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Women, the ultra-Orthodox establishment and the Kotel

BS”D

On thursday the 25th of april a decision was taken by the Jerusalem District Court on whether women will be allowed to or prohibited from praying at the Kotel (the Wailing Wall) in the Old City of Jerusalem, wearing prayer shawls and tefillin, which traditionally has been considered man garb, and thus prohibited for women (though there definitely are a number of varying opinions on this issue).

The court decided that it indeed is allowed for women to pray wearing prayer shawls and Tefillin, and that the recent arrest of a group of women, from the organization “Women of the Wall,” was unjustified, the former since they do not go against the law on praying according to local customs, since that can be interpreted rather broad, and the latter since the women did not cause a public disturbance, which otherwise was the reason behind the arrest.

This ruling is the culmination on a number if incidents, leading to a conflict between the (ultra)-Orthodox establishment and the female activists, as well as to a greater discussion on women’s right to pray as they please at the Kotel, which should be seen both as part of the wider debate on the role of religion in Israel, as well as the debate between the Israeli Orthodox community and its role as authority on Jewish religion in Israel and the American (and in second instance global) non-Orthodox community. Both are discussions concerned with power and freedom of worship, and it is a blow to Orthodox monopoly on defining correct Jewish religious behavior in Israel, which most likely has been struck as a reaction, to what many would consider as being an arrogant Orthodox attitude towards those, who understand and practice Judaism differently than the general orthodox norm.

Also within the Orthodox world, compromising both the ultra-Orthodox, the National-Religious, and other Modern-Orthodox groups, have there been discussions on the subject, with the majority viewing the women as provocateurs, but also as the decision against allowing women to pray as they wish, combined with the behavior of an extremist ultra-Orthodox minority, as being inherently wrong.

This is most likely part of a trend of reacting against the ultra-Orthodox authority on religious matters in Israel, as well as a reaction against their attitude to those not being part of the ultra-Orthodox world, which was also seen during the last Israeli election. The question is how far the ultra-Orthodox leaders will take this conflict, before they accept that they have to either change their practice of governing the religious affairs, or changing their approach to those not being part of their world and world view. This depends both on how much or little support they will have internally from the general ultra-Orthodox Jew (who isn’t as isolated as he has been from the wider Israeli-Jewish community) as well as the degree of stubbornness found among the ultra-Orthodox leaders.

Amira Hass – an obstacle to peace

BS”D

 

Amira Hass, columnist at HaAretz, recently wrote a column where she not only defended rock-throwing Palestinians, but encouraged them to continue it. I know that Hass doesn’t harbor any warm feelings for Israel or the Israeli society, even less for the settlers, which are an expression of colonialism according to her opinion, as well as I know that she sympathizes strongly with the Palestinian cause, so much that she now lives in Ramallah. That I don’t have a problem with, I actually sympathize with the Palestinians as well, though not so much that I hate Israel and the Israeli society (true, there are elements I would love to be without, but no society is perfect).

 

Hass is entitled to her opinions on Israel and the conflict, and I can understand some of them, though agreeing with her in general is hard. When she objects to, and criticizes Israeli violence I agree, and I believe it should be condemned. So, for example, when Israeli soldiers are beating up Palestinian children (how often or not it might happen), or when settlers attack innocent Palestinians, on their way to their fields or just passing by. But her condemnations and criticism just underscore the amazing hypocrisy of hers. How in the world can you on one hand condemn violence and on the other hand encourage it? Particularly after the incidents that have passed lately, where we have seen a three-year old girl surviving only by a miracle, after stone-throwers caused the girl’s mother to crash with a truck!

 

I know what Hass would say; that it’s tragic and unfortunate, but that it’s the parents fault for bringing her there, being in the West Bank is cause of danger for Jews (or should be according to her opinion apparently), and to bring a girl there is the fault of those bringing her. Her flawed logic screams to heaven, here are some reasons why:

 

First, how did the stone-throwers know that there were Jews in the car? True, you can see whether the car is Israeli or Palestinian, based on the color of the number plates, but Palestinians with Israeli citizenship drive in Israeli cars, and as such can also be targeted. If this had been a Palestinian girl, rather than a Jewish, what would her explanation and reaction be? No need to guess, Israel would have been blamed for this, since the stone-throwers only throw stones as a reaction against Israeli occupation, leaving the stone-throwers as beings without any ability to reflect and think independently.

 

Second, that she finds it okay to target Jews, is in itself disgusting. If I can find some reason to justify the means, is it then okay to target Palestinians, women, Buddhist, or whatever I can think of, only based on my dislike towards a certain group, making all members of this group responsible for the actions of the few? Or is it up to Hass to decide when it is moral and when not?

 

Let us turn it around for a moment. Is it really a wise advice she gives the Palestinians? Is it something which will improve their situation? No, not really. Here are some reasons for that:

 

First, we already have enough violence, the last intifada should be proof enough for anyone that violence is not the answer, that violence only hardens the attitude of the Israelis, who need to be part of a stable agreement ending the conflict, making it harder for any Israeli political attempts to improve the situation.

Or let us say, for the sake of argument, that the Israeli politicians don’t want peace. Still, these actions of violence juts gives them excuses for not doing anything to improve the situation. Whether the one or the other, these actions of violence will backfire.

 

Second, the youth (and yes, we are talking mostly about youngsters, who most likely are bored and think that they actually are doing a great deed for the Palestinian cause) are endangering themselves. Make no mistake, some settlers are armed, and very ready to use their weapons in self-defense. Note; self-defense. Hass is encouraging young people to put their life at risk, for her confused sense of justice, knowing very well that stone-throwers most likely won’t make any changes, besides worsen the situation for the Palestinians. How I can know that? You don’t see her with the Palestinians throwing stones, she knows very well the dangers connected to doing this.

