JERUSALEM - CITY OF LAW AND JUSTICE JERUSALEM CITY OF LAW AND JUSTICE Edited By NAHUM RAKOVER The Library of Jewish Law The Library of Jewish Law Ministry of Justice The Jewish Legal Heritage Society PROCEEDINGS of the Third International Seminar on The Sources of Contemporary Law: Jerusalem - City of Law and Justice Jerusalem, July 1996 © The Library of Jewish Law The Jewish Legal Heritage Society P.O,Box 7483 Jerusalem 91074 Printed in Israel 1998 TABLE OF CONTENTS PREFACE 9 OPENING ADDRESS, Nahum Rakover 11 GREETINGS BY THE PRESIDENT OF ISRAEL, Ezer Weizman 13 GREETINGS BY THE PRESIDENT OF THE SUPREME COURT OF ISRAEL, Aharon Barak 15 GREETINGS BY THE MINISTER OF JUSTICE, Ya'akov Ne'eman 19 GREETINGS BY THE CHAIRMAN OF THE ISRAEL BAR, Dror Hoter-Ishai 23 JERUSALEM AND THE TEMPLE MOUNT Eliyahu Bakshi-Doron THRONES OF JUDGMENT AT YOUR GATES, 0 JERUSALEM 25 David D. Frankel TEMPLE MOUNT - ACCESS AND PRAYER 35 David A. Thomas A CONCISE LEGAL HISTORY OF JERUSALEM 43 Menashe Har-El JERUSALEM THE HOLY CITY IN JUDAISM, CHRISTIANITY AND ISLAM 59 Abdul Hadi Palazzi JERUSALEM: THREE-FOLD RELIGIOUS HERITAGE FOR A CONTEMPORARY SINGLE ADMINISTRATION 77 Shlomo Slonim CHANGES IN THE ATTITUDE OF THE VATICAN ON THE ISSUE OF JERUSALEM 85 Malvina Halberstam THE JERUSALEM EMBASSY ACT: U.S. RECOGNITION OF JERUSALEM AS THE CAPITAL OF ISRAEL 101 5 Contents ISRAEL AS A JEWISH AND DEMOCRATIC STATE Eliezer Schweid ISRAEL AS A JEWISH-DEMOCRATIC STATE: HISTORICAL AND THEORETICAL ASPECTS 125 Asher Maoz THE VALUES OF A JEWISH AND DEMOCRATIC STATE 147 Jacob Bazak ISRAELI LAW IN THE VIEW OF HALAKHAH 173 HUMAN RIGHTS AND THE INDIVIDUAL Nahum Rakover THE PROTECTION OF HUMAN DIGNITY 187 Irwin Cotler HATE SPEECH, EQUALITY AND THE LIMITS ON FREEDOM OF EXPRESSION: THE CANADIAN EXPERIENCE AS A CASE-STUDY 229 Moshe Ish-Horowicz RELIGIOUS TOLERANCE AND DIVERSITY IN JUDAISM 249 Herbert Druks RELIGIOUS FREEDOM AND THE JEWS IN EARLY AMERICAN HISTORY 263 Alan J. Yuter PERSON AND PROPERTY IN JEWISH LEGAL THOUGHT 287 PENAL LAW, EVIDENCE, RESPONSIBILITY Leah Bornstein­ JEWISH INFORMERS IN THE OTTOMAN EMPIRE Makovetsky IN THE 16th-17th CENTURIES 309 Yehoshua Ben-Meir CIRCUMSTANTIAL EVIDENCE 325 Richard A. Freund INTER-GENERATIONAL RESPONSIBILITY 359 Bernard w. Freedman THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT ... ? - COUNSEL'S ETHICAL RESPONSIBILITIES 381 6 Contents LAW AND MEDICINE J. David Bleich SURROGATE MOTHERHOOD 389 Yosef Rivlin ARTIFICIAL INSEMINATION, IVF AND SURROGATE MOTHERHOOD: IMPLICATIONS FOR INHERITANCE LAW 415 Sharon Levy EUTHANASIA: WITHHOLDING TREATMENT: A LEGAL AND ETHICAL ANALYSIS 431 Rivka Katz MEDICAL ETHICS 441 INFLUENCE OF JEWISH LAW ON OTHER LEGAL SYSTEMS Neil H. Cogan MOSAIC EQUALITY IN AMERICA 451 Jonathan Fisher SELF-INCRIMINATION AT COMMON LAW - ITS ORIGIN IN JEWISH LAW 461 Osman Zumrut THE INFLUENCE OF JEWISH LAW ON ISLAMIC LEGAL PRACTICE 475 Sinaida De Gregorio THE INFLUENCE OF JEWISH LAW Letio ON BRAZILIAN LAW - MARRIAGE AND DIVORCE 485 APPENDIX SEMINAR PROGRAM 499 7 PREFACE The volume herewith presented to the reader comprises the proceed­ ings of an international seminar on "Jerusalem - City of Law and Jus­ tice," held at Jerusalem in June 1996. Most of the papers delivered at the sessions are reproduced here, some in translation from the original Hebrew. This was the third in a series of seminars on "The Sources of Con­ temporary Law." The first seminar in the series dealt with "The Bible and Talmud and their Contribution to Modem Legal Systems," and the proceedings were published in a volume entitled Jewish Law and Current Legal Problems. The topic of the second seminar was "Mai­ monides as Codifier of Jewish Law," and the proceedings were pub­ lished under that title. Like its predecessors, the present seminar was held under the aus­ pices of the Israel Ministry of Justice, the Hebrew University of Jeru­ salem, the Israel Bar and the New York County Lawyers' Association, presided over by Mr. Klaus Eppler. Participants included approxi­ mately 200 men and women of different religions - Jewish, Christian and Muslim - from different countries. The opening session was held in the official residence of the Presi­ dent of Israel, with the participation of some of the most distinguished representatives of this country's judicial system, judges, rabbis and scholars. The greetings by President Weizman and other guests at that session appear at the beginning of the volume, followed by the open- 9 Preface ing lecture of the seminar, by Chief Rabbi and President of the Su­ preme Rabbinical Court Eliyahu Bakshi-Doron. The organizing committee received a great number of lecture pro­ posals from both Israel and abroad. For that reason, it was decided to hold parallel sessions, in English and Hebrew, on some days of the seminar. The topic of the seminar, "Jerusalem - City of Law and Justice," was