Jewish Democracy: Can Halacha & Democracy Coexist?

7/31/2019 Jewish Democracy: Can Halacha & Democracy Coexist?

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Jewish Law and Democracy

Arno Rosenfeld

Jewish Thought Honors

Dr. Sandel


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Rosenfeld 2

May, 2012

Modern democracy and halacha, Jewish law, came from different eras and were

created for different purposes. They differ in some key areas which often makes them

appear as inherently at odds. However, a closer inspection of each of these entities, their

motives, and how they have historically coexisted, it becomes clear that there are points of

synergy, in addition to the important differences. Examining the capacity forhalacha to

adapt, through both substantive changes and shifts in what must fall under its purview,

shows us that there is hope for coexistence. The theoretical question of how halacha might

integrate into a modern, sovereign Jewish government became real with the conception of

the State of Israel, and contemporary body of work addressing that question will be

analyzed and built on in this paper.

Reconciling Jewish law and democracy has been attempted by the rabbinate

throughout history, and part of the reason for this lies in the Torah itself. The Torah,

understood as a literary text, shows a tolerance for diversity, minority views and other

proto-democratic values.1The Jewish community in Israel often participated in such

vicious disagreements that they resorted to violence and splintering of the Jewish

kingdoms. That sad history, combined with centuries of living in exile debating and

considering Talmudic law, seem to have given the Jewish people an appreciation and at a

minimum a tolerance for democracy.2 Some political scientists have found roots of

republicanism and federalism in the text, and while this is not widely accepted, other

elements of non-authoritative government are clearly present.3 The Torah demonstrates

1 Ira Sharkansky, "Israeli democracy and Jewish history,"Journal of Church & State 37, no. 2

(1995): 2.2 Sharkansky, "Israeli democracy and Jewish history," 5.3 Sharkansky, "Israeli democracy and Jewish history," 7.


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skepticism of authority figures as an acceptable.4 There is separation of powers with the

Sanhedrin, or religious council, operating in a separate realm from the king or the civil

authority.5 Priests also had responsibilities independent of the rabbinate. The Torah also

describes imperfect regimes that oppressed the poor and were overseen by corrupt judges.

This criticism of government betrays any understanding of authority as unassailable or not

needing to be responsive to the needs of the people it serves6.

Part I: Definitions

What is Democracy?

Liberal democracy is a modern creation that has existed in its current form only

since the late eighteenth century. While earlier forms of democracy existed, as in ancient

Greece, the democracy we know today came into being long afterhalacha was established

by the rabbis in ancient Israel and subsequently codified during the medieval ages.

Representative democracy came to Europe beginning in the seventeenth century and took

prevalence in the eighteenth century. Its origins lay in the enlightenment ideas of a

government deriving authority from the people it served, rather than from God. By the time

democracy became the default form of governance for many modern nations halacha was

already codified and deeply entrenched in religious Jewish communities.

For the purposes of this paper it is important to outline was is meant by

democracy. In a liberal democracy civil institutions must be free, within the law and

4 Sharkansky, "Israeli democracy and Jewish history," 7.5 Sharkansky, "Israeli democracy and Jewish history," 10.6 Sharkansky, "Israeli democracy and Jewish history," 10.


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while respecting human rights, to make decisions and act freely. Religious institutions

should not get favored treatment from the government but should be free to operate without

hindrance from the government. The government should respect the basic human rights of

its citizens, respecting their freedom to choose their leaders, their freedom of thought,

expression and so on. Furthermore, all citizens should be equal under the law. 7 If you apply

the above criteria to countries around the world, you find that those widely considered

democracies follow what is described, and those that are not, do not. Later in this paper we

will see how other factors, such as favoring religious institutions, can be incorporated into

democracy, though such actions will be considered a deviation from the traditional

understanding.

What isHalacha?

Halacha exists to fill in the gaps of the Torah. There are proclamations in the

Torah, known as the written law, that are in need of clarification. The Oral Law, halacha,

clarifies, adds and qualifies.Halacha takes declarations in the Torah and turns them into

practical and applicable guidelines for observant Jews to follow in their daily lives.8

Though halacha is known as the Oral Law, as opposed to the written Torah, it has long

been available in written form in the Mishna and Talmud, as well as various other rabbinic

literature.9 The orthodox tradition teaches that the Oral Law was given directly from God to

Moses at Mount Sinai at the same time the Torah was given. This gives direct divine

7 Jonathan Fox and Jonathan Rynhold, "A Jewish and Democratic State? Comparing Government

Involvement in Religion in Israel with other Democracies," Totalitarian Movements & Political

Religions 9, no. 4 (2008): 508.8 Joseph Telushkin,Jewish Literacy (New York: William Morrow, 2001), 148.9 Telushkin,Jewish Literacy, 148.


