What Matters Now to Jewish Law Prof. Benny Porat: Common ground as titans clash

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It’s July, just after the end of Shabbat and about 100 people have gathered in the Likud-majority West Bank settlement city of Ma’ale Adumim. Hebrew University law Prof. Benjamin (Benny) Porat, a resident of the city, is addressing the crowd.

During his 10-minute speech, Porat — standing next to the police headquarters in Ma’ale Adumim — said statements such as, “The Israeli majority has risen up and will no longer be silent” — even as a few of the West Bank city’s residents attempted to drown him out.

Porat is a senior lecturer in the Faculty of Law at the Hebrew University of Jerusalem and the director of the Matz Institute for Jewish Law. He is also a Senior Fellow at the Israel Democracy Institute. He is also a settler who is vocally in opposition to the coalition’s judicial overhaul.

The Times of Israel sat with Porat in his home this week to discuss Tuesday’s long-awaited and explosive High Court hearing over the first piece of the judicial overhaul legislation. We also talk about how Jewish legal tradition may help solve parts of this clash of the titans crisis.

So this week, we ask Prof. Benny Porat, what matters now.

The following interview has been lightly edited.

Times of Israel: Benny, thank you so much for allowing me to join you in your beautiful home here in Ma’ale Adumim.

Prof. Benny Porat: Good evening.

In this week we have witnessed a long-awaited hearing in the High Court that we expected to be a clash of the titans — and to me it really was. So I ask you this week, Benny, what matters now?

What matters now? So first, of course, what would be the decision of the Supreme Court. Everyone now is waiting to hear what the Supreme Court will decide with regard to the basic law about reasonableness and about its future. The second thing that matters even more is the reaction of the government — whether or not they will recognize the authority of the Supreme Court to decide about that, or if they will not recognize it, this is a meeting of these two titans.

All 15 High Court justices preside over a court hearing on petitions against the government’s ‘reasonableness bill’ at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

So it really did seem to me that this is the question throughout the whole hearing. You mentioned the word authority and I think the underpinning of this whole discussion: Who gets the authority? Who is allowed to decide what will happen, who rules the country, in a way. Would you agree with that?

To some extent. No, I’m not sure that I think some of the supporters of the judicial reform will try to express it that way, that it’s about the authority. I’m not sure that the opponents will describe it that way. It’s more about the checks and balances. So, to what extent the majority and coalition need some checks and balances from other entities, such as the Supreme Court, or not. So this is how it seems from the other side, and therefore this is about the authority of checks and balances.

So one of the stars of the hearing was actually a piece of paper: the Declaration of Independence. And in the Declaration of Independence, in a way, the canonization of Israel as a Jewish and democratic state was written down, shall we say. Canonization — I’m using that word actually because of your specialty in law. So first of all, just explain what your specialty is and then we’ll move on.

So my specialty is in Jewish law, which is about the Jewish legal tradition for the last two thousand or three thousand years, and to what extent and in what ways it can be relevant to legal discussions, some technical issues and some principled issues. And of course, the issue of judicial reform is very principled and matters to all of us, but about to what extent the Jewish legal tradition can be relevant to our modern life.

So were you surprised that the Declaration of Independence was so focused upon in some of the testimonies and some of the presentations?

No, it’s not surprising because it was mentioned before the hearing, and the reason that the Declaration of Independence is so important is because those who are against the judicial reform are trying to look for some hook in order to limit the role of the government. And for that purpose, we need some formative paper or some formative thing, and the Declaration of Independence just sits there. This is a kind of formative declaration that structures limitations and the authorities, and to what extent the government can act. And therefore, it goes just deep down to this paper, and to what extent it has authority over the government.

Signing the Israeli Declaration of Independence and announcing the birth of the Jewish State, May 14, 1948. (GPO)

But the piece of paper itself and what’s written there actually doesn’t have any standing. Correct?

This is also part of the debate. It doesn’t have an official standing, even though in one of the Basic Laws, the Basic Law of Human Dignity, there is a recognition that Israel recognized the idea of human dignity in the spirit of the Declaration of Independence. So this is a place where it has some official legal status, even though it’s under debate. It’s under debate what is the legal status of the Declaration of Independence? Of course, no one will argue that Hatikvah, for example, has some legal status. The Declaration of Independence is much more complicated, and this is part of the debate.

But what we have to remember, it’s not a technical debate, it’s not some boring debate of some law professors. It’s something that goes deep down — to what extent does the government have the authority to do whatever it wants, or are there some limits? And the limitations are in the Declaration of Independence. Therefore, it’s so important that the debate goes to the status of this declaration.

