Justice Menachem Elon זצ"ל

 

A Tribute to Justice Menachem Elon זצ”ל from a Student

Guest post by R. Michael J. Broyde

Rabbi Michael Broyde is a law professor at Emory University, was the founding rabbi of the Young Israel in Atlanta and is a dayan in the Beth Din of America. A slightly condensed version of this essay appeared in The Jewish Press.

Israel, the land and the nation, lost a giant this past month.

Justice Menachem Elon was a monumental talmid chakham who served on the Israeli Supreme Court from 1977-1993, and as its Deputy President from 1988-93, bringing a deep Torah viewpoint to the highest tiers of the Israeli judiciary. Born in Germany in 1923, his family fled a year before the Nazis rose to power, making their way to Israel in 1935. He studied in the Chevron Yeshiva where he was known as an illuy, a young genius, and was eventually ordained. He earned his law degree from the Tel Aviv School of Law and Economics in 1948 and served as military prosecutor of the 9th Brigade during the War of Independence.

By 1954, Elon was already teaching law at the Hebrew University of Jerusalem. Over the next several years, as he moved up the academic ranks, he served as a guest lecturer and visiting professor at Oxford University and Harvard University among others, held senior editorial positions at such publications as the Encyclopedia Judaica and Encyclopedia Hebraica, and authored the foundational work on Hebrew law (discussed below) as one of the founders of the Mishpat Ivri movement. He held several positions in government, including Senior Assistant to the Attorney General of Israel, and advisor on Jewish Law to the Israel Ministry of Justice. In 1979, he was awarded the Israel Prize, the nation’s highest honor, for his work in jurisprudence. In 1983, he narrowly lost to Chaim Herzog in the elections for President of the State of Israel. As a Justice, his opinions often drew on the principles of Jewish law. In 1993, he was elected President of the World Union of Jewish Studies, a role he served in until 2005.

I could go on and on for pages listing just some of the accomplishments of Justice Elon, a man who was a selfless public servant, a loyal representative and champion of Religious Zionism, who singlehandedly influenced an entire nation and civic system, and undoubtedly one of the most influential and important scholars of the modern study of Jewish law. Amongst the scores of people whose lives he touched, and those whose lives his work will continue to touch, others will surely do that, but none will do him justice. Even more importantly, his legacy of working to insure that Jewish Commercial Law is part of the law of the state of Israel will never be forgotten.

But, in truth, I want to talk about someone whom not many people were fortunate enough to have had the chance to meet and know; Rabbi Dr. Menachem Elon, the caring and committed mentor.

I went to NYU Law School from Yeshiva University very wet behind the ears, neither mature nor learned. Furthermore, the advice I received from my own rebbeim at YU was that I should not really expect to do any serious learning while in the first year of law school, as the work load would be both heavy and hard.

So I crafted my schedule around that expectation – minyan in the morning, followed by a chavruta learning of Gemara Berachot with Aryeh Klein for 45 minutes, followed by hours of class and study. Mincha at 2:45 in Professor Lawrence King’s office followed by many more hours of class and study; maariv, sometimes at the Courant Institute minyan, sometimes by myself in the law library.

But that all changed one day when I bumped into Rabbi Dr. Menachem Elon in the law school, and started to speak with him. Rabbi Dr. Elon was spending that year as the visiting Gruss professor of Talmudic Civil Law, on leave from the Israeli Supreme Court following his unsuccessful campaign to be the President of Israel. I must confess that the truth is I had almost no idea who he was at the time– I knew he was an Israeli Supreme Court Justice, and that was impressive, but I had almost no knowledge of who he really was – a grand Torah scholar with a crisp theory of both how halakhah works and its relationship to secular law.

We met regularly during my first year of law school to speak about how halakhah views many different aspects of the first year law school curriculum that I was taking. It was my first real exposure to the ideas now found in Rabbi Dr. Eliav Shochatman’s masterful work סידר הדין which really is at its core Jewish civil procedure, and I developed a more complete understanding of contract law in halakhah, as well as some working Jewish insights into the rest of the first year curriculum. I imbibed more Torah than I ever would have expected to learn that year, much of it from informal lunch conversations with my newfound mentor, Justice Elon.

