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Israel Civil Courts and Rabbinical Courts Under One Roof

Published online by Cambridge University Press:  16 February 2016

Dov I. Frimer
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Extract

There can be no quarrel with Prof. Pinhas Shifman's essential thesis. The attempt to have two kings rule the same kingdom at one and the same time has undoubtedly failed. The “mixed marriage” between two legal systems, having different — and at times contradictory — philosophies of law, world outlooks and social goals, has given birth to a child which neither parent is eager to acknowledge. As is usually the case in failed marriages, here too each side blames the other for the failure; the civil system points an accusing finger at the religious system, and the Rabbinical Courts blame the civil courts. Prof. Shifman is certainly correct in his claim that the complexity of this situation has given rise to a certain tendentiousness among both the civil and the Rabbinical Court judges, with each group zealously seeking to enlarge its own kingdom.

Although I do not find fault with the general picture sketched by Prof. Shifman, I cannot agree with some of the finer details; in particular, with certain examples cited by Prof. Shifman in support of his conclusions, which are correct in and of themselves.

Type
Family Law
Information
Israel Law Review , Volume 24 , Issue 3-4: Israel Law—Forty Years , Summer–Autumn 1990 , pp. 553 - 559
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1990

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References

1 Pinhas Shifman, , “Family Law in Israel: The Struggle Between Religious and Secular Law”, in this issue, p. 537Google Scholar.

2 Published in his work, Responsa Tsits Eliezer, XIII, No. 97. The decision was given on 2 Kislev 5736 (6.11.75). On the bench, together with Rabbi Waldenberg, sat Rabbi Y. Cohen and Rabbi Y. Attiyah. Rabbi Waldenberg based his opinion upon the lengthy exposition which he himself had written earlier on the subject of artificial insemination and which had been published in Resp. Tsits Eliezer, IX, No. 51. It is worth pointing out that these two decisions mark a departure (in the direction of severity) from Rabbi Waldenberg's original tendency, as published in Resp. Tsits Eliezer, III, No. 27. See also ibid., XIV, No. 98-B.

3 Even among the decisors who are of the opinion that artificial insemination does not constitute adultery, there are those who believe that if the artificial insemination was done without the husband's knowledge and consent, it would be a valid cause for divorce. See, for example, the responsum of Rabbi Jacob Breisch (Av Beth Din of Zurich, Switzerland), Resp. Helkat Ya'akov, I, No. 24. Also see Rabbi Samuel Halevi Wosner (Av Beth Din Zikhron Meir - Bnei Brak), Resp. Shevet Halevi, III, No. 175. Cf., Jackson, Joseph et al. , ed., Rayden On Divorce (London, Butterworths, 13thed., 1974) vol. 1, p. 198Google Scholar, Note G: “But such conduct by a wife without the husband's consent or approval may amount to the wife behaving in such a way that the husband cannot reasonably be expected to live with her”.

4 The decision was given on 6 Av 5737 (21.7.77) by Rabbis A. Shear-Yashuv (Av Beth Din), Shina'an, L., and Uriah, A., and is cited in Green, Joseph, “Hazra'ah Melakhutit be-Psikah uve-Hakikah be-Medinat Yisrael” (1986) 5 Sefer Assia125, at 132–134Google Scholar; translated into English and published under the title: “Artificial Insemination in Israel - A Legal View”, in Proceedings of the Association of Orthodox Jewish Scientists, (1987) vol. 9, p. 213 at 220–222Google Scholar. The Rabbinical Court relied primarily on the rulings of the important American Posek, Rabbi Moses Feinstein, Resp. Iggerot Moshe, Even ha-Ezer, I, No. 10; and II, No. 11 (incorrectly cited in the decision as No. 10). See also ibid., I, No. 71; II, No. 18; III, No. 11; IV, No. 32-E; as well as in Resp. Helkat Ya'akov (by Rabbi Mordechai Jacob Breisch), III, Nos. 48-52.

5 See the summary of the different views on the subject by Dr.Steinberg, Abraham, “Hazra'ah Melakhutit Le-Or Hahalakha” (1979) 1 Sefer Assia128, at 134–136Google Scholar. Also see an analysis of this topic by Drori, Moshe, “Artificial Insemination: Is it Adultery?” in Jewish Law and Current Legal Problems, Rakover, Nachum, ed. (Jerusalem, The Library of Jewish Law, 1984) 203–216Google Scholar.

6 Genesis 2:24Google Scholar.

7 Drori, Moshe, “Reflections on the Effect of Modern Techniques of Fertility on Family Law” (1982) 1 Medicine and Law15, at 21Google Scholar.

8 Soloveitehik, Haym, “Can Halakhic Texts Talk History?” (1978) 3 A.J. S. Review153, at 174Google Scholar.

9 Bleich, J. David, Contemporary Halakhic Problems, I(New York, Ktav Publishing House, Inc. - Yeshiva University Press, 1977) xvGoogle Scholar.

10 See Ellison, Elyakim J., Nisu'in Shelo Kadat Moshe ve-Yisrael (Tel Aviv, Dvir, 1976, in Hebrew) 132-153, 170–187Google Scholar; Frimer, Norman E.and Frimer, Dov I., “Reform Marriages in Contemporary Halakhic Responsa” (1984) 21 Tradition7, at 9-10, 15, 16–17Google Scholar.

11 See Isaac, RabbiWeiss, Jacob, Resp. Minhat Yitshak, VIII, No. 137Google Scholar. And compare Feinstein, Rabbi Moses, Resp. Iggerot Moshe, Even Ha-Ezer, IV, No. 106 (end)Google Scholar. See also the comments of Moshe Silberg J. in Rosenzweig v. Head of the Execution Office, et al. (1955) 9 P.D. 1542, at 1551-1557.

12 Sharon v. Levi (1981) 35(i) P.D. 736, at 749.