Category Archives: Religion and State

Israeli Hamshoosh

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Written by Yair Berlin, Eitan Yarden,

Aviad Houminer and Ariel Finkelstain

The idea of fixing another official day of rest in the State of Israeli has come up on numerous occasions in the course of public debate, as well as in the Knesset, since the year 2000. Traditionally speaking, those advocating an additional official day of rest for the Israeli economy propose Sunday. The most serious proposal to be submitted thus far suggested that most of Sunday’s work hours be made up on Friday, which would, in turn, become a part-time work day, while the remaining hours would be made up by adding half an hour to each work day, Monday through Thursday. Those in favor of the move made the following claims: Such a move would strengthen the Israeli economy by making it compatible with Western economies around the world in terms of rest and work days; it would also strengthen the various fields of culture, sports and tourism and render numerous solutions – aimed at settling the religious status of the Sabbath – feasible.
The writers of this position paper believe that the claims made in favor of the new national work schedule and its ability to promote new regulation with regards to the status of the Sabbath are exaggerated. It is possible, though, that as part of an overall arrangement regarding the status of the Sabbath, such a proposal might take the edge off some of the more heated points of dispute; however, a broader view of the Sabbath issue suggests that the subject proposal should be considered as no more than a minor tool in this regard. It is not an essential component. The central focal point in any arrangement settling the official status of the Sabbath must be one that offers solutions from within the current Sabbath framework with adjustments to make it more amenable to all levant parties.
As to the claims of economic benefit from such a step, an inter-ministerial committee which examined the proposed change, headed by Israel’s National Economic Council, pointed to numerous negative economic consequences. It was the committee’s opinion that the main disadvantage of the proposal lies in the fact that by turning Friday into a short work day, and extending work hours on other weekdays, productivity will be reduced, resulting in a lower GDP and ultimately in less money for every citizen. For this reason, all the central economic bodies in Israel have objected to the proposal, claiming that it would harm Israel’s economy. Some other significant objections were made claiming the move was unfeasible due to the heavy traffic congestion that would result from the partial work day on Fridays, and also because significant entities like the IDF and parts of the education system would not fit in with the new work schedule, thus making it even less feasible. The Moslem and Druze communities, comprising about 20% of Israel’s population, have also voiced their objection to the move, which would turn Friday – regarded by them as a sacred day – into a an official, albeit part-time, work day. Although the committee agreed that the move would be advantageous to sports and cultural activities in light of the numerous disadvantages. It decided to reject the proposal.
Two different public opinion polls concerning this matter show that about 50% of the public supports the proposal, while 43-44% oppose it, even if it entailed a reduction in work hours. Among the supporters, many said that if the move would harm their personal finances in any way, they would oppose it.
In light of the above, this position paper proposes a change of course in the public debate. We advocate making Friday a full day of rest, thus creating a long weekend, beginning Thursday night and ending Sunday morning. We believe that most of the advantages to sports and culture resulting from a day off on Sunday, can also be achieved by means of this proposal, with a special focus on integrating religiously observant athletes in sports competitions.
Our proposal also fits in nicely with the recommendation of the Dovrat Committee to cancel school studies on Friday, resulting in a 5 day school week which is common in most Western countries. This would also save large sums of money. The proposition to cancel school studies on Friday has also received the support of parents’ unions, which have long advocated contiguity brtween the school and work weeks. An additional advantage, is that Friday, a sacred day for Moslems and Druze, also becomes a national day of rest. The very fact that the State will recognize Friday as an official day of rest will serve to strengthen ties between these groups and the State, and might even strengthen the integration of these groups into the labor market. In contrast to the proposal promoting Sunday as the official day of rest which would be very costly, declaring Friday as an official day of rest involves minor costs so that the change is more feasible.
Furthermore, in the appendix to this position paper there is a proposition for employers and employees to reduce the work hours on Thursday by two, while extending the other work days by a half hour, thus enhancing the quality of the Israeli Hamshoosh – an extended weekend beginning Thursday afternoon, including Friday and Saturday as official days of rest.

to the full research…

Official Days of rest Around the World

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Written by Ariel Finkelstien and Tomer Yahud

 

This study examines the laws of commerce and employment on the official day of rest in most of the developed countries around the world :

1. Rest Days: In the overwhelming majority of developed countries, most of the citizens work Monday-Friday while Saturday and Sunday serve as rest days. In general however, countries do not set Saturday as an official day of rest, and only some countries declare Sunday as a rest day.

2. The Scope of Restrictions: While most Western European countries have various restrictions on commercial activity on the rest day, in the majority of countries in North America, Eastern Europe, Scandinavia, East Asia and Oceania there are no such significant restrictions.

