A takkanah (Heb. תַּקָּנוֹת pl.; sing. תַּקָּנָה) is a directive enacted by the halakhic scholars, or other competent body (see *Takkanot ha-Kahal), enjoying the force of law. It constitutes one of the legal sources of Jewish law (see *Mishpat Ivri). A law which has its creative source in takkanah serves as the motivated addition of a new norm to the overall halakhic system, whereas a law originating from the legal source of midrash (exegesis, i.e., from construing a biblical passage or other existing law; see *Interpretation) serves to reveal the concealed content of existing law within the aforementioned system. The consequence of this substantive difference between these two legal sources of Jewish law is that a law created by means of Bible exegesis mostly belongs to the category of laws called de-oraita, whereas a law deriving from takkanah always belongs to the category called de-rabbanan (see Mishpat Ivri). The takkanah in Jewish Law is akin to that part of legislation which in other legal systems is termed subordinate. The Written Torah is the constitution – the supreme legislation – of Jewish law, and in the Torah itself power is delegated to the halakhic scholars to enact takkanot. Similarly, in the primary legislation of other legal systems, authority is delegated to certain bodies to be subordinate legislators (e.g., to cabinet ministers by way of regulations, to municipal councils by way of by-laws, etc. – see Salmond, 12th ed., 116–124). The authority of the halakhic scholars to enact takkanot is said to derive from the Pentateuchal enjoinder, "According to the law which they shall teach thee and according to the judgment which they shall tell thee, thou shalt do; thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left" (Deut. 17:11), or, according to another opinion, to the enjoinder, "Ask thy father and he will declare unto thee, thine elders, and they will tell thee" (ibid., 32:7; Shab. 23a; Yad, Mamrim 1:1–2; Hassagot Ramban le-Sefer ha-Mitzvot, Principle 1). The authority of the scholars to impose gezerot (decrees, see below) is held to have been entrusted to them in the enjoinder, "Therefore shall ye keep My charge" (Lev. 18:30), interpreted to mean, "Make a safeguard to keep My charge" (Sifra, A?arei Mot 10:22; Yev. 21a).
The legislative activity of the halakhic scholars is sometimes termed takkanah and sometimes gezerah. The term gezerah is generally applied to the determination of directives aimed at deterring man from the prohibited, at making "a fence around the Torah" – i.e., directives of a negative nature prohibiting the performance of a particular act. The term takkanah, on the other hand, generally refers to directives aimed at imposing a duty to perform a particular act, i.e., directives of a positive nature enjoining the doing of a particular matter (Maim., Comm. to Mishnah, Intr.). This distinction is not, however, consistently observed in the use of the two terms (see, e.g., Git. 4:2; Shab. 15b). Sometimes a takkanah is termed a tenai bet din or simply tenai (Ket. 4:12; BK 80b), because the bet din (court) circumscribes – "conditions" as it were – a particular directive in the manner of a takkanah and because sometimes the creation of a takkanah is preceded by a condition imposed between the parties to a matter. Sometimes a takkanah is also termed minhag (see RH 4:1, and cf. Tosef., RH 4:3; Be?ah 4b, etc.). The two terms share in common the factor of legislation save that in the case of takkanah the legislative activity is deliberate and open whereas in minhag it is anonymous and undirected (see *Minhag).
Halakhic legislation generally functions with two principal objectives:
(1) to fill a lacuna in the law created in consequence of changed social and economic realities and the emergence of problems which find no answer in the existing halakhah; in this event the takkanah generally serves to add to the existing halakhah;
(2) to amend and vary the existing halakhah to the extent that this is dictated by the needs of the hour; in this event it cannot be said that the existing law fails to provide guidance but, on account of changed circumstances, the law as it stands creates difficulties of a social, economic, or moral nature, which the takkanah seeks to rectify and resolve.
These two objectives are pursued by legislation, whether takkanah or gezerah, in all the different fields of the halakhah – certain areas whereof are wholly founded on such legislation while in other areas its influence is felt to a greater or lesser degree. The latter phenomenon is largely a reflection of the extent to which it proved possible to resort to interpretation (midrash) for a solution to the problems that arose. In seeking the solution to a problem that arose the scholars had recourse, first and above all, to the legal source of interpretation, since by so doing the solution would be forthcoming from scriptural passages or from existing halakhah. Only when interpretation was not a means to a solution did the scholars resort to takkanah – which represented an innovation in the world of the halakhah. Thus a substantial part of the laws of tort, of unlawful possession (gezelot), and bodily injury (?avalot), originate from midrash, since these matters are extensively dealt with in the Torah. On the other hand, the laws of property and obligations – which are scantily dealt with in the Torah – developed mainly through the legal source of legislation. At times exegesis and legislation functioned with more or less equal efficacy in the development of a particular field of the law, as for instance in the area of family law.
The scholars dealt extensively with the question how to reconcile the aforementioned objectives of legislation with the fundamental norm of the Torah that "ye shall not add unto the word which I command you, neither shall ye diminish from it" (Deut. 4:2 and 13:1). Did not a rule derived by means of a takkanah or gezerah in some manner add to or detract from the laws of the Torah? Two of the principal answers given by the scholars to this question may be mentioned. In Solomon b. Abraham *Adret's opinion, the enjoinder against adding to or subtracting from the Torah law is directed against any addition to the precepts of the Torah on the part of an individual acting without due authority, but not against the halakhic scholars acting under the authority entrusted to them as regards the interpretation and continued creativity of the halakhah; that, as regards the latter, they are expressly enjoined (Deut. 17:8–11) to solve new problems, also by way of legislation, and once they have done so the individual must not depart from their enactments (Nov., Rashba, RH 16a). A different answer was given by *Maimonides, and other scholars sharing his view, in holding that the aforementioned Pentateuchal prohibition is directed against the individual as well as the halakhic scholars and the courts, and that the solution to the problem posed lies in the strict care taken by the halakhic scholars as regards their manner of exercising the legislative function. According to these scholars, the enjoinder against addition to, or subtraction from, the law of the Torah applies to circumstances in which it is sought to hold that a particular law is one which also has its origin in the Torah and is equal in standing to a law of the Torah; however, when the scholars expressly state that according to the Torah the law is so, and that they, by virtue of the authority entrusted to them, are enacting or decreeing such and such as a law of the rabbis, the matter is permissible (Yad, Mamrim 2:9; Intr. to Mishneh Torah) – "for 'ye shall not add' only applies to an addition to the Torah meant to be equal therewith, but making fences and restrictions is not an addition, for these are not to be equated with the Torah" (Ramban, Deut. 4:2). Thus in making their enactments the scholars are prohibited from acting within the sphere of primary legislation since this is the domain of Pentateuchal enactment alone, which is everlasting and stands for all time. The legislative activity of the scholars is operative only in the area of subordinate legislation, in which area they are authorized and enjoined to make enactments and decrees of a transient nature – "as a temporary measure" (le-fi sha'ah; hora'at sha'ah, etc.) – but not to lay down immutable directives (although this distinction is theoretical only, having regard to the very many takkanot which have become transformed into an integral part of the laws comprising the halakhic system and have been accepted as decided law in the Talmud and codificatory literature).