chosen as part of the celebration of the three thousandth anniver­ sary of Jerusalem as capital of Israel. A few sessions were accordingly devoted to Jerusalem itself, its legal and international status and its position in the different monotheistic faiths. Some papers discussed the Temple Mount and rights of access to it and prayer there. Other ses­ sions dealt with the ideas represented by Jerusalem as "City of Law and Justice" - equity and human dignity, as well as ethics in the fields of administration and medicine. A few lectures considered constitu­ tional matters and questions relating to Israel as a Jewish and demo­ cratic state. Some time after the seminar, one of the most distinguished world figures in Jewish Studies, Professor Isadore Twersky, passed away. Professor Twersky was a leading member of the Jewish Legal Heritage Society and served on the Advisory Committee of the seminar. The society derived considerable encouragement from his evaluations of its various research projects and of its activities for the advancement of Jewish Law in Israel and in the world at large. Yehi zichro baruch. An important contribution to the preparation of this seminar was made by Professor Charles Philips, who also helped in the first stage of the editorial work for the present volume. Mr. David Louvish was responsible for some of the editorial work, and Mr. Moshe Kaplan assisted in preparing the material for the press. I am indebted to them all. N.R. Jerusalem, Israel 5758 - 1998 10 OPENING ADDRESS Nahum Rakover Mr. President; President of the Supreme Rabbinical Court R. Eliyahu Bakshi-Doron; your Honors President of the Supreme Court Prof. Aharon Barak, State Comptroller Mrs. Miriam Ben-Porat and Justice Moshe Landau; Chief Rabbis of Jerusalem and Haifa; Minis­ ter of Justice Prof. Yaakov Ne'eman; President of the Israel Bar As­ sociation Mr. Dror Hoter-Ishai and President of the New York County Lawyers' Association Mr. Klaus Eppler; Supreme Court Jus­ tices past and present, including our friend and colleague Justice Haim H. Cohn; Religious Court Judges; Rabbis, Magistrates, Ladies and Gentlemen. This is the third in a series of seminars devoted to the contribution of Jewish Law to modem legal systems. Like its predecessors, this seminar is being held under the auspices of the Israel Ministry of Justice and under the aegis of the Hebrew University of Jerusalem, the Israel Bar Association and the New York County Lawyers' As­ sociation. The participants have come from fourteen countries and are of different faiths - Jews, Christians and Muslims. Our topic is Jerusalem - City of Law and Justice. There is surely no need to elaborate on the special relationship between Jerusalem and Law, Jerusalem and Justice. It was the Jewish people who gave the world the basic values of law and justice, of human rights. Our object in this seminar is to stress the contribution of Jewish sources not only to the classical legal systems - that contribution is now a 11 r Opening Address matter of common knowledge - but also, and in particular, the vital significance of Jewish law and sources for modem jurisprudence, here and now. We tend at times to place greater emphasis on what we have received from others, and less on what we have and what we have given to other nations. I would like to think that one out­ come of this gathering, as of its predecessors, will be the realization that the legal systems of many other nations have taken up and as­ similated ideas originally propounded in Jewish Law; in many cases, our own system has given birth to ideas that other nations were at first unwilling or unprepated to embrace. I am indeed convinced that much of contemporary Jewish Law will ultimately find its way into the legal systems of the world at large. Jerusalem - that same Jerusalem which is constantly occupying the forefront of the national and international stage - has always been the City of Law and Justice. I do not wish to bore you, and neither would it be proper to mention only some of our speakers. Neverthe­ less, I would like to refer specifically to one lecture, that of our dis­ tinguished visitor, Professor Abdul Hadi Palazzi of Rome. Professor Palazzi, Director of the Istituto Culturale della Comunita Islamica ltaliana in Rome, will speak on the sanctity of Jerusalem to the Jew­ ish people. The sources that he intends to quote, from both the Bible and the Koran, indicate that, just as Mecca is sacred to Islam, so is Jerusalem sacred to Judaism. He sees no contradiction in the fact that Jerusalem, also sacred to the Muslims, should be under Jewish sov­ ereignty. As he tells us, he is no politician; he is merely giving us the benefit of his opinion as a theologian, a religious scholar: there is nothing wrong, he says, with Jerusalem being the undivided capital of the Jewish State, under Israeli sovereignty.