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legitimacy to the law. The Oral Law was recorded around 200 C.E. by Rabbi Judah the

Prince as the core of the Talmud.10 The teaching of the law orally had long been a way for

students to maintain close relationships with their teachers and keep the religious

community in tight communication with one another. But following the turmoil of the

Great Revolt and Bar-Kokhba rebellion, many of the teachers were killed and the populous

scattered. To maintain a record of the Oral Law, it was codified in the Talmud.11

The product of this recording is the Mishna, 63 tractates of laws organized

categorically that represent the consensus (and sometimes minority) view on what the

Torah commands Jews to do.

12

Two-hundred or so years after the recording of the Mishna,

the rabbis of Israel recorded their own discussions on the laws in the Mishna and created

Talmud Yerushalmi, or the Palestinian Talmud.13Another century later, around the year

500 CE, the rabbis of Babylon created Talmud Bavli, or the Babylonian Talmud.14 The

Babylonian edition was more exhaustive and is generally considered the primary Talmud.15

Since Oral Law was ostensibly given from God directly to Moses, the further one moves

away from that original transmission, the less authority is given.16 The rabbis of the Mishna

are considered to hold more weight than those of the Talmudic-era. Given even less weight

are the rabbis of today, who continue to expound on the laws. Somewhere in between lie

the various periods of rabbis that continued to comment on the Talmud and codify halacha

throughout the Middle Ages.

10 Telushkin,Jewish Literacy, 149.11 Telushkin,Jewish Literacy, 148-149.12 Telushkin,Jewish Literacy, 149, 151.13 Telushkin,Jewish Literacy, 151.14 Telushkin,Jewish Literacy, 151.15 Telushkin,Jewish Literacy, 151.16 Telushkin,Jewish Literacy, 151.


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The Oral Law was an attempt to make the Torah applicable to daily life and the

Mishna and Talmuds were further attempts toward that end.17 After the Talmudic era, other

rabbis tried to make laws in even simpler and more practical terms. The Torah laid out

commandments, the Mishna turned the broad commandments into something more

concrete and the Talmuds recorded the rabbinic debate on the laws. However, these texts

are incredibly dense and can often require mass amounts of knowledge to fully grasp.

While all are free to study all of these texts, for the Jew or rabbi simply looking for an

answer to a straightforward question such as: Is alligator kosher? Or, can I tear a paper-

towel on Shabbat? Legal codes stepped in to fill the void. The most widely accepted of

these codes is known of the Shulkhan Arukh, which was put together by renowned

Sephardic rabbi Joseph Karo in the mid-1500s with additions by the Ashkenazi rabbi

Moses Isserles who contributed the European perspective on some issues.18 The Shulkhan

Arukh came to prominence, and is to referred to today, because it included both Sephardic

and Ashkenazi understandings of the law, whereas previous effortssuch as that by

Maimonidess Mishneh Torahcontained only one or the other.19

While halacha has been interpreted, revised and debated endlessly and

continuously, it is far from a free for all. Different rabbis prescribe different accepted

practices, and the split between Ashkenazi and Sephardic Judaism plays out in regular

observance. But for todays observant Jews, whatever version ofhalacha they subscribe to

is the final word on issues within its purview.

To understand how Jewish law might fight within a democracy, one must not only

understand what halacha technically is, but also what it is today. The root ofhalachas

17 Telushkin,Jewish Literacy, 152.18 Telushkin,Jewish Literacy, 208.19 Telushkin,Jewish Literacy, 208.


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current role lies in what came of the Jewish people after exile. During the Geonic era

through the time of the Roshonim and Ahraonim, the Jewish communities of the world

lived relatively segregated from the rest of the population and were each primarily

governed by Jewish law.20Halacha was more or less the law of the land for these

communities, and while taxes might still be collected and military drafts conducted,

halacha took the lead in how people lived.21 As the eighteenth century began, the notion of

the modern state began to develop. Where the government would previously have allowed

Jewish communities to impose their own legal system, they restricted that power while at

the same time offering fair justice systems that let members of the Jewish population feel

comfortable leaving their own communities and using the mainstream system.22Halacha

lost its centrality in the lives of all but the most religious Jews.

Before discussing how halacha and secular law can coexist in a modern society, a

basic understanding of where halacha came from is necessary. The brief history above is

meant to give that context, and as the paper progresses, analyzing various ideas of how

Jewish and secular law can coexist, more information about halacha will be presented. It is

important to understand that the worlds many Jewish communities are incredibly diverse,

and even among observant Jews, what observance looks like varies widely. For the

purposes of this paper, a traditional understanding ofhalacha is being used, one whose

adherents would be considered traditionally orthodox.

Is Coexistence Possible?

20 Yedidia Z. Stern, "Religion and State: The Role of Halacha," The Israel Democracy

Institute (2004): 18.21 Stern, "Religion and State," 18.22 Stern, "Religion and State," 19.


