Thursday, May 30, 2013

Legal Systems and Religious Minorities - Review of a Conference in Israel

I had the privilege of attending a conference today at the Open University of Israel in Ra'anana.  The conference topic was "Legal Systems and their Approach to Religious Minorities."  This was of particular interest to me as it is the issue I was looking at as I completed my L.L.M. recently - and it is also related to the topic I'll be speaking about at a Law Society conference in Toronto next week.  The conference was chaired by Professor Bat-Zion Eraqi Korman, the Director of the Center for the Study of Jews, Christians and Muslims.  It was also described as an appropriate way to mark a milestone birthday of Lord Harry Woolf, the outgoing Chancellor of the Open University, the former Lord Chief Justice of England and Wales and the first speaker at the conference.
Lord Harry Woolf

Lord Woolf led off the conference with a discussion of the importance of the "Rule of Law" in a democratic society.  He highlighted the importance of the British and Commonwealth contributions to the concept, which, in his view, includes protection for the basic rights of all citizens, an independent court system, independent judiciary, and the protection of the rights set out in the U.N.'s Declaration of Human Rights.  Lord Woolf also spoke about access to justice, a key component of  a Rule of Law society, and one which he has fought vigorously to advance in the U.K.  Lord Woolf only touched briefly on some of the contentious issue, but suggested that there will be interesting, vigorous debate in the near future as the U.K. wrestles with issues of assisted suicide for terminally ill patients and the issue of same-sex marriage (as opposed to same sex "unions" or "partnerships.").

Next up was one of Israel's most respected jurists, Professor Aharon Barak.  Professor Barak, now a
professor at the Interdisciplinary Center in Herzliah is a former President (Chief Justice) of the Israeli Supreme Court, a former Attorney General of Israel, and a former Dean of the Law Faculty of the Hebrew University.  As President of the Court, Justice Barak was known for running an activist court that greatly expanded the scope of the judicial review powers of the Israel Supreme Court.  Under Justice Barak, the Supreme Court elevated and expanded Israel's "Basic Laws" to a constitutional (or, at least, quasi-constitutional) status, creating along the way a "constitutional revolution" as it has been described by Justice Barak.

At this afternoon's lecture, Professor Barak discussed the topic "Israel as a Jewish and Democratic State."  He advanced a liberal notion of Zionism, which emphasizes the concept of Israel as a national homeland for the Jewish people, but also incorporates the notion of Israel as a demacratic state - a nation governed by the Rule of Law in which all of its citizens, Jewish, Muslims, Christians and others are treated equally.  Barak cited the idea of universalist halachic ideas that could be viewed as part of Jewish values including the prescription to "love your neighbour as yourself" and "do that which is honest and good."  His discussion was thought provoking, though he encountered some challenges in trying to defend the lack of separation between Church and State (Synagogue and State, in Israel).  He noted that he would not countenance such a separation and did not think it was necessary for the preservation of Israel as a democratic state.  It seems to me that there may well be a number of members of the Yeish Atid party who would beg to differ and perhaps, justifiably so.  It remains to be seen how far the current government will go in breaking down some of these walls or, perhaps, putting up some new walls.

Professor Barak also wrestled, perhaps somewhat uncomfortably, with the issue of the Law of Return, though I thought he explained it admirably as a form of affirmative action, designed to ensure that Israel continues to be a safe haven and home for the Jewish people, even as the country offers and should offer full equality within its boundaries for all of its citizens.

The third speaker, and unquestionably the most animated and controversial of the afternoon was
Professor Michael Karayanni
Professor Michael Karayanni, who provided an Israeli-Arab perspective on the issues of multi-culturalism in Israel.  He offered the thesis that Judaism is, essentially, the state religion of Israel.  (This led to some subequent vigorous exchanges between Karayanni and Barak).  Moreover, he argued that the courts have, at times, taken "liberal" approaches when challenging Jewish Orthodoxy, on behalf of other Jews, but have ceded great swaths of legal territory to minority religious institutions as group rights.  The result has been that members of minority religious groups are subject to illiberal domination of certain spheres of life by religious institutions which have been ceded to them by the Isaeli legal system under the auspices of empowering minorities.

Professor Karayanni's attack on the manner in which the laws of marriage and divorce are regulated by religious authorities in Israel is hard to refute.  The notion that all Israelis, regardless of whether they happen to be Jewish, Christian, Muslim or atheist, should be required to submit to religious authority for the determination of any personal status issues is anethema to the rule of law.  But Professor Karayanni also attacked the unfairness of the Law of Return, from an Israeli Arab perspective.  While he is correct  in observing that the Law of Return means that all citizens of Israel are not treated the same - he overlooks the notion of the Law of Return as a type of justifiable affirmative action program as explained by Professor Barak.  Admittedly, he would argue that he was being descriptive rather than normative but his arguments seemed to veer over to the prescriptive rather than descriptive side. 

Nevertheless, it was Professor Karayanni who clearly provoked the most heated exchanges, both in support of his views and against, by questioners from the audience as well as Professor Karayanni's fellow panelists, Professor Barak in particular.

Finding a way to reconcile the idea of Israel as a Jewish State with the notion of Israel as a democratic state is one of the key challenges that Israel faces.  Over the past number of years, the power of the Rabbinate has increased and legislative changes have tilted the country towards a heightened Jewish character, sometimes at the expense of the latter concept.  It remains to be seen whether the current government will begin to tilt the playing field back in the opposite direction.  Early indications which include a decision, announced today, to provide state funding to non-Orthodox rabbis as well as Orthodox, suggest that there is hope that the notion of Israel as a democracy will be strengthened by this government, if some of its ministers have their way.

The centrality of this issue in Israel is what made today's conference so relevant and interesting.

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