JEWISH LAW AND CURRENT LEGAL PROBLEMS JEWISH LAW AND CURRENT LEGAL PROBLEMS EDITED BY NAHUM RAKOVER The Library of Jewish Law The Library of Jewish Law Ministry of Justice The Jewish Legal Heritage Society Foundation for the Advancement of Jewish Law PROCEEDINGS of the First International Seminar on The Sources Of Contemporary Law: The Bible and Talmud and Their Contribution to Modern Legal Systems Jerusalem. August 1983 © The Library of Jewish Law The Jewish Lcg<1l Heritage Society P.O.Box 7483 Jerusalem 91074 1984 TABLE OF CONTENTS PREFACE 9 GREETINGS OF THE MINISTER OF JUSTICE, Moshe Nissim II LEGAL THEORY Haim H. Cohn THE LESSON OF JEWISH LAW FOR 15 LEGAL CHANGE Meyer S. Feldblum THE EMERGENCE OF THE HALAKHIC 29 LEGAL SYSTEM Classical and Modern Perceptions Norman Solomon EXTENSIVE AND RESTRICTIVE 37 INTERPRETATION LAW IN CHANGING SOCIETIES Yedidya Cohen THE KIBBUTZ AS A LEGAL ENTITY 55 Reuben Ahroni THE LEVIRATE AND HUMAN RIGHTS 67 JUDICIAL PROCESS Haim Shine COMPROMISE 77 5 POLITICAL THEORY Emanuel Rackman THE CHURCH FATHERS AND HEBREW 85 POLITICAL THOUGHT LAW AND RELIGION John Wade THE INFLUENCE OF RELIGION UPON LAW 97 Bernard J. Meis/in THE TEN COMMANDMENTS IN AMERICAN 109 LAW PENAL LAW Ya'akov Bazak MAIMONIDES' VIEWS ON CRIME AND 121 PUNISHMENT Yehuda Gershuni EXTRADITION 127 Nahum Rakover COERCION IN CONJUGAL RELATIONS 137 SELF-INCRIMINATION Isaac Braz THE PRIVILEGE AGAINST SELF­ 161 INCRIMINATION IN ANGLO-AMERICAN LAW The Influence of Jewish Law Arnold Enker SELF-INCRIMINATION 169 Malvina Halberstam THE RATIONALE FOR EXCLUDING 177 INCRIMINATING STATEMENTS U.S. Law Compared to Ancient Jewish Law Stanley Levin DUE PROCESS IN RABBINICAL AND 191 ISRAELI LAW Abuse and Subversion 6 MEDICAL ETHICS David A. Frenkel TRANSPLANTS 195 MosheDrori ARTIFICIAL INSEMINATION: Is it Adultery? 203 Hershel Schachter MEDICAL MALPRACTICE 217 Yitzchak Shapira EUTHANASIA 225 Natanel Roberg THERAPEUTIC ABORTION 233 APPENDIX SEMINAR PROGRAM 245 7 PREFACE Throughout the centuries, the Jewish people never abandoned their legal system; and in our time, with their return to their land and the establishment of the State of Israel, the interrelationship between the laws of the State and the sources of Jewish law has reached considerable dimensions. In 1980, the Knesset enacted the Foundations of Law Act, 1980, which abolished the link of Israeli law with the English legal system, and declared: "If the court in considering a legal question requiring determination, finds no answer to it in any enactment, in decided Jaw or by way of analogy, it shall determine the question in the light of the principles of liberty, justice, equity and peace in the Jewish heritage." In the wake of this legislation, the Ministry of Justice, under the leadership of the Minister, Mr. Moshe Nissim, established a framework of supportive programs in various fields, such as the preparation of legislative commentaries and fundamental texts, and made provision for consultation in order to further the integration of Jewish law into the Israeli legal system. Similarly, the Ministry has initiated series of lectures, workshops and seminars in Jewish law, held in various locations throughout Israel, in order to strengthen the ties of the Israeli Bench and Bar to the sources and elements of the Jewish legal heritage. We are also witness to a growing interest in Jewish law in other 9 countries. Courses in Jewish law have now been established in law faculties and in other departments of universities around the world. This shared interest of the legal community both in and outside Israel in the sources of Jewish law served as the impetus for the International Seminar which took place in Jerusalem in August, 1983, on the topic: "Sources of Contemporary Law: the Bible and Talmud and Their Contribution to Modern Legal Systems." The seminar was held under the auspices of the Israeli Ministry of Justice and with the sponsorship of the New York Comity Lawyers' Association and the Israel Bar, in cooperation with Tel-Aviv Uni­ versity. Participants included approximately 150 judges, lawyers and scho­ lars from various countries. A large group of lawyers arrived from New York, headed by Judge Alfred Kleiman of the New York Supreme Court, who contributed greatly to the success of the con­ ference. The program of the conference appears in the appendix to this volume; all the papers appearing here were delivered at the conference by their authors. with one exception which was pre­ sented as a paper. The organizers of the conference wish to pay tribute to the mem­ ory of Dr. Yedidya Cohen, one of the contributors to this volume, who recently passed away: Yehi Zikhro Baruch. We hope that this conference will be but the first of a series of conferences to follow. For the coming year, a conference is being planned on the topic: "Maimonides as Codifier of Jewish Law", in