The “Supermarket Law” stripped local authorities of the power to decide on allowing commercial activity on Shabbat and instead handed it over to the Minister of the Interior, a development which was met with public uproar. However, our study of municipal bylaws in all of Israel’s municipalities found that so far, only a small minority of those choosing to adopt Shabbat bylaws have actually allowed supermarkets and other commercial enterprises to open. By contrast, most municipalities permit the opening of restaurants, and almost half of them allow cultural institutions—such as cinemas and theaters—to open. In light of this data, would it not be better to leave these powers in the hands of the municipalities, which act according to the profile of their resident population, rather than to impose legislation from above that will lead to a counter-reaction?
The dispute over the character of Shabbat in the public domain lies at the heart of the debate over religion and state in Israel. Despite efforts to devise political arrangements based on broad consensus, some 70 years since the establishment of the state, the Shabbat issue remains a source of significant political and social controversy.For a review of the struggles over Shabbat arrangements see Shuki Friedman, “The Shabbat Wars: A Guide for the Perplexed to the ‘Status Quo’ … and a Possible Solution,” Israel Democracy Institute website, https://en.idi.org.il/articles/14015, 2017.
There are two major dimensions to the principle of Shabbat as a rest day; first, the prohibition on employing workers on Shabbat; and second—on conducting economic-commercial activity on Shabbat. The prohibition on work on Shabbat was stipulated in the Hours of Work and Rest Law (1951), according to which it is forbidden to employ workers on a rest day. By contrast, the prohibition of economic-commercial activity on Shabbat is largely based on municipal bylaws, each of which regulates the opening and closing times of businesses, under the powers granted local authorities in 1990 by the Municipal Ordinance. In both of these dimensions, there is a gap between the prohibitions laid down in law and the realities on the ground.See Shuki Friedman and Gilad Wiener, “Employment on Shabbat: Current Status,” Israel Democracy Institute website, 2017.
The opening and closing of businesses on rest days in Israel is regulated by municipal bylaws approved by the Minister of the Interior. The “Supermarkets Law,” passed in the Knesset January 2018, limits the minister’s authority to approve bylaws allowing commercial activity on Shabbat, and has generated public debate on the issue of Shabbat regulation at the local level.Amendment to Municipal Ordinance Law (Bylaws Relating to Opening and Closing of Businesses on Rest Days), 2018, published in the Official Gazette on January 10, 2018.
Our study sought to examine the situation that existed prior to the law’s introduction by analyzing municipal bylaws governing the opening and closing of businesses on Shabbat, Jewish holidays, and rest days of other religions. The study also proposes a uniform index—the “Shabbat—day-of -rest Index”—for measuring and comparing the extent of prohibitions on economic activity on Shabbat in Israel’s localities. It should be noted that this study does not look at the enforcement of these bylaws, and that there are many indications that their enforcement in practice is only partial.See, for example, Ariel Finkelstein (2016), Shabbat in Israel: Current Status, Institute for Zionist Strategies.
The aim of the study was to examine local regulation of the opening and closing of businesses on Shabbat and rest days.The study looks at local authority regulation of business opening on rest days—including Fridays for Muslims and Druze, Sundays for Christians, and Saturdays (Shabbat) for Jews—but its main focus is the Jewish Shabbat rest day. To this end, a first-of-its-kind mapping was conducted of municipal policy on this issue as reflected in municipal bylaws in Jewish, mixed (Jewish and non-Jewish), and non-Jewish localities.
The study examined the bylaws of all localities in Israel, and found that 140 municipalities have bylaws relating to the opening and closing of businesses on rest days.The study also found that the average age of municipal bylaws regulating commercial activities on Shabbat is 30 years. While these 140 municipalities represent only 55% of the 255 local authorities in Israel, they include more than 75% of the country’s population. The remaining 115 localities have no bylaws governing commercial activity on Shabbat. This analysis of local government bylaws provides—for the first time—a more precise picture of the extent of prohibition of economic activity on rest days in Israel.