 

But here is the worst reason why Hass’ encouragement is despicable. She could be a bridge, she could connect the two sides, be an intermediate partner for peace, taking advantage of her knowledge and status in order to promote actions, where people from both sides could create something together and improve relations. Instead of that she chooses to encourage to violence and by that saw hatred on both side.

 

Hass is not among the “disciples of Aharon”, those striving for peace, ready to put themselves out there, risking themselves, in order to connect striving parties, creating communications and establishing friendship on the two sides, such as for example the late R. Froman, z”l, was. She is rather among the followers of Korach, who rebelled against the establishment of the Jewish people, not in order to promote justice, but in order to gain prestige and honor not deserved.

 

And why a newspaper like HaAretz wants to take part in this, is above me to understand.

Israel, Hamas, and the futileness of discussions

BS”D

 

Most of you probably already know, Israel and Hamas (and helpers) have again engaged in a round of escalated violence. Yet again the escalated attempts at killing each other of will begin, and yet again the discussions about who is to blame, with direct reporting from here and there, and experts sitting in the studio (who often aren’t experts) will tell us all how wrong the one side is, and how much the other side suffers.

I still remember January 2009 and its aftermath. Too many people were killed, and all over Europe there was an outcry for justice, which apparently for some involved the killing of all Jews. It will come again, in the same level, this time though – at least for the aware person – in the background of the killing of more than 30,000 civilians in Syria, without any greater demonstrations taking place.

Yet again we will here blame directed at the Palestinians or at Israel, attempting to portray either of them as terrorists and murderers. Yet again people will be blind to the faults of their own side, only seeing the faults of the other side. I’ve already witnessed it to great extant in less than 24 hours.

 

Last time I took active part in the discussions, this time I most likely won’t. People are dying on both sides, mostly innocent civilians, children. This morning three Israeli civilians died as well as the baby child of a Palestinian journalist. Being a soon-to-be-father I can imagine the pain, just the thought of seeing my own unborn son, has v’halilah, makes me cry. This won’t bring any good with it, just as last time we won’t see this lead to the end of fightings and the killing of people. On the contrary this will expose a lot of hypocrisies, particularly the double standards being exposed in way of criticism.

 

At work I have two colleagues being personally involved in this round of fightings. Well, all of us living here are, all of us have friends or family being within range of fire. But these two have close family in Gaza and Beer Sheva, the one being a Palestinian the other a Jew. When they meet today at work they can talk about the safety of their loved ones, or rather, the chances that they won’t see them again. Who is to blame? Forget about that, just let them be able to meet after this is over and be able to say, Alhamdulillah, my family is in good health.

 

So who is to blame? Let’s just have a couple of words or three about that. And who will benefit from this? The Israeli right wing and the extremist religious fanatics among the Palestinians, they will benefit from this. Some people have expressed thoughts on how curious it is, that this always happens before Israeli elections. I don’t know about “always”, but it does happens, and yes, it is curious. These people present it as a plan from the Israeli right wing, a scheme in order to make them seem strong and protective in the eyes of the Israeli public. Is this true? Yes and no. The Israeli right wing cannot just start a war, just because they want to. It is true that Likud and other right wing parties are gaining much more from this, politically, than the left wing, and that this certainly is a good time (if any) for the escalation of violence. But what these critical people fail to acknowledge (of some reason or another) is that this doesn’t happen in a vacuum. Israel doesn’t just begin to bomb, just to do it. These people are totally ignoring the rockets being shot into Israel for a longer period or trying to excuse it. I’m sorry to say, I don’t accept any excuses for the conscious and deliberate targeting of civilians, no matter what. These critics – who blame Israel for breaking the ceasefire – also ignore the four rockets fired into Israel earlier yesterday before Israel targeted Ahmad Ja’abari, one of the top leaders in Hamas. This is ignoring facts, in order to make your understanding of what is going on fit into your bigger picture of things. And it is dishonest.

But here’s the deal. Even if Israel – per se – is only defending herself after the recent attacks on her civilians – and yes, I do believe that Israel has an obligation to do that, as any government in the world has, rather than killing them – the Israeli government, or Israel at large, does hold responsibility itself. Not necessarily for this particular escalation of violence, but for the overall situation we’re having. For making a mockery of the Palestinian side, though the Palestinian leaders also do that well. For not really wanting to give the Palestinian leadership something to bring their people, some acknowledgement of sort. Mahmoud Abbas lately stated in an interview, that he refused to hold the return of Palestinian refugees to Israel as a holy principle, acknowledging that it wouldn’t happen and Palestinians shouldn’t expect it to happen. For that he received a great deal of criticism among his own, while some Israeli politicians and opinion makers ridiculed him, refusing to take him serious. The same, of sorts, happened to Salem Fayyed when he tried to be productive, both among his own, but also among Israeli leaders. Fayyed is one person among the Palestinian leaders, which Israel really could trust, who was struggling (and still is) for honest and open relations, as well as attempting to fight corruption. He is today a shadow of what he was, after attempts to crush him both from Israelis and Palestinian leaders.

 

But also ordinary people are to blame. When we relate to each other as pure trash or bugs, then no wonder there is hatred and will for war, rather than attempts to create a future coexistence of some sort. Already now I have read statements like “make Gaza into a parking lot”, “bomb the fucking Arabs”, “a good Arab is a dead Arab”, “I won’t cry a single tear for any dead Palestinian, civilian or terrorist, since they all are terrorists”, as well as “Hitler lived for a purpose”, “I long to crush the Jew under my foot”, “a good Jew is a dead Jew”, and so on.

