Chapter

THE CULTURAL STRUGGLES OVER THE SHAPING OF THE LAW

Menachem Mautner

in Law and the Culture of Israel

Published in print January 2011 | ISBN: 9780199600564
Published online September 2011 | e-ISBN: 9780191729188 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199600564.003.0003
THE CULTURAL STRUGGLES OVER THE SHAPING OF THE LAW

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This chapter discusses a series of struggles that took place in the course of the 20th century over the cultural character of Israeli law. In the first half of the century, a ‘Movement for the Revival of Hebrew Law’ was active in Eretz Israel. It strove to fashion Israeli law in accordance with the contents of the Halakhah, after adaptation to modern jurisprudence. The development of the law in the State of Israel, however, followed an entirely different course. During the thirty years of the British government over Palestine (1918–48), the local legal community underwent an extensive process of Anglicization. In its wake, the law of the State of Israel developed in close association with Anglo-American law and with the political theory that underlies it — liberalism. The call for a linkage between Israeli law and the Halakhah was reasserted following two legislative developments in the 1980s and 1990s. The first was the enactment of the Foundations of Law statute in 1980, stating that among the sources for filling lacuna in the law are ‘the principles of freedom, justice, equity, and peace of Israel's heritage’. The second was the enactment in 1992 of the Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation. These two Basic Laws defined Israel as a ‘Jewish and democratic state’. The grant of standing to ‘Jewish heritage’ in the country's law and definition of Israel as a ‘Jewish state’ served as the basis for a claim that it is the legislative intention to develop Israeli law in affinity with the Halakhah. Supreme Court Justices Menachem Elon and Aharon Barak engaged in a vigorous debate over the cultural orientation to be adopted in the development of Israeli law in the ensuing decades. The debate shed light not only on the two options relevant to the future development of Israeli law, but also on the two main cultural options between which the Jewish people has vacillate! d in the modern era: Western culture and traditional Jewish culture.

Keywords: Menachem Elon; Aharon Barak; cultural borrowing; Friedrich Carl von Savigny; Hebrew law; Anglicization of law; courts; Jewish and democratic state

Chapter.  11766 words. 

Subjects: Jurisprudence and Philosophy of Law

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