What interested Justice Elon most were not internal halachic problems exactly: what truly animated my learning from him was the question of how halakhah interacts with other legal systems, and other legal cultures. It was he who first introduced me to the formulation of the many rishonim who assign to situmta and thus the law of the land greater authority than halakhah granted itself.

Justice Elon showed me a basic truth within the rishonim: he pointed out that the Rosh, Rashba, Rashbash, Maharshal and many others contend that situmta and dina demachuta can accomplish much more than traditional halachic forms of effecting a deal through a kinyan. For example, this approach argues that although halakhah has no native mechanism for transferring ownership of an item that does not now exist in the world (davar she-lo ba la-olam), if the commercial practice of a particular society included a procedure for such transfers, halakhah would incorporate the practice as valid and enforceable.[1] To put it simply, despite the fact that no basic halachic form of kinyan permits someone to sell something that does not yet exist or to sell to someone who does not yet exist,[2] Justice Elon noted that the Rashbash states directly:

Great is the power of the community, which triumphs even without a kinyan… Even something which is not yet in existence can be sold to someone who does not yet exist [if community practice so provides].[3]

If Rashba is correct and commercial custom can allow transactions to be accomplished that could not otherwise have been achieved under Jewish law, it is possible that secular law can create obligations that – though profoundly not found in halakhah – could nevertheless be introduced into halakhah under the rubric of minhag ha-sokharim or dina demalchuta.

Of course and needless to say, other halachic authorities maintain that Rashba is wrong in attributing expansive powers to non-native mechanisms. R. Yehiel b. Joseph of Paris and others posit that a customary convention functions only as a substitute method by which to transfer title and cannot be more effective under Jewish law than the forms of kinyan recognized by the Talmud.[4] According to this view, then, the capacity of halakhah to assimilate world law precepts and private obligations would be more limited.[5] But it is worth noting that many prominent achronim accept the greater view of situmta as proper and normative – for example it really forms the basis of Rabbi Moshe Feinstein’s view on secular wills; see Iggrot Moshe, Even Ha-Ezer 1:104, 105. See also R. Shlomo Shwadron, Maharsham 224; R. Yaakov Ettlinger, Binyan Tziyon 24; R. Ezekiel Ledvalla, Sefer Ikkarei Ha-Dat, Orach Chaim 21; R. Aaron Parchi, Perach Mateh Aharon 1:60. See also Rabbi Yitzchak Isaac Herzog, Techukah Le-Yisrael Al Pi Ha-Torah vol. 2, ch. 5 (1989) who adopts this view also at least bedi’eved.

Justice Elon opened vast new vistas of my own understanding of the breadth and depth of halakhah – and particularly how much one really needs to understand secular law to work in Choshen Mishpat matters. After my second year of law school he helped arrange for NYU Law School and the Gruss Committee (headed by the ever gracious Professor Rochelle Dreyfus) to grant me a Gruss Fellowship in Talmudic Civil Law. My recollection is that it paid $3,500 and it was the beginnings of my academic career in Jewish law. Justice Elon worked with me as I wrote my first piece of serious Torah scholarship on surrogate motherhood, and started working with me on my second article, which turned into a book, on how halakhah views the practice of secular law.

When I got engaged to my wife (Channah) on May 12, 1985 – the same day we both took our final in Civil Procedure II at the end of that first year of law school – Justice Elon approached me after mincha, wished me a mazal tov, grabbed both of my hands and danced with me for 30 seconds, which was – to be honest – surprising to me. He looked at me with a twinkle in his eye and told me that the tradition in the Hebron Yeshiva – direct from the Alter of Slobodka himself, he claimed – was to dance with a Chatan upon his engagement, and not at the wedding. “Besides,” he said to me, “Michael, you don’t have to be so serious all the time.” I still dance at engagements as a tribute to Justice Elon, although many people claim that I still struggle to fulfill his mandate not to be serious all the time.

I remained in contact with Justice Elon for many years, until his failing health made such nearly impossible. Tea with him and his wonderful wife Ruth in their house at 12 Ibn Shaprut in Rechayva was always a wonderful treat; she was as gracious as he was learned, and there was always much to learn in conversation with him.