commemoration of the 850th anniversary of Maimonides' birth. Finally, I wish to express my thanks to all those who assisted in the publication of this volume, and especially to Mr. Peter Elman, who assisted in the preparation of the manuscript, to Prof. Benjamin Greenberger, who provided useful comments and suggestions, to Mr. Ariel Wardi, who contributed to the technical production of the volume, and to Miss Debbie Schick, for her efforts as coordinator of this project. N.R. Jeusalem, Israel 5745 - 1984 10 GREETINGS OF THE MINISTER OF JUSTICE Moshe Nissim I am honoured to welcome the participants of the International Semi­ nar on the Sources of Contemporary Law: The Bible and Talmud and their Contribution to Modern Legal Systems. When we talk ofJewish Jaw, our subject is one of the most ancient of legal systems, with its origins in the Bible. But Jewish Jaw is also very modern in the sense that it has continued throughout the ages to find new responses to new and emerging problems. And what about the relationship between Jaw in the State of Israel and the sources ofJewish Law? A very significant departure has occur­ red recently in this respect. When the State ofIsrael was founded in 1948, we preserved a provi­ sion which the British had enacted in 1922, to the effect that whenever the existing Jaw did not answer or deal with a given legal question the courts were to have recourse to the principles of the Common Jaw and Equity pertaining to England to the extent that the circumstances of the country and its inhabitants permitted. In 1980, this provision was replaced by the Knesset in the Founda­ tions of Law Act which instead enacted a provision under the heading of Complementary Legal Sources, in the following unusual terms: "If the court in considering a legal question requiring determination, finds no answer to it in any enactment, in decided Jaw or by way of analogy, 11 Greetings it shall determine the question in the light of the principles of liberty, justice, equity and peace in the Jewish heritage." This provision opens the door wide to the development and applica­ tion of the principles of Jewish Jaw in our modern legal system. Two examples of the influences of Biblical Law may be brought to your attention. First, the Right ofPrivacy, as to which Biblical Law has indeed already influenced modern Jaw. Protection ofprivacy in secular law has developed apparently only in the last hundred years. In the United States the first reference to this concept came in an article pub­ lished in 1890 by Warren and Brandeis in the Harvard Law Review, in which the opinion that the Jaw should rightly protect a right ca/Jed the "right to privacy" was expressed. Today this idea has crystallized into a legal right protected by appropriate sanctions. Perusal of the Jewish sources, however, indicates that centuries ago the Bible considered privacy an important right. Prov. 11:13 te/Js us that "He that goeth about as a talebearer revealeth secrets." From this, the rule was derived that to disclose a secret was one of the most serious of transgressions, in the same category as slander. In the post-Talmudic period, this principle was extended and applied even to the imposition of sanctions against reading other people's cor­ respondence without permission. Rabbenu Gershom, the Light of the Exile, who lived about 1000 years ago and who is known to us for important legislation regarding family Jaw - the ruling not to divorce a wife against her will and the prohibition of bigamy - prescribed that a person who open 's another's letter without permission should be ban­ ned and excommunicated from the community. In the Middle Ages such punishment was a most serious matter. In Israel, the Protection of Privacy Law, 5741-1981, now regulates the subject. The introduction to the bill of the Law draws attention to the fact that in Jewish Jaw privacy merited protection from early times. Another area of law in which we can see the interesting interaction between ancient Jewish sources and modern legal systems is the Jaw governing the relationship between employer and employee. It is a fundamental principle in modern labour Jaw that an employee has the right to receive severance pay when dismissed from his work. The Bible, Deut. 15:13-14, states that when a slave has finished the term of his employment he is not to be a/lowed to leave empty-handed. 12 Greetings Although the Bible deals with a slave, one of our medieval scholars, Rabbi Aharon Halevy ofBarcelona, in the 13th century, extended the idea to the employer/employee relationship. With the return of our people to Israel in modem times, the practice of severance pay spread, even though there was no Jaw to enforce it. Later when the Israeli courts dealt with the question they ruled that because the practice had become deeply rooted, employers must act accordingly.