As related to earlier, also the one sided, black and white criticism is a cause for this. Just as critics of Israel is ignoring the faults of Hamas and other extremist groups, so do critics of the Palestinians ignore the faults of Israel, as already mention, but particularly the needs and suffering of the other side. Just as it should be acknowledged that Israeli children have to be near shelters at all times, also in schools, and that they didn’t choose this for themselves, neither did their parents, so it should be acknowledged that the Palestinians in Gaza didn’t accept this existence for themselves. Forget the “they voted for Hamas”. That is just ignorant. They didn’t vote for Hamas, they voted against Fatah and the corruption, and they really didn’t have an alternative.

 

There is a lot to be said, and many things probably will be said. The world will go crazy and fight about who is the sinner here, but the truth is that most of us are, and that the world are only helping to keep this conflict going with the ideologist or material interest there might be here, while refusing to relate pragmatically to what is going on.

In the meantime innocent will suffer and be killed, on both sides. Israelis and Palestinians are not two sides fighting each other, we are one side suffering from the same source. And we will continue to suffer until we realize this and relate to our situation pragmatically.

 

Happy New Year to all my Muslim brothers. I hope this latest escalation may be the last, inshallah, and that this new year will be a more peaceful one for all the children in ash-Sham, as well as in the rest of the world, inshallah.

Studying Shari’a and Shari’a Courts in light of Legal Pluralism

BS”D

 

Time for a new article. This time I’m relating to Ido Shahar’s “Legal Pluralism and the Study of Shari’a Courts”, brought in Islamic Law and Society, 15, 2008. But before that I feel the need to define what is meant by “Legal Pluralism”, as this might seem as an unfamiliar term for many.

In general a state is supposed to be run by legal monism, that is, one single law. A state alone should be able to decide on and govern laws and rules, in order that the state might “be able to penetrate society, regulate social relationships, extract resources and appropriate or use these resources in determined ways”.[1] This is rarely the case though, even in states which we believe to be governed by one law alone. Often various legal practices, custom, or other legal bodies, influence and decides, and this is legal pluralism, that is, when law in a state is decided by more than one legal body or principle.

As is clear, Israel is one such case. We don’t only have one law, the secular Israeli law (whether influenced by Jewish religious law or not, that is, Mishpat Ivrit, Hebrew law), but several bodies of law, Israeli law, Jewish religious law, Islamic law, and so on. So when I am talking about legal pluralism, I am talking about a plurality of laws within one state.

So far so good.

Mainly the scope in the use of Legal Pluralism as a theoretical tool, has been from the legal institution, that is, we relate to how the legal bodies, various courts and so on, relate to each other and litigants, but Shahar chooses to approach it from the litigant rather than the legal bodies. That is, he attempts to relate to what makes the litigants choose one court instead of another, what their needs and motives are, in order to discover the relations between the legal bodies.

In his article, “Legal Pluralism and the Study of Shari’a Courts”, he attempts to point out these relations by focusing on how Shari’a courts relate to other non-state courts under Islamic rule, the mazalim courts, and other legal functionaries, the hajibs, as well as civil courts. Besides that he also describes the relations between qadis of the various four Sunni schools of law (madhahib).

Let us look on the three examples:

The Mazalim courts existed from the time of the later Umayyad until the Ottoman abolished them, and covered many of the same cases as the Shari’a courts, which and to what extent depending on the changing power balance between the two courts, having the proponents of the mazalim courts fully aware that they encroached on cases covered by the Shari’a courts, even going so far as to establish that in cases of “Rights of Man” (criminal cases, huquq adami) litigants were allowed to attend Shari’a courts, but in cases involving violations of “the Rights of God” (huquq Allah) only mazalim courts were allowed. We even hear about examples where people stopped using the Shari’a court totally, as related by al-Kindi in Egypt, and only attended the mazalim courts.

The hajibs were based on Mongol Yasa code of law, and though it was described in less positive terms than the mazalim, it still witness of a power struggle between two legal bodies. In case of the hajibs people were forcibly moved from Shari’a courts and taken to the hajibs, rather than going to the hajibs freely and of own initiative.

In case of the civil courts Shahar explains how the Ottomans gradually removed more and more jurisdictions, until only cases of personal status were left for them, showing a transition from tradition religious courts to modernity, not happening at once and thus leaving periods where the courts overlapped each other jurisdictions.

Based on this we see that religious authority was not always the deciding factor, leaving cases of legal pluralism encouraging to competition over prestige and litigants, both by being attentive to the needs of the litigants, as well as forcing them to choose the legal body of preference, which again forced the Shari’a courts to relate to this and thus forcing them to make certain changes in practice.

In case of the relation between the four Sunni schools of law, we see another interesting example, namely that of cooperation between the qadis, so that the leniency of one school would be followed rather than the stringency of another school, such as the annulment of marriages when the husband did not provide for his wife, which is not allowed according to the Shafi’i school, then directing the Shafi’i qadi to rule according to the Hanafi or Hanbali schools, which do allow this, such as was the example in 17th and 18th century Syria and Palestine.

 

I find this interesting, the relation between legal bodies and within legal bodies, and how this changes practices and conceptions. I don’t think it has changed much today, the needs of the litigants being the most important part, and in cases where one legal body is too inflexible, and alternative bodies can be found, litigants will find these alternatives, whether these bodies are acknowledged by the state or not.

Here I can relate to the practice of ṣulḥa in Israel (and other places), which is private settlements between two groups in conflict, brokered by a neutral third group chosen by the two groups for exactly this. This is a non-state body, which is used by Arabs in Israel to solve conflicts, but the interesting thing is that the Israeli criminal courts are relating to these agreements, either in their rulings or in consideration whether a person should be in custody or not. More about that later.


[1] Yüksel Sezgin, ”A Political Account for Legal Confrontation Between State and Society: The Case of Israeli Legal Pluralism”. Studies in Law, Politics, and Society, volume 32, p. 198, 2004.