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There are, as one might assume, various points of contention between a legal code

given divine authority by its followers and a secular legal code that gains legitimacy only

through general acceptance of it by the populace. The case of the State of Israel is a good,

although imperfect, case study of the coexistenceor lack thereofbetween Jewish law

and secular law. Baruch Kimmerling, a leading Israeli sociologist, has argued that Israels

Law of Return violates traditional democratic equality.23 He is part of a group that argues

that democracy and halacha are inherently at odds and that Jewish democracy is an

oxymoron.

24

However, there are others that, citing accepted practices in modern European

states, argue that religion can be incorporated into secular, democratic government in

appropriate ways. In liberal democracies such as England, Ireland and Greece the

government gives favor to a specific religion while still ensuring the basic religious

freedom of its citizens.25 So it is not out of the realm of possibility that a democratic

government might give favor to orthodox Judaism without compromising its democratic

nature.

A country could incorporate Jewish law, or consider it in decisions of the state, and

remain democratic. A country that favors one religion over others, while still protecting the

right of other religions to exist, is not inherently undemocratic. A country that was

predominantly ultra-Orthodox could have free elections and decide by majority-rule that

halacha would be enacted as part of the legal code. In such a case, all citizens of the

country would not be treated equally. But such a country, if it wanted to be democratic,

23 Alexander Yakobson and Amnon Rubinstein, Democratic Norms, Diasporas, and Israels Law of

Return,American Jewish Committee, (2005), 4.24 Arye Naor, "Both Jewish and Democratic." InIsrael and the Family of Nations: The Jewish Nation-

State and Human Rights, Alexander Yacobson and Amnon Rubinstein, (London: Routledge, 2009),

177-182.25 Naor, "Both Jewish and Democratic," 180.


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would run into problems when it came to the source of authority. If a person who adheres

strictly to religion and believes that law originates with God, then a court, that sometimes

overturns parts ofhalacha voted in democratically, might not be considered legitimate. A

country full of people like that might decide to invalidate the courts authority as part of the

government. Such a country could be governed by majority-rule, but a system like America

and many Western democracies have, with a system of checks and balances and limits on

direct democracy might not be as feasible. It would also be possible for a country to favor

one religion over another, while still being essentially secular. For example, a country

could mandate a Christian prayer be said at the start of all classes in public school. Outside

of this infringing in an abstract sense on the consciences of non-Christians, it could be

entirely compatible with non-Christians having the right to worship on their own free of

discrimination. Non-Christians would not be equal, in that the government was favoring

Christians in the public realm, but their rights could still simultaneously be protected by the

government.

Part II: Points of Contention

While Jewish communities have practiced Jewish law under various forms of non-

Jewish governance, halacha says that a state under Jewish rule must be governed by a

monarch.26 This widely accepted view is conveyed through Oral Law recorded in the

Mishna and has also been codified by Maimonides. This requirement has been qualified

and some Halakhic hedging has taken place. Notably Ibn Ezra decided that the people

Israel were not absolutely directed to be ruled by a monarch and that the issue was still up

26 Gerald Bildstein, "Halacha and Democracy," Tradition (1995), 10.


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for consideration. Furthermore, Maimonides himself, despite his codifying the

commandment for monarchic rule, seemed to give weight to the notion of political

legitimacy coming from consent by the people.27 There are more dissenters to the view that

a monarch is necessary. They include Netsiv, who takes the command to be ruled as king

as meaning that if the people want to be ruled by a king, then they must be ruled by a

king.28 However, if they are not interested in being ruled a king, then no such king need

rule them.29 This view is not in direct conflict with democracy, although its unclear if a

populace could democratically give away their democratic rights and remain a democracy

it would appear the answer to this would be no. Rabbi Abraham Isaac Kook, an

influential rabbi in the pre-Israel Yishuv, provides an escape from the monarchic

requirement without rejecting it on its face. He argued that since monarchic authority came

from the people, once a monarchy collapsed the power would return to the people to do

with as they wish.30 Under this view a state could be governed democratically after a brief

period of monarchy. Others have described a chief judge or king that exists alongside a

democratic government, though these ideas exist more in a realm of thinkers who attempt

to reform the commandment to have a monarch, rather than reconcile a monarch with

democracy.31That the greatest Jewish rabbis of the era in which halacha was being

codified did not see eye-to-eye on the issue of monarchy speaks to the fact that Jewish-self

rule has for so long been purely an intellectual exercise that unlike rules governing the

Sabbath orkashrut, a final decision was not required.

27 Bildstein, "Halacha and Democracy," 11.28 Rabbi Naftali Tzvi Yehuda Berlin was known as The Netziv. He lived from 1817-1893, was an

influential eastern European rabbi and an early supporter of settling Palestine.29 Bildstein, "Halacha and Democracy," 10.30 Bildstein, "Halacha and Democracy," 11.31 Bildstein, "Halacha and Democracy," 12.


