Criticism has been and continues to be leveled at the Supreme Court
from various segments of the Israeli public, especially over the issue of
religion and state, that is, a Jewish state versus a democratic one.
A breakdown of the critics of the Supreme Court on this issue demonstrates
that they primarily consist of two groups: Ultra-Orthodox Jews and Modern
Orthodox Jews. However, while the Modern Orthodox Jewish community is stridently
vocal in its criticism of the Supreme Court and, on occasion, spearheads
the attacks on that institution, this community expresses no public criticism
of the rabbinical courts.
From many standpoints, Modern Orthodox Jews constitute that segment
of the Jewish population in Israel which attaches paramount importance to
the successful performance of the rabbinical court system. Israel's secular
Jewish community views the rabbinical courts as diametrically opposed to
its value system, while the Ultra-Orthodox Jewish community has an alternative
internal judicial mechanism.
The same kind of criticism leveled at the Supreme Court could also be
applied to the rabbinical courts. For example, what procedure is used in
the appointment of dayanim
(rabbinical court judges)? What criteria are applied in that procedure? Do
political party considerations play a decisive role in the appointment process?
Does the composition of the rabbinical court bench reflect the religious
and socio-economic mosaic of all the various groups requiring the court's
services? What supervisory mechanisms monitor the operation of the rabbinical
courts? What are the political views of the dayanim?
Such questions are being asked by the critics of the Supreme Court but
they are strangely absent from any public discussion of the rabbinical courts.
Nonetheless, the rabbinical courts have much greater standing in the
eyes of the Modern Orthodox community than the Supreme Court from every possible
perspective - normative, religious, historical and social. The laws of marriage
and divorce, with which the rabbinical courts are chiefly concerned, are
a microcosm of the constitutional tension surrounding the issue of religion
Israeli society has given the monopoly in matters involving marriage and divorce to the halacha (Jewish
law) and the activities of the rabbinical courts in these matters are a multi-disciplinary
laboratory that studies various crucial questions.
One of those questions is: Can the halacha accommodate itself
to changing conditions so that it can remain applicable to the present era?
This question is of vital importance to the Modern Orthodox community, which
is particularly sensitive to the tension between religion and Modernity.
Another question is: Can halachic norms stemming from a religious world-view be applied to the secular Jewish community in Israel?
The success or failure of the rabbinical courts in answering such questions
will also be, to a large extent, the success or failure of religious Zionism.
The Supreme Court's success in stabilizing or lessening the constitutional
tension between the concepts of a Jewish state and a democratic one obligates
the rabbinical courts to perform successfully as well, because the success
of the rabbinical courts will be regarded as proof that the halacha
can effectively deal with the issues of Modern-day life and with a large
segment of the Israeli public who are forced to accept the halacha's authority.
The performance of the rabbinical courts influences the position of
the point of equilibrium on the spectrum between the two respective poles
of a Jewish state and a democratic one. The failure of the rabbinical courts
to function effectively will move that point of equilibrium closer to the
pole of the democratic state, thus distancing it from the pole of the Jewish
state, and vice versa. The success of the integrative approach - which is
advocated by religious Zionism - therefore depends primarily on the performance
of the rabbinical courts.
Without underestimating the importance of the public and constitutional
debate concerning the Supreme Court, it is certainly bizarre that the Modern
Orthodox community invests so much energy in that debate while it voices
no criticism whatsoever of the rabbinical courts.
Granted, the rabbinical court system has improved significantly under
the leadership of Israel's two chief rabbis, Israel Meir Lau (Ashkenazi)
and Eliahu Bakshi-Doron (Sephardi) and the director-general of the rabbinical
courts, Rabbi Eli Ben-Dahan. However, much work remains to be done, especially
in such areas as the appointment of dayanim and the degree to which the rabbinical court bench reflects the variegated composition of the public it serves.
The aggressive criticism of the Supreme Court versus the prolonged silence
over the performance of the rabbinical courts stems from political and populist
considerations, in the wake of political and religious polarization and in
light of the ever-increasing prominence of the Ultra-Orthodox community.
A striking example of this trend can be seen in the ruling in the Bavli
case where the rabbinical court refused to accept the legal principle of
joint ownership in a marriage. The Supreme Court overruled the decision of
the rabbinical court and was severely criticized for doing so by the Modern
Orthodox community, which maintained absolute silence and voiced no criticism
whatsoever regarding the rabbinical court's behavior in this case. This silence
is inexplicable, especially in view of the fact that the vast majority of
- if not all - Modern Orthodox Jews in Israel accept the judicial principle
of joint property between husband and wife.
In the present status quo regarding criticism of the Supreme Court and
an absence of criticism of the rabbinical courts, one can detect a refusal
by the Modern Orthodox community to live in accordance with its own basic
ideology. That community's attacks on the Supreme Court can have no moral,
social or political justification unless it levels criticism - perhaps even
of a more vociferous variety - at the rabbinical courts as well.
(The author is a professor of law in the Hebrew University of Jerusalem's Faculty of Law.)