(2010/5771)

In honor of Chanukah, we are printing an article written specifically for Kol Torah by Mr. David Cohen, an American immigrant to Israel, who takes great interest and active involvement in the challenging issue of integrating the role of Torah in Medinat Yisrael today.

Israel’s Declaration of Independence proclaimed the establishment of “a Jewish state in the Land of Israel.” In 1985, the Knesset passed an amendment to the basic law[1] pertaining to the Knesset, formally defining the State of Israel as “a Jewish and Democratic State,” and disqualifying anybody who seeks to change this from running for the Knesset. This formulation is deliberately vague, and leaves room for a wide range of interpretation. Some view the description of Israel as “Jewish” as simply reflecting the demographic reality, while others view it as charging the State with the task of protecting Jews worldwide. Others see it as a mandate that Israeli policy and public life should be based on the Torah. This article will seek to explore the appropriate role of the Torah in a “Jewish and Democratic state.”

This law has been used against both Rabbi Meir Kahane[2] and Ahmed Tibi[3], as they have both made the case that a state cannot simultaneously be both Jewish and democratic. Of course, they have differing opinions on which of the terms ought to be dropped, but ostensibly, they have a point. The philosophical underpinnings of democracy are based on the social contract theory of Thomas Hobbes[4] and John Locke[5], which posits that government has the right to govern only because citizens voluntarily give up some of their natural rights and empower the government to impose restrictions to the extent necessary to create an orderly society. Judaism, however, is predicated on the notion that God gave the Torah on Har Sinai. Despite the fact that following this one-time revelation, further development of the Halachah was placed in the hands of man, and despite the principle of majority rule in the Sanhedrin, the mandate to govern still comes from the “top down.” The Sanhedrin has the power to govern because it as acting as God’s agent, not because of a social contract.

Philosophical issues aside, though, the State of Israel needs a functioning government, and in this pre-messianic age, in the absence of Semicha (the original rabbinic ordination, which has long been lost) , having a Sanhedrin that would function as the legislative body of the State is not a relevant option[6], and a representative democracy does have support in Halachah. Firstly, there is a longstanding tradition of communities making “Takkanot HaKahal”[7] – enactments of the community – that are binding on all of its residents. Medieval Jewish communities in the diaspora, which were often granted a degree of autonomy by the local rulers, regularly exercised this authority and levied taxes, regulated commerce, and even administered corporal punishment. The Rosh maintained that any enactments that were accepted by the entire community have the binding force of law “as if they were given at Sinai.”[8] Perhaps the legislation passed by the Knesset can be viewed in this light. One critique of “Jewish democracy” that is sometimes voiced is that a democratically elected Knesset may pass laws whose details differ from the laws of the Torah. Here, too, however, there is precedent for a community making a Takkana that changes the Halachik norm. One of the most striking examples of this is the ruling of the Shulchan Aruch that relatives who are disqualified to serve as witnesses under the letter of the law may, in fact, give testimony, “because they [i.e. the community] have accepted it upon themselves.”[9] Needless to say, to the extent that this line of reasoning applies to the laws of the Knesset, it would be relevant only in areas of civil procedure, in which the question is one of how to best organize society to ensure the rights of all. It does not mean that the Knesset could pass a law declaring that Cheilev (forbidden fat) is permissible!

The other source for the exercise of governmental power in the Torah is the institution of Malchut – the monarchy. Following the ruling of Shemuel in the Talmud, Jews were required to follow the laws of the countries in which they lived due to the principle of “Dina DeMalchuta Dina” – “the law of the kingdom is the law”[10] – and this is the case regardless of whether the “kingdom” in question is ruled by an actual king or by some other form of government. While Jewish “Malchut” is ideally meant to be exercised by kings from the House of David, and Ramban goes so far as to criticize the Chashmoneian kingdom that was set up following the story of Chanukah[11], all agree that non-Davidic kings have the status of “Malchut Yisrael as well.[12] Along these lines, there are contemporary Posekim who maintain that the present Israeli government has the status of Malchut Yisrael[13], even if there is no one individual who has the status of a king.

