be emended to “they were sometimes able to achieve”. The notorious case to which the authors refer, in which the Rosh agreed in obedience to the extra-legal motivation that a woman’s nose be cut off in order to render her repulsive to her paramour, was hardly “the pursuit of justice through just means”.
The existence side by side of the Halakhah and Israeli (secular) law creates problems of its own. Ido Divon deals with one such problem. The Halakhah does not know of legal adoption. Since the Child Adoption Law in Israel recognised it, to what extent are the obligations of the law binding even according to the Halakhah? An area of conflict between the two is that of the Karaite Halakhah. Michael Corinaldi’s, “The Problem of Divorce by Judicial Decree in Karaite Halakhah”, escorts the student into the unfamiliar but fascinating domain of Karaite law. Some of the Karaite sages held that where the wife petitions for a divorce and her plea is accepted, yet the husband is unwilling to grant the get, the marriage can be dissolved by the Court. A Karaite man who beat his wife because she refused to have marital relations on the Sabbath (forbidden in Karaite law) refused to divorce his wife, whereupon the Karaite court issued a get without his consent. The question then arose whether, in view of the fact that matters of personal status are for Jews in the hands of the Orthodox Rabbinic courts, the divorce is recognised as valid in Israeli law.
Limitation of space prevents noting the other articles but, without exception, they are all readable and worth reading.
Leo Baeck College, London