Jewish Law and Democracy

Arno Rosenfeld

Jewish Thought Honors Dr. Sandel

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 for halacha 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.1 The 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

2 3

Ira Sharkansky, "Israeli democracy and Jewish history," Journal of Church & State 37, no. 2 (1995): 2. Sharkansky, "Israeli democracy and Jewish history," 5. Sharkansky, "Israeli democracy and Jewish history," 7.

Rosenfeld 3 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 after halacha 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 5 6

Sharkansky, "Israeli democracy and Jewish history," 7. Sharkansky, "Israeli democracy and Jewish history," 10. Sharkansky, "Israeli democracy and Jewish history," 10.

Rosenfeld 4 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 is Halacha?

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

8 9

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. Joseph Telushkin, Jewish Literacy (New York: William Morrow, 2001), 148. Telushkin, Jewish Literacy, 148.

Rosenfeld 5 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.13 Another 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 11 12 13 14 15 16

Telushkin, Jewish Literacy, 149. Telushkin, Jewish Literacy, 148-149. Telushkin, Jewish Literacy, 149, 151. Telushkin, Jewish Literacy, 151. Telushkin, Jewish Literacy, 151. Telushkin, Jewish Literacy, 151. Telushkin, Jewish Literacy, 151.

Rosenfeld 6 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 papertowel 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 of halacha 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 of halachas
17 18 19

Telushkin, Jewish Literacy, 152. Telushkin, Jewish Literacy, 208. Telushkin, Jewish Literacy, 208.

Rosenfeld 7 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.20 Halacha 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.22 Halacha 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 of halacha is being used, one whose adherents would be considered traditionally orthodox.

Is Coexistence Possible?
20

21 22

Yedidia Z. Stern, "Religion and State: The Role of Halacha," The Israel Democracy Institute (2004): 18. Stern, "Religion and State," 18. Stern, "Religion and State," 19.

Rosenfeld 8

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,
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." In Israel and the Family of Nations: The Jewish NationState and Human Rights, Alexander Yacobson and Amnon Rubinstein, (London: Routledge, 2009), 177-182. 25 Naor, "Both Jewish and Democratic," 180.
23

Rosenfeld 9 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 of halacha 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 nonJewish 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.

Rosenfeld 10 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.31 That 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 or kashrut, a final decision was not required.

Bildstein, "Halacha and Democracy," 11. 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.
28

27

Rosenfeld 11 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 nonMichael Wyschogrod, Judaism, the Political and Monarchy, Institute for Theological Inquiry: 6. I Samuel 8:5 34 Wyschogrod, Judaism, the Political and Monarchy, 16. 35 Wyschogrod, Judaism, the Political and Monarchy, 16.
32 33

Rosenfeld 12 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 nonJews and respecting their lives. The traditional Jewish understanding of how to treat nonJews 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 37 38

Bildstein, "Halacha and Democracy," 24. Bildstein, "Halacha and Democracy," 24. Bildstein, "Halacha and Democracy," 25.

Rosenfeld 13 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 that serara, 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, 2012 Bildstein, "Halacha and Democracy," 25. 41 Amor Harel, "IDF: Soldiers cannot skip ceremonies with women singing." Ha'aretz, August 14, 2011.
40

Rosenfeld 14 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 as gzerah or takkanah, 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 for halachic observance remains adherence to the historic norm and that norms application to any given situation.43 This 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 of halacha 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 of halacha 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.44 During 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 43 44

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

Rosenfeld 15 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 of halacha, declare bankruptcy in America provides an interesting test-case for the way halacha might
45 46

Nelson, "Roots of Democracy," 80. Nelson, Roots of Democracy, 81.