The basic principle underlying the legislative activities of the halakhic scholars also serves as the basis for the other legal sources of the halakhah, namely, that the Torah and its continuing creativity was entrusted to the authority of the halakhic scholars (Ramban, Deut. 17:11; see also Interpretation; *Ma'aseh; *Authority, Rabbinical; *Sevarah). This exclusive authority led the halakhic scholars to a complete identification with the spirit and purpose of the Torah. Such an identification at once obliged them to act with great care and responsibility in their exercise of the legislative function, while also rendering possible their enactment of daring and decisive takkanot when persuaded that these indeed reflected the spirit and purpose of the Torah. With the sense of responsibility of a physician, entrusted with the well-being and perfection of the halakhah (Yad, Mamrim 2:4), the halakhic scholars made penetrating and far-reaching statements which have become well-known maxims of the halakhah. An illustration is their interpretation of the verse, "It is time for the Lord to work; they have made void Thy law" (Ps. 119: 126), as meaning: "it is better that one letter of the Torah should be uprooted than that the entire Torah become forgotten to Israel" (Tem. 14b; see also Ber. 9:5, Yoma 69a, and Rashi, ad loc.); similarly, "there are times when the disregard of the Torah may be its foundation" (Men. 99a/b), and – "that he shall live by them and not die because of them" (Sanh. 74a; Yoma 85b), and so on.
No discussion concerning the measure of the scholars' legislative authority, or the determination of rules for their exercise of the legislative function, is to be found until the end of tannaitic times. The sole explanation accompanying many takkanot is the factual background and circumstances leading to their enactment. Thus the defilement of oil by the Greeks is the background to the takkanah relating to the festival of ?anukkah (Shab. 21b). Natural disasters and war are the background to the takkanot of the *agunot ("deserted wives"; Yev. 16:7). Abstention from giving credit explains the institution of the *prosbul (Shev. 10:3–4). "For the sake of good order" (tikkun olam) or "for the sake of peace" (darkhei shalom) is the general explanation for many other takkanot (e.g., Git. 4:2–7; 5:3 and 8–9). When the halakhic scholars were persuaded of the need of the hour they enacted and decreed accordingly, in order that the Torah, its ways and precepts, should not become strange to the Jewish people.
Besides the above mentioned basic principle, the amoraim laid down a number of rules and guidelines which determined the scope and authoritative force of the legislative activities of the halakhic scholars.
(1) ABSTENTION FROM FULFILLING A MITZVAH
The rule was established that the court may determine by takkanah that a (positive) precept prescribed by the law of the Torah shall not be fulfilled, i.e., that it may direct to abstain from performing an act – "sit and do not do" (shev ve-al ta'aseh). A commonly quoted example is the takkanah to abstain from blowing the shofar on Rosh Ha-Shanah falling on a Saturday (RH 29b, and see Yev. 89a–90b for other examples). In R. ?isda's opinion the court is even entitled to enact a takkanah which entails the uprooting (akirah) of a Pentateuchal prohibition, i.e., that the scholars may direct to "arise and do" (kum va-aseh) an act the doing whereof is prohibited in the Torah. Rava expressed a contrary opinion and the halakhah was decided that "the court may not make a provision uprooting a matter in the Torah by way of a direction to "arise and do." In the talmudic discussion centering on the above difference of opinion a number of exceptions to the stated rule are laid down, each of which constitutes a self-standing rule of legislation (Yev. loc. cit.).
(2) HEFKER BET DIN HEFKER
This rule lays down that in matters of the civil law (dinei mamonot), and in every other matter – even in the field of ritual prohibitions and permissions – which is based on the ownership of property, the scholars have authority to enact even such takkanot as involve the uprooting of a law of the Torah by directing to "arise and do." The scholars deduced from the passage, "and that whosoever came not within three days, according to the counsel of the princes and the elders, all his substance should be forfeited, and himself separated from the congregation of the captivity" (Ezra 10:8), that the court has authority to divest the individual of his rights of ownership in property (TJ, Shek, 1:2, 46a; TJ Pe'ah 5:1, 8d). This authority was interpreted to extend not merely to a divestment of proprietary rights but also to the transfer of such rights to new owners of the same property – a conclusion based also on Joshua 19:51 (Yev. 89b; Nov. Rashba, Git, 36b). The principle was the basis for the enactment of very many takkanot in different fields of civil law – property, tort, succession, and wills – in terms whereof the ownership of property due to a person according to the law of the Torah was shorn from the latter and vested in favor of another. Thus by virtue of the rule of hefker bet din hefker the scholars enacted that a woman validly married in accordance with derabbanan enactment, but not the strict law, is inherited by her surviving husband – thereby divesting her father's kin, her legal heirs under the strict law in the absence of a valid marriage, of their ownership of the estate in favor of the husband (Yev. loc. cit.). This is likewise the explanation for the validity of all those modes of *acquisition instituted in the enactments of the scholars. According to the strict law such a mode of acquisition would not avail to extinguish the transferor's title, but the scholars enacted that ownership should nevertheless pass to the transferee by the use of such mode – the authority for such a transfer of ownership deriving from the rule of hefker bet din hefker.
This rule is also the basis on which the amoraim explained the institution of the prosbul. The Torah enjoins the remission (shemittah) of monetary debts in the seventh year, forbids the lender from claiming his debt thereafter, and expressly adjures him not to refrain from lending money for
(3) IN CRIMINAL LAW
The halakhic scholars are entitled to enact takkanot in the area of the criminal law even though they involve the uprooting of a law of the Torah by way of "arise and do," when this need is dictated by the exigencies of the time, that is when such enactment amounts, in the words of the Babylonian amoraim, to making a safeguard for the Torah (migdar milta). The rule is transmitted in the name of Eleazar b. Jacob: "I have heard that the bet din imposes flogging and punishment not prescribed in the Torah (bet din makkin veonshin she-lo min ha-Torah); not to transgress the law of the Torah but to make a fence for the Torah" (Yev. loc. cit.; Sanh. 46a). By virtue of this rule it was held permissible to lay down punishment by *flogging, and even the capital sentence, when rendered necessary by the prevailing social and moral realities (Sanh. loc. cit.). This was so despite the fact that the Torah law prohibits the flogging of any person for whom such punishment was not reserved (Yad, Sanhedrin 16:12) and that certainly it is prohibited to kill a person not liable to the death sentence according to Torah law since it involves a transgression of "Thou shalt not murder" (Radbaz, Mamrim 2:4). Thus in terms of this rule there were prescribed special punishments (such as incarceration – Sanh. 9:5; see *imprisonment) and procedural rules (for instance, admitting circumstantial evidence and dispensing with the need for prior warning – see TJ ?ag. 2:2, 78a), when this was necessary for the preservation of good order and the public weal. This legislative guideline served the halakhic scholars throughout the ages as a valuable means toward the ordering of Jewish society. It was instrumental in the development – insofar as the judicial autonomy extended to the different Jewish centers allowed for it – of a proliferous legislation in different fields of the Jewish criminal law and procedure answering the social needs of the time (see, e.g., the statements of Judah b. Asher in Zikhron Yehudah, no. 79). At the same time the scholars stressed the need to guard, in the exercise of such wide legislative authority, against doing undue injury to man's image and dignity: "all these matters apply to the extent that the dayyan shall find them proper in the particular case and necessitated by the prevailing circumstances; in all matters he shall act for the sake of Heaven and he shall not lightly regard the dignity of man…" (Yad, Sanhedrin 24:10; see also Resp. Rashba, vol. 5, no. 238).