There are some who have proposed that it be adopted as part of the Constitution. And I wonder, in your specialty, if you can tell me whether religious leadership would recognize it as some kind of authority on par with, shall we say, I don’t know, the Bible, the Ten Commandments? Would it have that much authority? Because here in Israel we’ve been so reticent to creating a constitution, and I wonder if part of it has been some kind of religious sensitivity that nobody’s really talking about.

So you mentioned the Ten Commandments, and it’s very nice because many years ago, and of course, the debates that we have today are not new, we experienced them for several decades. But, in one of the rounds, one of the Haredi representatives, I think it was Deri, but I’m not sure, said that: “I don’t want even the Ten Commandments as the Constitution of Israel,” because according to his view, it’s unimportant what will be written in the constitution. It makes the difference who will interpret the Constitution. And once Supreme Court Justices interpret the Constitution, even though it is the Ten Commandments, it will be interpreted by their liberal, secular perspective, et cetera. And therefore, from this perspective, of course, we don’t want the Constitution. We want it to be free enough for us, the politicians, to do whatever we want, and we don’t want the constraints and the limitations of the Supreme Court and the Constitution.

So how much do you think this actually plays into this debate of whether Israel should or should not have a constitution? The religious parties are extremely powerful in the Knesset, especially right now. So is this a card that they’re playing?

We have to remember that all of the mess that we are experiencing now is just because Israel doesn’t have a constitution. Once we have a constitution, we won’t be in this kind of a mess and debate. And it’s not by accident that we don’t have a constitution, it’s because we couldn’t reach agreements about all of these basic principles, and most of them are about the relationship between the three branches, so between the executive branch and the judiciary. So it’s not by accident that we don’t have a constitution and by the way, some of the supporters of this judicial reform are trying to bring some examples from other states, for example from the US. They say: “Listen, in the US, the president has the authority to nominate judges. So if it’s good for the US. Why won’t it be good for us?”

Gender rights activists demonstrate outside the US Supreme Court on June 30, 2023, in Washington, DC. (Olivier Douliery/AFP)

So first, it doesn’t work like that in the US. But second, more importantly, in the US there is a constitution, and once you have a constitution — and other mechanisms as well. You have two houses of Congress, and you have separation between the federal level and the state level. All of these mechanisms we don’t have here in Israel. First and foremost, we don’t have a constitution and therefore the only entity that can limit the government is the Supreme Court. And therefore it’s so crucial, this debate.

Let’s talk a little bit more about the religious sensitivity of having a secular authority interpret law in general. And you wrote an essay which talks about the concept of “Adam Hashuv,” I think you called it “A Dignified Person” in English? First of all, explain what this concept is.

Yes. What I tried to do in my research, with one of my colleagues, about this judicial reform from a Jewish law perspective. Our argument was that the debates that we are experiencing today are not new. The Jewish community during the Middle Ages had the same debates. The Jewish community of course was not a modern state, but it was a political entity that was run by some politicians, which was called the “Seven Good People of the Town.” And they, of course, the authorities, wanted power. They wanted to do a lot of things. And there were the rabbinical courts, which was a judiciary, and there were a lot of tensions between these two entities. And we can see how the Jewish legal tradition saw so much importance in the idea that there should be independent judiciaries that put some limitations on the politicians.

So, for example, one of the mechanisms that Jewish law established for that purpose was the doctrine of Adam Hashuv, the dignified person, which is, according to our argument, similar to the Attorney General, which is not part of the court. But before, when enacting enactments in the Jewish community, according to Jewish law sources, the politicians, the leader of the community has to get the approval of this “dignified person,” which is the rabbi of this place, or the one who is expert in law. His purpose was to look for two things. First, that the communal enactments are aligned with the law, and the second one, that they are aligned not only with the interest of the majority, but with the interest of the whole community. These two things should be checked before enacting an enactment. Actually today, this is what the legal advisors and the attorney generals, this is their main role — to see that the actions and decisions of the executive branch are aligned with the law in the general interest of the state. And from this perspective, it was so important for Jewish law that, while we are recognizing the authority of the majority to control the community, we will put some checks and balances, and the dignified person is one of them.

Tell us about other checks and balances throughout Jewish history, on leadership.