The most distinctive finding arising from the study is a global trend of decline in restrictions on commercial activity on rest days. This trend began in the 1970’s, intensified during the 1990’s, and reached its peak in recent years in Europe with the reduction of restrictions on commerce on the day of rest in Italy, Spain, France, Greece, Portugal, Finland, the Netherlands and Denmark although some of these countries still maintain significant restrictions. In practice, South Korea is the only country in which restrictions were increased in recent years. Nonetheless, even today there are still a considerable number of countries – such as Austria, Switzerland, Belgium, Germany and Norway – in which almost no commercial activity is permitted on the rest day.

3. Types of Restrictions: There are a number of different types of restrictions on trade activity on rest days: Total restriction on commerce with vut s few exceptions; the designation of a number of Sundays on which commercial activity is permitted; the granting of decision-making powers to local government; the restriction of the activity of businesses of a certain size (measured by area); the imposition of restrictions or the granting of exceptions to certain sectors.

4. The Public Discussion: The central groups supporting restrictions on commercial activity on rest days are generally trade unions and small business owners interested in instituting Sunday as an official rest day. In addition, religious groups such as the Catholic and other Churches have an interest in devoting Sunday to church attendance and other religious activity. On the other hand, the support for removing restrictions on commercial activity on the rest day is usually provided by consumer groups interested in utilizing it for shopping and other consumer activity. In addition, they argue that denying them this possibility constitutes an infringement of their individual liberty. Other supporters of lifting restrictions claim that doing so will serve to strengthen the economy.

5. Labor Laws: Many countries have legislated laws that determine that an employee may be employed on the official rest day only with his/her freely given consent, and that refusal to so work cannot be grounds for non-employment or for termination of employment. In most countries, the employer is obligated to allow a substitute day of rest and 53% of the countries examined in the study (23 out of 43) have instituted a salary increment of between 50%-100% to be added to the regular salary for working (voluntarily) on Sundays.

To the Full Report

Taxation of Kabbalists in Israel

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Dozens of Rabbis in Israel, who are known as Kabbalists (mekubalim), function in Israel. They are involved in giving blessings for success, providing personal or business advice, and mediating between businessmen. Remuneration given for these services is generally considered as a donation to the Kabbalist, for which they are not required to pay any taxes.

In the public debate about the appropriateness of this tax exemption, much of the blame is directed at the Kabbalists. This position paper discloses how the Israel Tax Authority has discussed this issue for more than a decade, and has still not succeeded in formulating a uniform policy which is enforced.

From 2004, the Israel Tax Authority and the Ministry of Justice have repeatedly advocated that Kabbalists’ income should be taxed. Two formal opinions to this effect have been promulgated, one by Attorney General Elyakim Rubinstein in June 2004 and the other by his successor, Meni Mazuz, in March 2005. Neither was implemented. Only in August 2008 did the Israel Tax Authority start moving in this matter, but in 2014 the State Comptroller held that this effort was highly inadequate, nd that the system was not mobilized to effectively tax the Kabbalists.” In addition, various statements by the State Attorney General in court, claiming that the matter was close to fruition have not proven accurate.

The need to tax the Kabbalists was once again raised in the State Comptroller’s report of October 2014. The State Comptroller also pointed out that hundreds of millions of Shekels are paid to these Kabbalists without any taxation and that there are well-founded concerns that some of these payments are being used to launder the funds. The Comptroller also found that the Taxation Authority not consistent in its enforcement efforts regarding certain Kabbalists.

Based on the State Attorney’s report, we assert in this position paper that the main reason for not taxing the Kabbalists lies in the fact that the Taxation Authority has not been able to formulate a clear-cut policy regarding this unique type of income. This position paper shows that, despite the State Comptroller’s recommendation to set a specific policy for this issue, the memorandum draft issued by the Taxation Authority in June 2015 did not achieve this goal, and it persists in applying the current blurred and hazy policy, which will most probably lead to a situation where no consistent and effective taxation of the Kabbalists will be implemented.

We conclude, therefore, that this tax irregularity can be corrected only by legislation in the Knesset; that reform by regulation simply will not happen. Accordingly, the policy proposed in this position paper, supported by representatives of the State Comptroller’s Office and of the Taxation Authority, is to define by law that gifts received by a person from a non-family member shall be deemed income and must therefore, be taxed in the same manner as all income.

The full position paper (Hebrew)

“Ethnic-Based Duplication in the Israeli Rabbinate”

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By Ariel Finkelstein

The ingathering of the Jewish people during the 20th century has led to a significant change in the role of the rabbinate. Up until that period the custom had been for one rabbi, called the Mara D’Atra(lord of the place), to be appointed for each community or city. The 1911 appointment of two rabbis – one Ashkenazi and one Sephardi – for the city of Jaffa and the 1921 appointment of two chief rabbis created the ethnic-based duplication customary to this day in the chief rabbinate and in many cities, townships, and regions.