(4) EMERGENCY MEASURES TO RESTORE THE PEOPLE TO THE FAITH
This legislatory guideline, operative also in the area of ritual prohibitions and permissions even as regards enactments involving the uprooting of a law of the Torah by directing to "arise and do," is derived from the act of Elijah in offering a sacrifice on the Mount of Carmel in order to bring back the people from the worship of Baal to worship of the Lord (I Kings 18:19–46), notwithstanding that the Torah prohibits such sacrificial offerings except at the Temple in Jerusalem and that sacrificial slaughter elsewhere is a transgression of two Pentateuchal prohibitions (Yev. 90b, Rashi and Tos. ad loc.). Legislative authority of this kind is summarized by Maimonides as follows (Yad, Mamrim 2:4): "And if they (the bet din) have seen fit for the time being to abrogate a positive precept or to transgress a negative precept so as to bring back the public to worship of the faith, or to save many in Israel from stumbling in other matters – they do according to the need of the hour. Just as the physician severs a person's hand, or foot, so that he shall survive at all, so the bet din at times instructs temporarily to transgress some of the precepts in order that all of them shall be fulfilled, as it was laid down by the early scholars (Yoma 85b); 'Profane on his account one Sabbath so that many Sabbaths shall be observed.'"
(5) ENACTMENTS FOR WHICH "THERE IS REASON AND JUSTIFICATION" (IN MATTERS OF RITUAL PERMISSIONS AND PROHIBITIONS)
A study of the rabbinical enactments reveals that the rules of legislation enumerated above do not exhaust the full measure of the halakhic scholars' legislative authority. From time to time there is found a takkanah which the former were unable to relate to any of the stated rules and they explained them on special legal and social grounds. Classic examples thereof are the takkanot of the agunot ("deserted wives") – some of the most important takkanot in Jewish law, from the aspect both of their social and humanitarian implications and of the conclusions deriving therefrom as regards the substance of legislation in the halakhah. The takkanot concern the matter of a married woman whose husband is missing and cannot be traced, and there is lacking sufficient evidence as required by the Torah – two witnesses at least (Deut. 19:15; Git. 26) – to establish the husband's death, so as to permit her to remarry. In ancient times this legal situation
The earliest of the series appears to be the one laying down that the wife is believed – and permitted to remarry – if after having gone abroad with her husband she returns alone and declares his death (Yev. 15:1; Eduy. 1:12). Quoted as the factual background to the enactment of this takkanah is the case of a woman who returned reporting the death of her husband, it being mentioned that the court investigated the facts finding her report to be true (Yev. and Eduy. ibid.; Yev. 116b and Tos.). This takkanah failed to meet the existing exigencies, since often, and particularly in times of war, the wife did not accompany her husband and therefore was not in a position to testify to the circumstances of his death. Hence a further takkanah was enacted – dating to the time of Gamaliel the Elder in the first half of the first century C.E. – prescribing the testimony of a single witness to the husband's death to suffice in order to permit the wife's remarriage. This takkanah apparently was not generally accepted, and even two generations later – in the time of Gamaliel of Jabneh, grandson of Gamaliel the Elder – the tannaim were still divided on the matter of permitting the wife's remarriage on the testimony of a single witness to her husband's death. Yet the increasing number of agunot left behind by the frequent wars led in the end to the general acceptance of this takkanah (Yev. 16:7; Eduy. 6:1 and 8:5).
The amoraim were much occupied with the legal substantiation of these takkanot which directed to "arise and do" in disregard of the law of the Torah on a matter of ritual prohibition – by permitting a woman, regarded in strict law as still married to her first husband, to marry another. The general explanation of the amoraim is that the rabbis relaxed the law in favor of an agunah (Yev. 88a). The legal explanations offered are that a woman is presumed to be careful herself to make sure that her husband is dead before remarrying (Yev. 25a; 93b; 115a; 116b), and that it need not be feared that people will lie about a matter the truth whereof is bound to be discovered (ibid.). These explanations nevertheless do not suffice in themselves to render permissible the remarriage of an agunah, i.e., in accordance with the law of the Torah. The halakhic reason given for the authority of the scholars to so enact concerning agunot is this: "For even if the scholars lack authority to uproot a law of the Torah by way of 'arise and do' – certainly all agree that there is such authority to uproot when there is reason and justification for the matter" (Tos. to Naz. 43b; Tos. to Yev. 88a; some of the rishonim base their explanation of the takkanah on the principle that anyone who married does so subject to the consent of the scholars and the scholars annulled the marriage of a missing husband (see below), but this does not appear to be correct in view of the opinion that the agunah who has remarried must be divorced from her second husband if the first should appear – Rashba, quoted in Shitah Mekubbe?et, Ket. 3a). The laws concerning agunot were added to in many other enactments. In tannaitic times, and later in amoraic and post-talmudic times, numerous other relaxations of the law were laid down, such as the admission of hearsay evidence, of the testimony of various kinds of disqualified witnesses, and so on (Yev. 16:6–7; Tosef., Yev. 14:7–8; TJ, Yev. 16:1. 15c; RH 22a and Codes; see also *agunah) – "so that the daughters of Israel shall not remain fettered (agunot)" (Yad, Gerushin 13:29; for further instances of takkanot of this kind, see Av. Zar. 13a and Tos. thereto; Yad, Nedarim 3:9 and Kesef Mishneh thereto).
The main legislative factor in Jewish law is the authority exercised by the courts and the halakhic scholars in all succeeding generations. Another factor is the legislative authority of the public and its representatives. The source of legislative authority exercised by other than halakhic scholars is to be found in the powers conferred on the king (Deut. 17:14–20; I Sam. 8; see also Ramban, Lev. 27:29), which, among others, embrace also legislative activity in different fields of civil and criminal law (Sanh. 20b; Yad, Melakhim, 3 and 4; Gezelah, 5:9–18, Ro?e'a? 2:4, Sanhedrin 4:2, and 18:6; see also *Mishpat Ivri). The earliest manifestations of legislative activity on the part of the public and its representatives are to be found in ancient halakhot relating to "the townspeople" (benei ha-ir). With the rise of the Jewish community from the tenth century onward and the enactment of Takkanot ha-Kahal, this legislative activity became a factor of wide scope and importance in Jewish law. Its field of operation extended to the residents of a particular community or federation of communities, or particular districts, and it functioned in the areas of civil, criminal, and public law, but not in that of ritual prohibitions and permissions.
It is true that the public also exercises a decisive influence on legislation emanating from the halakhic scholars. However, in this case the influence is exercised after the legislative act, whereas in the case of communal enactments – and legislation in other legal systems – the public initiative precedes the legislative act. This conception finds expression in the two Talmuds in different versions: in the Babylonian Talmud – "no decree (gezerah) is imposed on the public unless the majority is able to abide thereby" (Av. Zar. 36a); in the Jerusalem Talmud (Av. Zar. 2:9, 41d) – "any decree (gezerah) which is imposed by the bet din and not taken upon themselves by the majority of the public is not a decree." In a combination of the two versions the principle is summarized by Maimonides thus: "A court which sees fit to institute a decree or enact a takkanah or introduce a practice must consider the matter and know beforehand whether or not the public is able to abide thereby… If the court has instituted a decree believing the majority of the public able to abide thereby, and thereafter it is found to be scorned by the people and not followed by a majority of the public – it will be void, and it will not be permissible to
In the Mishnah the rule was laid down that "one bet din may not overrule the statements of another unless it exceeds the other in wisdom and number" (Eduy. 1:5). This rule was construed as applying to a court in its exercise of the legislative function, but in its exercise of the interpretative function the second court has authority to arrive at a different conclusion through an alternative interpretation of a biblical passage or ancient halakhah (Yad, Mamrim 2:1). However, a number of exceptions were laid down in terms whereof one court may annul the takkanah of an earlier court even though lacking the attributes specified in the above rule. The main exceptions are the following:
(1) if at the time of making its enactment the court expressly prescribed that it could be annulled by any court wishing to do so (Ma'as. Sh. 5:2; MK 3b; see also Tos. to BK 82b);
(2) when an enactment believed to have spread among all of Jewry is later found not to have spread among the majority of the Jewish people (Yad, Mamrim 2:7);
(3) when the original reason and justification for the enactment have ceased to be valid (Be?ah 5a/b; Hassagot Rabad on Yad, Mamrim 2:2; Rashi and Beit ha-Be?irah, cf. the contrary opinion of Maimonides, loc. cit.).
