(2004/5765)

Last week we analyzed the formulation of a government as dictated by the Torah and the status of governments not fully committed to Torah principles.  We then began to examine our position as it relates to the story of Rav Shimon ben Shetach and Yanai Hamelech on Sanhedrin 19a-b.  This week we will continue our analysis and discuss ramifications for our relationship with Medinat Yisrael today.  For those who missed last week’s article, it is available online at www.koltorah.org.

An Analysis of the Dispute between Rav Shimon ben Shetach and the Dayanim

Rav Shimon ben Shetach and the Dayanim implicitly debated whether Dayanim should risk their lives in an attempt to impose Torah authority upon a non-cooperative civil authority.  This argument seems to be similar to other debates between prominent Torah figures and Dayanim who counseled submission to the civil authorities.  A classic example is Miriam’s criticism of her father Amram (whom Chazal say was the Gadol HaDor, spiritual leader of the generation) for divorcing his wife Yocheved in the wake of Paroh’s decree to throw every Jewish newborn baby boy into the Nile (Sotah 12a).  Midrashim relates that the Sanhedrin (Jewish Supreme Court) supported Amram’s submission to Paroh’s decree (Midrash Rabbah 1:13 describes Amram as the Rosh Sanhedrin and P’sikta Rabbati 43 s.v. Davar Acheir Kee describes Miriam as presenting her complaint to Amram and the Sanhedrin).  Another example is the Midrash (cited in the Torah Sh’leimah 17:21) that records that Dayanim criticized Mordechai for refusing to bow to Haman, arguing that this action gravely endangers all of the Jewish People.  

Similarly, the commentators to the Torah argue whether Yaakov Avinu was correct in his submission to his brother Esav (Yaakov bowed no less than seven times to Esav, Bereshit 33:3).  The Ramban (introduction to Parshat Vayishlach) criticizes Yaakov Avinu whereas the Seforno (33:4) supports him.  The “argument” between Rav Shimon ben Shetach and the other Dayanim might be seen in light of this dispute.  Sometimes one should follow Yaakov Avinu’s example of bowing to Esav and sometimes one should follow the example of Mordechai refusing to bow to Haman.  Rav Shimon ben Shetach and the Dayanim were “arguing” whether to follow the example of Mordechai or Yaakov Avinu regarding Yanai.  Yet another example is the debate (see Gittin 56) between Rabi Yochanan ben Zakai and others as to whether it was worthwhile resisting the Roman army in the waning days of the Second Temple era.  The Hasmoneans had no choice other than to resist the Syrian-Greeks because the stated aim of theses enemies was to eliminate Judaism.  We would not have survived as a people had the Hasmoneans not engaged in their heroic fight against the Syrian-Greeks. 

It is interesting that the Halacha follows the opinion of the Dayanim that it is best to avoid a confrontation with non-Davidic kings.  This illustrates an idea that I have heard from Rav Hershel Schachter that the Torah believes that sometimes one has to choose the less objectionable of two bad choices (see Sotah 48a).  Here Chazal felt that it is a better choice to avoid confrontation than to attempt imposing Torah authority upon a recalcitrant king. 

It is also very interesting that the Halacha follows the opinion of the Dayanim and not Rav Shimon ben Shetach even though the angel Gavriel (who of course does not act independently, but only on Hashem’s orders) supported Rav Shimon ben Shetach.  Indeed, my student Josh Berger noted that this seems to constitute another example of “Lo Bashamayim Hee,” that Rabbanim make Halachic decisions independent of divine guidance and rulings.

This principle is recorded in the Gemara (Bava Metzia 59b) where Rabi Eliezer tried to prove his position in his debate with the Rabbis (regarding the ritual purity status of a Tannur Shel Achnai) by supernatural means.  He even summoned a voice from heaven that proclaimed that the Halacha follows Rabi Eliezer’s opinion.  Rabi Yehoshua then dramatically rose and proclaimed (citing a Pasuk from Devarim 30:12) that “Lo Bashamayim Hee.” The Gemara then records that Rabi Natan met Eliyahu Hanavi who reported that Hashem was pleased with Rabi Yehoshua’s reaction as Hashem “smiled” (of course that is not meant to be understood literally, as Hashem has no physical features) and proclaimed that “My children have defeated Me, my children have defeated Me.”  Chazal seem to follow the rule of “Lo Bashamayim Hee” in our case as well, as they disregard the heavenly ruling that was in favor of Rav Shimon ben Shetach.

Implications for Medinat Yisrael Today

My Talmidim reacted to this story and felt that it has great implications for the question of resisting the current Israeli government’s plan to evacuate the Jewish communities in the Gaza Strip.  If one believes that such an evacuation violates Halacha (see my Gray Matter, Part One, where I devote two chapters to this question) then perhaps one should follow the example of Rav Shimon ben Shetach and resist its implementation, as my Talmid Gershon Rossman reacted.  My Talmid Avi Davidowitz, though, thought that our Gemara teaches that it is not worthwhile to impose Torah values on a government that does not accept Torah authority.  One could counter, though, that the Gemara is speaking of Yanai who was a ruthless dictator who murdered those who opposed him.  In a democracy, however, citizens enjoy the right to engage in peaceful civil disobedience.