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It should be noted that from a cultural perspective monarchies have fallen out of

favor in modern society. In the Torah God actually shows a distaste for a human monarch

(as opposed to God being king).32 God rejects having a king rule over Israel until Samuel

explains all the bad things about having a king and the people still demand one. This shows

that the specific desire for a Jewish king actually stemmed from the people, who wanted a

king to govern us, like other nations.33 Therefore, since hardly any other nations are

currently ruled by kings, perhaps the mandate for a Jewish king is no longer relevant. This

view would be in synch with that of Rabbi Kook. However, such an understanding is

challenged by two elements of the ancient notion of a Jewish king, or of historical

monarchies in general. The first is, monarchic authority was not derived from the people. 34

In Judaism, the kings power is backed by God and he must abide by Jewish law. That

means it would need to be God, not the people, who would change the system of

governance. The second problem with the notion that perhaps that a Jewish monarchy is

simply an anachronism, is that the move away from monarchy, in all countries, stems from

the increasing secularism of the world. Historically monarchs in most countries have

claimed their legitimacy stems from the divine, not those they govern. As people have

become less religious, their tolerance for a monarch has waned. But were one to discuss

placing halacha into government, a monarch would not be considered irrelevant by those

wishing to turn back the clock on the secularization of society. 35

Further complicating the entire enterprise of a democratic and halachic government

is the treatment of non-Jews, nonobservant Jews and women, all categories to which

Jewish law does not favor. Maimonides issues a widely cited prescription for how non-

32 Michael Wyschogrod, Judaism, the Political and Monarchy,Institute for Theological Inquiry: 6.33 I Samuel 8:534 Wyschogrod, Judaism, the Political and Monarchy,16.35 Wyschogrod, Judaism, the Political and Monarchy,16.


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Jews are to be treated under Jewish governance that is both wholly undemocratic and rather

cruel.36

If the inhabitants make peace and accept the seven commandments none of them is

slain, but they become tributary The servitude imposed on them is that they be

humiliated and humble, that they not lift up their heads against [any one of Israel] but be

subjected to them, that they not be appointed to any office that will place them in charge

of a Jew in any way. The terms of the levy are that they be prepared to serve the king

with their body and their money . (H. Melakhim 6,1)

Even under the most liberal interpretation of this statement non-Jews would be

required only to agree to Jewish rule, though this is hardly democratic. 37 In a true

democracy all people are equal before the law, a view at odds with the above Maimonidian

concept. Maimonides and other rabbis do discuss the importance of saving the lives of non-

Jews and respecting their lives. The traditional Jewish understanding of how to treat non-

Jews under Jewish control is actually more liberal than many other religions historic

treatment of minorities. However, there is still an explicit statement that non-Jews must

accept the Noahide laws. Though the laws simply encompass basic ethics, they are still

religiously rooted and might impinge on religious freedom in a country.

The prohibitions on non-Jews holding positions of authority is also extended to

women. The Rabbinic Courts in Israel have declined to turn nearly every law passed by the

Israeli Knesset into a takkana, or an obligation of the religious community to follow,

specifically because the laws were voted on by women and non-Jews.38 Jewish women are

36 Bildstein, "Halacha and Democracy," 24.37 Bildstein, "Halacha and Democracy," 24.38 Bildstein, "Halacha and Democracy," 25.


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barred from decision making posts in the Religious Services Ministry and cannot serve on

Israels religious councils.39 But as with most outright conflicts between democracy and

Jewish law, people have tried to reconcile them. In one of the simplest reconciliations,

Rabbi Isaac HaLevi Herzog argued thatserara, the term for the positions of political

authority that only male Jews may hold, refers only to life-long, non-elective positions. 40

Therefore most positions in a democratic government, in fact nearly every position, would

be available to be filled by anyone. In the event that a monarchy was reinstated, that

position would need to be filled by a male Jew, but a president, mayor, member of the

legislature, etc. would not need to be one.

The specific conflicts between halacha and a traditional understanding of liberal

democracy are myriad and there are many beyond the two discussed above. Many of these

issues have been in the news as of late, including prohibitions on listening to women sing. 41

The requirement of a monarch and the prohibitions on non-Jews and women holding power

may or not be the most significant conflicts between halacha and democracy, but they pose

fundamental conflicts between the two. But if those are the specific conflicts, more

systemic issues exist within halacha that would make it difficult to accept democracy.

In most legal systems the code of laws is subject to change and evolution. In the

United States, for example, various laws of all different significance have been changed,

adapted and overturned over the years. Even laws that made up the base of certain

segments of society, such as those allowing slavery, have been ended as society at large has

changed. In this way, the laws of a democracy are subject to the evolving views of the

39 Nurit Tsur, Battling the rabbinates bias against women, The Jerusalem Post, January 31, 201240 Bildstein, "Halacha and Democracy," 25.41 Amor Harel, "IDF: Soldiers cannot skip ceremonies with women singing."Ha'aretz, August 14,

2011.