While most Rishonim maintain that “Dina DeMalchuta Dina” applies to a Jewish king in Eretz Yisrael no less than to any other king[14], some Rishonim hold otherwise. Ran writes that as opposed to other countries, which essentially “belong” to the king, who allows his subjects to live there on the condition that he follows their laws, Eretz Yisrael was given to the People of Israel[15], and thus the mandate of a Jewish king is limited to those powers that the Torah explicitly granted him. Following this position, some groups maintain that any pre-messianic Jewish government in Eretz Yisrael has no validity. The Chatam Sofer, however, deduces from Ran’s reasoning that just as ultimate sovereignty in other nations lies with the king, sovereignty in Eretz Yisrael lies with the People of Israel. Thus, he maintains, even Ran would agree that laws that the king institutes for the benefit of the people (effectively acting as their representative), rather than for his own good, do have Halachik force.[16] This suggests that in a case in which the “Malchut” is a democratically elected government, which by definition is a reflection of the will of the people, all of its laws are binding.[17]

A common theme in political campaigns against religious influence is that if religious Jews had their way, Israel would become a “Medinat Halachah” – a state governed by Jewish law.[18] The implied concern is that if observant Jews had their way, private observance would  be forced on individuals, and Israeli citizens would be subject to arrest for turning on the lights on Shabbat in the privacy of their own homes. Does the Halachah require a Jewish government to exercise such a power? Should the religious members of the Knesset be aiming to pass laws that would compel private religious observance? Chazal speak in many places about the power of the Beit Din to compel observance. However, the operative principle is, “we force him until he says, ‘I want to.’”[19] Thus, a Mitzvah performed under duress is not an end in itself – it is valuable only if it is a step toward observing the Mitzvah willingly. The Or Sameiach writes that if using force to ensure observance will not lead to voluntary observance in the future, it should not be done.[20] In today’s society in which religious coercion is likely to alienate non-observant Jews from the Torah and decrease the chance that they will be interested in coming closer to religious observance in the future, the value of legislation to coerce private observance is highly questionable.

Concerning the public sphere, the issues are somewhat different. Today, the State of Israel does have laws aimed at preserving a Jewish ambiance in the public square. For example, in most areas, public transportation does not operate on Shabbat, and businesses are closed. There is also a law banning the sale of Chametz on Pesach. While there is some vocal opposition to these sorts of laws, they also enjoy significant support from the traditional public in Israel, which includes many people who may not be entirely observant of Halachah in their private lives. On the other hand, were a law proposed banning all non-emergency vehicular traffic from the streets on Shabbat, it would undoubtedly encounter widespread opposition. There is no conceptual difference between the two; in both cases, the non-observance of others does not impact the ability of the religious Jew to observe the Halachah, but the law in question serves to create a certain atmosphere in the public sphere.  The difference lies simply in the difference between the percentage of Israelis that abstains from Chametz on Pesach and the percentage that refrains from driving on Shabbat.  The question raised by such issues is a question that all liberal democracies have to address in different contexts: how to find the appropriate balance between the rights of individuals and the rights of others to a comfortable public atmosphere.[21] In the event that the opinions of the Israeli public regarding what aspects of the public sphere they want to be “Jewish” should change in the future, it is feasible that the appropriate place to draw this line could change, and this would not necessarily reflect any conceptual shift in the way that Israel’s democracy is defined.

The second area in which the Jewishness of Israel manifests itself is in issues of personal status. Under current law, all marriages and divorces of Jews in Israel must take place under the auspices of the official Rabbinate. Thus, two Jews whom the Halachah prohibits from marrying may not get legally married in Israel. This policy has both pros and cons when it comes to preventing Mamzeirut.[22] When the Chief Rabbinate asked for exclusive control over family law at the time of the establishment of the State, though, the primary rationale was most likely that a “legal marriage” indicates that society approves of the couple’s cohabitation, and it would not be right for “society” in a Jewish state to give such approval to a Halachically prohibited marriage.

Now, more than six decades after this policy was codified into law, it has had a number of problematic consequences. The first issue is that it has turned the Rabbinate into a government bureaucracy, and a significant number of secular couples have had unpleasant experiences that have eliminated any chance that they may have had of coming closer to Torah and Mitzvot. The other major issue has come to the forefront with the influx of a large number of immigrants who have come to Israel under the provisions of the Law of Return, but are not halachically Jewish. Since such Israelis do not officially belong to any religious group, they have no way of getting legally married in Israel – even to each other – and are forced to leave the country in order to enter into a marriage that the Israeli government will recognize. Perhaps one way to solve these problems, without running into the issue of implied societal approval of forbidden marriages, would be to remove the government from the institution of marriage altogether. Any two people who want to do so could enter into a “civil partnership,” and even partnerships between siblings could be allowed, making it very clear that this is an organizational and financial partnership that carries no implication about the nature of the personal relationship between the two partners.[23] It is likely that the majority of Israeli Jews would still choose to have a traditional Jewish wedding ceremony, presided over by an Orthodox rabbi.