The truth is that, contrary to his advice to me, Justice Elon was, as far as I can recall, serious all the time in with respect to the central mission of his Torah life – insuring that the commercial law that forms the backbone of any serious halachic system be treated with the analytical seriousness it deserved. He left a legacy of scholarship – including his monumental three volume work HaMishpat HaIvri (which was so ably translated into English by JPS as the four volume “Jewish Law: History Sources, Principles”), and which ought to be standard reading for anyone interested in commercial Jewish law. Indeed, my own students, many of whom never met Elon the man, are more than familiar and inspired by his massive contributions to the field of modern Jewish law.

Justice Elon was an incredible person to meet, towering in intellectual stature and yet approachable and warm. Both his smile and his passion for the pursuit of justice were infectious. Aside from his written decisions, and abundant scholarship, he also left a legacy of dozens of students, mostly in Israel and a few in America. I am privileged to count myself as one of them. May his memory be a blessing.


[1] Responsa ha-Rosh 13:20; R. Meir b. Barukh of Rothenberg (Maharam, Germany, c. 1215-1293), cited in Mordechai to Shabbat, no. 472; Maharshal 36. See also Netivot ha-Mishpat, Bi’urim on Shulhan Arukh, Hoshen Mishpat 201:1 who appears to agree; and Arukh ha-Shulhan, Hoshen Mishpat 212:3.
[2] Jewish law distinguishes between different categories of things “that do not yet exist.” Perhaps the case about which there is greatest dispute concerns a person’s ability to agree to sell property that exists but that he does not possess. The origin of this controversy is found in a difference of opinion between the Chakhamim (Sages) and R. Meir regarding the case of a man who attempts to take all the legal steps necessary to marry a woman at a time before it is legally permissible for them to be wed. “Suppose a man says to a woman, ‘Be wedded to me after … your husband dies.’ … [Then the woman’s husband dies. The Chakhamim rule:] she is not wed. R. Meir rules: she is wed.” B Kiddushin 63a.
[3] Responsa ha-Rashbash 512
[4] R. Yechiel b. Joseph of Paris (d.c. 1265) is cited in Mordechai to Shabbat, no. 473 and in Tashbetz (Katan), no. 378. A similar approach can be found in Responsa Radbaz 1:278 and is accepted as correct by Ketzot ha-Choshen on Shulchan Arukh, Choshen Mishpat 201:1.
[5] For an application of this dispute, see Michael J. Broyde and Steven H. Resnicoff, “The Corporate Paradigm and Jewish Law,” Wayne State Law Journal 43:1685-1818 (1997). (This law review article examines corporations from a Jewish law view, and the previous material is somewhat derived from that article.)

 

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18 Responses

  1. moshe shoshan says:

    yehi zichro baruch. Thank you for this.

  2. shachar haamim says:

    Thank you very much for this.
    I had the privilege to study under a few of Justice Elon’s students – who themselves can only be regarded as Torah giants who are carrying on a sisypheian task in trying to promote Jewish law in the Israeli legal system.
    It will take time – much time – but after the State of Israel “undoes” some of the damage caused by the years of Aharon Barak’s “everything is justiciable” and “the world is entirly encompassed by justiciability” and the “rule of law and order” – cincepts which were largely opposed by Justice Elon (sadly in the minority), a prcoess which has begun slowly (but which will sadly be delayed for a while while the “tenua” party “floaters” who remained in the knesset take hold of the Justice Ministry for a while), I believe that one day the legal system in Israel wil come to accept more and more of Justice Elon’s ideas – his resitance to judicial activism, his willingness to seek out and explore what Jewish law has to say on a matter. His name will be even greater and more well known 50-75 years from now than it is now.