The Religious’ studies of Religion

BS”D

 

I am presently working on an interesting article by Qadi Iyyad Zahalka on the question and status of Shari’a Courts in Israel, which I look forward to sharing with you, but first I really need to answer a comment by Herdian, to an older post by me.

 

Herdian asked:

“Maybe this is a semantic problem. Perhaps you meant that Jews are forbidden to study other religious texts in the same way that they study the Torah i.e. by pondering it, taking it into heart, and applying it to one’s own life. But scholarly studies of them are fine to certain extents.”

The question relate to the post, where I speculate on the claim that I, as a religious Jew, am not allowed to study the texts of other religions, based on the reading of Mishnah Sanhedrin 10:1, where I related to a number of Talmudic verses in order to nuance the verse and claim in question.

What Herdian states in his question actually is how I understand the reading of the Talmudic verses, that those pre-Mishnah texts, which are very similar to the Holy Jewish Scripture, are not allowed to be read/studied, while other texts after the time of the Mishnah (and the canonization of the TaNaCh) are okay to read, since they would be read as “one reads a letter”, that is, one would know that they are not part of the Holy Texts, and therefor one would’t subscribe them the same value or learn from them in the sense of “holy learning”. That is, studying them is not part of a spiritual process, but rather being a secular affair.

Herdian’s following comment is interesting:

“The age of Enlightenment is an interesting phenomenon. All religions in general will never be the same after passing through that age. It is a change of attitude towards life, which in some ways are in conflict with religious outlooks. And the battle still continues to this day. Religious people sholdn’t ignore what the Enlightenment has to say about religion, although they don’t agree with it. Rather, they should study it seriously, scholarly, intensively, and critically if they want to maintain their (intellectual) integrity.”

Herdian, I agree with you, at least in the general.

I’m not sure that the Enlightenment is of bigger importance than other historical schisms, for example the coming of Christianity and Islam, which – I believe – played a huge role for Judaism, just as the destruction of the two Temples did, as well as Holocaust and the establishment of the modern state of Israel. At least these events are deciding for Judaism and the Jewish people, both in self-awareness and development.

That I relate to a number of great events, and not the Enlightenment alone, probably also is the reason that I don’t see Herdian’s criteria (studying their religion seriously, scholarly, intensively, and critically) in order to maintain integrity. Basically, when I view some Jewish groups and movements who have taken upon themselves to study their religion according to these criteria, I am not so sure about their integrity, but that is just my personal opinion.

That doesn’t mean that I don’t agree with Herdian, indeed, the critical and scholarly study of Judaism, among learned Jews, has been an important element. I just need to mention people like Yehudah HaNasi, Sa’adya Gaon, Maimonides, Ibn ‘Ezra, and in more recent times, R. Soloveitchik and R. Yosef Qappah, to point to the important element of scholarly and critical study in Judaism.

More important, I believe, we should be aware that Religion, as other in other cases, is a product of the reality it exists in. Progress and developments in religions are reactions to what happens around them, and these reactions are left as historical imprints, being viewed and understood as something close to a revelation for the followers afterwards. Let me take one example to illustrate.

In Halachah it is not allowed for Jews to eat the food of non-Jews, since they might intermingle too much and marry their children to the children of the non-Jews. This prohibition is Talmudic, and there are discussions on whether one may eat food cooked by non-Jews, as long as the fire is lit by a Jew. For a more extensive discussion on this, see the following three discussions:

Foods Cooked by a non-Jew

Restaurants which employ non-Jewish Cooks

Legumes Cooked by a non-Jew

From the reasoning in these three discussions, we see the argument being that “[t]here are two reasons for the why our Sages decreed that a Jew may not eat food cooked by a non-Jew: The first is since a Jew may not marry a non-Jew, if Jews are accustomed to eating with non-Jews and mingling with them, this may cause intermarriage between them […] The second reason is because our Sages were concerned that the non-Jew may place non-kosher ingredients in the food and feed it to the Jew.”

See also Talmud Bavli Yevamoth 46a and Avodah Zarah 59a.

The prohibition is clearly based on a reaction to assimilation in Babylon. Based on the fear that the Jews would intermingle and become to friendly with the non-Jews, and from that marry their children with each other, the Talmudic Sages, z”l, saw to it to create boundaries which would make this intermingling difficult.

This is a decision taken, in order to protect the Jewish minority against the non-Jewish majority, and I wonder – had this been in the opposite case – whether they would have made the same decision, if they didn’t see the Jews marrying non-Jews.

Today in Israel – as is witnessed by the three discussions linked to – we are experiencing the aftermath of these rulings, but this time in the opposite situation, now in a state, where the Jews are the majority, and the non-Jews are the minority, as well as the consequences of this change. We see for example, in the discussion on legumes cooked by non-Jews, that there is leniency on canned legumes, since the danger that Jews intermingle with non-Jews does not exist in this case, and therefore there isn’t a problem in eating canned legumes, even when they are cooked by non-Jews, though other authorities do differ on this, relating instead to the chance that there might be non-kosher elements in the food.
And relating to the discussion on restaurants employing non-Jews, we see that as long as the fire is started by a Jew – in case of Ashkenazim – then the food is accepted, even if a non-Jew places the food (making the rationale be that the one starting the fire is the one cooking the food), whereas other – Sfardic – authorities rule that as long as the Jew does not place the food, then it is not kosher (relating the question of who cooks the food to who places the food, rather than who turns on the fire), though having R. Ovadyah Yosef, shelita, establishing the leniency that as long as the restaurant is owned by a Jew, and hence being under halachic authority and having to follow kashrut, then it is enough that a Jew lights the fire.

