Abstract
The two excerpts above where quoted to illustrate that debates over state and religion in general, and over the status of religious “days of worship” in particular, are anything but marginal in contemporary Israel.
I wish to thank the Minerva Center for Human Rights in Jerusalem for supporting this research and Ayelet Bamberger-Feldman and Gilad Malach for inspiring research assistance. The paper was influenced greatly by discussions during the Heidelberg meeting, July 12–15, 2005, and I want to thank all participants in those discussions.
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A Shinui MK, Roni Brison, wrote in the daily Haaretz on June 29th that the struggle is not over the opening of the road but over the Jewish character of the state, about Israel as a free country vs. Israel as a country ruled by religious fanatics. For the Hebrew version see http://www.haaretz.co.il/hasite/pages/ShArt.jhtml?itemNo=593499.
Interestingly, this is not always the case. In Turkey and Morocco, days of rest follow the European West. In Algeria, the days of rest are Thursday and Friday, and some suggest that they should be moved to suit the West while others object, saying that to do this would be to lose their culture and soul (International Herald Tribune 7, Sep. 27, 2005). This probably stems from the fact that unlike Judaism and many interpretations of Christianity, Islam does not include a religious commandment concerning a day of rest. See R. Gavison, Days of Rest: A Challenge for Multiculturalism (forthcoming 2007).
I will make a few comments on this below. In general, it is not easy for Jews to research this aspect, because Jewish media do not regularly report events and internal debates within the non-Jewish communities, especially the ones not related to the political dimensions of the conflict. The political conflict, in turn, makes it hard for secular liberal forces within the different communities to cooperate in struggles against the religious establishments of their respective communities. For this point see the present paper by M. Karayanni. I look more closely at these aspects in Gavison, note 4 supra.
See The Days of Rest Ordinance 1948, which added section 18A to the Government and Law Ordinance, specifying in detail the Jewish days of rest, and the principle that non-Jews are entitled to days of rest according to their tradition. A special government decision of May 31, 1954 established 8 recognized holidays for Christians, 4 for Moslems and 2 for Druze.
In fact, it is not clear what the status quo ante on the Sabbath was before the state was founded, because Jews did not control the arrangements of the state. The Orthodox insisted on the arrangement because they feared that the secular Zionists would not seek to enforce limitations on work and trade on the Sabbath. See M. Friedman, The History of the Status Quo: Law and Religion in Israel, in: V. Pilavsky (ed.), The Transition from Yishuv to the State 1947–1949: Continuity and Change, 1990 [in Hebrew].
See the discussion of Z. Zameret, in: G. J. Blidstein (ed.), Sabbath — Idea History Reality, 2004 [in Hebrew], on the way the major secular Zionist thinkers thought about the Sabbath. These thinkers, including Berl Katzenelson and Ahad Ha-am, put great stress on the culture and heritage of Judaism, and especially on the elements of social justice in Jewish heritage. The Sabbath was a central element in the social regime established by Judaism, and Judaism itself stresses both the religious element (because God created the world in six days and rested on the Sabbath, the seventh day: Exodus 20, 8–11) and the social element (a day of rest for all, including worker, animal and slave, because one should remember that one was a slave in Egypt: Deuteronomy 5, 12–15).
Many — but not all. The most famous “Who is a Jew” case, that of Benjamin Shalit, was litigated in 1968 and decided in 1969, with a majority of the Israel Supreme Court ordering the government to register the children of a Jewish father and a non-Jewish mother as Jews in their nationality: HCJ 58/68 Shalit v. Minister of Interior, PD 23(2) 477.
Cr.App. 217/68 Yizramex Ltd. v. S.I., PD 22(2) 343.
HCJ 287/69 Meron v. Minister of Labor, PD 24(1) 337.
HCJ 347/84 The Municipality of Petach Tiqva v. Minister of Interior, PD 39(1) 813.
Cr.F. 3471/87 State of Israel (SI) v. Kaplan, PM 1988(2) 1531.
Amendment to the Municipalities Ordinance (no. 40) 1990. The explanatory comments to the Bill expressly stated that the legislation sought to restore the status quo ante that had been interrupted by the Kaplan decision. When a similar issue was raised in another case in 2000, the court ruled that the Authorization law covered the prohibition to open shops on Sabbath. The court added that the law was in fact justified because the secular public too was interested in keeping the Sabbath distinct, and this was of special importance in Jerusalem, which was the capital of the Jewish people in addition to its being the capital of Israel: MA 2592/00, SI v. Keshuel (unpublished, 12/12/2000). It is unclear what the decision would have been had this case related to a restaurant or a place of entertainment, which are seen as different from ‘mere’ shops.