This position paper surveys the historical development of the laws, regulations and legal rulings dealing with ethnic-based duplication in the chief and local rabbinates and raises three main problems caused by the duplication:

  1. Maintenance of the ethnic-based split: The basis for the duplication rests in the need of different ethnicities for a rabbi identified with their own group, but from the very foundation of the chief rabbinate it was hoped that the need for ethnic-based duplication would rapidly disappear. It is difficult to find any indication of whether the need still exists, but from claims made by committees which have discussed the issue, by members of Knesset from all parts of the political spectrum, and by important rabbis, it seems clear that in the year 2014 there is no longer any real need for two rabbis from different ethnic groups. The increased number of inter-ethnic marriages creates a situation in which the Supreme Court will be forced, in the not-too-distant future, to decide who is to be considered Ashkenazi and who Sephardi. At the same time, the ethnic-based duplication ignores some ethnicities, such as the Yemenites who see themselves as neither Ashkenazi nor Sephardi. From the very founding of the country representatives of the Yemenite community argued that the duplication should be eliminated and that a single rabbi be appointed without consideration of his ethnic background.
  2. Reduced functionality:  In both the Jewish and the democratic traditions it is accepted that there cannot be two kings sharing the same crown, and therefore each role which includes a decision-making component is filled by only one person. Experience shows that in many cities – and often even within the chief rabbinate – having two rabbis serve at the same time leads to disputes and even to discord between the rabbis, a situation which negatively impacts the religious services given to residents (for example, in kashrut divisions).
  3. Financial burden on religious councils: Religious council budgets are set with no thought to the number of rabbis serving in the city. In 2001 the State comptroller noted that religious councils in local authorities and in the smaller cities are finding it hard to shoulder the financial burden of two rabbis’ salaries. Statistics show that rabbinical salaries in jurisdictions with two rabbis run more than a million NIS on average. For more than 60% of such jurisdictions this represents more than 30% of the religious council budget.

The State comptroller, a number of professional committees over the past two decades, former chief rabbis, and many Knesset members have called for a substantial reduction and even the complete elimination of ethnic-based duplication of rabbinical positions. In 2003 the government issued a decision on the matter, but nothing practical came of it. An analysis of the issue shows that as far as local rabbinates are concerned, the central force for leaving the matter as it stands is sectarian calculations of political parties, who have an interest in appointing as many partisan rabbis as they can. Therefore the situation persists despite the relative consensus amongst the various professional bodies.

to the full position paper (in Hebrew)

Rabbinical Appointments in Israeli Cities

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 Eitan Yarden and Ariel Finkelstein

The process of choosing a city rabbi in Israel is difficult, complicated and subject to a host of political scuffles. In recent years, the situation has worsened and nearly every appointment of city rabbi has faced challenges in court, where they get held up for years. Therefore, several recent Supreme Court rulings have mentioned the need to change the appointment procedure. This position paper will present ideas to fix some of the problems which have been discovered in the current process.

The first part of the position paper discusses the appointment process.

The halachik, historic and legal background to the appointment process is brought, leading to the following conclusions:

  • Appointment of a local rabbi must be based on the will of the public he is meant to serve.
  • The choice can be made directly by the local public, by a committee appointed by the local public, or by the local authorities chosen by the local public. The method of appointment should reduce irrelevant criteria and should be chosen in order to minimize unnecessary public disputes.
  • A rabbi should not be chosen by the local authorities against the will of the local public.
  • Rabbinical leaders must be involved in the creation of a short-list of candidates, but they have no authority to appoint a rabbi against the will of the local public.

The paper then reviews the history of city rabbi appointments from the founding of the State until today. It can be seen that over the course of recent years the involvement of the Minister of Religion in the appointment process has increased. The law advises the minister to issue procedures for the process of choosing a city rabbi, but does not grant him direct authority to make such appointments. The increased involvement of ministers of religion violates the provisions of the law.

Problems caused by the procedures for choosing rabbis are discussed. According to the currently applied procedures, the body responsible for choosing a city rabbi is composed of representatives from the local religious council (25%), the local governing council (25%), and the local synagogues (50%). Amongst the problems the process creates are:

  • The non-religious and female population is poorly represented on the appointment committee.
  • The various ministers of religion were often involved in the process of choosing an appointments committee and in choosing the representatives from the local synagogues, though this involvement was in violation of the law. Such involvement swayed the appointment process in favor of the minister’s preferred candidate.
  • The procedures do not clearly define who should be the appointments committee representatives from the local religious council nor from the local governing council. This leads to power grabs when it comes to appointing representatives.
  • There is a problem with allowing representatives of the local religious council on the committee, both because the council is appointed [mainly by the Minister of Religion and not chosen] and because the council is bound to the halachik rulings of the very city rabbi who they are helping to appoint.
  • Procedures do not require that the Minister of Religion appoint a rabbi for a city which does not currently have one. Some ministers used this loophole to delay the appointment of a rabbi when they feared their preferred candidate would lose.

