Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
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Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional EntrenchmentntroductionFrom the establishment of the State of Israel until very recently, the issue of religion and state was handled in Israel according to the doctrine of status quo. As a result of this policy, matters of religion and state have changed little from the time the state of Israel was established Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment. Underlying the status quo doctrine—viewed as an informal ‘gag rule'—was the perception that it served as a necessary condition for the emergence, maReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
intainance and stability of democracy in Israel. Yet on many occasions over the past several years, once-latent disagreements over matters of religion■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment advocates that Israel abandon the status quo doctrine and in its stead adopt an entrenched, formal gag rule. Although concerned with gag rules in Israel, this paper has broader relevance; it analyzes and evaluates various types of gag rules, and thus, may contribute to a better understanding of the Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment effectiveness of gag rules, especially in the form of constitutions, and the specific conditions required to secure their effectiveness.The first parReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
t of this essay addresses a preliminary question: Is It wise to open this Issue to discussion at all? Some Israelis, most of them Orthodox, believe th■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional EntrenchmentLaw. Rabbinic Degree. Har Etzion Yeshiva. 1989; LL 8 , Bar-llan University. 1993; LL M., Northwestern University, 1996; S.J.D.. Northwestern, 1998. The author is indebted to Ruth Gavison, Andrew Koppelman and Michael Perry for their valuable comments on an earlier draft1■.•=v 16660719 5 loot10/18/22 Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment 13 09 012Hastings Int'l & Comp. L Rev. [Jml Volume:nnnState in Israel is to strictly preserve the status quo and not to open it to reevaluation. I inReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
tend to demonstrate why reevaluating religion and state in Israel is essential. I will even suggest that it is in the interest of the Jewish Orthodoxy■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentp that substantive reevaluation will also involve a shift in power. They do not oppose a reevaluation of the issue as much as they resent the idea that judges, whom they do not trust, will be empowered to interpret and enforce the arrangement. It is possible that a reevaluation of the status quo doc Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmenttrine will result in constitutional entrenchment of the new arrangement. The second part of this essay focuses, therefore, on the question of whetherReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
the issue of religion and state should be framed as a constitutional question. I hope to illustrate why constitutionalizing the issue of religion-stat■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentssay will also illustrate how Israeli legislators and judges ignore the necessity of these conditions.II. Why Israel should reevaluate the issue of religion and stateA. The Status Quo—origins, contents, and Justification1. OriginsAs already noted, the status quo is the basic formula for conflict res Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentolution in matters of religion and state that has prevailed in Israel since its establishment and throughout the past 50 years. At the time of its estReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
ablishment2 and21. It IS customary to relate the first political understanding respecting the status quo to a letter, dated June 1947, which was sent ■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmenters could speak with one voice to the UN committee (UNSCOP) that was sent to check the situation in Palestine. The letter, which contained several promises respecting religion and state, fulfilled its goal, as'•';v1666071951.DOC10Z18/22 13:09:01Date Of Journal) DESKTOP PUBLISHING EXAMPLE3during the Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentfirst years of statehood, Israel incorporated and crystallized arrangements that originated from two sources. First, it incorporated legal arrangementReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
s that prevailed in Palestine prior to the establishment of the state, first during the period of the Ottoman rule and then under the British mandate/■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentatus quo doctrine is the outcome of this incorporation and crystallization.42. ContentsSeveral reasons make it hard to clearly define the status quo. First, the status quo doctrine does not contain a set of principles, but rather a collection of arrangements concerning various issues having to do wi Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentth the relationshipAgudat Israel, contrary to Its official position for many years, did not express opposition to the idea of creating the state of IsReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
rael See TOM Segev, 1949: The First Israelis 249-251 (1986). The full version of the letter (In Hebrew) can be found in The Regime of the State of Isr■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentyears of the State See Menachem Friedman, VeEle Toldot haStatus Quo Dat uMedinah BeYisrael [And These are the Origins of the Status Quo Religion and State In Israel] in haMaavar MeYshuv LeMed nah 1947-49; Retsifut UTMUROT [The Transition From a Settlement to a State 1947-49: Continuity and Changes) Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment47 (V. Pilovsky ed., 1988).32. The Ottoman Empire's 'Millet' system allowed recognized religious communities to maintain autonomous judicial system anReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
d follow their religious laws in matters of religious status. The British empire left this arrangement intact (see The Palestine Order in Council (192■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentthe fact that after the establishment of the state Jews were no longer a minority religious community. For a general description of the Millet system, see Amnon Rubinstein, Law and Religion in Israel. 2 ISR. L. REV. 380. 384-99 (1967).4For a general description of the status quo and its political hi Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentstory see Chari rs s? LEHMAN AND El IT7FR DON-YEIIIYA, REIIGION AND PO1 fries IN Israel, ch. 3 (1984) [hereinafter Liebman and Don-Yehiya. Religion anReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
d Politics in Israel]; Eliezer Don-Yehiya, The Resolution of Religious Conflicts in Israel in Cunhxi ANU Consensus in Jewish POLIIK-'AL Lee 203 (Cohen■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmenthan Zucker, Secularization Conflicts in Israel, in Religion ANU POLIIICAL MODERNIZATION 95 (Donald E. Smith ed., 1974).■-■=v 16660719 51 do;10/16/22 13 09 014Hastings Int'l & Comp. L Rev. [Jml Volume:nnnbetween religion and state. In practice the contents of the status quo are not strictly coherent. Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchment In addition, there is no official agreement regarding the scope of these status quo arrangements for two reasons. First, some of these arrangements aReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
re informal. Second, the formal legislative arrangements tend to provide only a general framework, with details to be resolved in the future; however,■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. In Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmentange through the years, which makes it hard to describe its current form exactly. With these constraints in mind, I will describe in general terms the contents of the status quo.First, the status quo incorporates an understanding of the legal status of religious courts and their exclusive jurisdicti Religion and State in Israel The Case for Reevaluation and Constitutional Entrenchmenton over matters of personal status. Israel allows all religious communities, including Moslem, Christian, and Druze,5 6 to maintain autonomous? judiciReligion and State in Israel The Case for Reevaluation and Constitutional Entrenchment
al institutions and■■:y 16660719 5 loo;10/18.-22 13 09 01Religion and state in Israel: The Case for Reevaluation and Constitutional EntrenchmentBy Dr. Gidon Sapir*1I. InGọi ngay
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