The rule precluding one court from overruling another has the effect of lending the enactments of the scholars a stability and validity equaling, but not exceeding, that of the laws of the Torah itself. Hence, all the rules and guidelines concerning the authority of the halakhic scholars as regards legislating in connection with a law of the Torah obviously apply also as regards their authority to legislate in connection with a rule originating from earlier enactment by the halakhic scholars: "And if circumstances require it is seeming for the bet din to uproot even such matters (enactments and decrees of other courts) – even though it be of lower standing than the earlier (battei din) – so that such decrees shall not be of greater stringency than the laws of the Torah itself, since even the latter may be uprooted by any bet din as an emergency measure" (Yad, Mamrim 2:4).
Jewish law has experienced legislative activity in all periods of its history, although in varying degrees of intensity. It should be stressed that the actual number of laws originating from legislative activity by the scholars greatly exceeds the number of laws expressly stated to have been derived from takkanah. When a particular law is quoted without designation of its legal source, it is only rarely possible to ascertain such a source – by comparing the statement of the same law in other literary sources – and it may reasonably be assumed that takkanah is the legal source of a substantial proportion of such laws. It is possible that even laws construed by way of midrash Torah (Bible exegesis) had their creative source in takkanah, and that such midrash served only to integrate such laws with the relevant Pentateuchal passages (see *Interpretation). Sometimes the halakhic scholars themselves mentioned this possibility (see, e.g., TJ, Shev. 10:1–2, 39b, c, concerning the prosbul); at other times it may be gathered from comparison with other sources dealing with the same subject matter. It is likewise possible that laws presented as having their legal source in minhag, ma'aseh or sevarah may have had their original source in takkanah.
(1) IN THE SCRIPTURAL PERIOD
Talmudic tradition attributes various takkanot to most ancient times, for instance to the Patriarchs (their institution of prayers – Ber. 26b); to Moses and Joshua (various enactments concerning relations between the individual and the public in matters of property – BK 80b–81b and cf. Joshua 24:25); to Samuel, Boaz, David, Solomon, Jehoshaphat, Haggai, Zechariah, Malachi, and others. Certain takkanot are expressly designated in the Books of the Prophets and the Writings (see, e.g., the ordinance of King David in the area of military law – I Sam. 30:24–25).
(2) THE KENESET HA-GEDOLAH ("GREAT ASSEMBLY")
One of the principal tasks of the men of the Great Assembly was to make legislation "… and make a fence around the Torah" (Avot 1:1). Talmudic tradition attributes to the times of Keneset ha-Gedolah numerous takkanot in different fields of halakhah – benedictions and prayers (Ber. 33a; BB 15a), family law (incest in the second degree – Yev. 2:4; Yev. 21a). Takkanot pertaining to procedural rules and other fields of the halakhah are attributed to Ezra the Scribe (BK 82a; TJ, Meg. 4:1, 75a).
(3) THE SANHEDRIN AND THE PERIOD OF THE TANNAIM
The Great *Sanhedrin fulfilled the function of a legislative body. The takkanot it enacted in the Temple period, as well as those enacted by the *nasi and his bet din after the destruction of the Temple, are of material importance and served to prescribe the modes for the development of the halakhah, fashioning its character and evolutionary path for generations to come. A very substantial part of these takkanot are embraced in the different fields of Jewish law – civil, criminal, and public. The overwhelming majority of the takkanot of the Sanhedrin have come down anonymously, having been ordained by the Sanhedrin as a legislative body. In restricted cases the name of the halakhic scholar heading the Sanhedrin is recalled – for instance Simeon b. Sheta? (in takkanot concerning family and criminal law, etc. – Shab. 14b–16b; Ket. 82b; TJ, Ket. 8:11, 32c), Hillel the Elder (concerning the prosbul – see above, and others), Gamaliel the Elder (particularly in the area of family law – Git. 4:2–3, and concerning the agunot, see above), Johanan b. Zakkai, Gamaliel of Jabneh, and so on. The aforementioned takkanot were also enacted by the Sanhedrin as a body, but they have been traditionally transmitted in the name of the contemporary head of this body. Around the middle of the second century the Sanhedrin sitting at Usha in Galilee enacted a number of takkanot known as the "Takkanot Usha." This was a time of warfare and hardship following on the decrees of the emperor Hadrian,
A decisive majority of the takkanot known to have been enacted until the end of tannaitic times have not come down in the names of the bodies or scholars who enacted them. Consequently it is difficult, as regards a large proportion of the takkanot, to establish their exact stage of enactment during this long and significant period. These anonymous takkanot embrace whole areas of Jewish law, such as family law, property and obligations, labor law, tort, procedure and evidence – in which fields the directives thus laid down constitute basic principles of the aforesaid legal system (see Bloch, bibliography).
In addition to the already mentioned rules of legislation laid down by the amoraim, in which they circumscribed the legislative authority of the halakhic scholars, they also enacted many takkanot in all fields of the halakhah, laying down additional legislative guidelines in this connection. An illustration is their adoption of the enjoinder to "do that which is right and good" (Deut. 6:17–18) as a legislative guideline decreeing the need, at times, to supplement the law – "His testimonies and His statutes" (ibid.) – through the enactment of directives answering the demands of social and economic justice (cf. Ramban, Deut. 6:18). On this principle the amoraim based their institution of the law of the abutter's preemptive right (BM 108a), which gives the abutter the right of not only preempting neighboring land put up for sale, but also of claiming such land from a third party purchaser in return for the amount paid by the latter to the seller; "…even if the purchaser is a scholar or a neighbor or relative of the seller and the abutter is an ignorant person and not related to the seller, the latter nevertheless takes priority and evicts the purchaser; this because it is said, 'thou shalt do that which is right and good' and the scholars have held that since the sale is the same, it is right and good that the owner of the abutting land rather than an outsider should buy this place" (Yad, Shekhenim 12:5). It was laid down that for the very reason of doing "right and good," constituting the foundation of the abutter's right, the latter right is not available in certain cases. This applies, for instance, when the purchaser is an orphan – "because greater right and good is done by kindness to these rather than the abutter" – or a woman – because she is not in the habit of constantly exerting herself to buy and therefore once she has bought the land, it is a kindness to let the land remain with her" (Yad, Shekhenim 12:13–14, based on BM ibid.). The principle of "right and good" is also the basis of the takkanah (concerning matters of *execution (civil)) laying down that property assessed in satisfaction of a debt is always returnable to the debtor against payment (BM 35a; Yad, Malveh 22:15–16).