What this means in practice is, that the decision of R. Ovadyah Yosef, shelita, makes it possible for Jewish restaurant owners to survive in Israel, something which would be harder, had he not adopted this leniency, which again shows development being a reaction to developments in the society the religion exists in. Had we been in a society where the vast majority had been Jews, and only very few workers in a restaurant would have been non-Jews, making it a fact that there always would have been Jews in the restaurant, then I doubt that we would have seen this decision.

This leads us back to Herdian’s criteria. I don’t believe that his criteria alone is enough for integrity. Rather, the religious scholar need also understand the demands of the followers, the situation the religion exists in, as well as relating all his decisions to traditional rulings, as well as relating to Herdian’s criteria. But this has been the historical reality for those Jewish leaders, who managed to gather the Jews and strengthening the acceptance of the Jewish Rabbinical tradition, relating to the incidents and reality of their time, also before the Enlightenment.

That way we see that Ezra, a”s, related to the Jews’ return to Jerusalem, Yehudah HaNasi, z”l, relating to the need of conserving the Oral Tradition, Sa’adya Gaon’s understanding of a number of factors, Maimonides need to help the unlearned Jews having an easier time finding rabbinical rulings (as well as the general need of being an attentive and empathetic leader), and so on.

 

I hope that gave a more full picture of my thoughts on the issue.

The Israeli Millet System

BS”D

 

In an article, “The Israeli Millet System: Examining Legal Pluralism through Lenses of Nation-Building and Human Rights”,[1] Yüksel Sezgin puts a critical focus on the Israeli legal system, arguing for the problematic nature of legal pluralism in the state, and the consequences of it.

Besides the proposal of a conscious Israeli choice of the Ottoman Millet system, used in order to create a unified and single Jewish identity, and being able to make a clear differing between this Jewish identity and Israeli non-Jewish identities, Sezgin points out why legal pluralism can be a problem, at least in the case of Israel.

As mentioned in earlier posts, in Israel authority on matters of family and personal law has been granted religious courts, whether Jewish, Muslim, Christian or Druze.[2] This means that each religious group is only able to be married according to its religious laws, which again means that only those recognized as acceptable can be married. This differs from religion to religion, such as in case of Jews/Judaism is it only possible for Jews to marry Jews, while in case of Muslims/Islam is it possible for Muslim men to marry Jewish or Christian women, but not for Muslim women to marry Jewish or Christian men, and this is considered law of the state. In case of divorce this is also done according to the respective religion and its laws, which means that Jewish and Muslim women basically are placed in a worse situation than ditto men.

Should a Jewish man and Muslim woman fall in love and choose to marry, this is only possible outside Israel, but once married they would have to be divorced according to the laws of Israel, even if divorced outside Israel this divorce not necessarily being accepted by Israeli (religious) authorities.

The problematic nature of this is obvious, particularly considering that freedom of religion is secured in Israeli law, which might mean that one can choose any religion he/she wishes for, at least in theory (in practice it might be harder, depending on religion converting away from and which converting to). Basically what is meant, seen from practice, is that one has freedom of religion, but not freedom from religion. If you want to get married, it can only be through a religious court and according to your respective religion, rendering the choice of “no religion” void.

We are left with two problems already, when it comes to the nature of “freedom of religion”, since we see from the already mentioned that religion is not something you can choose to or from, it is forced on you, you can only choose which religion. And your choice of love is not free from you either, leaving anyone not accepted by your religion in the category of “no-go”.

This is a clear clash of Israeli family law and international human rights, but it doesn’t stop there. In case of divorce do we see the clash between the thought of equality, something Israel is claiming, and religious laws. In Judaism a man can give a declaration of divorce, with or without the acknowledgement of the woman, while the same is not the case does the woman want a divorce. There has been implemented ways of forcing the man to give the divorce, should he object, such as daily bills, loosing of drivers license and work license, and even imprisonment, but it is rarely enforced, since many rabbinical judges sees this as going contrary to Halachah, and such do not use this enforcement.

In case of Muslims a woman is ensured payment for a certain time, but it has been shown that Muslim women receive less than divorced Jewish and Christian women, which is another example of inequality.

This is of course problematic in a state, which calls itself Democratic, at least if we understand the “Democratic” as in securing equality and keeping human rights, rather just than “one man, one vote”.

As I pointed out in my last post, there are difference between the Jewish and the Muslim case, having examples overlapping between the two cases. For example does the Muslim man have more choices of spouse than the Jewish ditto.

Sezgin criticizes Israel’s embracing the Ottoman Millet system, both in terms of nation building, that is, as a tool used in order to create distinct groups, making it easier to control them, as well as in terms of human rights, criticizing the enforced religious rule on family and personal matters.

I see the problematic nature, at least in the latter case (I am not so sure we should be cynical about the choice of the Millet system, considering the challenging situation Israel found herself in at the establishment of the state, though Sezgin does refuse this excuse), but as shown from Hofri’s article in my last post, the religious are getting ground in Israel, and the consequence of the growing secularization of the Israeli legal system – which Sezgin doesn’t seem to acknowledge – does create the need, for the religious, for alternatives, which could end creating a split with the state, and the question is whether the state wants or can handle that challenge. And this is not only in case of Jews, but also the Muslims, where we see an Islamic Movement challenging the Shari’a Courts, something which most likely only will be strengthened, the more secular the state attempts to make law in Israel. We will later see that the Shari’a courts are attempting to remove any secular Israeli influence, in order to answer the challenge from the Islamic Movement, but should we get a pure secular family law in Israel, who will then take the religious marriages, and by that controlling part of the religious rituals?

I hope to be able to give some thoughts on the clash between human rights and religious courts later on, when I get more material covered. For now it will mostly be speculation and guesses, but again, I’m only sharing thoughts.

 

Take care out there.


[1] Brought in Israeli Law Review, Vol. 43, No. 3, pp. 631-654, 2010.

