("Justice", No. 1, Winter 1994)
The Right to Inscribe Non-Hebrew Characters on Tombstones
Civil Appeal 294/91, The Burial Society "Jerusalem Community" v. Lionel Kastenbaum, 30.4.1992. P"M 46 (2) 464. Before the President M. Shamgar, the Deputy President M. Elon and Justice E. Barak
This case concerned the issue of principle whether a relative or friend of a deceased person buried in a Jewish cemetery in Israel is permitted to inscribe non-Hebrew characters on the tombstone of the deceased. In a majority judgment, the Supreme Court sitting as a Court of Civil Appeals held that such a person was entitled to use non-Hebrew letters within the framework of his basic rights to freedom of expression, conscience and human dignity.
The brother-in-law of a deceased woman contracted with the appellant Burial Society for the funeral and burial of the deceased on the terms of a "funeral order form". The form contained a provision incorporating the Burial Society’s regulations and an explanation sheet, which the applicant acknowledged with his signature.
Under the terms of these regulations any writing on the tombstone was to be limited solely to Hebrew letters: all numbers, designs and pictures were prohibited. The respondent husband of the deceased requested permission from the Burial Society to inscribe the name and date of birth and death of his wife in English, on the ,rounds that she had lived most of her life in the U.S.A., was known by her English name and had conducted her affairs according to the Gregorian calendar, this had been her wish and grant of permission would allow her family and friends who came from abroad to commune more easily with her memory in the cemetery. The husband’s request was refused.
The appellant is a non-profit organization and the largest burial society operating in Jerusalem. Some other burial societies do allow requests of the type made here. Thus, when the appellant was made aware that tombstones had been erected with non-Hebrew dates, the appellant agreed to allow the respondent to inscribe the Gregorian dates on the back of the tombstone but only in Hebrew letters and not in numerals. During the course of the hearing the appellant also agreed to numerals, provided these were inscribed on the back of the tombstone.
The respondent petitioned the District Court for a declaratory judgment confirming his right to inscribe the name and dates of birth and death of his wife according to the Gregorian calendar in English letters and numerals on the tombstone. The District Court granted the petition.
Court of Appeal:
The Burial Society appealed. In long and exhaustive judgments the Justices of the Supreme Court held as follows:
According to President Shamgar the issue at hand was to he resolved by the application of norms prevailing in public and private law concerning the basic rights of an individual, including his individual freedom of expression, as well as elements of contract law intended to protect vital societal interests. The dominant principle is the public value in recognizing the individual’s personal-emotional interests and human dignity, provided that in doing so no substantive harm is caused to the rights of others.
A free society is under an obligation to recognize an individual’s personal-emotional interests and human dignity as a matter of tolerance and understanding. At the same time, society has a right to nurture its culture, national language and historical traditions.
Individual freedom is legitimately barred only where a person’s acts lead to a breach of the law or substantive infringement of another’s rights. The gravity of the breach or infringement are subject to the test of the reasonable man, i.e., an objective as opposed to subjective test.
Every person has the right to honour the memory of his loved ones in a manner corresponding with their values and life styles, provided that by doing so the feelings or legitimate interests of another are not injured.
A tombstone is not a public construction but a memorial for the living reflecting their personal relationship with the deceased. A distinction has to be drawn between a visitor to a cemetery and the person who erects the tombstone. The former has no right to interfere in the personal actions or decisions of the latter, so long as the circumstances are such that a reasonable man would not feel compelled to interfere.
The respondent’s request was not so extreme or unusual as to substantially injure the feelings of another. While the Burial Society’s interest in ensuring that inscriptions on tombstones are confined to the Hebrew language is a legitimate public interest, it cannot be forced on the respondent.
From the point of view of contract law, the respondent had no real freedom of choice and in his distressed state could not be considered in the same terms as a buyer under an ordinary sales contract. Further. the Burial Society has to be considered in the light of its public functions and status analogous to statutory bodies, and ‘its contracts are governed by public law principles and not ordinary contract law provisions.
The test proposed by Justice Barak was slightly different. Justice Barak noted that as a public body the Burial Society is under a duty to act honestly and reasonably and as a trustee of the public interest. In deciding how to respond to a request such as the respondent’s, the Society has to consider a number of factors. First, preservation of the Hebrew language in cemeteries. This is one of the objective values intended to be served by the establishment of the Burial Society. Second, the human dignity of the individual and his freedom of conscience, and third, the need for tolerance.
As a public authority the Burial Society has to balance these conflicting values. Here the human dignity of a reasonable man would only be injured if a public authority insisted that a tombstone inscription could not be in Hebrew. On balance, the value of human dignity, which reflects a basic human right from which many other fundamental rights are derived, outweighs the goal of preserving the Hebrew language.
A government authority wishing to infringe the human dignity of an individual must receive express legislative sanction to do so, and since the enactment of the Basic Law – Human Dignity and Freedom, such sanction has to be derived from a law "which accords with the values of the State of Israel, which was intended for a sound purpose, and only to the extent necessary." (Section 8).
Further, in the instant case, the contractual clause relating to the Hebrew characters, is an oppressive clause in a standard contract, and cannot be maintained. An issue of "public interest" is at stake, the Court will not sanction a contractual condition which opposes the public interest, which it is the Court’s duty to safeguard.
In the view of Justice Elon, the appellant is subject to both public and private law norms. It also has a duty of special sensitivity directed at the preservation of traditional values, the character and dignity of the cemetery and funeral service. The decision of the appellant to restrict inscriptions to Hebrew letters was not arbitrary or unreasonable and could not be defined as national duress". Writing in non-Hebrew characters involves an element of harm to the interests of others buried in the same cemetery and their families who assumed that the tombstones would be inscribed solely with Hebrew characters.
An issue of mutual tolerance is at stake, including tolerance of the minority for the majority. Only very cautious use should be made of the term "public interest", in view of the great value which should be placed in preserving freedom of contract. Here the contractual clause was not oppressive but fair and reasonable. The basic rights safeguarded by the Basic Law – Human Dignity and Freedom, are rights founded on the values of the State of Israel as a Jewish and democratic state. Use of the Hebrew language is fundamental to the basic values of the State of Israel.
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