HCJ 5016/96 Horev v. Minister of Transportation, PD 51(4) 1. The Court decided 4 to 3 that the decision of the Minister of Transportation to close the road during hours of prayer could stand only if a proper arrangement can be found for the needs of secular residents of these neighborhoods (which was in fact done by finding there were no such needs). Three judges held the decision was void, being unreasonable, ultra vires, or to be decided in primary legislation. One (religious) judge in fact thought the street should be closed for the whole day, but joined the majority. The decision came after an attempt to resolve the issue through a public committee including representatives of all relevant groups did not yield an agreement. For a detailed account of the work of the committee and its lessons, see Z. Zameret, The Bar Ilan Road, The Conflict, and Ways to Resolve it, in: U. Dromi (ed.), Sitting Together: Secular-Religious Relationships: Positions, Proposals, Covenants, IDI (2005), 234–248 [in Hebrew] (Zameret was the secular chairman of the public committee).
Israel does not yet have a full constitution with a bill of rights. For a general description of the legal situation, see e.g. D. Kretzmer, Constitutional Law, in: A. Shapira and K. C. Dewitt-Aror (eds.), Introduction to the Law of Israel, 1995; A. Maoz, Constitutional Law, in: I. Zamir and S. Colombo (eds.), The Law of Israel: General Surveys, 1995; and A. F. Landau, The Constitutional Status of Basic Laws, in: A. Gambero and A.M. Rabello (eds.), Towards a New European Ius Commune, 1999.
In Cr.App. 10687/02, Handiman v. SI, PD 57(3) 1 of 2003, the court held that specifying that the weekly day of rest is the Sabbath is reasonable. The Israel Supreme Court elaborated on this issue in the recent Design 22 case of 2005: HCJ 5026/04 Design 22 v. Rosenzweig (unpublished, 04/04/2005). For a detailed analysis of the Design 22 decision, see below.
For an extended discussion of various aspects of the debate on the Sabbath in Israel see Dromi, note 24 supra, at 172–262, and M. Gerzy and B. Zimmerman (eds.), The Seventh Day, 2001 [in Hebrew].
I develop these points in R. Gavison, The Relationships between Civil and Political (CP) Rights and Social and Economic (SC) Rights, in: J. M. Coicaud, M. W. Doyle and A. M. Gardner (eds.), Globalization of Human Rights, 2003, 23–55.
Here we see again that one cannot talk generally of freedom of religion in this context. The right to freedom of religion means, at its core, that a person cannot be required to perform an action prohibited by his religion. But different religions impose different limitations on days of worship. Judaism seems the most limiting in that it imposes a total prohibition of any kind of work on the Sabbath. For the difference among religious traditions on the day of worship/rest see Gavison, note 4 supra.
Case C-84/94 United Kingdom v. Council, European Court Reports, 1996, page I-05755. It can be found at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en≉mdoc=61994J0084.
For a discussion of the Gavison-Medan Covenant in context of other attempts to reach agreements see Dromi (ed.), note 24 supra.
For a detailed account of the thinking of early Zionist leaders, mostly secular, on the Sabbath and its importance for Jewish identity, see Zameret, in: Blidstein, note 10 supra.
Rav Medan was criticized by religious leaders for joining in an agreement that at least implicitly legitimizes non-observance of the Sabbath by Jews. The critics said that in the long term the costs of such an agreement will be higher than its alleged benefits. Medan responded that the refusal of the religious leaders in the 1980s to reach a similar agreement when it was proposed created the reality that today so many malls are open. At that stage, the secular stood to gain more because the legitimation of movies and restaurants was not yet taken for granted. He argues that if a social agreement among leaders would have been reached then, the commercial picture today would have been different. This is of course speculative. The trend towards commerce on the religious day of worship has been universal. At the same time, there are differences among states as to the extent of Sunday commerce, and Israel seems to be among the most expansive. To the claim that it is impossible to reverse the trend and effectively close commerce on the Sabbath, Medan says that it should not be more difficult than evacuating the settlers from their homes in the framework of the disengagement plan.... Indeed, in September 2005 Israel pulled out from the Gaza strip, evacuating thousands of people and destroying their settlements. The disengagement was very difficult, but it was a one-time event. It is not clear that it can be compared with a weekly struggle against deeply held habits. For a more cautious approach see J. Shulevitz, Slate Magazine, July 2005, available at http://www.slate.com/id/2123283/?nav=navoa.
I talk more about this aspect of religion and culture in Gavison, note 4 supra.
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© 2007 Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg
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Gavison, R. (2007). Days of Worship and Days of Rest: A View from Israel. In: Brugger, W., Karayanni, M. (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 190. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-73357-7_11
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