  3. R. Warburg says:

    Law with an Extra Measure of Soul
    My teacher and mentor, Menachem Elon, was “”אדם גדול – a great scholar and person. His teachings were enriched with a breadth of knowledge, including halakha and agadah, law and ethics, philosophy and literature, language and culture. Galitzianer cleverness combined with Yekkishe precision and the uncompromising Zionism that is rarely seen today.
    All of these attributes combined to form a body of work that captivated the heart and gladdened it. Its wide and diverse scope was a reflection of broad knowledge and an extra measure of soul, and could be felt in his unique style. For example, he coined the phrase – “שפטת מרובה – לא שפטת” – if you have judged a great deal, you have not judged,” expressing his belief that the court cannot and should not render decisions in every matter.
    He spent his entire life within the dwelling place of the Torah. From the beit midrash of the Hevron Yeshiva in Jerusalem to the Supreme Court, the Sages of Israel were his constant companions, Rashi and Rav Ashi, Maimonides and Maharam of Rotenburg, Rashba and Chatam Sofer. He drew tremendous spiritual reserves from their springs and with these he enriched the law of the State of Israel.
    Elon was a courageous justice. Even when he remained in the minority, he did not recoil from fighting for his position. Preserving human liberty and dignity, freedom of expression and ensuring the equal status of women were the guideposts of his judicial creation.
    In his opinion, the concern for liberty, equality, human dignity and liberty was not a hollow slogan or a mere section of a Basic Law, but rather a way of life. This was an expression of his understanding of the basic Jewish principle according to which every person is created in the image of God, and as such is entitled to liberty and dignity.
    His kind heart and pleasant demeanor were apparent to all who encountered him, regardless of their position or standing. The Court employees, his students and clerks can attest to this, as can his children, grandchildren and great-grandchildren, who loved him devotedly. He spoke to everyone as his equal, a tremendous lesson in ‘menschlichkeit’ and sensitivity.
    His court decisions were always directed to arriving at דין אמת לאמתו – an “unequivocally true judgment.” He unwaveringly strove to arrive at a solution that would be true, just, wise and humane.
    As a true pluralist, he espoused tolerance and multiplicity of ideas. He carried out this ideal on the bench, in his family, with his students. It is not surprising that he so loved the words of the author of the Arukh Hashulchan, relates to Jewish Law: “And the glory of the song [=Jewish Law] is that all of the voices are different from one another.”
    Elon was, first and foremost, “ the master of Jewish law.” From a relatively trivial field, pushed to the sidelines, Elon turned Jewish law into a leading subject of Jewish and legal studies.
    By virtue of his great vision he raised generations of students and teachers and worked to introduce the principles of Jewish law in every venue. Through teaching the law, in Israel and abroad, in Jerusalem as well at Harvard and NYU, and sitting on the Supreme Court, he ingenuously bore the values of Jewish heritage and poured their vintage wine into the new and reformed vessel of the legal system of the State of Israel.
    Aviad Hacohen
    Aviad Hacohen was clerk and student of Justice Menachem Elon, a close friend for 25 years and an editor of a forthcoming volume of essays written in memory of Justice Elon z”l.

  4. G Pickholz says:

    Prof Elon and son Sefi Elon are the first father/son to sit on the Supreme Court since the Sanhedrin. The fact that they are Talmidei Chachomim (Sefi’s ability to quote Talmud and Poskim verbatim from the bench shames all Dayanim in the Batei Din) is all the more astounding and a true kiddush hashem.

  5. Shalom Spira says:

    Ye’yasher kochakhem, R. Broyde and respondents, for a beautiful tribute to R. Elon, zatza”l.
    At the same time, it may be noted that R. Elon’s service on the Israeli Supreme Court operated on the assumption that there is no prohibition of arka’ot shel akum for two competing Jewish litigants to submit their case to the secular courts of Medinat Yisrael. Indeed, this assumption of R. Elon is explained in his book Ha-Mishpat ha-Ivri, (Jerusalem, 5738) I, 22, note 80 and i, 122 note 174. However, R. Elon’s analysis is challenged by R. J. David Bleich in Tradition 34:3 (Fall 2000), pp. 68-71.

  6. Steve Brizel says:

    Great articles-of course, the question to whether R Elon ZL was able to influence the HCJ and keep it from engaging in a judicially active role as the last protector of the secular Zionist and post Zionist POVs remain a subject for further study, as opposed to the fine hespedim posted here.

  7. Nachum says:

    Steve, the Court has fifteen members, and until recently, there was a reserved “religious seat.” That’s actually changed somewhat- I believe there are now at least three openly religious members, and a few more who skew traditional or conservative.

  8. Steve Brizel says:

    Nachum-The HCJ’s record re both the DL/settler and Charedi communities is well documented as one of unwarranted judicial activism that the late Professor Bork, as called well beyond the Warren Court’s decisions in the US. Hebrew U’s Ruth Gavison has severely criticized the court for issuing decisions that can only be called intrusive at best in the affairs of the DL/settler and Charedi communities. Time will tell as to how much influence the traditional or “religious” members have on a court and court system that is the sole basis for replacing its members.