The second part of the position paper discusses a question which arises as a consequence of the appointment process: how long is the term of a city rabbi?

Historically, most Israeli communities appointed their rabbi for short terms of between three and five years. Most halachik rulings do not find a fault in appointing a rabbi for a specified term and there are even rulings which permit removing a serving rabbi mid-term if the public is unhappy with the rabbi’s functioning.

Looking at Israeli history prior to statehood we see that the first procedures called for rabbis to serve a term of five years. In 1974, it was decided that rabbinical terms are not to be limited to a specific number of years but should instead be limited to the rabbi’s age: at age 75 (or 80 with the permission of the chief rabbinical council) he must retire. In 2007, the retirement age was lowered to 70 (75 with permission of the chief rabbinical council). In practice, the chief rabbinical council automatically extends the service term of every rabbi.

There are two main problems with this procedure:

  • There are rabbis who were appointed many years before and are no longer accepted by the public, either because of changes in the community or dissatisfaction with the rabbi’s functioning. In both cases, the community does not have a way to change rabbis.
  • Many rabbis continue to serve though they’ve passed retirement age.

The third part of the position paper focuses on operative suggestions for change. It is suggested that the procedure for appointing city rabbis be changed in the following ways:

  • The Minister of Religion should not be allowed to delay the local council’s appointment of the city’s first rabbi.
  • The composition of the appointment committee should be in keeping with the following principles:

o       Appointments must reflect the will of the community.

o       Community members who will use the rabbi’s services in the future should have more input than those who will not use his services.

o       The appointment process should be simple and well-defined so that public and legal battles over implementation can be prevented.

  • A proposal which balances the above principles calls for the appointment committee to be composed thus:
  • 50% of the members will be from the local governing council, reflecting the will of the local community.
  • The remaining 50% will be a group chosen by the entire local governing council and will be composed of rabbis (certified by the Israeli Chief Rabbinate) and religious court advocates of both genders who reside in the city.

The following suggestions apply to rabbinical term limits:

  • The term of city rabbis will be limited to a ten-year term. At the end of this term the rabbi may seek a second term of office and then a third, etc., until reaching retirement age.
  • A grace period shall be set after which these limits will also apply to rabbis currently serving.

The revised procedures should be anchored in law and not merely in decisions by the Minister of Religion. This will give them added weight and stability and will prevent frequent changes stemming from changes in the makeup of the government.

to the full position paper (In Hebrew)

Sabbath and Jewish Holiday law

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Nadav Eliash

In recent years the Knesset has seen a number of proposed laws, based on the Gavison-Medan Covenant, meant to regulate the status of the Sabbath in Israel. To date, no such law has been passed.

The covenant seeks to regulate matters of state and religion on the basis of consensus among religious and secular and includes a long section devoted to the Sabbath, concluding with an agreement based on limitation of trade and industry alongside the opening of entertainment, cultural, and leisure venues. The Covenant also calls for a limited amount of public transportation on the Sabbath.

This position paper presents the theoretical background behind the need for a law to regulate the status of the Sabbath in Israel.

The first section surveys the current legal and practical state of the Sabbath. It shows a problematic reality which allows divergence from the law-makers’ intentions and creates confusion and a lack of consensus between the religious and the secular.

Next, the urgency and import of regulating the matter will be presented.

The second section discusses with the social aspect of the Sabbath.

The third section focuses on the national-cultural aspect of the Sabbath.

The fourth section deals with legal issues which arise from restrictive laws about the Sabbath.

The fifth section expands the discussion while comparing the way other Western countries have dealt with legislating restrictive laws about days of rest.

Finally, the conclusion will once again stress the importance of the Sabbath in the context of Israeli cultural heritage.

to the full position paper (in Hebrew)

The Conversion Crisis in Israel

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Ariel Finkelstein

As a result of the opening of the immigration floodgates over the past two decades, there are currently some 318,000 citizens of Israel classified as without religion or as Christians who identify with the Jewish majority. Within 15 years that number will reach approximately 400,000. This situation creates problems and challenges for the State of Israel, both in terms of the specific citizens’ personal statuses and in national terms.

Even though following the 2008 recommendations of the Halfon Committee on conversion Israel has invested great resources in the official conversion mechanism and despite the natural increase in candidates for conversion, there has been a decrease in the number of converts over the past few years. Even before this, the number of converts had been below expectations.

Surveys show that most immigrants who are potential converts do not even consider the option, for two main reasons: a lack of basic motivation to convert and the policies and administration of the conversion courts. One-third of immigrants who do start the conversion process never finish it.