Another legislative principle of the amoraim is that stated by them in matters of marriage and divorce that "a man who marries a woman does so subject to the conditions laid down by the rabbis and his marriage is annulled by the rabbis." The meaning of this is that since every marriage takes place according to "the law of Moses and Israel," it takes place subject to the consent of the scholars who laid down the relevant laws and therefore the scholars have the power, in circumstances deemed proper, to annul the marriage and hold it to have been invalid ab initio. The amoraim relied on this principle in explaining an earlier takkanah of Gamaliel the Elder. According to the strict law, the husband who dispatches a bill of divorcement to his wife may cancel it any time before actual delivery thereof to the wife – it being permissible for him to do so before the court even in the absence of his wife. However, Gamaliel the Elder enacted, "for the general good," that there should be no cancellation of the get ("bill of divorcement") in the wife's absence (Git. 4:1–2), because the wife might receive the bill without learning of its cancellation and perhaps marry again, at a time when she is in fact still a married woman so that the children of her second marriage will be mamzerim (Get. 33a). Simeon b. Gamaliel held the husband's act of canceling a get in the wife's absence contrary to the takkanah of R. Gamaliel to be ineffective, i.e., that the divorce is valid and the wife free to remarry. In the talmudic discussion on the matter it is asked how the scholars could possibly rule that a get ineffective according to the strict law (because of its valid cancellation as aforesaid) should nevertheless be effective and thereby render the wife free to remarry. In answer to this question it was stated that "a man who marries a woman does so subject to the conditions laid down by the rabbis, and his marriage is annulled by the rabbis" – i.e., since in such case the husband has disregarded the enactments of the scholars by canceling the get contrary to their directives, therefore they retrospectively annul the kiddushin so as to obviate any need at all for the wife to receive a get (Git. loc. cit.). Basing themselves on this principle the scholars laid down various rules in the area of marriage and divorce (see, e.g., Ket. 2b–3a) and even, in a case involving no question of a prior get, annulled the kiddushin celebrated between a man and a woman forcefully "snatched" by him (Yev. 110a).
In geonic times Jewish life in Babylonia was overtaken by significant social and economic changes. The central authorities imposed heavy taxes on land held by Jews, often even expropriating such land, with the result that cultivation was steadily abandoned by Jews in favor of commerce and the trades. This in turn gave rise to many new problems in different fields of Jewish law, the answers to which – when they were not forthcoming by way of interpretation – were found by the geonim through resorting to the legal source of takkanah. Thus the geonim enacted that a debt is recoverable out of the debtor's
A like opinion was expressed in the 12th century by Jacob Tam. In an early geonic takkanah it had been laid down, contrary to the talmudic halakhah, that the husband could be compelled to give his wife an immediate get when the latter claimed such on a plea of ma'us alai ("he is repulsive to me"). The background to this takkanah was caused by the socio-moral realities of the time, since the wife would invoke the aid of the gentile courts toward compelling her husband to grant her a get the effect whereof was to render such a divorce invalid in Jewish law as an unlawful get me'usseh ("coerced" get – i.e., not falling within one of the halakhically recognized cases of get by coercion, see *Divorce). The geonim consequently enacted that the case of ma'us alai should also be included among the cases of lawful get by coercion. R. Tam negated the validity of this takkanah because, in his opinion, no authority had been carried over to the post-talmudic scholars to enact a takkanah serving to validate a get invalid according to talmudic halakhah, the post-talmudic legislative authority in the area of family law being confined solely to the pecuniary aspects such as the manner of recovering the ketubbah and the like (Sefer ha-Yashar, Resp. no. 24). However, the majority of the other rishonim – including Na?manides and Asher b. Jehiel – did not question the stated legislative authority in matters of marriage and divorce as a matter of principle. They held the geonim to have relied on the principle that a marriage is subject to the requirements of the halakhic scholars and the latter consented to annul a marriage on a plea of ma'us alai (Resp. Rosh, 43:8). Yet the former too were opposed to applying the above takkanah in their own times – but for different reasons. The special background giving rise to enactment of the takkanah by the geonim had ceased to exist, and its application had not spread among the majority of the Jewish people (Nov. Ramban (Rashba), Ket. 63; Resp. Rosh loc. cit.; cf. also Yad, Ishut 14:8).
A material change in the historical reality of the Jewish dispersion asserted itself from the tenth century onward. A Diaspora had existed even in most ancient times, but there had always been one predominant Jewish center exercising spiritual hegemony over all the other centers of Jewish life. Its first location was Ere? Israel. Afterward Babylonia enjoyed this standing until the close of the geonic period. The close of this period saw the decline of the Babylonian Jewish center with no other center assuming its predominant influence. Instead there had come into being, and there continued to develop, a number of small centers existing and functioning alongside each other. Beside the North African Jewish centers there arose in the course of time centers of Jewish life in Spain, Germany, France, Italy, Turkey, the Balkan countries, Poland, Lithuania, and elsewhere. From time to time outstanding scholars were still able, by force of their personal standing and influence, to link one center with another or more, but there was no longer one single center recognized by all the others as exercising authoritative influence. This new historical reality found expression in different fields of Jewish life, also as regards the substantive nature of law-making in the halakhah. Whereas legislation until this time – whether in Ere? Israel or in Babylonia – had enjoyed a national dimension as being applicable to the whole of the Jewish people, it was now to assume a local character and extend only to the particular center of activity of the halakhic scholar or court enacting the takkanah. This phenomenon is classically illustrated through the well-known takkanah of R. Gershom b. Judah (and see below), prohibiting polygamy (see *Bigamy), which although introducing a decisive change in Jewish family law was not accepted – until comparatively recent times – in a number of sizeable Oriental Jewish centers. The post-geonic enactments, despite their local character, nevertheless became, like the decree of R. Gershom, an integral part of the overall system of Jewish law. This body of local legislation is at the same time indicative of the vitality of Jewish law, of its sensitivity and adaptation to the changing needs of the place and hour. This too can be learned
Commencing from the 11th century it is possible to distinguish two main legislative directions in Jewish law:
(a) legislation invested with halakhic authority, i.e., enactments by the courts or halakhic scholars; and
(b) legislation by the public, i.e., communal enactments (Takkanot ha-Kahal).
Often there was close cooperation between the two legislative bodies – the halakhic scholars and the public – and many takkanot were jointly enacted by them. This was a natural and understandable phenomenon considering that Jewry as a whole represented a traditional society which looked upon the halakhah as the supreme value governing its way of life.
A brief outline of legislative activity on the part of the two stated bodies, acting either separately or in cooperation, is given below.
(1) IN GERMANY AND FRANCE
Among the earliest takkanot enacted in the above centers are those of the late 10th- and early 11th-century German scholar, Rabbenu Gershom b. Judah – known as the "Light of the Exile" (Me'or ha-Golah), because "he brought light to the eyes of the exile through his enactments." To him are attributed many takkanot which have left a lasting imprint on Jewish law, particularly in the area of family law. Whether all the takkanot attributed to R. Gershom were in fact enacted by him is a matter of dispute among research scholars. The prevailing opinion is that at least two of these, both of substantive importance, were indeed enacted by him. One is the takkanah prohibiting a married man from taking another wife. In talmudic times it had already been hinted that polygamy was an undesirable phenomenon in Jewish life, and some scholars of this period even made the husband's right to take a second wife conditional on the consent of his first wife. However, the prohibition of polygamy as a matter of law was first instituted by R. Gershom – on pain of ban, hence the ?erem de-Rabbenu Gershom, by which name the takkanah is known. In so doing he put the stamp of monogamy on the Jewish family save, as already mentioned, in certain Oriental communities where the takkanah was not accepted. The second takkanah is that in which R. Gershom, contrary to the ancient halakhah, prohibited the husband from divorcing the wife against her will.
