Halacha and

Democracy: Are the

Two Completely
Compatible
Part II
By Rabbi Joshua Flug

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I. Introduction- Part I of this series discussed, in general terms, the compatibility of Halacha
and democracy, specifically, as it relates to the State of Israel. This shiur outline will
focus specifically on the issue of freedom of religion and the relationship between
religious Jews and secular Jews in Israel.
a. Does the State of Israel have a responsibility to do the best it can to make sure that
Jews observe the Torah? Should religious leaders advocate policies that minimize the
transgressions of the secular?
b. The discussions that relate to dealing with secular Jews in Israel also relates to our
relationship with secular Jews in the Diaspora, just that we don't have any possibility
of imposing on them legally. Nevertheless, the questions of how far one should go to
promote partial observance of mitzvos and compromising for the purpose of the
greater good certainly apply.
c. These are some of the issues that arise regarding Israeli law that affects secular Jews:
i. Shabbos- Depending on the city, businesses must remain closed on Shabbos.
There is no public transportation.
ii. Marriage and Divorce must be performed according to Halacha.
iii. Conversion must be done by a beis din approved by the Chief Rabbinate.
iv. There are a number other issues where the State is involved in Halacha such
as burial, building of shuls and mikvehs, kashrus, and other issues.
d. As noted in Part I, the Gavison Medan Convenant was written to address these issues.
i. You can read the main principles here. You can access the full Hebrew
version, with R. Yaacov Medan's halachic analysis here.
ii. There are articles by a number of leaders of the Religious Zionist camp who
disagree strongly with R. Medan. Follow the links to read articles by R.
Shlomo Aviner and R. Shlomo Rosenfeld as well as R. Medan's responses
(here and here).
e. Aside from the halachic issues in advocating for the State to impose observance of
mitzvos, there are a number of practical considerations why religious Jews need the
State to intervene on these matters:
i. There are a number of sectors that must operate on Shabbos in order for the
country to run normally. Most notable is the IDF and emergency services
(police, fire and ambulance). Electricity must be produced on Shabbos or the
hospitals won't be able to function. The foreign affairs ministry must remain
open on Shabbos for defense purposes. There are many other examples. In an
ideal halachic world, these sectors will operate under the premise that they
shouldn't be performing any melacha on Shabbos other than what is necessary
for pikuach nefesh. However, because these sectors are primarily run by
secular Jews, the expectation is that the employees work as if it is a regular
 day. This makes it difficult for religious Jews who are in these sectors to
observe Shabbos, thus requiring government intervention.
ii. Jews in the Diaspora may have lost sensitivity to this issue, but public
violation of Shabbos affects the spirit of Shabbos. There is something special
about a day when there are no cars on the streets, shops are closed, etc.
iii. Issues of Jewish identity and marriage affect religious Jews because if we
can't keep track of who is Jewish and who is permissible to marry, everyone is
affected.
II. The Mitzvah of Tochacha
a. The Torah states that there is a mitzvah to rebuke one's fellow Jew for violating an
aveirah. {}
b. The Gemara states that the mitzvah requires that one continually rebuke, even if the
violator doesn't accept the rebuke the first time. {}
c. The Gemara also states that just as there is a mitzvah to say something that will be
accepted, there is also a mitzvah to remain silent when it won't be accepted. {} How
does one resolve this idea with the ruling of the Gemara that tochachah must be
performed multiple times?
i. R. Yosef ibn Chabib (Nimmukei Yosef 14th-15th century) writes that it
depends on whether one is in private or public. If one is in private, one must
rebuke multiple times. If in public, one must remain silent because it is
prohibited to embarrass the violator. {}
ii. Rambam (1138-1204) does not codify this halacha.
iii. R. Shaul Yisraeli (1909-1995) explains that there are two approaches to the
mitzvah of tochachah. The first is Rambam's approach that the purpose is to
bring the violator back to observance of the mitzvah (or mitzvos)- ‫להחזירהו‬
‫למוטב‬. {} The second approach is Nimmukei Yosef's approach that there is a
value in rebuking violators, even if they will not return. The Torah expects us
to rebuke others for their wrongdoings regardless of the outcome. According
to Nimmukei Yosef, we don't rebuke in public because the mitzvah of
tochachah doesn't override the prohibition against embarrassing others.
However, Rambam doesn't codify the statement to remain silent because
according to Rambam, it is obvious that any rebuke that is counterproductive
is not proper rebuke. {} [The source sheet contains select paragraphs of R.
