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.

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[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.)