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electorate. There is not a parallel system in halacha. Since being given at Sinai, the Oral

Law has been debated and different conclusions have been reached. There is even the

capability, through enactments, known asgzerah ortakkanah, to crate a new norm or

policy in a given instance. But these exceptions are issued only by certain authorities to the

people who obey them and do not provide a lasting change.42 The standard forhalachic

observance remains adherence to the historic norm and that norms application to any

given situation.43This makes sense given the fact that it has an ostensibly divine origin, one

which is absolute and unchanging, but it nonetheless clashes with democracy and means it

is very hard to change the difficult parts ofhalacha to allow it to be the legal code of a

democratic state.

Part III: Reasons for Optimism

Despite all these conflicts between halacha and democracy, there actually exists a

significant amount of synergy between the two. Not only have many of the obvious

conflicts, detailed above, been reconciled to one degree or another, but there are elements

ofhalacha that seem to compel it toward democracyor at a minimum shun strict

theocracy. Enlightenment thinkers including Hugo Grotius, Thomas Hobbes and John

Milton all introduced ideas of representative government and some have said the roots of

their thinking lied in the Mishna and in reading ancient Jewish scholars.44During the

protestant reformation Europe saw its formerly monolithic civil society, dominated by the

Catholic Church, transformed. Suddenly there were various groups operating and slowly it

42 Stern, "Religion and State.43 Stern, "Religion and State.44 Eric Nelson, "Seeking the Hebrew Roots of Democracy." Commentary, (September 2010): 80.


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became apparent that a representative form a government that was able to give voice to

these various groups would be necessary. In light of this, these thinkers found respect for

minorities views in the discussions of the Talmud, where both the authoritative opinion

and the dissenting opinions were displayed side by side.45 Furthermore, these thinkers

realized that the Jewish state in ancient times, despite what some contemporary halacha

may have dictated, was never a theocracy but rather balanced the religious leadership and

secular leadership side by side.46

Examples of Jewish Law Existing Under Secular Governance

To further examine the way halacha and secular government can work together, it

is helpful to examine several specific cases. Part of the challenge in this paper is the issue

of whether one is discussing a secular Jewish government or a non-Jewish secular

government. The way halacha operates in the United States bears many parallels but

fundamental differences to how it operates in Israel. One difference, is that there is no

Biblically-rooted imperative for a non-Jewish government outside the land of Israel to have

a Jewish king following Jewish law. Religious Jewish communities in Europe and

America, operating under secular governments in majority-Christian countries, faced fewer

conflicts than those communities living in Israel. That having been stated, several examples

from both within and outside of Israel will now be examined.

Whether an observant Jew can, according to his observance ofhalacha, declare

bankruptcy in America provides an interesting test-case for the way halacha might

45 Nelson, "Roots of Democracy," 80.46 Nelson, Roots of Democracy, 81.


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reconcile itself with secular governance. It also, conversely, provides an example of the

limited ways in which such reconciliation can succeed. To set the framework for the

question one must understand that halacha both requires the repayment of debt, and

generally prohibits litigated between Jews in secular court.47 On its face these restriction

make it appear as though American bankruptcy law and Jewish law are incompatible. But

with some inspection of the many great halachic thinkers it becomes apparent that ancient

halachic traditions may be applied to bankruptcy and in a way validate secular law. First

there is the concept of ayeush. This is the concept that if you lose, say, your scarf on the

bus and naturally give up hope that it will ever be returned to you, the obligation of anyone

else who finds the scarf to return it is vanquished. They can ethically, according to halacha,

keep the scarf as their own. This principle can be applied to debt one owes to creditors. If

the person loses their job or become unemployable and it is reasonably clear to creditors

that this person will never be able to repay their debt, then their obligation to do so is

likewise vanquished.48 If this is accepted then it no longer matters if secular bankruptcy law

is halachically legitimate, because halacha has found a parallel Jewish track of releasing

debtors. There is still conflict between the two legal codes however. A yeush requires that

the owner of the object (in bankruptcy, the owner of the debt) despair that their object

will be returned. But given bankruptcy law, which usually involves at least some form of

payment, just not in full, to creditors, bankruptcy law may in fact prevent creditors from

despairing that any of their money will ever be returned.49 The next way that bankruptcy

law, and all secular business regulations, might be declared legitimate is through minhag

HaSocharim or commercial custom. This halachic concept recognizes that business is

47 Steven H. Resnicoff, Bankruptcy: A Viable Halachic Option?JLaw.com, (2009): 1.48 Resnicoff, Bankruptcy, 2.49 Resnicoff, Bankruptcy, 3.


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governed by custom, including secular custom.50 There is a widely held view that when two

parties conduct a business agreement they do so with local customsecular law, for

instanceas an implicit part of their agreement, and this is not in conflict with halacha.51

Given that bankruptcy is a known part of secular law, it can be presumed that parties, even

if they subscribe to halacha, will understand that bankruptcy is a potential outcome of their

loan and it is thus accepted as minhag HaSochrim.52But as with most halachic arguments

there are authoritative voices on both sides of the bankruptcy debate and an individuals

adherence may relate more to who their congregational or communal leader is and not to

one standard understanding of the issue.