The State Comptroller’s latest report points to a series of problems in the courts: on the administrative level the report speaks of many failures such as a shortage of mohels and of mikvahs, delays in issuing conversion certificates, illegally charging converts for the process, not staffing the position of conversion system supervisor, and the tardiness with which judges arrive at hearings. More significant problems were found on the strategic level: the State Comptroller has claimed that the conversion division operated without defined work plans and without consistent oversight. Another significant problem raised by the report is that much of the division’s budget went to funding Jewish identity projects though fewer than half the program graduates went on to convert. The report also showed that the government decisions to create a ministerial committee about conversion and the call for distance learning courses for converts were never implemented.

Beyond the technical and strategic problems existing in the conversion courts, the main obstacle to those seeking conversion is the halachic demand that converts fully accept the obligation to fulfill all the commandments. This ruling is upheld by a majority of religious judges, but rabbis who have been involved in conversions have presented more lenient approaches. Former MK Rabbi Chaim Amsalem has stated that if there is a reasonable chance the candidate will fulfill the commandments he should be allowed to convert and Rabbi Yosef Avior has stated that converts should not be required to scrupulously fulfill all 613 commandments; a minimum of Sabbath and kashrut observance, a commitment to giving their children a religious education, and commemoration of Jewish holidays ought to suffice. Rabbi Yoel Bin-Nun has gone so far as to suggest that mass ritual conversion ceremonies be held, based on a process of basic Jewish education.

Two significant proposals about conversion were raised during the term of the last Knesset but never got to the stage of becoming laws. One, called the “Conversion Law,” was proposed by MK David Rotem and would have allowed city and local council rabbis to conduct conversions. It was opposed both by the Charedi parties, who feared that an increased number of rabbis authorized to conduct conversions would lead to a more lenient conversion policy, and by the Reform and Conservative movements, who argued that the law would give the Chief Rabbinate and Orthodoxy an absolute monopoly on conversion.

Another law would have normalized the status of army conversions. MK Rotem along with MK Robert Ilatov proposed the law after rabbinical court judges had questioned the conversions, but once Rabbi Ovadiah Yosef authorized army conversions, the law was no longer on the agenda. MK Rotem continued unsuccessfully to push for his law; he felt that the Chief Rabbinate could change its decision in the future and that the matter ought to be set in law.

There are other important issues in the area of conversion. Some are on the public agenda and some are currently the subjects of appeals to the High Court of Justice. These issues include the status of people converted in private rabbinical courts, the status of people converted by Orthodox practice abroad, and the authority of the Conversions Exceptions Committee, which deals with requests by foreigners to convert in Israel.

The Gavison-Medan Covenant offers a different view of conversions. According to the covenant, a new category of “joined the Jewish nation” ought to be established, with conversion to halachic standards being only one of the possibilities for membership. Gavison and Medan argue that this allows circumvention of the halachic minefield and bypasses the internal discussion of conversion in religious circles while allowing the government to see the person who is halachically non-Jewish as having a substantial connection to the Jewish people. Taken as part of the wider picture presented in the Gavison-Medan Covenant (including civil interment and civil marriages with some restrictions) we find a significant change: this process will free the Gordian knot created when the government tried to dictate its religious outlook to the rabbinical world and charges the government with the responsibility of finding answers to the problems of citizens’ personal status during life events such as burial and marriage.

to the full position paper (in Hebrew)

The Race for Jurisdiction

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By: Ariel finkelstain, Arieh Ulman

Assisted: Roy yellinek, Daniel Wildlansky

The first chapter of this position paper will present the legal background, the current situation, and the implications of the issue commonly known as the “race for jurisdiction.” The existing legal situation in Israel has the rabbinical courts as the only system authorized to settle divorce cases and the giving of a get. The attendant issues in the divorce (property division, custody, and alimony) can be decided in either the rabbinical or the family courts. The crucial element in deciding which legal system will resolve disputes on these matters is a chronological test: the system in which the first claim was made is the system which will hear the case.

The second chapter of the position paper presents the different ideas which have been proposed to untangle this complicated situation, testing the advantages and disadvantages of each.

The main section of the position paper is the third chapter, which presents a new idea for ending the race for jurisdiction based on the points raised in the first two chapters. The main idea in the proposal is that when registering for marriage the couple would jointly decide their preferred legal system in case of future divorce proceedings. In case of a divorce, the attendant issues would be decided in the chosen system unless the couple jointly prefers the other system. This would preclude a race between the partners and would prevent unnecessary conflict and complications.

In addition, in line with the Shenhav Commission conclusions the proposal suggests that hearings on matters of family law only be scheduled after a request for settlement of conflicts. After the request, the conflicting sides will be summoned to a meeting and will have to decide if they agree to continue with conflict resolution or if they would prefer a legal court hearing.

Similarly, two sections of the proposal refer to a specific change in the process of rabbinical court hearings
First, in keeping with the conclusions of the Dikovsky Commission and the Gavison-Medan Covenant, it is suggested that when, in the course of a divorce, the couple agrees that the rabbinical court will conduct the hearing based on the laws of the Torah – the rabbinical court will have the authority to hear the case. It is also suggested that if a couple agreed, when registering for marriage, that the rabbinical court will hear any future divorce case, they will be asked again at the start of divorce proceedings to refine their choice: the rabbinical courts using the Torah’s system of laws with a further obligation to civil law and precedent (the current situation) or the rabbinical courts based solely on the laws of the Torah (as arbitrator).