Yisraeli's piece. Click here to access the entire piece.]
d. R. Avraham I. Kook (1865-1935) discusses the relationship between tochachah and
arevus. Is arevus a sub-category of the mitzvah of tochachah or is tochachah a
function of a broader concept of arevus? He suggests that it is contingent on a dispute
between Rambam and Rabbeinu Asher (discussed in the shiur outline on Kavod
HaBriyos). {}
III. Does K'fiyah Al HaMitzvos Apply to the Israeli Government?
a. The Gemara states that if someone refuses to perform one of the mitzvos, he can be
forced to perform the mitzvah, even through physical force. {}
b. Radvaz (d. 1573) discusses a situation where the Jewish authorities had the means of
compelling someone to keep a certain mitzvah, but they were concerned that by doing
so, the individual will completely leave Judaism. He rules that one cannot treat this
person differently simply because of the concern that he may leave Judaism because
it conveys a message that the mitzvah is not important. He also notes that they can't
ignore this individual because of the obligation of arevus (and tochachah). {}
c. There is a discussion among the Acharonim as to whether the mitzvah to compel
someone else to perform a mitzvah is incumbent on beis din or on every individual:
i. R. Moshe Sofer (1762-1839) writes that there are two types of mitzvos that
are subject to compulsion: {}
1. Chukim includes anything relating to ritual law. Each Jew has a
responsibility to ensure that other Jews keep mitzvos. To the extent
that an individual can compel another to observe a mitzvah, he has an
obligation to do so.
2. Mishpatim includes enforcing punishment and legal matters. This can
only be performed by a beis din.
ii. R. Aryeh Leib Heller (Ketzos HaChoshen, 1745-1813) writes that all
compulsion is in the jurisdiction of beis din. The only way to compel anyone
to perform a mitzvah is through beis din or its agents (now that we don't have
semicha, beis din acts as an agent of the original batei din). {}
iii. R. Ya'akov Lorberboim (Nesivos HaMishpat, 1760-1832) writes that
compulsion is an obligation on each individual, whether to ensure that he
fulfills a mitzvah or to prevent him from a transgression. {}
iv. R. Yosef Babad (1801-1874, Minchas Chinuch) sides with Ketzos
HaChoshen, but admits that even Ketzos will agree that while there is no
obligation to compel others, it is permissible (i.e. optional). {}
v. R. Meir Simcha of Dvinsk (1843-1926) writes that compulsion is only
applicable because it is a means of preventing the person from violating a
transgression. If one knows that compulsion will not prevent the transgressor,
one cannot compel. The only time a beis din is necessary is to either punish
or to compel something that requires actual ratzon to perform the mitzvah,
such as with gittin. {}
vi. R. Kook notes the opinion of R. Eliezer of Metz (d. 1175) that nowadays
when we don't have semicha, beis din cannot compel someone to cancel debt
at the end of the shemitah year. {} R. Kook notes that this opinion is
 applicable to any type of compulsion that has a negative consequence for the
person who is being compelled. {}
vii. R. Yisraeli notes that one can understand the opinions that require a beis din
based on the nature of the mitzvah of tochachah:
1. According to Rambam, the purpose of tochachah is to convince the
violator to return to the path of Torah.
2. According to Rabbeinu Nissim (1320-1380), compulsion to perform a
mitzvah is not to force the individual to perform a mitzvah, but rather
for him to do it willingly. {}
3. According to R. Meir Simcha, compulsion requires a beis din when the
goal is to perform a mitzvah willingly.
4. If one puts these three opinions together, tochachah only requires
compulsion if it is going to return the individual to the path of Torah
and even then, it must be done under the auspices of the beis din. {}
IV. Enabling Others to Perform Transgressions
a. There are two issues that are raised regarding enabling secular Jews to perform
transgressions:
i. Does a compromise on the current law constitute a form of enabling in that the
current law does not allow certain activities and therefore, endorsing a more
lenient law is a form of assistance in the transgressions?
ii. Is there an obligation on a government official to do whatever possible to
minimize the number of Torah violations?
b. Tosafos write that even in situations where there is no technical violation of lifnei
iver, it is prohibited to assist someone else to perform a transgression because there is
an obligation to prevent this individual from violating the transgression. {}
c. Ritva (1250-1330) also notes this prohibition, but as opposed to Tosafot who present
it as a function of the obligation to prevent others from violation, Ritva presents it as
inherent prohibition against assisting in transgressions. Ritva also writes that one
cannot assist the individual because of the obligation of arevus. {}
d. R. Shabsai Kohen (Shach 1621-1662) writes that the prohibition against assisting
does not apply to a mumar because there is no obligation to prevent a mumar from