[2] Israel is the only country to acknowledge the Druzes as a distinct group from the Muslim majority group, something Sezgin argues is part of a strategy of dividing groups, in order to control the easier.

Jewish Shari’a in Israel

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Or rather “the State of Halachic Courts in the Jewish State of Israel”.

As part of the curriculum for my studies in Shari’a in Israel, I read Adam Hofri’s “A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State”, which deals with the question of legal pluralism – i.e. the existence of more than one legal body in one state, as is the case in Israel (the secular legal body of the state, as well as the religious courts), and whether a modern state can “provide its citizens, residents and others subject to its power with a just and stable legal order by referring them to norms associated with their several religions and enforced by state courts”. He deals with the situation of Halachich Courts, i.e., Jewish religious courts, particular nonstate ones, which appear more and more. Basically, he argues by focusing on Israel as a case study, legal pluralism, where the state gives room for religious courts to cover at least some legal fields, most often matters of family and personal law, will only encourage the religious to struggle for more influence and authority.

 

In Israel we have seen the later years a growing rate of Halachic nonstate courts, which offers an alternative to the secular courts on matters of economical disputes, but not so much on matters of family law or personal law, which he explains as being because the latter is already covered by Rabbinical authorities, that is, the Rabbinate supervised by the Haredim (ultra-Orthodox), and as such holding recognition from the group behind the Halachic nonstate courts, the conservative element among the Religious Zionist, the HarDal (Haredim Dati-Leumi). He also explains why criminal cases is not covered, by relating to the most likely aggressive response by the state, should they choose to cover these cases.

 

It is no secret that the religious influence in Israel (as well as other places), have grown within the last decade (or even more). This – of course – also leaves its imprints on the legal system and the relation between the secular state and her religious citizens in regards of legal questions, particularly in context of the Judaic focus on law, so that there will be growing demands for religious alternatives and conflicts between religious and the state (as for example was the case in 2006, when the Supreme Court of Israel ruled, that the Rabbinical courts could not hear private and commercial cases as arbitrators, something the Rabbinical courts has since ignored, though the number of cases brought to them are descending since).

 

Still, it could wonder why Religious Zionists chose to establish nonstate courts, rather than put pressure or force the state to accept a growing religious influence in its courts (which I personally believe is happening), to which Hofri offers six reasons:

 

1: Identification of the State Legal System as a Standard-Bearer for Secularism.

2: Delegitimation of the State Rabbinical Courts’ Practice of Arbitrating Private Law and Commercial Cases.

3: An Increased Supply of Religious Zionist Halachic Experts.

4: The Religious Radicalization of Part of Religious Zionist Society.

5: The Impact of Israel’s 2005 “Disengagement” from the Gaza Strip and Northern Samaria.

6: Hopes that Non-Observant Use of Halachic Adjudication will Encourage the Adoption of Halacha as State Law.

 

That is, the Religious Zionist, or at least the more conservative element among them, see the growing secularism in Israel, or more at least in the Israeli legal system, where the Supreme Court in the recent years mostly have ruled against the Religious Zionists or what they hold as important, such as the settlement activity.

Furthermore they see that the Rabbinical authorities have lost influence and authority on matters, where the Religious Zionists otherwise would have turned to their courts, which leads them to create their own alternatives. It is not without reason that commercial matters is the most covered field in Halachic nonstate courts.

Also the growing number of Religious Zionists being educated in Halachah at Yeshivot, as well as Religious Zionists with a Rabbinical degree receiving even more advanced training in Halachical issue, as well as their feeling with “real life”, something the Haredim are lacking, is a reason for wanting to create more job opportunities.

We see the radicalization of the Religious Zionist right, where some groups even are calling to struggle against the (secular) state of Israel, as a protection of Jewish values and homeland, thinking in terms of wanting to establish a Jewish religious alternative to the secular courts. Where some Religious Zionists are becoming more “secular”, wearing their religion “lightly” and taking more part in the secular society, others are becoming more “haredized”, turning closer to the strict understanding of Halachic law and principles.

The disengagement from Gaza and some settlements in 2005 made the Religious Zionists feel let down by the state, even betrayed, which created a split between them and the state. They don’t trust the state now as they did before, and are more ready to confront and challenge the state on principles, which they hold as important, such as the implementation of Halachah.

And finally, some Religious Zionist halachic thinkers are hoping that by creating a cheaper and more effective legal alternative to the secular courts, they can make the less religious or even non-observant public realize the ethical principles of Halachah, and by that making it easier to implement Halachah into Israeli law.

 

This is of course mostly related to Jewish religious law in Israel, but I believe that we can see some of the same factors in the Muslim case. First and foremost, Israeli Palestinian Muslims have never felt close to the state of obvious reasons, so relating to a state institution might seem hard already. We also do experience a radicalization of Muslim youth, both in the territories and in Israel proper, where the Islamic Movement has gain ground within the last two decades and publicly is challenging the Shari’a courts and their qadis.

But where I see a big difference is in the attitude of religious judges in the Jewish courts to the nonstate courts, compared to the Muslim ditto to the Islamic Movement’s call on nonstate Shari’a courts. Where the former is positive, the latter is negative. How this is portrayed and why, is something I’m going to look into later on.

Shari’a in Israel

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First, let me send thoughts to all the victims from Sandy, whether in the States or elsewhere. If any of you readers felt the impact, then let me express my relief that you are able to read this post by now. I sincerely hope that you weren’t affected too much of the storm.

 

Back to the title.

Yes, you read correct.

Israel is – or at least claims to be – a secular Jewish democracy, but yet is religious law part of Israeli law. One might not be so surprised that Jewish religious law, Halachah, is influencial on Israeli secular law, Mishpat Ivrit, but some might wonder why and how Shari’a can be influential on Israeli law.