In Israel, where religious Jewish interests have strong influence in the otherwise

secular Jewish government, halacha works its way into various facets of Jewish life.

Unlike in America, Israel being considered the Jewish state compels religious interests in

the country to attempt to extend halacha to government actions that effect both Jews and

non-Jews. When Tel Aviv mayor Ron Huldai backed a municipal council decision to ask

the Transportation Ministry for permission to operate bus service on Shabbat, there was

immediate backlash from the religious leadership.53 It would be a serious injury to the

sanctity of Shabbatwhich is a reminder of the creation of the universe, a reminder of the

Exodus from Egypt, a day of rest for all workers and a day of spiritual elevation and family

togetherness, said Yisrael Meir Laud, the chief rabbi of Tel Aviv. The Transportation

Ministry said they would decline Tel Avivs request, but the mayor didnt back down.

Huldai said that Brooklyn, New York is an area where buses run every day of the week in

50 Resnicoff, Bankruptcy, 5.51 Resnicoff, Bankruptcy, 552 Resnicoff, Bankruptcy, 553 Jerusalem Post Staff, Mayor: Despite Criticism There Will Be Buses In Tel Aviv On Shabbat, Voz

Is Neias?, February 28, 2012


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an area where ultra-Orthodox Jews live (though in recent months there has been outcry

regarding the unofficial gender segregation of buses in those areas).54

While in the case of Israel, the government does not take affirmative action against

those violating Shabbat, the ultra-Orthodox have not been satisfied with this. In November,

2009, hundreds of ultra-Orthodox, held back by riot police, protested outside Intels

Jerusalem offices after learning they operated on Shabbat. They also protested at a parking

lot operating on Shabbat, unhappy that it encouraged driving on the holy day.55

Theories for Coexistence

One compelling democracy-friendly concept within halacha is the idea that one

should not coerce others to follow halacha.56 One must follow Jewish line, the thinking

goes, because they have considered their options and decided they wish to live a life in that

manner. Rabbi Meir Simha of Dvinsk has said that coercion can be valid, but only when it

brings about an internal change in the mind and heart of the person coerced. 57 The entire

power of government comes from its ability to coerce its followers to obey its laws. Indeed,

without such coercionforcing people to pay taxes, or not kill each other, for example

the state would collapse into anarchy. So while in so many ways halacha is at odds with

democracy, it seems unlikely that without coercion it would be able to operate as a

theocracy.58

54 Staff, Buses In Tel Aviv.55 Efrat Weiss, Police prepare for Shabbat protest, Ynetnews.com, November 14, 2009.

56 Bildstein, "Halacha and Democracy," 15.57 Bildstein, "Halacha and Democracy," 17.58 Bildstein, "Halacha and Democracy," 18.


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The above mentioned points seems to put halacha in a sort of political limbo. On

the one hand, halacha dictates various ways that government should run that are inherently

at odds with democracy. Yet, simultaneously it almost prohibits itself from running an

authoritarian state because of the prohibition on coercing people to follow Jewish law, and

the fact that a king would still be beholden to Jewish law and God, and could not rule on a

whim. Yedidia Z. Stern halachas role in a Jewish democracy in Religion and State: The

Role of Halachah, a position paper for The Israel Democracy Institute.59 In the paper he

outlines why halacha has these contradictions and possible means of moving forward.

Halacha existed under various situations in which it was the religious government of the

Jewish community, while existing subservient to a civil sovereign government that was

not Jewish and over which it had no influence.60 However, this wasnt something halacha

was happy with, it was more an accepted reality.61 Stern argues this same situation is true in

Israel today, to a certain extent. His premise is that halacha must find a way to reconcile its

beliefs with the modern state or risk serving as detrimental to the state, and falling into

obscurity.

Stern argues that halacha lost its system of checks and balances and moderations

when it lost its central role in the Jewish communities around the world.62When it was

central to the entire Jewish community it had to adapt and be flexible. Such a wide-range of

adherents had differing views and rigid orthodoxy simply would not be accepted. Halacha

at that time had to express the notion of the living Torah.63Today, when only the most

59 Stern, "Religion and State,60 Bildstein, "Halacha and Democracy," 18.61 Bildstein, "Halacha and Democracy," 18.62 Stern, "Religion and State, 20.63 Stern, "Religion and State, 20.


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religious strictly adhere to the code, Jewish law has lost its moderating influences. 64 Stern

concerns himself with how halacha can modernize and exist in a modern, sovereign Jewish

state. While this paper is not concerning itself primarily with Israel, the conclusions Stern

reaches about how halacha can modernize could be applicable in any situation where

Jewish sovereign rule exists, or even where a different civil sovereign has control.

The first model is deliberate silence.65 While halacha has proved unwilling to

truly change its laws, there are various issues it has declined to weigh in on. It could be

argued that this silence implies acceptance.66 Of course, this is not the official position of

Halakhic authorities, but Stern proposes that it could be.