violating transgressions. {}
i. R. Avraham Gombiner (c.1633-1683) writes explicitly that this prohibition
applies to a mumar. {}
ii. R. Avraham Borenstein (Avnei Nezer 1838-1910) defends the position of
Shach based on the comment of Ritva that the prohibition is a function of
 arevus. Since arevus does not apply to a mumar, there is no prohibition
against assisting. {}
1. It's possible that Magen Avraham follows the first opinion in Ritva
that there is an inherent prohibition against assisting someone in a
transgression and it is independent of arevus or tochachah.
iii. R. Yisraeli notes that there are two potential aspects of assisting someone in a
transgression: {}
1. Making the transgression slightly easier for the violator who was going
to violate the transgression anyway.
2. Setting up a system that allows violators to become entrenched in
transgression, thus becoming greater violators.
3. Shach's leniency was only referring to the first type of assistance. The
second type constitutes a chilul HaShem and is prohibited biblically.
4. R. Yisraeli gauges the chilul HaShem aspect by quantity. If enacting a
law will minimize the overall number of violations, even though there
will be pockets where the number of violations increase, this is not a
violation. [The case he discussed was a proposal to institute a Shabbos
policy that would minimize chilul Shabbos around the country, but
Chaifa was specifically excluded.]
iv. R. Rosenfeld, in his article about the Gavison-Medan Covenant, claims that
relaxing the current law is a violation of assisting the transgressor. R. Medan
claims that removal of a law is not considered active assistance and therefore,
it is not considered assistance.
V. Does Compromise Give Legitimacy to the Other Side?
a. R. Yitzchak Aramah (1420-1494) discusses how in his time there was a problem of
prostitution in the community, yet, some of the community leaders advocated for it
and even supported it financially, claiming that is saves the single men and some of
the married men from the more serious prohibition against relations with a married
woman. R. Aramah notes that if an individual decides for himself that he can't
control himself and chooses the prostitute over the married woman, that is something
that he must deal with in the beis din shel ma'alah. However, for the public to
endorse such a practice is a terrible thing because it gives legitimacy to something
prohibited. It is preferable for those who can't control themselves to violate the
prohibition against ‫ אשת איש‬rather than the community endorse a lesser prohibition.
{}
b. R. Naftali Z.Y. Berlin (The Netziv 1816-1893) discusses a case of a woman who
refuses to go to the mikveh at night and demands that if she is not allowed to go
during the day (on day eight), she will not go at all and violate the laws of niddah.
Netziv writes that because she won't be actively violating an inherent prohibition and
 by not allowing her to do this, she will be actively violating the niddah prohibitions,
she should be allowed to go during the day. {}
c. A question arose recently regarding a hotel that wanted a hashgacha on its meat and
dairy kitchens but also wanted the ability to serve ice cream to customers after the
conclusion of the meat meal. If there is no hashgacha, the hotel will serve non-kosher
food and many secular Jews who frequent the hotel will eat there.
i. R. Eliezer Waldenberg (Tzitz Eliezer 1915-2006) compared it to the case in
Akeidas Yitzchak where one is endorsing a prohibition to save those who
frequent the hotel from more severe prohibitions. {}
ii. R. Ovadia Yosef (b. 1920) notes that this case is not comparable because
many travelers who frequent hotels are not educated in the prohibitions
against eating non-kosher or are not aware that there are hotels in Israel that
are not kosher. Therefore, we must do whatever possible so that they avoid
eating non-kosher. In the case of Akeidas Yitzchak, it was well known that
relations with an ‫ אשת איש‬is prohibited and so a solution of prostitution is not a
valid solution. {}
d. R. Moshe Feinstein (1895-1986) discusses whether it is permissible to be mesader
kiddushin for a couple who may marry each other (because of sotah issues) in
exchange for her agreeing to obtain a get from her first husband. R. Moshe notes that
Tosafos present two opinions regarding when it is permissible to violate a lesser
prohibition in order to save someone else from a greater prohibition {}:
i. When it involves a public mitzvah.
ii. When the violator was put into the situation under duress.
iii. R. Moshe notes that because siddur kiddushin in this circumstance is not an
actual prohibition and because of other factors, the mitzvah d'rabim aspect of
avoiding mamzerus would justify siddur kiddushin. {}
iv. R. Medan uses this as an example of violating a lesser prohibition for a
mitzvah d'rabim. R. Rosenfeld disagrees and states that R. Moshe's teshuva
was only written for an individual case and not as public policy. R. Medan, in
his response, thinks that this was a public policy decision.
‫‪ .5‬רמב"ם הל' דעות ו‪:‬ז‬ ‫‪ .1‬ויקרא יט‪:‬יז‬