There’s a good explanation. Israeli law is to a certain extent based on the model of Ottoman law, which was taken over by the British during the mandate period, and now in Israeli law. To be more precisely, based on Ottoman law Israel recognize a number of religious groups, which are governing themselves according to their respective religious law, in matters related to family law and privacy law. It is clearest expressed in matters of marriage and divorce, but also guardianship is falling under the religious courts, but whereas Israeli secular law rarely relates to the two first, the latter is more a focus of controversy, as well as cases involving the question of equality (as is the case for most conflicts between Israeli secular law and religious law in Israel). More about that in another post.

Israel has eight regional Shari’a courts, in Bir al-Sabi’, Jerusalem, Yaffo, Taybe, Baqa al-Gharbiya, Hayfa, Nazareth, and Acco, as well as the Shari’a court of Appeals, sitting in Jerusalem, which works as the court of appeals (hence the name). The Shari’a Court of Appeals plays a crucial role in the development of Shari’ah in Israel, since it is this institution which takes the most confrontations with the Israeli legal system, as well as being able to overrule rulings from the regional courts. It is headed by Qadi Ahmad Natour, and besides him has Qadi Farouk Zoebi and Qadi Zachi Madlaj, all elected in 1994 on permanent status (first time that happened).

The Shari’a Court of Appeal is challenged from three sides; the Israeli Supreme Court of Justice, on matters where Israeli secular law and the rulings of the Shari’ah Court of Appeals conflict, from the Islamic Movement(s), which questions and challenges the authority of the Court, and from feminist groups, challenging the lack of sensibility to the status of women and human rights.

 

There are a number of scholars dealing with the subject, mostly Israelis (Jewish and Palestinians), but three of them stand out in particular, Aharon Layish, who have written indepth on a number of subject connected to Islamic jurisprudence (fiqh) within Israel (both in case of the Shari’a courts and conflicts between the courts and the litigants) and historically. Moussa Abu Ramadan, who has written very indepth on the rulings and practices of the Shari’ah courts, particularly the Shari’ah Court of Appeals. And Alisa Rubin Peled, who has written about the debates and attitudes to the Shari’ah courts.

It is these three that I will base most of my study of Israeli Shari’ah upon, but still relate to others as well.

 

This post is a little introduction to my study of Shari’ah in Israel, and I hope there will come many more posts. From what I have read so far it really seems like an interesting subject, not only because it’s about Isreal and Shari’ah (in context of each other), but also because it raises some interesting thoughts on the relation between religion and a/the secular society it exists within. What is the role of religion in a modern society? Where should the borders go, if there should be any at all? Is it possible to implement religious law into secular law? And so on.

 

Enough for this time. Take care out there.

Study ShaS!

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No, not the political Israeli party, but rather the Talmud. Sha”S is an abbreviation of the Hebrew “shisha sedarim,” six orders, which relates to the six orders of the Talmud, namely Zera’im (on agriculture), Mo’ed (the festivals and holy times), Nashim (on women), Neziqin (damages, typical criminal law), Qodashim (the Holies), and Tehorot (purities).

A new initiative to strengthen the study of the Talmud, has been created by Sammy Sacks, Elon Weintraub, Brian Wartell,Atara Chouake, and Shmueli Englard, with the help of Scott Silver and Binyomin Burke, six American college students dedicated to the study of the Talmud.

Basically what they want to do, is to promote the study of the Talmud on their campus, but since they have gone internet it is possible for the rest of the world to follow their progress, and even participate in it. And I think we should, at least as much as we are able to.

From what I can see so far, what they are offering is both a systematic study, giving the students some order in what is being studied, explanations on what is being studied, as well as how to study the material at hand, material they also provide on their website and Youtube channel.

Personally I always appreciate new and serious initiatives in studies of Jewish texts, particularly the Talmud, and I would encourage the rest of you out there on participating in their efforts.

To add to that I would like to give some thoughts on why one should study Talmud. First off, to get rid of some of the misconceptions there exist about the Talmud, both as text and as of message. One of the major misconceptions I know of, is that the Talmud is a book of law. It is true that there is a great deal of law found in it, but not only law, and also true that the Talmud forms the basis – together, or based upon, the Torah – but not only so. Rather, as Elon also points out in one of their videos, Talmud is rather a book of Jewish thought. Jacob Neusner, one of the biggest scholars on Talmudic studies (in the academic world), describes it as a “fundamentally and deeply religious literature,” something he is right in. My own perception of the Talmud is that – though only formed and authored by a small number of Jews, compared to the overall number of Jews found through history – it is the piece of Jewish literature, forming and defining what it means to be “Jew” and what “Judaism” is. Of course, there has been differing understandings of what Judaism is, for example the Karaite Judaism, and it is not without a reason that scholars are talking about Rabbinites and Rabbinite Judaism, when they write on Jewish history – or rather on the history of Judaism. But still, if we are relating to Jewry of today, then the Talmud – together with the Bible, and none of them alone on their own – is the defining piece of literature, even when it comes to the Karaites and other Jewish groups/sects, which are more defining themselves in reaction to the Rabbinic teachings, as they are mainly defined by the Talmud, rather than on their own.

But yet the Talmud is a very mystical piece of literature for most. Many are talking about it, but not many know it. It is used against Jews, by antisemites promoting lies and distortions based on either faulty believes of the Talmud or fabricated claims of what it states. It is also being promoted as evidence of the genius of the Jews, as if it is some kind of superior writing, which can only be written by people of a certain intellectual level (which I tend to agree with, but not that this should something particularly Jewish).