Some time after R. Gershom's death there were enacted various takkanot which are attributed to Rashi. Later, in the 12th century, two great rabbinical conferences took place in Troyes, each headed by Rabbenu Tam (the first also by his brother, Samuel b. Meir (Rashbam)) – at which were enacted important takkanot in different fields of Jewish law. At the commencement of the 13th century the outstanding scholars of the generation participated in a number of *synods held in Germany at which were again promulgated takkanot on matters of basic principle in different areas of the law. These takkanot, known as the "Takkanot Shum" (???? = Speyer, Worms, Mainz), were accepted by all the Jewish communities of France and Germany, and later also by those of Poland and other Eastern European countries. Thereafter many more takkanot were enacted at various other synods, for instance, at Mainz toward the end of the 14th century, and by individual scholars – among others Meir of Rothenburg and Perez of Corbeil in the 13th century, Jacob Weil and Israel Bruna in the 15th century, and others. Various takkanot were also enacted by the great synod at Frankfurt at the beginning of the 17th century, the last of its kind held in Germany. From then on Poland replaced Germany as the main center of Ashkenazi Jewry.
(2) IN SPAIN, ITALY, ETC
From the 11th to the 13th centuries legislative activity in the Spanish Jewish center was mainly initiated by the outstanding contemporary scholars or by individual communities, and not – for various political and social reasons – at inter-regional or wider synods as with Ashkenazi Jewry (see Finkelstein, bibliography, pp. 99ff.). The takkanot thus enacted also laid down important matters of principle, and among others may be mentioned those of Toledo and Molina relating to family law. Toward the middle of the 14th century numerous takkanot were adopted at a conference attended – apparently in Barcelona – by representatives of the communities in Aragon. A complete collection of takkanot resulted from a conference of Castilian communal representatives held at Valladolid in 1432, initiated and headed by the Castilian court rabbi, Don Abraham Benveniste. The collection is divided into five parts, approximately one-half consisting of takkanot having an important bearing on different legal matters. Extant too is a collection of takkanot of the Spanish exiles in Fez, North Africa, enacted during the period from the end of the 15th century until the end of the 17th century in connection with different aspects of Jewish law (the collection is to be found in Kerem ?amar, vol. 2).
In Italy many takkanot were enacted at different national Jewish conferences called during the 15th century (Forli, Florence, etc.) and the 16th (Ferrara). Takkanot were also enacted in other smaller centers such as Crete (see Artom and Cassuto, bibliography), Corfu (see Finkelstein, bibliography, p. 96), and others.
(3) IN POLAND, LITHUANIA, ETC
Toward the end of the 16th century there came into being the Council of Four Lands (Va'ad Arba Ara?ot; see *Councils of the Lands), the central communal and legislative body of the Polish Jewish center for some 200 years (for details, see Halpern, Pinkas, bibliography). The meetings of the council were attended by delegates and leading scholars representing the Jewish communities in each of the participating regions or lands. As such the Council was, among its other functions, the supreme legislative body of Jewish autonomy in Poland.
The central body of Jewish autonomy in Lithuania was the Va'ad Medinat Lita, from early in the 17th century. Whereas very few of the takkanot of the Polish council are extant, there has come down a full collection of takkanot of the Va'ad Medinat Lita, covering the period from 1623 to 1761 and constituting a detailed repository of laws and decisions embracing the different fields of Jewish law (see Dubnow, bibliography). A similar central body of Jewish autonomy, though of smaller scope compared with the other two, was that representing the Jewish communities of Moravia. This body too engaged in a ramified legislative activity of which there is extant a collection of takkanot over the period 1650–1748 (see Halpern, bibl.).
Over and above the aforementioned central legislation, there was also legislative activity on the part of the local courts and individual communities (inter alia, the takkanot of the communities of Cracow, Nikolsburg (Mikulov), Tiktin (Tykocin), etc., see, e.g., M. Elon, ?erut ha-Perat … (1964), 280). Much of this great mass of material is scattered, and recalled in various ways, in the different branches of halakhic literature, particularly in the literature of the *responsa and in historical material. In this connection it may be mentioned that special attention to this matter is devoted in the indices to the responsa literature published by the Hebrew University's Institute for Research in Jewish Law.
(1) DIFFERENT BRANCHES OF THE LAW
The post-geonic legislative activity comprehended the civil law, family law and succession, administrative law, and evidence and procedure. There was also wide legislative activity, though in lesser measure, in criminal law, its scope having greatly depended on the measure of judicial autonomy enjoyed by the different communities in criminal matters. (For particulars of enactments in various branches of the law, see bibliography, and see under the relevant branch as enumerated in the article Mishpat Ivri.)
(2) SPECIAL TREND IN FAMILY AND SUCCESSION LAW
Legislation in the area of family and succession law reflects a special trend. On the one hand a very wide legislative activity is evidenced as regards the pecuniary aspects of these legal branches, including the enactment of takkanot contradicting existing law. On the other, scholars came to restrict authority to make enactments contradicting existing law on matters affecting the validity of a marriage or divorce.
The position is illustrated in the following examples: according to talmudic law the husband inherits his wife's entire estate in preference to all other heirs. In answer to the prevailing social realities in different centers, the husband's rights to his deceased wife's estate were restricted in a long series of takkanot of Troyes. The "takkanot Shum" (see above) laid down that the property brought by the wife at the time of her marriage should be returned by her husband to the person who gave her the property, or to her heirs, in the event of her dying childless within a year of the marriage – if within the second year, the husband to return half of such property. In the Spanish takkanot, as expressed in the takkanot of Toledo and Molina, the husband's right was restricted to one-half of the estate of his deceased wife, regardless of how long after the marriage she died, the other half to go to the children of the marriage – and if none, to the wife's relatives. In dealing with the substance of these takkanot Simeon b. ?ema? Duran held as follows; "By this takkanah the husband's right of inheritance, which is de-oraita, is infringed, yet they are entitled to do so for it is found that the scholars instituted the ketubbat banin dikhrin [Ket. 52b; see *Succession], so as to encourage a person to give to his daughter as to his son, and since it has been the custom to be generous in giving a dowry, they made the enactment infringing somewhat the husband's right of inheritance" (Tashbe? 2:292).