So, another very important mechanism which is also very relevant for today. Once the Jewish community enacted an enactment. If someone felt that [the enactment] is unpleasant, that he’s being damaged or it has violated his right, he has a right to appeal to the rabbinical court, and the rabbinical court has the authority to overrule the criminal enactment. So even though it was legislated by the majority, the rabbinical court had the authority to overrule this kind of enactment. And by the way, of course the idea of override clause or something like that, that the majority can reenact something that was overruled, of course it was not an option. So once the enactment was recognized as illegitimate, it was annulled. And this is something that also is part of the judicial reform — to what extent the Supreme Court had the authority to overrule regular legislation, special legislation like Basic Laws. This is something that was also part of yesterday’s hearing at the Supreme Court.

Attorney General Gali Baharav Miara speaks with Justice Minister Yariv Levin during a cabinet meeting, held at the Western Wall tunnels in Jerusalem’s Old City on May 21, 2023. (Yonatan Sindel/Flash90)

As a non-religious person, I shudder inside every time you say that it’s a rabbinical authority who had the final say. But, it sounds to me like you’re doing a one-to-one ratio with the civil authority that we have today. Is that correct?

Yeah, there is some kind of a jump here, because in the arena of the Jewish traditional communities, the judiciary was a rabbis. There was a rabbinical court, and we are not living here today in an halachic state, this is a secular state or at least non-religious state. So of course now one should ask himself: “Who are the modern Israeli parallels to this ‘dignified person’ of the rabbinical court?” One can argue that we want a halachic state and we want it to be the rabbis. So, we can debate whether it’s good or bad. But this is definitely not the current situation.

So having said that, and if we assume that if we are in a secular state, my argument here is that we, as Israelis, as modern Israelis that want some connection with our Jewish roots, need to think who is a modern translation of this “dignified person?” From my suggestion, this is an attorney general. Who is a parallel to the rabbinical court in the Jewish community? My suggestion is the Supreme Court. I think we should establish our check and balance mechanisms in modern Israel with some conversation with this Jewish past. And I think this is a very important infrastructure from which we can derive a lot of insights, a lot of vocabulary, very interesting terminology and ways of thinking in order to enrich our modern legal discourse.

I will say it even from a different perspective. There are those who try to present the current debate between the Israelis and the Jews. The Jews represent traditional authentic Jewish perspective and the Israelis represent modern, secular, liberal, et cetera, et cetera. From my perspective, this is a very dangerous exposition. And my argument is that also from a Jewish perspective, these checks and balances are very important, but we have to think about the modern secular translation of these Jewish ideas and this is the deep meaning of being a Jewish and democratic state. Being a Jewish and democratic state, from my perspective, it’s not only a state of the Jews, but also a state that has some interesting open-minded conversation, which is a Jewish tradition, and mainly with its Jewish legal tradition.

Protesters against the government’s judicial overhaul gather in Tel Aviv on February 25, 2023. (Kaplan Protest)

I know that the Supreme Court has a legal advisor on Jewish law, Dr. Hila Ben-Eliyahu. So is this something that she would be advising the Supreme Court on when they’re reaching this kind of decision?

Definitely. We have to say that in the Supreme Court, many today, there is a lot of openness to deriving some ideas and benefits from the Jewish legal tradition and someone needs, some expert needs to bring these ideas to the knowledge of the justices. Not all of them are experts in Jewish law, most of them are not. And this is a very important role and we can see it in a variety of Supreme Court decisions. Jewish law takes a very interesting role in shaping the decisions of the Supreme Court and brings a very interesting voice, a very unexpected voice and there are a variety of examples.

Is there a parallel position also in the Knesset?

Yeah, also in the Knesset there is such an advisor. He is also in the Department of Justice. So there are these kinds of positions. Also in universities, in faculties of law in Israel, it’s a mandatory course. So what I say to my first-year students is that their colleagues in Europe learn in their first year Roman law, and also in the UK, but in Israel we decided that instead of Roman law, we’re learning Jewish law. Which, of course, Jewish law and Roman law are the main ancient legal systems that shaped Western legal tradition. So Jewish law is a mandatory course here in all of the faculties of law in Israel. And, yeah, it takes a very interesting role, both in legal education and then in the Knesset, in the Supreme Court, in the Justice Department and so on.

It’s such a fascinating area, especially the brush with modernity and how you adapt the past into the present. You’ve talked about two examples so far. Do you have any more examples of how we can pull from the past into the present in our current crisis situation?

Here’s an example which is not related to this specific crisis, but I think can give a sense about the potential of going back to the Jewish legal tradition. And the Supreme Court of Israel in the last, I would say, 10-15 years, had several cases, different cases, but what was common to all of them, was that the deep tension was between, on the one hand, the right to freedom of speech and the other hand, the right to reputation. And the Supreme Court had to decide between the two. For example, and there were several examples, there was a TV show about Hannah Senesh.