The Talmud encourages thought, discussion, debate, curiosity, want for knowledge. It is never satisfied, until each and every stone has been turned, and nothing can be said for or against, besides what already has been said. And often it doesn’t even decide on a case, even then, at least not clearly. This in itself makes the Talmud curious, what is it that it wants to tell us? But also that it covers a span on 600 years of Jewish intellectual reactions to the changes of a rather turbulent world full of contrasts, relating to the meetings with various cultures and religions, and how the Jewish sages saw themselves, as well as the Jewish people as a whole, in contrast to these cultures and religions. It is a book by humans, on humans, in relation to humans, but all the time in connection to the Divine, and never does it back away from a difficult question.

So, go for it, at least allow yourself to be introduced to the world of Talmud, and give yourself the chance to understand the core of Jewish thought.

The reading of religious texts and reaching a clear understanding

BS”D

 

Being a religious Jew and an academic student of religions, can sometimes present you for some interesting reactions, especially when you live in a society like the Israeli, where the idea of various religious groups living together is okay, but studying each other religious texts are less normal (it does happen though).

One reaction I’ve gotten a couple of times is based on a mishnah in the Mishnah, Tractate Sanhedrin, which states that:

… these do not have a portion in the world-to-come: One who says, ”Resurrection of the dead is not from the Torah,” and ”the Torah is not from Heaven,” and an heretic apikoros. Rabbi Akiva says, Even one who reads external books…” (Sanhedrin 10:1 – Kehati translation)

The problem being R. Akiva’s statement. According to the people reacting to when I tell what I study, what I study is contrary to what is allowed from the Mishnah (and the Mishnah is considered holy, also by me). The Hebrew is “af haqore bisfarim haḥitzonim” (אף הקורא בספרים החיצונים), the “ḥitzonim” meaning something external, that is, outside the accepted tradition, which would include any religious (or non-religious) book you can imagine, which is not either part of the Canon or Rabbinical of nature. Or does it mean this?

Let us take one Jewish commentary, before we delve into some of the interesting aspects of Talmuds and manuscripts, that of R. Yitzḥaq Alfasi, who states that these books are books of heretics who interpreted the Biblical texts according to their own opinions, rather than to follow those of the Rabbinical Sages, z”l. From this we can learn that external texts are not so much connected to non-Jewish religious texts, as they are connected to Jewish religious heretical texts. This will also be clear from the following discussion.

First I want to relate to the Babylonian Gemarrah on the Mishnah, which is found in Sanhedrin 100b. Here we can read (differences of wordings is caused by the use of a difference translation, the Hebrew is the same):

R. Akiva said: Also he who reads uncanonical books, etc.” A Tanna taught: This means the books of the Sadducees. R. Joseph said: It is also forbidden to read the book of Ben Sira.

So here we see that the books thought about, as understood by a Tannaic rabbi, as well as the later Amorai, R. Joseph, are Jewish books. They don’t relate to, e.g., Greek or Persian religious writings, only Jewish – in their eyes – heretical writings.

In the Yerushalmi we can read the following on the same mishnah (Yerushalmi, Sanhedrin 28a):

R. Akiva adds: one who reads the outside books such as the books of Ben Sira and the books of Ben La’aga. But he who reads the books of Homer and all other books that were written from then on, is considered like one who is reading a secular document… (here is a quote from Ecclesiastes 12:12)… Hence, casual reading is permissible but intensive studying is forbidden.

Also here we see that it is related to other Jewish writings (Ben Sira and Ben La’aga both being Jews) as being problematic, as far as they are considered heretic, while Greek texts, and texts written after that particular time are not.

The question is why this is the case? What is so bad about the Jewish heretical writings, which is not found in the non-Jewish religious texts? The answer is found in the discussion following R. Joseph’s statement in the Talmud Bavli. Basically – to sum up – the problem lies in the fact that the Jewish heretical writings are too similar to the canonical Jewish writings, that is, the Canon of the Bible and the sayings of the Rabbinical Sages, z”l. One – particularly an unlearned – can easily confuse the two (as an example try to read the writings of Ben Sira and compare them with, e.g., Ecclesiastes), while this is not the case with non-Jewish religious writings (compare, e.g., the Torah and the Quran). Also, since they at this time, of the Mishnah, did have a canon, when it came to the Biblical writings, then it would not be a problem with later texts, since we would know that they are written too late to be part of the Biblical canon.

According to the Sages, z”l, what we are dealing with is a question of accepted texts being part of the canon, and therefore holy, or heretical texts proposing themselves as being holy texts, part of the canon.

There is also the question of which words were used about the texts in questions. We find differences depending on which manuscripts we are reading. As we saw, the Tanna taught that what was meant was “books of the Sadducees,” but some manuscripts have “minim” (מינים) instead of “Sadducees.” This word is used about heretic Jews, particular Christian Jews – which most likely also is why “Sadducees” have been inserted in some manuscripts, since Christians in the Medieval times didn’t take so lightly on what could be considered an affront to Christian dogmas and teachings.

But all in all we get a picture of a statement, which most likely was primarily concerned with the confrontation between canonical Holy Texts, and heretic writings, which might have been confused with Holy Scripture, rather than a statement against the study (even more the modern academic study) of non-Jewish religious texts, which – as we saw – were considered on level with secular writings, and as such would not be object for the same intensive study, as would be the case with Jewish Holy texts.

What can we learn from this, besides the already explained? Well, that when we are dealing with religious texts, particularly when they are found within a religious tradition (and most religious texts are, not surprisingly), then we need to get into the details and expand the reading if we want to really understand their meaning. Just reading one text artificially, and then believe that we get the full picture from that, is simply misleading. Unfortunately many religious people today seem to read their own religious texts that way, something which damage and bring their religion down on a level, rendering it without meaning or purpose. Religions, whether it be Judaism or other religions, are not afraid of the critical study of their texts, on the contrary, they demand it. They want the believer to understand what the religion is about, not just based on a shallow reading of one or two text, for then to believe that the answer and solution is found, based on that inadequate reading.