Rosenfeld 16 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 a yeush. 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
Steven H. Resnicoff, Bankruptcy: A Viable Halachic Option? JLaw.com, (2009): 1. Resnicoff, Bankruptcy, 2. 49 Resnicoff, Bankruptcy, 3.
47 48

Rosenfeld 17 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.52 But 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
Resnicoff, Bankruptcy, 5. Resnicoff, Bankruptcy, 5 52 Resnicoff, Bankruptcy, 5 53 Jerusalem Post Staff, Mayor: Despite Criticism There Will Be Buses In Tel Aviv On Shabbat, Voz Is Neias?, February 28, 2012
50 51

Rosenfeld 18 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 55

Staff, Buses In Tel Aviv. 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.

Rosenfeld 19 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.62 When 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.63 Today, when only the most

59 60 61 62 63

Stern, "Religion and State, Bildstein, "Halacha and Democracy," 18. Bildstein, "Halacha and Democracy," 18. Stern, "Religion and State, 20. Stern, "Religion and State, 20.

Rosenfeld 20 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
Stern, "Religion and State, 20. Stern, "Religion and State, 41. 66 Stern, "Religion and State, 41. 67 Stern, "Religion and State, 41. 68 Stern, "Religion and State, 42.
65 64

Rosenfeld 21 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 of perpetuating the 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 of halacha 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 70 71

Stern, "Religion and State, 45. Stern, "Religion and State, 47. Stern, "Religion and State, 53.

Rosenfeld 22 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 seachange 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 of halacha 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 of halacha.75 Though this might sound radical given the current form of halacha, it is rooted in historic precedence. Of
72 73 74 75

Stern, "Religion and State, 56. Stern, "Religion and State, 57. Stern, "Religion and State, 61. Stern, "Religion and State, 62.

Rosenfeld 23 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
Stern, "Religion and State, 62. Stern, "Religion and State, 62. 78 Evelyn Gordon and Hadassah Levy, Halachas Moment of Truth, Azure (Winter 2006): 67.
77 76

Rosenfeld 24 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 of halacha 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 80

Gordon and Levy, Moment of Truth, 67. Bava Mezia 59b

Rosenfeld 25 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

Telushkin, Jewish Literacy, 156. Gordon and Levy, Moment of Truth, 74. 83 Gordon and Levy, Moment of Truth, 75.
82

81

Rosenfeld 26 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.

Rosenfeld 27

Bibliography

Bildstein, Gerald. "Halacha and Democracy," Tradition (1995): 6-39. Fox, Jonathan, and Rynhold, Jonathan. "A Jewish and Democratic State? Comparing Government Involvement in Religion in Israel with other Democracies," Totalitarian Movements & Political Religions 9, (2008): 507531. Gordon, Evelyn and Levy, Hadassah. Halachas Moment of Truth, Azure (Winter 2006). Harel, Amos. "IDF: Soldiers cannot skip ceremonies with women singing." Ha'aretz, August 14, 2011. Jerusalem Post Staff, Mayor: Despite Criticism There Will Be Buses In Tel Aviv On Shabbat, Voz Is Neias?, February 28, 2012 Naor, Arye. "Both Jewish and Democratic." In Israel and the Family of Nations: The Jewish Nation-State and Human Rights, Alexander Yacobson and Amnon Rubinstein, (London: Routledge, 2009).

Rosenfeld 28 Nelson, Eric. "Seeking the Hebrew Roots of Democracy." Commentary, (September 2010): 79-81. Resnicoff, Steven H. Bankruptcy: A Viable Halachic Option? JLaw.com, (2009). Sharkansky, Ira. "Israeli democracy and Jewish history," Journal of Church & State 37 (1995): 329-349. Stern, Yedidia Z. "Religion and State: The Role of Halacha," The Israel Democracy Institute (2004). Telushkin, Joseph Jewish Literacy. New York: William Morrow, 2001. Tsur, Nurit. Battling the rabbinates bias against women, The Jerusalem Post, January 31, 2012 Weiss, Efrat. Police prepare for Shabbat protest, Ynetnews.com, November 14, 2009. Wyschogrod, Michael. Judaism, the Political and Monarchy, Institute for Theological Inquiry. Yakobson, Alexander and Rubinstein, Amnon. Democratic Norms, Diasporas, and Israels Law of Return, American Jewish Committee, (2005).