This proposal has five main advantages:

1. The main advantage: The end of the sad state of an race for jurisdiction. The proposal suggests a way for divorce cases to be handled properly and not based in suspicion and distrust between the couple. The proposal recognizes that during divorce proceedings the couple finds it difficult to agree, since each would prefer the legal system which gives them a current advantage. When the choice is taken at the stage of marriage, the couple can reach an agreement based on their true life style and values. The proposal would also halt the lengthy legal discussions about which system is qualified to discuss which cases; the legal system will save a great deal of money and the process of divorce will be quicker and easier.

2. Competition and efficiency: The proposal would create competition between the two systems and thus force efficiency measures upon them both. If the family court or the rabbinical court creates complications or uses irrelevant criteria for its discussions, it will find its reputation damaged and couples getting married will choose the other system.

3. The end of religious coercion: According to the proposal, there will be an end to the widespread phenomenon of a person who does not see himself as obligated by religious law being forced to go to the religious courts because the other side “dragged” him there, thinking that legal system would be to their advantage. Similarly, a person who does see himself obligated to religious law will no longer find himself required to conduct divorce proceedings in the secular courts.

4. Limitation of the coercion of the religious courts: The proposal would partially free the religious courts from the Bavli ruling (1992) which mandated the rabbinical courts act in accord with the principles of egalitarianism and civil law even when that would contradict religious law. The religious public who so wished could have their case heard according to the Torah’s laws without anyone being under coercion.

5. Halachic preference: One of the reasons why the race for jurisdiction is heating up is the rabbinical court opinion that proceedings in the family court are forbidden under the religious rule against going to secular/civil courts. According to some religious opinions, making the decision about a preferred legal system at the stage of marriage solves this problem, as those opinions see no halachic prohibition against stating an advance preference for a civil court.

This proposal solves the race for jurisdiction problem for couples yet to marry but not for couple who have already married. However, as the Central Bureau of Statistics reports that about 50% of couples who divorce do so within the first ten years of marriage, within a few years this proposal will have provided a solution for most divorcing couples.

The proposal also suggests an intermediate step appropriate for those already married. Because of political expediency, this proposal is a compromise which does not fully satisfy either side. In this proposal rabbinical courts will be granted the power to decide monetary issues (without connection to divorce proceedings) which private courts were granted under the authority of the Arbitration Law. This was the policy in place until 2006, when the High Court of Justice ruled that until the rabbinical courts’ legal authority to do so was explicit in law, they had no right to settle monetary disputes as arbitrators. On the other hand, as a way of solving the race for jurisdiction it is proposed that when a claim is made to the rabbinical courts the other side will be allowed thirty days to transfer the case to the family courts, in whole or in any part.

to the full position paper (in Hebrew)

The Israeli shabbath

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By Nadav Eliash, Aviad Hominer, Eyal Berger, Ariel Finkelstain

The Israeli Sabbath – a proposal for normalizing the status of the Sabbath in Israel in keeping with the Gavison-Medan Covenant.

The debate over the status of the Sabbath has been raging in Israel since the advent of Zionism. The first Zionist settlements in Israel debated the nature of public observance of the Sabbath. Central to the debate was a vision of the public space in the renewed Jewish community and the Sabbath served as an important and concrete symbol. The battle over the Sabbath atmosphere has continued until today, and no proposed formula for respecting the Sabbath in the public domain has gained general acceptance.

In recent years many attempts have been made to reach such an agreement and to word a law which will structure and formulate the status of the Sabbath as a day of rest. Such a formulation would benefit the public and would protect the unique character of the State of Israel as a Jewish state. The attempt which achieved the widest acceptance was that of Prof. Ruth Gavison and Rabbi Yaakov Medan, whose Gavison-Medan Covenant was published in 2003.

This position paper will provide an overview of the status of the Sabbath in Israel, 2014.With this status in focus, we will propose a law to normalize the public character of the Sabbath consistent with the terms of the Gavison-Medan Covenant.

The first section of the position paper surveys the history of the Sabbath in Israel, concentrating on the erosion in its status over time. Since the 80s the status of the Sabbath has slowly been reduced within the cities, and in the 90s many urban shopping centers and malls started opening their doors on the Sabbath despite active protests by observant circles. Similarly, in violation of the status-quo, traffic through religious neighborhoods on the Sabbath was ruled by the Supreme Court (in a decision on the Bar Ilan Street controversy) to be a necessary condition for the secular minority’s freedom of movement.