‫‪ .2‬ערכין טז‪:‬‬

‫‪ .3‬יבמות סה‪:‬‬

‫‪ .6‬עמוד הימיני ס' י‬

‫‪ .4‬נמוקי יוסף יבמות כא‪:‬‬

‫‪ .7‬טוב ראי א‪:‬קעו‬

‫‪ .10‬חתם סופר חו"מ ס' קעז‬ ‫‪ .8‬כתובות פו‪:‬‬

‫‪ .9‬שו"ת הרדב"ז א‪:‬קפז‬

‫‪ .11‬קצות החושן ג‪:‬א‬

‫‪ .15‬ספר יראים ס' קסד‬ ‫‪ .12‬נתיבות המשפט ג‪:‬א‬

‫‪ .13‬מנחת חינוך מצוה ח'‬

‫‪ .16‬באר אליהו א‪:‬כה‬

‫‪ .14‬אור שמח הל' ממרים ד‪:‬ג‬

‫‪ .17‬חדושי הר"ן קלב‪:‬‬

 ‫‪ .21‬ש"ך יו"ד קנא‪:‬ו‬ ‫‪ .18‬עמוד הימיני ס' י‬

‫‪ .22‬מגן אברהם שמז‪:‬ד‬

‫‪ .23‬שו"ת אבני נזר יו"ד ס' קכו‬ ‫‪ .19‬תוס' שבת ג‪.‬‬

‫‪ .20‬ריטב"א עבודה זרה ו‪:‬‬

 ‫‪ .27‬ציץ אליעזר יא‪:‬נה‬ ‫‪ .24‬עמוד הימיני ס' יא‬

‫‪ .28‬יביע אומר יו"ד ח‪:‬יב‬

‫‪ .25‬עקידת יצחק שער כ‬

‫‪ .26‬משיב דבר ב‪:‬מג‬

 ‫‪ .29‬תוס' שבת ד‪.‬‬

‫‪ .30‬אגרות משה אהע"ז ג‪:‬נ‬