A photo of Hannah Senesh on display at the Hungarian Jewish Museum and Archives in Budapest’s Dohany Street Synagogue. (Shmuel Bar-Am)

Hannah Senesh was a great hero of the Second World War, but it was not a regular drama, it was called a docudrama. It was a kind of combination of documentary and drama. The authors made a few switches in the story. As we all know, Hannah Sennesh was tortured by the Nazis, and she didn’t tell the Nazis about her friends. And according to this movie, she was broken, and she told the Nazis about her friends. And then the Sennesh family appealed to the Supreme Court in order not to enable this to broadcast this TV series and their argument was that: “You are violating our, or her, right for reputation, all of us know that she was not broken when she was tortured.” And, of course, on the other hand, the authors of this series argue: “You are not serious about this, you’re not about to censor some TV show. It’s about freedom of speech, freedom of art.”

And the Supreme Court had to decide between these two very basic values. And there are several examples. What’s very interesting in this discussion, the rest of them, was that there was a lot of influence about what are the sources of inspiration of the justices. Those who were mostly inspired from American sources, of course, were big supporters of the idea of freedom of speech, and where we do not limit any kind of freedom of press or speech or art. Those who were most inspired by Jewish law sources were great supporters of the idea of right of reputation, and the idea that we are willing to limit, to some extent, freedom of speech in order to defend the right to reputation of some individuals. There was an interesting debate between these two parts. In this specific case, the Supreme Court decided to allow the broadcasting of this case. In others, it was a different decision. It was dependent on who the justices were and the ratio between the two.

But what we can think in this example, is how it’s important to bring this modern interpretation to Jewish law sources and to enrich the modern discussion from different and other perspectives that do not come directly from the US or Europe, but bring some other interests, ideas, values and sensitivities that we don’t have today.

Many times, we hear about situations in which the idea of women kind of causes a torpedo effect to legislation or to some kind of codification such as the right to equality, for example. I also wonder if the fact that the Chief Justice is a woman and the Attorney General is a woman, if this is problematic in religious circles in terms of accepting their authority?

It’s a great question and I’m a big supporter of the idea to be inspired from Jewish law and to bring some insights and ideas. But of course it should be selective, and it should be selective in the sense that we have to pick and choose and to see what fits modern society and what’s not. And of course, this gender aspect, the status of women, this is a kind of an example that I’m not suggesting to derive ideas from Jewish law. Of course, Jewish law was developed before the feminist revolution, and of course it might be updated to its time, but the Jewish law didn’t experience the feminist revolution. And therefore, in this regard I think that with regard to the status of women, I’m not sure that we want to derive ideas and principles from Jewish law.

It is very interesting that, for example, Haredi MKs in Israel won’t have a problem in collaborating with an Attorney General even though she’s a woman, or with a Supreme Court justice, etc, but they won’t have a woman in their party. So there is a very strong and thick separation between the two. While in their community, in their party you won’t find any women, they don’t have a problem collaborating with secular women or with secular circles. And this kind of separation is of course very important. And this is another issue that we in Israel are struggling with — to what extent can Israel enforce political parties to have women in their parties? It’s a very tricky question. Today, Israel does not enforce that, but is trying to give some incentives… So it’s a very tricky question.

Haredi men and teens dance in front of a sign reading ‘We must resist against a halachic state’ as protesters rally outside the home Shas leader Aryeh Deri in Jerusalem, March 23, 2023. (Flash90)

Do you think that the women issue could be one of the reasons that we won’t reach a constitution eventually?

It’s about gender issues, it’s about Jews and non-Jews and especially it’s about the status of marriage and divorce. So, marriage and divorce in Israel are controlled exclusively by religious law. This is something that has its own reason on the one hand, but also a lot of disadvantages and very problematic institutions. So, there are some pros and cons. I think one of the basic fears is that once Israel has a constitution recognizing the idea of equality, it might be that marriage and divorce will not remain controlled exclusively by the religious laws. I think it is related in one way or another to some gender issues.

So this is all circling around the question: Can we really have a Jewish and democratic state?

Yeah. In the bottom line we go to this very deep question about Judaism and democracy, Judaism and liberalism. And of course, there are those from both sides of the map that are trying to convince us that this kind of collaboration is impossible, because Judaism and democracy are in a very deep tension and therefore we have to decide. So there are those who decide to be a democratic and non-Jewish state and there are those who are trying to decide to be a Jewish and non-democratic state. And there is a very interesting meeting point between these two extreme views.