This section also shows the legal and judicial status of the Sabbath and the trend towards weakening and narrowing the Sabbath’s sphere of influence, as reflected in legal rulings. The various laws about the status of the Sabbath are divided into those with a social aspect (such as the law regulating work and rest hours) and those focusing on the religious aspect (municipal laws). An analysis of the various rulings on the matter of the Sabbath shows that the courts tend to favor the social aspect of the Sabbath and work to suppress the religious aspects which have found expression in existing laws. In general, one can point to a trend toward reducing the influence of the Sabbath and strengthening individual rights at the Sabbath’s expense.

This section explains the need for a clear and uniform law which will regulate the status of the Sabbath in Israel.

The second section deals with the issue of work on the Sabbath and shows that Israelis are employed to work on the Sabbath in major shopping centers outside urban areas (such as Shefayim-Ga’ash), both in industry, and in commerce.

This situation leads to a host of social problems: 15% of all workers in Israel are employed on the Sabbath and most of them are Jewish. Most of those who work on the Sabbath do not get an alternate day off, and at least two-thirds of them would prefer not to work on the Sabbath. Most of the workers have families and come from the weaker socio-economic groups.

The solution proposed in this section would establish in law that industry and commerce, including factories, banking, stores, distributors, and malls, should not open on the Sabbath. However, we recommend allowing entertainment, leisure, and cultural venues such as restaurants, theaters, museums and the like, to open in neighborhoods and towns without a significant majority of Sabbath observers so long as they follow existing rules of location and noise limitation.

We find that there are a number of justifications for the division between commerce and entertainment. First, by its nature the entertainment and leisure industry employs a great number of young people in temporary jobs. In contrast, industry and commerce tend to employ older people who have spouses and children and who stay at their places of employment for many years. Second, entertainment is meant to fill free time and so is of limited appeal during the workweek and of greater appeal on the Sabbath, when people have free time. Commerce, on the other hand, was not meant to fill free time but to allow for the purchase and acquisition of goods. These functions can be filled during family time over the course of the week and need not take place on the Sabbath. Third, opening places of business on the Sabbath creates a different atmosphere of competition and balance of incentives than does opening places of entertainment and leisure. The opposing considerations in commerce are different than those in the realm of entertainment. In commerce the forces are more competitive and market forces will wreck havoc on anyone who wishes to remain Sabbath-observant.

In any case, the conceptual distinction between entertainment and commerce does not have to be absolute. The proposal seeks appropriate compromise which allows a sufficient “normal” lifestyle without mortally injuring either freedom of employment or the special nature of the Sabbath.

The third section deals with the operation of public transportation on the Sabbath and the implications of the status-quo for those wholly dependent on public transit, those people who cannot move about without public transportation. This group is mainly composed of people from the weaker socio-economic groups, including young people and students. A complete cessation of public transit on the Sabbath would severely impair their ability to travel on the Sabbath and would create inequity of access to places of entertainment, dividing those with licenses and cars from those without licenses or cars.

Therefore this section proposes a limited form of public transportation on the Sabbath based on shared taxis run by interested municipalities. It would run on a Sabbath schedule and would strive to preserve the Sabbath character to the greatest degree possible. Suggesting that transit take the form of shared taxi services and not buses is based on two attempts to lessen the impact on the character of the Sabbath:

First, the use of shared taxis causes less harm to the character of the Sabbath in the public sphere than does the use of buses, for they are smaller and less conspicuous vehicles. Second, unlike buses, shared taxis are regulated by the Ministry of Transportation but not subsidized by the state. Keeping the state from subsidizing public transportation on the Sabbath has great symbolic and halachic value and allows those so interested to draw a parallel between shared taxis and private cabs, which have never been seen as a form of public transportation to be prohibited on the Sabbath.

Similarly, it is suggested that there be no affirmative provision for operation of public transiton the Sabbath; rather, the law should state what transportation is prohibited, thus, in effect, allowing that which is not expressly forbidden. It is suggested that the same sort of wording apply to entertainment, leisure, and cultural activities as well. Wording any law in the affirmative (“Public transportation will operate on the Sabbath”) will make it unnecessarily difficult for many of the religious elements to support the proposal, for it would entail direct approval of an act expressly forbidden by halacha. We therefore recommend that any law be worded only in the negative. This distinction was first made by Rabbi Yisrael Rozen of the Zomet Institute and was used in a law proposed by former MK Zvulum Orlev (Mafdal), endorsed by a number of prominent Religious Zionist rabbis.

The fourth and final section presents the general proposal we seek together with explanations and support based on the findings in the previous three sections.

to the full position paper (in Hebrew)

The Kashrut Structure – An overview, obstacles, and the proposed “State Privatization” solution

By | Religion and State | No Comments

Written by Assaf Greenwald, Noam Benaiah, and Ester Brown-Ben David

With the Assistance and Guidance of Ariel Finkelstain

Israeli lawmakers have granted the Chief Rabbinate and the local rabbinates exclusive privileges on matters of kashrut certification and importation of kosher food. This legal situation (in common with most monopolies) leads to bureaucratic and professional problems and complications. These problems have created difficulties for owners of food industry businesses who wish to obtain kashrut certification so as to expand their clientele. Consumers of kosher products are also affected by the not-uncommonly sub-par level of local rabbinate supervision of food manufacture, preparation, and presentation.

