Rav Kafach: Israeli monetary law determines halacha

The following excerpt is taken from Justice Elon's Mishpat Ivri (volume IV pages 1761-1762). It asserts an interesting rationale why secular Israeli law regarding money can be binding according to the halacha. This is important especially on the issue of divorce settlements where halacha and secular law greatly diverge.

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A particularly instructive approach to the relationship between Israeli statutory law and Jewish law is taken by Rabbi Yosef Kafah. a member of the Rabbinical Court of Appeals and a major halakhic authority in the State of Israel. Rabbi Kafah's position is expressed in the leading case of discussed further below. In commenting on statements made by the district court as to the nature of statutory provisions expressly made applicable to the rabbinical courts as well as the general courts, he said:

It would seem that these statements concerning "laws explicitly directed to them [the rabbinical courts]" are based on a perception that the Legislature has acted to require the rabbinical courts to reach decisions that are contrary to their religious beliefs. Indeed, many people share this perception, but their logic begs the question. They assume the premise that these laws require the rabbinical courts to reach decisions that are contrary to the laws of the Torah, and on the basis of that premise they conclude that the law "violates pure halakhic considerations." But this conclusion is not inevitable; rather, the law should be viewed according to its plain meaning.

Section 1 of the Woman's Equal Rights Law provides: "The same law shall apply to women and men with regard to every legal transaction." Section 5 provides: "This law shall not affect the religious law in matters of marriage and divorce.26

The plain meaning of these provisions is that the Legislature established a binding rule only with respect to monetary matters, in regard to which it perceived the existing law as discriminating against women .... The legisla­ tive mandate is manifestly based on the assumption that legislation as to monetary matters would not affect religious law, since the legislation is con­ sidered "a stipulation as to a monetary matter"; therefore, it is not a [prohibited] stipulation to contract out of a Biblical norm. Consequently, it may be assumed that the Legislature had no intention to interfere with anything that is not "a stipulation as to a monetary matter." This is an instance of an ap­ proach that can lead to a proper understanding of a number of statutes that have not been so understood.27

In other words, just as under Jewish law there is freedom of contract, i. e., the parties to a legal transaction may agree on terms contrary to a particular halakhic rule, provided the agreement concerns a "monetary matter" (mamon) and not religious law (issur) ,28 so a statute of the Knesset, enacted in the name of the people by their elected representatives, is in the nature of an agreement by the people to conduct their affairs in accordance with the legislative provisions. As long as the matter does not concern religious law, such an agreement is fully effective even if it is contrary to a particular halakhic rule." This interpretive approach by Rabbi Kafah. which is particularly significant in that it is taken by a leading rabbinical court judge and important halakhic authority, is applicable not only to the particular question dealt with in the Nagar case but also, as explained more fully below ,to the broader question of the relationship between the rabbinical courts and the general legal system of the State of Israel.30