September 15, 2023


What Matters Now to Jewish Law Prof. Benny Porat: Common ground as titans clash: A resident of a West Bank settlement city, the Hebrew U prof. is a vocal opponent of the coalition's judicial overhaul. Hear how 2,000 years of Jewish law shapes his thinking (AMANDA BORSCHEL-DAN, 9/15/23, Times of Israel)

We have to remember that all of the mess that we are experiencing now is just because Israel doesn't have a constitution. Once we have a constitution, we won't be in this kind of a mess and debate. And it's not by accident that we don't have a constitution, it's because we couldn't reach agreements about all of these basic principles, and most of them are about the relationship between the three branches, so between the executive branch and the judiciary. So it's not by accident that we don't have a constitution and by the way, some of the supporters of this judicial reform are trying to bring some examples from other states, for example from the US. They say: "Listen, in the US, the president has the authority to nominate judges. So if it's good for the US. Why won't it be good for us?"

So first, it doesn't work like that in the US. But second, more importantly, in the US there is a constitution, and once you have a constitution -- and other mechanisms as well. You have two houses of Congress, and you have separation between the federal level and the state level. All of these mechanisms we don't have here in Israel. First and foremost, we don't have a constitution and therefore the only entity that can limit the government is the Supreme Court. And therefore it's so crucial, this debate.

Let's talk a little bit more about the religious sensitivity of having a secular authority interpret law in general. And you wrote an essay which talks about the concept of "Adam Hashuv," I think you called it "A Dignified Person" in English? First of all, explain what this concept is.

Yes. What I tried to do in my research, with one of my colleagues, about this judicial reform from a Jewish law perspective. Our argument was that the debates that we are experiencing today are not new. The Jewish community during the Middle Ages had the same debates. The Jewish community of course was not a modern state, but it was a political entity that was run by some politicians, which was called the "Seven Good People of the Town." And they, of course, the authorities, wanted power. They wanted to do a lot of things. And there were the rabbinical courts, which was a judiciary, and there were a lot of tensions between these two entities. And we can see how the Jewish legal tradition saw so much importance in the idea that there should be independent judiciaries that put some limitations on the politicians.

So, for example, one of the mechanisms that Jewish law established for that purpose was the doctrine of Adam Hashuv, the dignified person, which is, according to our argument, similar to the Attorney General, which is not part of the court. But before, when enacting enactments in the Jewish community, according to Jewish law sources, the politicians, the leader of the community has to get the approval of this "dignified person," which is the rabbi of this place, or the one who is expert in law. His purpose was to look for two things. First, that the communal enactments are aligned with the law, and the second one, that they are aligned not only with the interest of the majority, but with the interest of the whole community. These two things should be checked before enacting an enactment. Actually today, this is what the legal advisors and the attorney generals, this is their main role -- to see that the actions and decisions of the executive branch are aligned with the law in the general interest of the state. And from this perspective, it was so important for Jewish law that, while we are recognizing the authority of the majority to control the community, we will put some checks and balances, and the dignified person is one of them.

Tell us about other checks and balances throughout Jewish history, on leadership.

So, another very important mechanism which is also very relevant for today. Once the Jewish community enacted an enactment. If someone felt that [the enactment] is unpleasant, that he's being damaged or it has violated his right, he has a right to appeal to the rabbinical court, and the rabbinical court has the authority to overrule the criminal enactment. So even though it was legislated by the majority, the rabbinical court had the authority to overrule this kind of enactment. And by the way, of course the idea of override clause or something like that, that the majority can reenact something that was overruled, of course it was not an option. So once the enactment was recognized as illegitimate, it was annulled. And this is something that also is part of the judicial reform -- to what extent the Supreme Court had the authority to overrule regular legislation, special legislation like Basic Laws. This is something that was also part of yesterday's hearing at the Supreme Court.

As a non-religious person, I shudder inside every time you say that it's a rabbinical authority who had the final say. But, it sounds to me like you're doing a one-to-one ratio with the civil authority that we have today. Is that correct?

Yeah, there is some kind of a jump here, because in the arena of the Jewish traditional communities, the judiciary was a rabbis. There was a rabbinical court, and we are not living here today in an halachic state, this is a secular state or at least non-religious state. So of course now one should ask himself: "Who are the modern Israeli parallels to this 'dignified person' of the rabbinical court?" One can argue that we want a halachic state and we want it to be the rabbis. So, we can debate whether it's good or bad. But this is definitely not the current situation.

So having said that, and if we assume that if we are in a secular state, my argument here is that we, as Israelis, as modern Israelis that want some connection with our Jewish roots, need to think who is a modern translation of this "dignified person?" From my suggestion, this is an attorney general. Who is a parallel to the rabbinical court in the Jewish community? My suggestion is the Supreme Court. I think we should establish our check and balance mechanisms in modern Israel with some conversation with this Jewish past. And I think this is a very important infrastructure from which we can derive a lot of insights, a lot of vocabulary, very interesting terminology and ways of thinking in order to enrich our modern legal discourse.

I will say it even from a different perspective. There are those who try to present the current debate between the Israelis and the Jews. The Jews represent traditional authentic Jewish perspective and the Israelis represent modern, secular, liberal, et cetera, et cetera. From my perspective, this is a very dangerous exposition. And my argument is that also from a Jewish perspective, these checks and balances are very important, but we have to think about the modern secular translation of these Jewish ideas and this is the deep meaning of being a Jewish and democratic state. Being a Jewish and democratic state, from my perspective, it's not only a state of the Jews, but also a state that has some interesting open-minded conversation, which is a Jewish tradition, and mainly with its Jewish legal tradition.

...first, guarantee that all laws are adopted in participatory fashion; and, second, that all laws apply universally.  This is how we safeguard republican liberty.

Posted by at September 15, 2023 7:29 AM