It seems, though, that this discussion has much broader implications for the fundamental role of Religious Zionism in Medinat Yisrael beyond the specific issue of resisting the evacuation of Jewish communities.  Religious Zionism, from the inception of the modern Zionist movement, has sought to ensure the Jewish character of Medinat Yisrael, by promoting laws, such as the prohibition of the sale of Chametz on Pesach and pork year round, Shabbat and Kashrut observance in Tzahal and public transportation not operating on Shabbat.  Essentially, this involves imposing Halacha on a civil authority that does not (yet) accept Torah authority.  Indeed, Religious Zionists have sought to join almost every Israeli government in order to be part of the civil authority and ensure that Medinat Yisrael observes Halacha at least in regard to public matters (and has left the government when they believe that this is a more prudent to further their goals). 

As we know, the implementation of this policy has not always been simple.  A prime example is the authority that Medinat Yisrael grants to the State Rabbinical Courts.  Officially, the State Rabbinic Courts have authority over all matters of personal status for the Jewish residents of Medinat Yisrael.  Thus, marriage, divorce and conversion fall under their exclusive jurisdiction.  However, the Israeli civil courts often strive to limit the authority of the State Rabbinic Courts and often impede their effectiveness, such as the Courts’ ability to resolve situations of Igun.  This phenomenon is documented by Rav Yitzchak Breitowitz (who serves as a Professor of Law at the University of Maryland) in his book entitled The Plight of the Agunah and Rav Shlomo Dichovsky (a highly regarded member of the Supreme Rabbinic Court of Medinat Yisrael who has made great efforts to reach out to the secular legal establishment) in Techumin 24:51-70. 

Our Gemara might provide guidance regarding the efforts that Religious Zionists (who are currently a minority in Israel) should make in imposing Halachic authority on the majority of Israelis who do not fully accept Torah authority.  Our Gemara teaches that it is sometimes imprudent to impose Halachic authority although we enjoy the Halachic right to do so (the Mashiach, for example, will coerce all Jews to observe Halacha, see Rambam’s Hilchot Melachim 11:4).   We should note, though, that there is actually quite a range of acceptance of Torah authority in Israel, since, in addition to the religiously observant population, many Jews consider themselves Traditional and are quite content with the current arrangement regarding religion and state in Israel.  At minimum, I believe that our Gemara in Sanhedrin teaches that when we exercise our religious authority over Jews who regard themselves as secular, we should do so with utmost sensitivity (for example, when conducting a wedding for a non-observant couple).    For further discussion of this critical issue, see the aforementioned essay by Rav Aharon Lichtenstein on Religion and State. 

Post Talmudic Development

The Halacha requiring litigants and witnesses to rise in Beit Din has undergone a very interesting post-Talmudic development (although we are not permitted to deviate from Talmudic norms, there is some flexibility regarding certain very limited matters).  The Rambam (Hilchot Sanhedrin 21:5) records the established practice of all Batei Din in the post-Talmudic era to permit litigants and witnesses to sit during Beit Din proceedings in order to avoid strife “since we do not enjoy the authority to impose Torah law.”  The Shulchan Aruch (Choshen Mishpat 17:3) codifies the Rambam’s assertion as normative. 

The Shach (C.M. 17:7), however, cites the Bach (both the Shach and the Bach lived in the seventeenth century) who does not challenge the ruling of the Rambam and Shulchan Aruch.  Rather, he challenges all Jews “who have the fear of God in their hearts and whose ancestors stood at Mount Sinai (and accepted the authority of Torah Law)” to be concerned for the honor due to Torah and fulfill the Mitzvah requiring witnesses and litigants to stand in Beit Din.  The Bach writes that the litigants and witnesses should tell the Beit Din that they wish to stand out of respect for the Beit Din and Hashem who is present during its proceedings.

Interestingly, the Aruch Hashulchan (C.M. 17:5), writing in the late nineteenth century, records the practice of many Batei Din where the litigants and witnesses rise respectfully without any strife emerging as a result.  The Aruch Hashulchan thus records a transformation that occurred among many Jewish communities where lay Jews heeded the words of the Bach and Shach and restored the honor of Torah without the coercion of the Rabbanim.   

Conclusion

The story of the conflict of Rav Shimon ben Shetach and Yanai teaches us the risks involved in attempting to impose Torah law on a civil authority that does not accept Torah authority.  It seems to teach that it might be prudent for Rabbanim to sometimes exercise restraint in imposing Halachic authority.  However, the Shach and Aruch Hashulchan teach that it is the obligation of the lay community to create a grassroots movement to respect Rabbanim and Torah authority.