A different trend is evidenced as regards legislative authority to annul a marriage. By the commencement of the rabbinical period some scholars held that the principle, already mentioned, of the authority of the scholars of the talmudic period to annul a marriage should not be applied in relation to a marriage valid according to the talmudic law but not conforming to requirements laid down by the scholars in post-talmudic times: "if the rabbis (in the talmudic period) had authority to annul a marriage, we for our part have no authority to do so" (opinion of the Mainz scholars, see Raban (= Even ha-Ezer), part 3, p. 47; see also the opinion of R. Tam, above). However, the majority of the scholars held that the post-talmudic scholars also enjoyed such authority (opinion of the scholars of Worms and Speyer, see Raban, loc. cit., see also the opinions of Na?manides and Asher b. Jehiel, under the Geonic Period, above). Later the opinion was expressed that while the authority of the post-talmudic scholars to annul a marriage was not the same as in the talmudic period, yet if the manner of celebrating a marriage be prescribed in a takkanah specially enacted for this purpose – for instance with a view to the prevention of deceit and bad faith, by requiring the presence of at least ten persons and the consent of the bride's parents – in which it is expressly provided that a marriage not celebrated in the prescribed manner shall be invalid, then a marriage so
It appears that the development of the trend toward restriction of legislative authority as regards marriage annulment is connected with the substantive nature of legislation in the post-geonic period. The fact that legislation had a mere local scope led to a proliferation of laws on the same legal subject, enacted by each Jewish center – and even community – acting independently of the others. In general this variety of laws created no insurmountable difficulties, and even greatly stimulated the development of the Jewish law rules of the *conflict of laws. The position was different, however, in the case of laws affecting matters of marriage and divorce. The possibility that a woman regarded in one place as married could be regarded elsewhere as unmarried – in terms of a local takkanah – entailed an inherent serious threat to the upholding of a uniform law in one of the most sensitive spheres of the halakhah, that of the eshet ish. The only way for its prevention was through a restriction of legislative authority in this area (see Resp. Ribash, loc. cit.; Resp. Maharam Alashkar, no. 48).
The spread of the Emancipation and the abrogation of Jewish judicial autonomy, from the end of the 18th century onward, saw a sharp decline – almost to the point of complete cessation – in the resort to the legal source of takkanah. This was a natural outcome of the new Jewish historical reality following on the Emancipation. Since the legislative function is a natural accompaniment to governmental organization and judicial autonomy, the loss of the one obviated the need for the other (see *Mishpat Ivri).
A certain change took place as from the 1930s, coinciding with the establishment of the organizational institutions of the Jewish settlement in Ere? Israel, notably the Chief Rabbinate Council. The Jewish judicial authority in matters of family and succession introduced a period of legislative activity on the part of the halakhic institutions. The Rabbinical Supreme Court of Appeal had been established in 1921. When it was later contended before this body that the halakhah did not allow for lodging an appeal against the judgment of a court, it was held that "the matter of an appeal has been accepted as an enactment of the scholars, the validity whereof is as that of the law of our holy Torah" (OPD, 71). In 1943 procedural takkanot were enacted, most of them based on the halakhah and "some of them enacted by the Chief Rabbinate Council for the purpose of ordering procedure in the courts of Ere? Israel and for the public good" (introductory note to the takkanot). Thus payment of court fees was imposed in connection with litigation – contrary to the existing halakhah. Similarly, the introduction of adoption as a legal institution represented an innovation in Jewish law (see *Adoption). Another important innovation introduced by takkanah was the engagement by the rabbinical courts to hold equal the rights of sons and daughters and those of husband and wife for purposes of intestate succession. In 1944 the following three matters were enacted in different takkanot: the minimal amount of the ketubbah was increased "having regard to the standard of living in the yishuv and economic considerations"; the levir refusing to grant the widow of his deceased brother ?ali?ah was rendered obliged to maintain her until releasing her; the legal duty was imposed on the father to maintain his children until reaching the age of 15 – not merely until the age of six years as prescribed by talmudic law. Included in the matters laid down by takkanah in 1950 was the prohibition against the marriage of a girl below the age of 16. The introductory remarks to the takkanot of 1944 emphasize the twofold basis of their enactment, halakhic authority and the assent of the communities of the yishuv and their representatives.
Since then there has been no further legislative activity on the part of the bearers of the halakhah in the State of Israel. This may be regarded as regrettable since there still remain diverse halakhic problems awaiting solution by means of the legal source of takkanah. There is particular need to give attention to a number of problems concerning the agunah and other cases involving hardship to women – among others, of the married woman whose husband is unable to give her a get on account of his mental illness and cases in which difficulties arise in connection with the granting of ?ali?ah. Solutions to
In recent generations, halakhic authorities have occasionally expressed their opinion that laws legislated by the Israeli Parliament (Knesset), may also be valid under Jewish Law, subject to the fulfillment of certain necessary requirements, for example, that the legislation enhances public welfare, and is approved by a halakhic scholar (adam ?ashuv). Under these conditions, such Israeli legislation has standing similar to that of Takkanot ha-Kahal (enactments of the public) in Jewish law (see *Takkanot ha-Kahal). For example, Rabbi Ovadia Hadaya wrote in one of his responsa that a law of the Knesset – the Tenants Protection [Consolidated Version] Law, 5732 – 1972, promotes the welfare of protected tenants in Israel, and hence the legal arrangements it prescribes have the status of a Takkanat Kahal (public enactment) made for the public welfare (see Resp. Yaskil Avdi, Pt. 6, ?oshen Mishpat 8). This outlook found expression in a ruling of the Rabbinical Court of Appeals, cited in the Wiloszni decision of the Israeli Supreme Court. (HC 323/81 (App. 533/81) Wiloszni v. Rabbinical Court of Appeals et al, 36 (2) PD 733, 740). The Wiloszni case concerned a husband's petition to the High Court of Justice against a decision of the Rabbinical Court of Appeals, which the husband claimed contradicted the Tenants Protection [Consolidated Version] Law 5732 – 1972. In adjudicating the husband's claim, Justice Elon focused on the statement of the Rabbinical Court whereby tenants protection legislation, "is given halakhic validity like any sitomta (i.e., customary practice) or massi'in al-ki?atan (i.e., enforcement of communal enactment)." As such the Rabbinical Court of Appeals had taken the provisions of this law into account in its ruling (see Mishpat Ivri in the State of Israel). In his decision Justice Menachem Elon commented that the principles of this law could apply in Jewish law by virtue of their having been accepted as a custom, or because they have been accepted by the public as a binding norm, analogous to Takkanat Kahal. Justice Elon commented on the status of public legislation in Jewish law, and stated that by virtue of public legislation in Jewish law various laws from the Israeli legal system, in the fields of civil, criminal and public law, could become part of the system of rules of Jewish law with a similar status to that of Takkanot Kahal that are recognized by halakhic authorities (see also *Minhag).
The legislation of the Council of the Chief Rabbinate of Israel and of the members of the Rabbinical Court of Appeals also finds expression in the Rules of Procedure for the Rabbinical Courts in Israel. The updated version of these regulations was enacted in 5773 – 1993, during the period of Chief Rabbis Avraham Kahana-Shapira and Mordechai Eliyahu. These regulations prescribed arrangements for a number of issues, such as place of adjudication, summons of litigants, power of attorney to represent litigants in Rabbinical Courts, conduct of court sessions, testimony, oaths, non-appearance of litigants or witnesses, postponement, lien and temporary injunctions, compromise, ex parte proceedings, nullification of verdict and rehearing a case, appeals, divorce, confirmation of marriage and divorce, ?ali?ah, ameliorating the plight of aggunot, permission to marry a second wife, probate, estates, guardianship, endowments, adoption, conversion (See extensive discussion under *Practice and Procedure.)
