Ori Aronson is an associate professor of law and the deputy director of the Menomadin Center for Jewish and Democratic Law at the Bar-Ilan University Faculty of Law.
In 2017, Israel’s Supreme Court was asked to decide a peculiar question: could a state court tell a religious community to shun one of its members? The case involved a husband who refused to grant his wife a Jewish religious divorce, a gett. Under Orthodox Jewish law, without her husband’s consent the woman could not remarry or have children who would be recognized as legitimate. Israeli law, by giving exclusive jurisdiction over Jewish marriage and divorce to rabbinical courts, effectively entrenches this discriminatory rule. To mitigate its harshest consequences, state rabbinical courts have long been empowered to impose coercive civil sanctions, executed by the state’s enforcement apparatus: freezing assets, revoking drivers’ licenses, even jailing recalcitrant husbands. But these powers do not always work. In some ultra-Orthodox communities, social shame matters more than loss of liberty. So rabbinical judges began invoking traditional sanctions from medieval Jewish law—calling on neighbors to ostracize the stubborn husband until he relented.
The Supreme Court’s response was striking. In its decision, the Court held that rabbinical courts, as state organs, could not formally compel such communal sanctions without proper statutory authorization. But they could “recommend” them—drawing on their parallel communal status as religious institutions of normative ordering. Formally, then, the Court upheld a bright line: public institutions cannot wield extra-legal powers. Substantively, however, it allowed the state’s religious courts to continue using a form of community shaming that belonged more to the private sphere of traditional Jewish life. What looked like a principled defense of the public/private divide ended up reinforcing its porousness.
This episode captures something fundamental about Israel’s fraught legal landscape. Religious adjudication in Israel does not sit neatly on either side of the public/private divide. State rabbinical courts, in which only Orthodox male rabbis preside, are staffed and funded by the government and have direct access to the state’s coercive powers. Yet they apply an ancient body of law—halacha—that the state did not legislate and does not control and that often stands in direct conflict with Israel’s constitutional commitments to liberal essentials. Meanwhile, private rabbinical tribunals flourish across the country, adjudicating disputes with the consent of the parties. They are not officially part of the state, yet they routinely draw on state arbitration laws to give their decisions enforceable weight, and some of them fashion their processes by emulating secular adjudicatory practices. Each side borrows from the other, mixing public authority and private legitimacy.
The Supreme Court has often tried to police the line, only to find itself reinforcing the very dynamics it sought to contain. Consider another example from the early 2000s: for decades, state rabbinical courts had adjudicated not only family law but also a wide array of private law disputes—contract claims, property disputes, business disagreements—whenever parties agreed to appear before them. Formally, this was done under the guise of arbitration: disputants signed contracts empowering rabbinical judges to decide their case according to Jewish law. Substantively, however, these proceedings blurred categories. A public court was acting as a private arbitrator, applying nonstate law but backed by state imprimatur.
When the practice reached the Supreme Court, the justices balked. They ruled that state rabbinical courts lacked legal authority to act as arbitrators in private disputes, even with party consent. Their jurisdiction, the Court insisted, was limited to matters explicitly granted by statute—marriage, divorce, and certain family issues. Anything beyond that belonged either to the secular courts or to genuinely private rabbinical tribunals. The message was clear: state courts must adhere to public norms, nothing more.
Yet the unintended effect was to boost the status of private rabbinical tribunals. Stripped of the ability to arbitrate private law cases, state rabbinical courts could no longer claim religious precedence in that realm, which they previously enjoyed precisely due to their attachment to the state apparatus. Prominent rabbis declared that the “truer” heirs to Jewish tradition were now the private forums, unbound by the secular state’s restrictions. Over the next decade, a flourishing industry of private rabbinical courts emerged, many marketing themselves not only to devout Jews but to secular Israelis looking for faster, cheaper, or more culturally resonant dispute resolution. In seeking to protect the boundary between public and private, the Court had redrawn the jurisdictional map in ways it may not have intended.
Sometimes the flow goes the other way: private tribunals inch toward public authority. Take the case of the Karaites, a small Jewish sect with a distinct textualist tradition. For decades the state quietly recognized the Karaite community’s own marriage and divorce decrees by providing them with official forms stamped with the state emblem. Legally, there was no basis for this arrangement. But politically, it avoided a public confrontation over the status of Karaite law. When the government tried to end the practice in 2014, the Karaites petitioned the Supreme Court. Striking down the arrangement would have caused hardship for couples whose marriages or divorces would suddenly lose legal recognition. In its verdict, the Court opted for pragmatism: it upheld the practice as a temporary solution, effectively blessing an extra-statutory fusion of private religious adjudication with state authority. For the Karaites, recognition by the state was not only a matter of convenience but also a signal of communal legitimacy.
Taken together, these episodes show how elusive the public/private line becomes in a system where state and community religious courts coexist. Israel’s Supreme Court often casts itself as a border guard, patrolling jurisdictional boundaries in the name of the rule of law. Yet repeatedly, its rulings reflect compromise and accommodation. Faced with competing demands of justice, community cohesion, cultural accommodation, and public recognition, the Court bends the line rather than holding it firm.
What does this tell us more broadly? First, that legal pluralism is not just a matter of multiple forums coexisting. It is a dynamic process in which each forum shapes and reshapes the others, borrowing legitimacy and authority across spheres. Second, that the public/private distinction, so central to liberal legal thought, is difficult to sustain when religious law is involved. Orthodox Judaism, like many comprehensive traditions, claims authority over all aspects of life. It cannot be neatly boxed into either “communal autonomy” or “public regulation.” Finally, that attempts to enforce a clean boundary may backfire, pushing communities to develop alternative institutions that are less accountable to the state.
None of this is unique to Israel, but the Israeli case makes the dynamics especially visible. Few other democracies both operate state-run religious courts and tolerate a thriving market of private religious tribunals. The overlap produces a jurisdictional mosaic in which public and private are constantly entangled. For critics, this threatens the liberal values of equality, transparency, and rule of law. For others, it reflects a more authentic accommodation of religious diversity. Either way, the border between public and private in religious adjudication is revealed as a zone of constant negotiation, where law, culture, politics, and community intermingle.
A possible lesson is that we should stop thinking of the border as something to police. If history is any guide, it will not hold. Instead, we might treat the porousness itself as a fact to be managed. Rather than insisting on rigid separation, policymakers could experiment with hybrid institutions—mixed judicial panels, regulated arbitration, shared oversight procedures—that acknowledge the reality of overlapping authorities. Such designs would not eliminate the tensions between state law and communal justice. But they might provide a more honest framework for navigating them.