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10 Short Position Papers – IV

IV – How To Gain Support From Religious Parties
Professor Paul Eidelberg July 5, 1999.

The religious parties are inclined to oppose a constitution. They fear it will legitimize and further enlarge the power of the Supreme Court, which not only has a Meretz-Shinui agenda, but has usurped powers rightly belonging to the legislative and executive branches of government. (This is why the religious parties—and not only the religious parties—would oppose the Reichman constitution, which would lead to “government by the judiciary.”)

Although our Foundation, which advocates a constitution, includes rabbis—indeed, no less than the renowned Rav Aaron Soloveitchik has consented to serve as our Halachic adviser—still, many religious people object to a constitution saying, “We have a constitution, the Torah.” There are ways of overcoming such opposition.

First, the Foundation has shown that the flaws in Israel existing political system are undermining the State, hence harming religious and non-religious Jews alike. Second, it should be noted that the religious parties supported a constitution proposed in 1949. (For details, see my paper “A Constitution for Israel.”)

Third, it may be asked, with all due respect for Israel’s learned rabbis: “Would investing them with the legislative as well as judicial powers of the Sanhedrin be acceptable to the majority of Israel’s Jewish population—as it must be according to Jewish law? Moreover, on what prominent Jew would the people of Israel be willing to bestow the executive power and life tenure of a king? And where are the prophets who, like those of old, admonished kings who strayed from the Torah?

The fears of the religious aside, we recommend that the powers of the Supreme Court be carefully delineated in any constitution. A constitution may specify that the Court may exercise only procedural, and not substantive, judicial review. Alternatively, the constitution may stipulate, as does Ireland’s, that the President—in a presidential system—may, after consultation with his cabinet, refer any Bill (other than appropriations bills) to the Supreme Court for decision on the question as to whether such a Bill is repugnant to the Constitution.

Most important, however, is this. Any proposed constitution should state that, among the diverse systems of law operative in Israel, Jewish law shall be “first among equals” in every case where an Israeli statute is ambiguous or uncertain, except only where the Israeli statute explicitly differs from Jewish law. This conforms to the Foundations of Law Act passed by the Knesset in 1980, but very much ignored by the Supreme Court which still relies on English law, and more recently on American law.

Consistent with that Act, the constitution should specify that at least two-thirds of the Supreme Court’s membership should be learned in Jewish as well as secular law. This will allay the fears of religious Jews. And as Professor Menachem Alon, former Vice-President of the Supreme Court, has shown, further incorporation of Jewish civil law into Israel’s legal system would foster unity among Jews of diverse ethnic backgrounds.

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