67

Under this situation halacha

would accept gaps in its jurisdiction where the modern state could take action. 68 This means

in areas of foreign policy and even civil judiciary and other areas, halacha would not

simply hold no official stance on the issue, but silently accept these things as legitimate

even when determined by non-religious authorities. This might be one of the most realistic

models for succeeding. Currently rabbinic authorities often clash with state powers in Israel

and even in New York City. Under the strictest understandings of Jewish law, perhaps

these clashes are needed as a demonstration of how deeply the ultra-Orthodox hold to

their beliefs. But practically speaking a deliberate silencea you do your thing, Ill do

mine and we wont have any problemsis both easily applied, and already practiced by

many religious Jews. Since the traditional legal codes dont explicitly contain rulings on

whether a woman can serve as a member of Knesset in Israel, simply because there was no

Knesset in Israel when the codes were written, instead of looking to conservative historical

64 Stern, "Religion and State, 20.65 Stern, "Religion and State, 41.66 Stern, "Religion and State, 41.

67 Stern, "Religion and State, 41.68 Stern, "Religion and State, 42.


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precedent in order to issue rulings against such a thing, halachic authorities could simply

let the issue be. This wouldnt require any changing of existing legal codes, just an

avoidance ofperpetuatingthe anti-democratic tendencies.

The second model sees halacha and secular state powers acknowledging each

others legitimacy.69 Under this situation Halakhic authorities accept non-religious

authorities and go about finding religious explanations for the secular law they pass. 70

Under such a situation halacha could make peace with a state being led by non-religious

leaders without compromising its fundamental beliefs in Jewish law. This seems promising

because as seen with the bankruptcy issue, for example, Jews love to come up with creative

means of working around complex problems. The greatest halachic minds of our time

could come together and find ways to justify democracy, taking things that appear to be in

conflict and reconciling them. Given the fact that many halachic issues have legitimate

authorities on all sides of them, I have supreme confidence this would be an

accomplishable task. The most obvious conflict would be a change in how its adherents

understand Jewish law. If ultra-Orthodox Jews continue to want to see halacha as a

conservative influence that maintains a way of life from hundreds of years ago, then there

will be little enthusiasm for this approach. However, if its adherents decide they want to

maintain their observance of a legal code rooted in their religion while also embracing

modern democratic ideals, such a synthesis would surely be possible.

The third and most compelling model for a new form ofhalacha is what Stern calls

judicial activism.71 Currently, when new Halakhic issues come up and a rabbi, or group

of rabbis, needs to pass a ruling on it and say what is allowed, they refer to historic

69 Stern, "Religion and State, 45.70 Stern, "Religion and State, 47.71 Stern, "Religion and State, 53.


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precedent as the primary means of deriving new rulings.72 This makes the pace of change

incredibly slow or even non-existent. Under the judicial activism model, instead of

primarily using historical precedent to determine new rulings, they might make an

affirmative effort to reconcile halacha with democracy.73 This compelling model could

undo much of the conflict halacha has with democracy, though it would also require a sea-

change in the way halacha is viewed by its adherents, as mentioned above. The judicial

activism model works well with the second model, in that were halacha to go in the

direction of accepting the secular state as legitimate, this model provides a way to do so. It

is the opposite of the deliberate silence model in that it would actually compel its adherents

in an affirmative way to embrace the trappings of a democracy, rather than begrudgingly

tolerate them. In practice this model would run up against the inertia of a system held back

by its conservative ideology. Whoever the first rabbis to begin issuing activist legal

opinions on questions ofhalacha would certainly be quickly ostracized. In their place

rabbis willing to uphold the traditional line would step in. In order for this model to truly

succeed you would need nearly all rabbinic leadership to come together and act as one.

However, given the diverse make-up of observant Jewish communities, its unlikely such a

model could work without a collective religious epiphany.

The final, and perhaps most obvious new model that halacha could operate under is

called by Stern the institutional model.74 Under this model a Halakhic legislature would

be created with the authority to pass, amend and get rid ofhalacha.75 Though this might

sound radical given the current form ofhalacha, it is rooted in historic precedence. Of

72 Stern, "Religion and State, 56.73 Stern, "Religion and State, 57.74 Stern, "Religion and State, 61.75 Stern, "Religion and State, 62.


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course the Sanhedrin long served this role in ancient Israel, but even in more modern times

suggestions have been made toward this end from within the religious community. In the

late nineteenth-century Rabbi Kook, mentioned previously, who became influential in the

Yishuv of pre-Israel Palestine, proposed a renewal of the Sanhedrin.76 Kook thought that

with the renewal of the Jewish state, so too could come the renewal of the Jewish religion,

though in the end nothing came of his ideas.77 An obvious drawback such a legislature, as

well as to the judicial activism model, is that these could both lead to a more conservative

halacha. There is nothing inherently progressive about change, and the rabbis in the

legislature of issuing opinions could decide women should have less rights, that secular

government should have no legitimacy, etc. However, the legislative model does at least

offer hope. In order to counteract a potential move in the wrong direction, the Israeli

government, for example, could declare that it would only incorporate new halacha into

governance if it was consistent with some preset principles. These might include the rights

of women, minorities and non-Jews. If the government did this, the rabbis would have an

incentive to legislate more liberal halacha, so that Jewish law would be incorporated in

secular law. However, it would also impinge somewhat on the free development of

halacha, and the rabbis might be put off by this and decline to take action.

