Brother Daniel: Majority Ruling on Who Counts as a Jew

Moshe Silberg

1962

From the outset of this most unusual case I have been faced with a great psychological difficulty. Paradoxically enough this is due to the deep sympathy and great sense of obligation which we as Jews feel for the petitioner, Oswald Rufeisen, known since his conversion as Brother Daniel. The petitioner is a man who during the dark years of the…

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In 1962, Israel’s Supreme Court confronted the question of Jewish identity in the case of Brother Daniel, a Jewish-born Carmelite monk. Born Oswald Rufeisen in interwar Poland, he converted to Catholicism during World War II and immigrated to Israel in 1958. A Holocaust survivor and resistance fighter, he was denied citizenship under the Law of Return because of his new faith. Justice Moshe Silberg ruled that Jewish identity for citizenship was national, not religious—a precedent later enshrined in the 1970 amendment to the law. (See also Justice Haim Cohn’s Dissent on Jewish Identity and the Law of Return.)

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Creator Bio

Moshe Silberg

1900–1975

Moshe Silberg (or Zilberg) was an Israeli legal scholar and supreme court justice. Silberg was born in Skaudvilė, in present-day Lithuania, then part of the Russian Empire. Heir to a prominent line of rabbis, he studied in several yeshivot, including the Novardok yeshiva, in present-day Belarus. In 1920, he moved to Germany to attend the University of Frankfurt for his general studies. He went on to study philosophy at the University of Marburg and law at the University of Frankfurt.

In 1920, Silberg emigrated to Mandatory Palestine, where he worked as a lawyer in private practice. With the establishment of the state in 1948, Silberg was appointed to the Tel Aviv district court, and shortly thereafter to the supreme court, becoming a full member of the court in 1950. In 1965, he was appointed president of the supreme court, and he remained in that role until his retirement in 1970.
 

As one of Israel’s first justices, Silberg played a key role in the development of Israeli law, as it sought to integrate Ottoman law, Mandatory law, and Jewish law. Silberg maintained that while state law was distinct from religious law and had to adapt to different circumstances, it should draw on the Jewish law of the past. His 1961 book The Way of the Talmud (translated into English as Talmudic Law and the Modern State) argued that the Talmud presents a fully fledged legal system capable of informing and enriching Israeli state law.

Much of Silberg’s writing was devoted to the topic of personal status. His 1957 book Personal Status in Israel, for which he received both the Bialik Prize and the Israel Prize, argued that matters of personal status such as marriage and divorce should remain largely in the hands of religious courts, with the civil courts playing a limited oversight role. In 1970, when the court faced the question of how to determine eligibility for the Law of Return, Silberg presented the minority opinion, maintaining that the question of who is a Jew is a religious matter, not merely a procedural one. After his retirement, he continued to write on the controversies around personal status that plagued Israeli society.