Israel – the land and the nation – lost a giant earlier this month with the passing of Justice Menachem Elon, a monumental talmid chacham 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.
Menachem Elon was 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 at the Hebron Yeshiva where he was known as an illuy, a young genius, and it was from there that he received his semicha. 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 he was already teaching law at Hebrew University in Jerusalem. Over the next several years, as he moved up the academic ranks, he served as a guest lecturer and visiting professor at Oxford and Harvard, among other universities; held senior editorial positions at such publications as the Encyclopedia Judaica and Encyclopedia Hebraica; and authored the foundational work on Jewish commercial 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 adviser on Jewish law to the Israeli 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 election for president of Israel. In 1993, he was elected president of the World Union of Jewish Studies, a role he served in until 2005.
I could go on for pages listing just some of the accomplishments of Justice Elon, a man who was a selfless public servant and a loyal representative and champion of Religious Zionism – a man who single-handedly influenced an entire nation and civic system and who undoubtedly was one of the most influential and important scholars of the modern study of Jewish law.
I knew him as all those things – and as a caring and committed teacher.
When I went to NYU Law School from Yeshiva University, I was 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; Minchah 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 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 for Israel’s presidency. 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 how halacha works and its relationship to secular law.
We met regularly during my first year of law school to speak about how halacha views many different aspects of the first-year law school curriculum I was taking. It was my first real exposure to the ideas now found in Rabbi Dr. Eliav Shochatman’s masterful work Seder Hadin, which really is at its core Jewish civil procedure, and I developed a more complete understanding of contract law in halacha, as well as some working Jewish insights into the rest of the first year curriculum. I imbibed more Torah than I ever expected to 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. What truly animated my learning from him was the question of how halacha 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 halacha granted itself.
Justice Elon showed me a basic truth within the rishonim: he pointed out that the Rosh, Rashba, Maharshal and many others contend that situmta and dina demalchuta can accomplish much more than traditional halachic forms of effecting a deal through a kinyan. For example, this approach argues that though halacha has no native mechanism for transferring ownership of an item that does not now exist in the world (davar shelo ba laolam), if the commercial practice of a particular society included a procedure for such transfers, halacha would incorporate the practice as valid and enforceable. 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, Justice Elon noted that the Rashbash states:
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].
If this 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 halacha – could nevertheless be introduced into halacha under the rubric of minhag hasocharim or dina demalchuta. (Of course and needless to say, other halachic authorities maintain that thisis 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. According to this view, then, the capacity of halacha to assimilate world law precepts and private obligations would be more limited.)
Justice Elon opened vast new vistas of my own understanding of the breadth and depth of halacha – and particularly how much one really needs to understand secular law to work in Choshen Mishpat matters. After my first year of law school he arranged 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. 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 halacha 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 Minchah, wished me a mazal tov, grabbed both of my hands and danced with me for thirty seconds, which was 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 Slabodka himself, he claimed – was to dance with a chattan upon his engagement, 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, and I certainly have fulfilled his mandate not to be serious all the time.
I remained in contact with Justice Elon for many years, until his failing health made it 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 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 (so ably translated into English by JPS as the four volume “Jewish Law: History Sources, Principles”), which ought to be standard reading for anyone interested in commercial Jewish law. Indeed, my own students, many of whom never met Elon, are more than familiar with and inspired by his massive contributions to the field of modern Jewish law.
Justice Elon was an incredible person, 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 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.Rabbi Michael J. Broyde
About the Author: Rabbi Michael Broyde is a law professor at Emory University School of Law and a fellow in the Center for the Study of Law and Religion at Emory University.
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