While Stern proposes solid ideas for how to reform halacha to exist in a modern

Jewish state, one element that really interferes with any such plan. Issues upon which there

was already great halachic consensus on during the exile prove trickiest to change.78 Stern

plays heavily upon the idea that since halacha has left so much unsaid, this offers great

opportunity for change. He is certainly right, but that does not deal with the issues that

76 Stern, "Religion and State, 62.77 Stern, "Religion and State, 62.

78 Evelyn Gordon and Hadassah Levy, Halachas Moment of Truth,Azure (Winter 2006): 67.


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halacha has said very clear things about. Jewish communities in Europe never had control

over the government and thus only concerned themselves with internal affairs. The Israeli

government, perhaps sensing that these issues of internal affairs were of great importance

to the religious community, turned many of them over to religious leadership when the

state was founded. The issues that have caused the most conflict are conversion and

marriage, both of which are under the purview of religious leadership in Israel.79 Only

orthodox conversions and marriages are accepted, which causes great friction between the

ultra-Orthodox and the secular Israeli communities. Unlike elements of democratic

government that halacha has no explicit opinion on and could choose to remain silent

about, or issue positive opinions on, rabbis would have to turn back on hundreds of years of

tradition to change marriage or conversion laws, and that would surely be a nonstarter for

many contemporary religious authorities.

It is important to note several things about the above models. All have deep flaws

and potential conflicts that could stop them from being implemented. But also, all are

rooted in historic precedent ofhalacha and the Jewish community, and can claim some

legitimacy in those categories. While these models could conceivably reconcile Jewish law

with democracy, they could also backfire. But at least in theory these models offer a

serious and thoughtful means through which the modern democratic state could incorporate

halacha in a manner that appeases both groups.

There is a story in the Talmud that seems to give humans ownership over the Oral

Law.80 In the story, Rabbi Eliezer attempts to prove that his opinions about the laws being

debated are the correct ones. He compels a tree to get up and move about, a stream to run

79 Gordon and Levy, Moment of Truth, 67.80 Bava Mezia 59b


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backwards, and finally the walls of the house of study to begin to fall inward. As they are

falling another rabbi objects, and Eliezer appeals to God. God actually sides with Eliezer,

at which point Rabbi Joshua cites Deuteronomy 30:12 saying, It is not in the heavens.

This is taken to mean that the Torah and Oral Law were given to Moses, and now they are

in human hands and humans responsibility to cultivate and understand.81 The story endows

the laws created by religious leaders extrapolating the Torah and Talmud with divine

sanction. But it can also be taken to mean that humans have the discretion to adapt Jewish

law to fit into a modern context, because after all, It is not in the heavens.

A modern Eliezer, Rabbi Eliezer Berkovits who was prominent in the pre-war

European yeshiva world published a book in 1983 detailing how halacha had changed over

time and could do so still.82 A nod to the above story,Not in Heaven explained many

halachic facilities that made change possible and argued that more change necessary.

Berkovits argued that during the exile halacha had to be on the defensive, building fences

around communal islands, but now ought to resume its classic function and originate new

forms of relevant Torah realized in the State of Israel. Berkovits wrote, The Oral Torah

has to be freed from its exile-imposed shackles. While his book received little attention at

the time of its release, it has recently been rereleased and promoted by a religious Zionist

publishing house in Israel.83

Other positive voices for change being published by the liberal Orthodox Shalom

Hartman Institute in Jerusalem include Zvi Zohar of Bar-Ilan University and Avi Sagi, a

Hartman fellow and Bar-Ilan lecturer. They, like Stern and Berkovits, have produced

81 Telushkin,Jewish Literacy, 156.82 Gordon and Levy, Moment of Truth, 74.83 Gordon and Levy, Moment of Truth, 75.


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solutions for halachic change that while not widely accepted show that there is a way

forward.84

Conclusion

Halachas has many direct conflicts with democracy. Part of this conflict comes

from the fact that it was created in a different time period. The exile of the Jews saw

halachas evolution slow to a halt, making the change it would need to become more

democracy-friendly very difficult. But it is not a legal code geared toward running an

authoritative regime, and through some creative manipulations, it could reconcile itself to

existing as part of a mostly democratic government. In recent years, many bright thinkers

have conceived of ways halacha would be able to modernize and become more friendly to

a secular democratic government. Because of the case of Israel and the immediacy of this

issue, it is likely that more ideas will be brought up in the future and some change will

occur.

84 Gordon and Levy, Moment of Truth, 75.


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Documents

Jewish Democracy: Can Halacha & Democracy Coexist?