In 1951 the Knesset enacted the Woman's Equal Rights Law, 5711 – 1951. In the amendment of the law in 2000, a number of significant new rules and principles were added. Under Section 1B, titled "Permitted Distinction and Affirmative Action," the following situations will not be regarded as infringement of equality or prohibited discrimination: (1) distinction between a man and a woman where the distinction is dictated by substantive differences between them, or the nature of the matter; (2) a directive or act intended to rectify prior or existing discrimination, or a directive or act intended to promote women's equality […]. Section 6C, titled "Appropriately Representation" provides that all tenders and appointments in public bodies must give expression to the appropriate representation of woman. Section 6D titled "Equality in the Security Forces" states that all women who are candidates, or currently in the Security forces, shall have a right equal to that of a man, to serve in any position…[…] The main purpose of this legislation was to ensure statutory anchorage of equality between men and women with regard to various legal rights and other matters. Some scholars held that the provisions of this law conform with the Jewish Law as it has evolved over the generations. They held that where contradictions between traditional Jewish Law and the needs of contemporary society still remain, the halakhic authorities are empowered to enact appropriate takkanot to meet those needs. However, they argued that with respect to the contemporary imperative of equalizing woman's status, the Chief Rabbinate did not adequately respond to the situation and failed to enact detailed and comprehensive takkanot (see Menachem Elon, Jewish Law – History, Sources, Principles (1994), 1656–1657). These scholars likewise noted that Rabbi Abraham Isaac ha-Kohen Kook, the first chief rabbi of the Land of Israel, desired to see the continued creativity of Jewish law in the rabbinical courts, by utilizing two major legal sources that contributed to the development of the halakhah in every age: (1) midrash – in the
Numerous members of Israel's parliament, the Knesset, looked to the Chief Rabbinate to exercise its traditional halakhic legislative authority by adopting, at its own initiative, appropriate takkanot to resolve a number of problems connected with the refusal of husbands to grant a divorce writ or that of the wives to accept such a writ (see *Agunah; cf. Menachem Elon, Jewish Law – History, Sources, Principles (1994), 1657–1658). Although these takkanot were not enacted, the Chief Rabbinate did support Knesset legislation intended to ameliorate, insofar as possible, the plight of the refused spouse.
The legal arrangement that applied until 1995 regarding the enforcement of divorce judgment in Israel is set forth in Section 6 of the Rabbinical Courts Jurisdiction (Marriage and Divorce), 5713 – 1953. The original wording of Section 6 of the law was as follows: "Where a rabbinical court, by final judgment, has ordered that a husband be compelled to grant his wife a get or the wife to accept such a document from her husband, the district court may, upon expiration of six months from day of the making of order, on application of the Attorney General, compel compliance with the order by imprisonment." This legislation was viewed as desirable in the writings of a number of leading halakhic authorities, inter alia Chief Rabbis Herzog and Yosef (see Rabbi Herzog's letter in Z. Warhaftig, "Coercion To Grant a Divorce in Theory and in Practice," in: Shenaton ha-Mishpat ha-Ivri, 3–4 (1977), 153, 174–175 (in Hebrew), and the responsum of Rabbi O. Yosef, Resp. Yabi'a Omer, vol. 3, Even ha-Ezer 20).
The Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 – 1995, authorizes the rabbinical courts to issue a variety of restrictive orders against a recalcitrant spouse, including limitations on the following: (1) leaving the country; (2) obtaining an Israeli passport or transit pass, holding these travel documents or extending their validity; (3) obtaining, maintaining, or renewing a drivers license; (4) appointment or election to, or service, in an office regulated by law, or in an office in a supervised authority; (5) working in a profession regulated by law, or legal operation of a business requiring a license or legal permit; (6) opening or maintaining a bank account or drawing checks from a bank account. It also included: (7) denying various privileges to a prison inmate; (8) imprisonment to compel compliance; (9) solitary confinement of a prison inmate.
These restrictive orders were mentioned in Israeli legislation after consultation by the legislating organs in Israel with several prominent rabbis in Israel, including Chief Rabbis Avraham Kahana-Shapira and Mordekhai Eliyahu. They are, in essence, an attempt to implement in Israel the principles first suggested by Rabbenu Tam, who held that in suitable circumstances isolating measures (har?akot) be implemented against a recalcitrant spouse (see Sefer ha-Yashar, Responsa, 24). The draft law that preceded enactment of the Rabbinical Courts Law (enforcement of Divorce Judgments), 5755 – 1995, explicitly noted that the law was aimed at harnessing a halakhic tool – Rabbenu Tam's har?akot – in order to alleviate the plight of a spouse who was refused a get. (See the explanation of the goal of the Draft Bill: Legislative Proposals of the State of Israel – 5754, no. 2281, p. 493.)
[Yehiel Kaplan (2nd ed.)]
Z.H. Chajes, Torat Nevi’im … (1958); idem, The Student’s Guide through the Talmud (19602), 35–110; Weiss, Dor, 2 (19044), 49–65; Halevy, Dorot, 1, pt. 3 (1923), 46ff.; M. Bloch, Sefer Sha’arei Torat ha-Takkanot, 3 vols. (1879–1905); Ch. Tchernowitz, Toledot ha-Halakhah, 1 (1934), 174–88; Ḥ. Albeck, in: Zion, 8 (1942/43), 165–78; I.Z. Kahana, Sefer ha-Agunot (1954), passim; J.M. Ginzburg, Mishpatim le-Yisra’el (1956), 45–55; Pinkas ha-Medinah (Lita), ed. by S. Dubnow (1925); Takkanot Kandia ve-Zikhronoteha, ed. by A.S. Artom and M.D. Cassuto (1943); Takkanot Medinat Mehrin, ed. by I. Halpern (1951); Halpern, Pinkas; A.H. Freimann, Seder Kiddushin ve-Nissu’in … (1945); I. Schipansky, in: Hadorom, 24 (1966), 135–97; 26 (1967), 173–97; 28 (1968), 145–59; I.D. Gilat, in: Sefer Bar-Ilan, 7/8 (1970), 117–32; M. Elon, Ḥakikah Datit … (1968), 158–65, 182–4; ET, 1 (19513), 279–82; 3 (1951), 325–30; 5 (1953), 529–46; 10 (1961), 95–110; Finkelstein, Middle Ages; Ḥ. Tykocinski, Takkanot ha-Ge’onim (1959). See also bibliography of Takkanot ha-Kahal. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:391–712, index; ibid, Jewish Law (1994), 2:477–879, index; idem, Jewish Law (Cases and Materials) (1999), 71–75, 50ff., 145ff.; idem Ma’amad ha-Ishah, Mishpat ve-Shipput, Masoret u-Temurah, Arakheyah shel Medinah Yehudit ve-Demokratit (2005), 247–50; idem, "Authority and Power in the Jewish Community: A Chapter in Jewish Public Law," in: Shenaton ha-Mishpat ha-Ivri, 3–4 (1976–77), 7–34; M. Elon and B. Lifshitz, Mafte’aḥ ha-She’elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986) (II), 540–43; B. Lifshitz and E. Shochetman, Mafte’aḥ ha-She’elot ve-ha-Te shuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 361–66, 386–92; Y.S. Kaplan, "Continuing Validity of Public Norms," in: Shenaton ha-Mishpat ha-Ivri, 18–19 (1992–94), 329–96; idem, "Enforcement of Divorce Judgments by Imprisonment: Principles of Jewish Law," in: Jewish Law Annual, 15 (2004), 57–145; E. Shochetman, "The Halakhah ‘s Recognition of the Law of the State of Israel," in: Shenaton ha-Mishpat ha-Ivri, 16–17 (1991), 417–500 (in Heb.).
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