The third area is that of civil law. Two Jews who have a civil dispute are required to have it settled by a Beit Din, a rabbinic court, rather than turning to the secular court system. In this respect, the current situation in Israel is comparable to that in the United States. If both parties to a dispute agree to have it settled by a Beit Din rather than by the secular court, then the Beit Din is considered to be binding arbitration, and the parties are legally obligated to abide by its verdict.

At the time of the founding of the State of Israel, the legal system was, by and large, inherited from the British legal system that had been in use during the Mandate period. Much of Israeli civil law is still based on British Common Law, with additional laws having been passed by the Knesset over the years. For the past few decades, there has been a movement to expand the use of “Mishpat Ivri” – literally “Hebrew Law” – in the secular Israeli court system. Scholars such as Menachem Elon[24] and Nachum Rackover[25] have written volumes demonstrating how Jewish law is capable of addressing most of the day-to-day civil disputes that arise in a modern society. In addition to encouraging the Knesset to legislate based on Jewish civil law, supporters of “Mishpat Ivri” also advocate using Halachah as precedent. In areas that are not directly addressed by Israeli law, the Israeli legal system allows judges to look to foreign legal systems for precedent. Thus, the decisions of Israeli jurists have referenced British Common Law, rulings of the U.S. Supreme Court, and occasionally even ancient Greek or Roman law. The “Mishpat Ivri” movement points out that in a Jewish State, there is no reason for Jewish law codes to be considered any less a source of precedent than these other sources. Historically, some justices on the Israeli Supreme Court have made more extensive use of Mishpat Ivri as precedent than have others.

The final outlet of expression of Israel’s Jewish nature lies in the weight given to Torah sources in debates on public policy. Oftentimes, as a reaction to what is perceived as excessive involvement by Torah scholars in public policy debates, a sentiment is voiced that “the rabbis should stick to Halachah and leave politics to the politicians.” However, the justifiable rejection of the notion that adoption of one particular viewpoint on a public policy question is the exclusive “Da’at Torah,” or that the Mitzvah of listening to the Sages requires one to be in agreement with one particular group of contemporary sages and one particular viewpoint need not necessarily lead to the opposite extreme of rejecting the notion that Torah scholars have something to contribute to the public discourse. Telling rabbis to stick to the “four Amot of Halachah” does not make sense, since the Torah itself is not so limited. Both the written and oral components of the Torah contain a wealth of spiritual and ethical teachings in their “story” or “Aggadic” sections. Furthermore, while we are not always aware of the reasons for Mitzvot, it is still appropriate to look for patterns in the Halachah that can help us determine the correct course of action even in cases that are not addressed in the Shulchan Aruch.

This is not to say that Torah knowledge can or should replace military or economic expertise. Public policy reflects not just the correct interpretation of the military or economic situation, which is best left to the experts, but also the values of the society, which dictate how to act on the data. Using the classic example of “guns vs. butter,” in the United States, different politicians may be looking at the same economic and military data, and may both agree that American public policy should be based on the values enshrined in the U.S. Constitution. A proponent of increased military spending might point to the clause stating that government is to “provide for the common defense,” while a politician who prefers spending the same money on social welfare programs will point to the very next phrase in the Constitution’s preamble, which states that government is to “promote the general welfare.” They may disagree on the conclusion, but both parties are framing the debate in the context of finding the appropriate balance between competing aspects of a shared set of values.

If the values of a Jewish state are to be based on the Torah, then it is entirely appropriate that Torah take a prominent role in the public discourse. To a certain extent, this is already the reality in the State of Israel. In the recent debate over the proposed deportation of children of foreign workers who have remained in the country illegally, participants in a rally in favor of allowing them to stay might hold up signs saying “VeAhavtem Et HaGeir” – “you shall love the stranger,”[26] while those taking the opposing view might hold up signs saying “Pen Yihyeh LeMokeish BeKirbecha” – “lest they become a trap in your midst.”[27] The fact that both parties in the dispute look to the Torah for the moral basis for their positions definitely attests to the Jewishness of Israel, but this idea could be multiplied tenfold if scholars who have spent years in the Beit Midrash, and not just those who have a perfunctory knowledge of key verses, were more involved in debates over public policy.[28]

In summary, there is much that can be qualitatively Jewish about a democracy besides just the composition of its citizenry. Democracy precludes the Torah-observant minority forcing its way on the majority of the country, but this challenges the religious public to rise to the task of showing that “Derachecha Darchei Noam” – “[the Torah’s] ways are ways of pleasantness,” and inspiring society at large to voluntarily make Israel a more Jewish state. May we soon merit seeing the day that we anticipate in our High Holiday prayers: “VeYeiasu Chulam Agudah Achat La’asot Retzonecha BeLeivav Shaleim” – “and they will all come together as one to do Your will wholeheartedly.”