The study found that municipal policy regarding the opening of businesses on rest days is largely dependent on the type of business. It was found that an overwhelming majority of localities (88%) have bylaws permitting the opening of businesses selling and serving food, but that most (55% overall, and 73% of Jewish localities)—prohibit the operation of businesses providing cultural activities. Moreover, the study found that almost all localities (around 94%) prohibit other commercial activity on rest days.
It is particularly interesting to compare these findings with proposals for regulating Shabbat in the public space, such as those presented in the Gavison-Medan Covenant and in the Shabbat Law proposal drafted by the Israel Democracy Institute.See, for example, Yoav Artzieli, The Gavison-Medan Covenant—Main Points and Principles: Basis for a New Covenant Among Jews on Religion and State in Israel, Jerusalem: Israel Democracy Institute and AVI CHAI Foundation, 2003; Constitution by Consensus (proposed legislation on civil partnerships and proposed legislation on Shabbat and Jewish holidays), Israel Democracy Institute draft proposal, 2005. These proposals emphasized the need to provide opportunities for leisure and cultural activities on Shabbat, at the expense of commerce and consumption. The study findings do indeed indicate that municipalities recognize the importance of allowing the preparation and sale of food while also restricting other commercial activity on rest days. At the same time, it appears that municipalities in Israel, particularly Jewish municipalities, have not fully adopted the spirit of these recommendations, at least in relation to the possibility of allowing cultural activities on Shabbat.
The Shabbat Index
The complexity of municipal legislation regarding the opening of businesses on Shabbat makes it difficult to reach wide-ranging conclusions about local policy on Shabbat overall. To make such an analysis possible, as part of our study, we developed an index---the “Shabbat Index,” which makes it possible to compare policies on opening businesses on Shabbat among various municipalities. On a scale of 1-10 each municipality was graded in accordance with their policies regarding one of the three indices as they pertain to Shabbat: opening food businesses, opening culture and leisure businesses and opening other businesses. The higher the grade, the stricter the municipality is on banning opening businesses on Shabbat.
A comparative examination of the scores received by municipalities reveals a substantial difference between those with a clear Jewish majority and those whose population is either not Jewish or mixed. Thus, the average index score of Jewish local authorities is 6.3, but among mixed authorities the average falls to 3.6, and in non-Jewish authorities it drops to 2.8. The clear implication is that the approach of Jewish local authorities to the management of the public domain on rest days is entirely different from that of authorities in which there is a dominant non-Jewish population, at least in terms of municipal bylaws. It appears that local authorities with a majority Jewish population are far more conservative in issuing permits for commercial activity on rest days than authorities without a Jewish majority.
The Significance of the Supermarket Law in Light of the Study Findings
Study findings imply that granting municipal government the power to determine the arrangements for opening and closing businesses on rest days has not necessarily dealt a blow to the status of the Shabbat in Israel. For decades, municipalities found various different ways to strike a balance between the needs of their residents and the special standing afforded the Shabbat in Israel. The Supermarket Law—which strips municipalities of their power to regulate commercial activity on Shabbat—upsets the equilibrium between local and national government in their power to shape the observance of Shabbat in public spaces, intensifies the disputes over Shabbat observance, and fuels the struggle over public regulation of Shabbat.
In the months since the Supermarket Law was passed, it has become clear that it has not substantially changed the legal realities on the ground, as economic activity is expanding and flourishing, and the legal prohibition is not being enforced. If the aim of the legislator was to bolster the status of the Shabbat in Israel, it would have been better to focus on finding effective enforcement mechanisms for the existing municipal bylaws and exploring options for updating old laws. These efforts should now be pursued while making maximum use of the existing legislative landscape provided by the Supermarket Law, and while also taking into consideration the great diversity of Israeli society and the status of the Shabbat as the national day of rest.