Ever since the chief rabbinate was given authority over kashrut as part of the Chief Rabbinate legislation many committees have been convened, many recommendations have been written, and many words have been spoken about the kashrut situation in Israel. Discussions focused on the deficiencies of the system and possible ways to fix it. None of the suggestions has led to significant improvements and lately it seems as though the Israeli public — certainly segments of the public — has given up and has reluctantly begun the search for alternatives, some of which are illegal. One example can be seen in the “social kashrut certification” which is gaining traction in Jerusalem and its environs.

This position paper first surveys the kashrut structure as it now is and details the main problems when compared to the American kashrut system. Following this, the position paper surveys the various proposals for reform of the Israeli kashrut structure and analyses the advantages and disadvantages of each. The main goal of this position paper is to present and explain in detail a different, unique solution which would serve as a suitable compromise between the different approaches to questions of state and religion and which might lead to the desired change. This solution, first proposed as a way to deal with problems in the marriage registration system, champions the creation of kashrut regions, thereby breaking the monopoly of the local rabbinates by allowing business owners who seek kashrut supervision and certification to turn to any local rabbi they choose. This could be called “governmental privatization,” despite the oxymoron.

To deal with the fear that a local rabbi would lower to a bare minimum the halachic and administrative demands on a business seeking or holding certification, we suggest the establishment of a kashrut administration in the chief rabbinate which would serve as the highest halachic and administrative authority in the field. This halachic unit would set minimum halachic standards for granting kashrut certification and would adjudicate complaints against local rabbis. To prevent a business which had lost its local kashrut certification from turning to another rabbinate for a new certificate, a computerized system will coordinate the data regarding each business which holds a kashrut certificate, has held such a certificate in the past, or has requested a certificate and been rejected.

In addition, to prevent a supervisor being too far away from the business he supervises and to prevent a situation in which a flood of businesses turn to a local rabbi who is extremely lenient in his halachic and administrative requirements for kashrut certification, we suggest the following two refinements:

The country will be divided into 15 regions. A business can obtain supervision and kashrut certification only from local rabbis in its own region.
The only local rabbis authorized to provide kashrut services to business not in the area of their responsibility will be the chief rabbis of cities with populations of at least 100,000. Local rabbis of smaller areas who wish to provide kashrut services outside the area of their responsibility will have to band together so that the collective number of residents in the area of responsibility is no less than 100,000.
Creating regions of kashrut registration has a number of advantages:

Encourages competition and efficiency: Experience abroad shows that competition in the area of kashrut does not necessarily lead to reduced halachic compliance quite the opposite: it leads to system-wide efficiency measures which work to the benefit of both kosher consumers and the businesses which wish to hold kashrut certification.

Equality: Creating regions will lead to an equal playing ground for businesses. There will be no situations in which two neighboring businesses are similarly managed but only one is granted kashrut certification.

Reducing the power of Badatz and politically-appointed local rabbis: There are fears (as noted in the first chapter of this position paper) that local rabbis tie the granting of government issued kashrut certification to the procurement of kashrut services from a Badatz. The proposal would prevent such situations by allowing business owners to turn to a local rabbi who does not tie such services together.

Reducing coercion of businesses seeking kashrut certification: A business can approach kashrut supervision agencies other than the local rabbi to whom they are subject. The absolute dependence on the local rabbinate will end.

Political viability: Against a background of increasingly strong calls for the privatization of the kashrut mechanism along with all other religious services, creating regions for kashrut will allow the creation of meaningful change in the field without privatization Thus, for groups who find maintenance of the state’s authority in religious matters to be important, the move will not be seen as harmful, and in fact will be seen as quite the opposite.

Increasing the number of kosher establishments: The creation of regions is expected to make the process of obtain kashrut certification and the activities of the chief rabbinate more efficient. If this does happen, it is likely that it will create an increased demand for kashrut certification, which will serve the interests of the religious and traditional sectors, who will be able to enjoy a larger number of kosher establishments.

“Set yourself a rabbi”: Creating regions allows a business to obtain kashrut services from a rabbi whose halachic outlook matches the beliefs and preferred practices of the owner.

Lowering the price of kosher products: It is possible that raising consumer faith in government kashrut certification will lead to a lower demand for Badatz supervision. This will allow businesses to lower costs and thereby lower food prices. Similarly, one would not necessarily need to pay double, to the local rabbinate and to a Badatz, to be able to sell food under more stringent supervision.

to the full position paper (in Hebrew)