 

[1] Israel’s “basic laws” serve as its de facto constitution.

[2] The law was passed in response to a Supreme Court decision that did not allow the Elections Committee to disqualify R’ Kahane’s Kach party from the elections for the 11th Knesset in 1984. Based on this law, they were able to disqualify the party from the elections for the 12th Knesset in 1988.

[3] The Elections Committee sought to disqualify Tibi’s Ta’al party (and the United Arab List, with which Ta’al ran on a joint list) from the elections for the 18th Knesset in 2009, but this decision was overturned by the Supreme Court.

[4] Leviathan, 1651

[5] Second Treatise of Government, 1689

[6] While there is a group that claims to have renewed Semicha and set up a Sanhedrin in the last few years, it has not received the universal acceptance that would be necessary for it to exercise authority.

[7] This is the Ashkenazi term. In Sefaradi communities, such enactments were known as Haskamot.

[8] She’eilot UTeshuvot Rosh 43: 8, stated regarding the enactments of Rabbeinu Gershom. It should be noted that other Rishonim held that there were some limitations on of the power of a community to make Takkanot. See, e.g., Mordechai on Bava Kamma, Siman 179, Rabbeinu Tam held that acceptance of Takkanot needs to be unanimous.

[9] Shulchan Arukh, Choshen Mishpat 37: 22.

[10] e.g. Nedarim 28a

[11] Ramban on Bereshit 49: 10

[12] Rambam, Mishneh Torah, Hilchot Melachim 1: 8

[13] Neriya Gotel reported in Makor Rishon (March 13, 2009) that R’ Shlomo Zalman Auerbach used this expression to describe the State of Israel in the original version of responsum regarding the question of yom tov sheni in Eilat. This expression was deleted in the version of the responsum later published in Minchat Shlomo.

[14] e.g. Rambam, Mishneh Torah, Hilkhot Gezela ve-Aveda 5: 1. The Halachah is brought as such in Shulchan Aruch, Choshen Mishpat, 369:6.

[15] Ran on Nedarim 28a, s.v. “BeMoches HaOmeid MeiEilav,” in the name of Tosafot.

[16] She’eilot UTeshuvot Chatam Sofer, Choshen Mishpat, Responsum 44.

[17] It is interesting to note that in contrast to conventional American political wisdom, the “bottom-up” approach of social contract theory is not necessarily directly correlated with democracy. Here, we are describing a “top-down” government with a Divine mandate, yet it is thoroughly democratic. Hobbes, on the other hand, may have seen the ideal government as drawing its mandate from the consent of the governed, but he envisioned a benevolent dictatorship!

[18] See, e,g,, http://www.haaretz.co.il/hasite/spages/1134091.html

[19] Mishnah Arachin 5: 6

[20] Or Sameiach on Hilchot Mamrim 4: 7.

[21] For example, a society might recognize the right of individuals to play music in their backyards, but also recognize the rights of the neighbors to peace and quiet. An appropriate compromise might be restricting the playing of loud music to certain hours of the day.

[22] On the one hand, some cases of Mamzeirut are prevented, since many couples will choose not to have children without being legally married, and woman with a living previous husband can get legally married until she has received a Get. On the other hand, when every wedding is performed under the auspices of the Rabbinate, it is much harder to eliminate a case of Mamzierut by finding a technical flaw with the mother’s first wedding.

[23] A similar solution would appropriate for the United States, which is grappling with the issue of same-sex marriage. The underlying issue is the same – a (legitimate) fear that legal “marriage” implies societal approval of cohabitation. Instead of “marriage for male/female couples and civil unions for same-sex couples,” this approach simply says “civil unions for everybody.”

[24] Elon, Menachem: Ha-Mishpat haIvri: Toledotav, Mekorotav, Ekronotav. Magnes Press, Jeruslaem: 1973.

[25] Rakover, Nachum: Chok le-Yisrael. Morsehet ha-Mishpat be-Yisrael, Jerusalem: 1992-1998.

[26] Devarim 10: 19

[27] Shemot 34: 12

[28] On this note, the “Beit Midrash LeTzedek Chevrati – the Beit Midrash for Social Justice,” headed by R’ Benny Lau, is worthy of mention. This project encourages Torah scholars to take part in the social discourse, and has succeeded in gaining the participation of a number of noted Talmidei Chachamim. The website of the Beit Midrash (http://www.kipa.co.il/society/about.asp) notes that its participants come to a wide range of conclusions on appropriate socio-economic policy, but the common denominator is that they are all based on advanced Torah scholarship.