Identification out of Identity / הזדהות מתוך זהות

• Published in: תרבות דמוקרטית 2015-01, Vol.16, p.187-217
• Main Authors: רז, אורנה, Raz, Orna
• Format: Article
• Language: Hebrew
• ISSN: 1565-0316

This article seeks to illuminate the manner in which the Jewish heritage finds expression in Israeli judicial rulings as a means of achieving goals that transcend the legal substance of the rulings. Incorporation of the Jewish heritage in judicial decisions serves as an instrument of identification because it relates to the cultural identities of the litigating parties, and thus provides a response to litigators who are in distress. The article analyzes three judicial rulings, each of which uniquely exemplifies a different aspect of this practice and which, when taken together, create a multidimensional image. The first case is an example of how the use of the Jewish heritage in a ruling can assist a court in transcending its judicial role in both concept and practice. In this case, the judge addressed a unique message to the litigants whose claim had been rejected, and thus helped them to better understand the issue and to reconcile themselves to the situation. The second case illustrates how references to the Jewish heritage can serve the court in achieving identification, understanding, and empathy with a litigant. The final case emphasizes the unique value of a judge's decision to incorporate in his ruling precisely the same sources from the Jewish heritage that the defendant had himself cited in order to justify his actions. In this case, the judge's reliance on these very same sources was aimed at communicating with the defendant in terms taken from his own cultural milieu in order to persuade him to abandon his previous pattern of behavior, and to improve his conduct in the future. In all three cases, the use of the Jewish heritage was not alien or exogenous to the judicial context, but rather was connected inherently to the cultural identity of the participants in the judicial proceeding. The article demonstrates that the unique characteristics of the Jewish heritage allow a conceptual deviation from the limitations of the legal discourse and the subjective perception of the judge. These characteristics include the fact that the Jewish heritage was formulated over many eras and in many places, that it is not subservient to the patterns of thought, the professional categories, and the restrictive rules of legal discourse, and also that generally it is not influenced by popular culture or by modern perceptions such as Western liberal thought, capitalism, and utilitarianism. By relating to the Jewish identity of the parties in a case, or to his own Je