I belong to those who believe that we have no other option but to find the meeting point between Judaism and democracy. Of course, Judaism has many interpretations. I’m not saying that there is only one interpretation, but it has many interpretations. And we have to choose to build that democratic interpretation of Jewish tradition. I think this is the only way that we can survive and prosper in this tough neighborhood, because we need to have very strong, deep and cultural roots. And the only way to do that is by having a deep conversation with our Jewish roots.

Prof. Benny Porat speaks at a demonstration against the coalition’s judicial overhaul in the West Bank city of Ma’ale Adumim, July 29, 2023. (Amanda Borschel-Dan/Times of Israel)

And as long as we won’t solve this kind of tension between Judaism and humanism or democracy, we’ll be doomed to be in this kind of tension. And this is the main task of us to do. I think that the Jewish law project, for example, within Israeli academia is one way of trying to solve this kind of riddle — how we can give a modern democratic interpretation to Jewish law ideas in ways that can support and not negate the idea of a democratic state.

You mentioned the two camps. And just to drill down on that, there are so many non-religious people who are so — I don’t know how to put it exactly — so fearful perhaps, of the encroachment upon their democratic values that anyone wearing a kippah at this point is now a target. And especially today when we’re so up in arms over this judicial overhaul. And I have friends tell me that they walked down the street in Tel Aviv wearing a kippah and they were yelled at and spat upon. And this is also a wrinkle in everything we’re talking about, right?

Yeah, yeah. There are some horrible sociological aspects. There are some families that find it difficult to speak with one another. And, of course, the crisis now, it’s not a polite academic crisis, but it goes to the streets. And I fear that we are seeing only the beginning of that. And therefore it’s so important that, I would say people wearing a kippah, for example, like myself, I think can expose a different, more complex, more nuanced and more deep perspective. And that we as a society should not fall into these kinds of stereotypes, that “if you are secular, so you are ABC, and if you are religious, DEF.”

It’s so important to break this kind of stereotype and to think more deeply, in a more complex way, more nuanced way, and this part of the project. So, for example, here in Ma’ale Adumim there is a group, part of the demonstrations every Saturday night after Shabbat. It’s a very unique demonstration. It’s untypical. You won’t find it in Tel Aviv, even not in Jerusalem, because it’s a demonstration of people that belong to the right. Part of them are religious, and nevertheless, they think that this judicial reform is a very dangerous move for Israel. And what we find is that this helps to break these kinds of stereotypes and to think out of the box.

So you’re very vocally against the judicial overhaul, and you live, as you said, in Ma’ale Adumim, and it’s a Likud-voting city for the most part, maybe also other right-wing parties. Have you experienced any blowback for being so vocally anti-judicial overhaul?

So of course there’s a lot of debates, but at least in my personal experience, I think the debates are being made in a very respectful [manner.] And I think until now, we live peacefully together, with my neighbors, with my relatives, even though we disagree, so we agreed not to agree, and everything is okay, at least till now. But who knows what will be next week, next month? And there were some weeks that Israel felt that it’s on the edge of a civil war. I think that we are far from there now, but it’s a fear that is there, and we remember this kind of an option, and we should, of course, I think, not translate this ideological debate into some sociological separation between groups in Israel.

Illustrative: A view of Ma’ale Adumim in the West Bank, and the surrounding desert, January 26, 2021. (Yaniv Nadav/Flash90)

And that circles back to your opening remark, which is, we’re waiting for the decision of the High Court. Now, you have a very unique Talmud class that you conduct. Who are its members?

It’s a very unique Talmud class that was established 60 years ago, before I was born, and it ran from then to today. It’s a Talmud class that is aimed at judges, justices, and leading lawyers in Jerusalem. So, I’ve been running this class for the last eight years. It’s a very interesting class. And this class sits very leading lawyers, some district judges from the District Court of Jerusalem, Supreme Court justices, some of them religious, some of them secular. And all of them have a very respectful feeling to the Talmud and share the idea that it is very relevant to our modern legal thinking. So it’s a very interesting opportunity to bring sources from two thousand years ago and to think about their meaning to our modern life. Great experience, and we enjoy it very much.

And, has the crisis bled into this class at all?

It did, yeah. Most of the participants are against this kind of judicial overhaul. Some of them are supporters. But we are trying to separate between our love of the Talmud and the law and our disagreement about the status of this judicial overhaul.

Benny, thank you so much for sharing your time with me. I appreciate it.

Thank you very much.

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