  9. Nachum says:

    So? Your first post seemed to denigrate Elon by pointing out that the court didn’t always follow him. (Although he *did* have a great influence, if not always in the areas that make the papers. The vast majority of what the court does is humdrum everyday stuff.) I responded with practical facts. You added. OK then. Can we agree that Elon was remarkable?

  10. SM says:

    Contrary to what was stated above, Yosef Elon is not a member of Israel’s supreme court.

  11. IH says:

    Anyone interested in a serious discussion of the issues Steve caricatures, should watch http://www.nyutikvah.org/gruss/gruss2011fall.html

    “The Tenth Annual Caroline and Joseph S. Gruss Lecture, Law and the Political Culture of Israel, was presented by Professor Menachem Mautner, Danielle Rubinstein Professor of Comparative Civil Law and Jurisprudence, Faculty of Law, Tel Aviv University, at 6p.m. on November 8th, 2011″.

  12. SM says:

    Contrary to your post, which is as unnecessarily denegrating negative as it is inaccurate, Sefi Elon has served two full rotations on the Supreme Court and is due for a third in 2014, under the Israeli system of senior District Court judges serving rotations on the Supreme Court.

  13. shachar haamim says:

    “under the Israeli system of senior District Court judges serving rotations on the Supreme Court”

    There is no such system. the rotations are ad hoc to fill seats until the appointments committee can meet.

  14. shachar haamim says:

    Further to my first comment, someone wrote in this past weekend’s makor rishon that Justice Elon himself foresaw the day when his views on mishpat ivri would become the majority and told Aharaon Barak during a presentation (the details have momentarily escaped me…) that while one day his (i.e. Barak’s) opinion would be studied academically the same way some candian supreme court rulings were studied, the mishpat ivri would go on to deeply influence and shape israeli law for generations.
    They were personally very friendly but were not afraid to crtique each other.
    I truly believe that Justice elon Z”L was 100% correct in his assessment – it will take time and patience, and a lot of hard work – but that day will come.

  15. IH says:

    According to Prof. Mautner’s book Justice Barak’s views changed between the 1980s and 1990s as a result of being influenced by Justice Elon’s arguments. See, e.g. pp. 45-52 in the preview available on Google Books.

    From p. 50:

    As I will show in the discussion of Elon’s approach in the following passages, due to the significant changes evident in Barak’s approach, the gap between the two has considerably narrowed. Now Barak too, not only Elon, is ready to grant a central role to the Halakhah in the provess of Israeli law’s future development. Nor Barak, too, not only Elon, has confined the creative legacy of the Jewish people to the Halakha, disregarding all other manifestations of Jewish, Hebrew and Israeli creativity.

  16. shachar haamim says:

    IH – I haven’t seen that book yet, but I believe that the crux of the issue is that Barak can define “moreshet yisrael” as whatever he wants. It can be as narrow as the kitzur shulchan aruch or as broad as any and every book ever printed in Hebrew, Aramaic, Yiddish and Ladino. That’s because ultimately he believes that the provision in the law that mandates addressing “moreshet yisrael” really never needs to be applied as either there are no lacunae, and even if there is the judge first addresses comparative law – which to his point of view also includes comparative foreign law. So he’ll look at the supreme court ruling of canada or of lichtenstein if it suits him (or the case), before looking at the shu”t of the rashba or the talmud.

  17. Steve Brizel says:

    IH-the means of judicial selection to the HCJ would be called cronyism if utilized in the US, which requires that the Senate give its advise and consent. I fully agree with Shachah Haamim-Barak’s approach hardly is known for its reliance on either the Talmud or the views of the Rishonim, but in his definitions of human rights, etc.

  18. Steve Brizel says:

    Nachum-the US Supreme Court hears many cases which one can call “humdrum everyday stuff”, but when read in conjunction with the cases on criminal procedure, civil liberties, etc, set forth a jurisprudential philosophy. The role of the HCJ as the last refuge for the secular Ashkenazi elite in Israel should not be underestimated.

 
 

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