Applying Jewish Law as the Law of the State (Column 219)
With God's help
In recent days tempers have flared because of a Torah-based remark by MK Smotrich that the state ought to be run according to "Hebrew law," as it was in the days of David and Solomon (was that really the case then? I wonder). The expected reactions were not long in coming either, and in brief: Iran is already here! And of course the equally predictable reassurances also appeared in turn: this is only a theoretical statement. The intention is not to implement everything as is, but in accordance with circumstances (as far as I saw, Smotrich himself said this). This topic is complex and has quite a few aspects. I will try here to sketch a few lines of its profile.[1]
Point of departure
A believing person ought to expect Jewish law to be implemented wherever and whenever it has something to say. It is no wonder that the initial intuition is that Smotrich is right, and that the internal protests (from religious people) against him are mainly obsequious "please-like-us" dances by people who are unwilling seriously to stand behind their positions (and perhaps do not really believe in them either). The hysterical secular protests are equally ridiculous, for every believing person essentially aspires to this, even if he perhaps does not say so explicitly (Yaakov Neeman's statement has already been cited in the media; as is remembered, he was Minister of Justice, and he said the same thing back in 2006). Moreover, the people of the "Hebrew Law Society" and others who followed them, including several distinctly secular figures such as Haim Cohn (a former Supreme Court justice and Attorney General, who was married to a divorcée), also made such demands (see an interesting review here).
Let me say at the outset that this is not about implementing Jewish law in its entirety. Even Smotrich does not mean to propose that the State of Israel should stone Sabbath desecrators and adulterers, forbid the eating of forbidden fats, creeping creatures, or blood, and the like. Those are truly absurd claims, and those who cry out against them are demagogues. What he meant was the implementation of the legal part of Jewish law (mainly civil law), as a substitute for the legal system now in force. He explicitly mentioned tort law, for example. These are subjects in which Jewish law is a legal system like any other, and ostensibly there is no impediment to implementing it even within a secular state. In matters with which, in principle, the law of a democratic state does not deal (such as dietary prohibitions, prohibitions of labor on the Sabbath, and the like), nobody today intends to bring Jewish law in. This is not about enforcing halakhic norms but about adopting the legal system of Jewish law.[2] But on further thought, even with respect to this the situation is not so simple.
What kind of state are we talking about?
It is somewhat strange to speak of accepting Jewish law as the binding law when we are talking about the state as it currently is. Most citizens of the state today are not committed to Jewish law, and it is not realistic to expect them to adopt Jewish law as binding law and act accordingly. The judges and lawyers are also not versed in Jewish law, so this is not practical to implement either. Beyond that, there is no value in Jewish law that is observed not out of commitment to Jewish law but merely in the halakhic mode of "mit'asek"—that is, simply because it has been foisted on us, without religious intent. There is value in observing commandments if it is done out of commitment to Jewish law as the word of God. Without that, there is no service of God here, nor fulfillment of Jewish law.[3]
To be sure, if Jewish law offers a legal system that is more just and efficient than the existing one (Smotrich spoke about halakhic tort law, which for some reason seems to him more just and correct than what is practiced today. In my view these are astonishing and baseless remarks, but I cite this only as an example of his claim), then there is room to expect Jewish law to be adopted in the law of the state in practice as well. But in that case it would be done not because that is what Jewish law says, but because the legislator would understand that a better solution is being offered here than the one currently in use. Exactly as in a situation where the optimal solution were found in Norwegian or Tanzanian law. This is not commitment to Jewish law but openness to other legal systems and a measured adoption of the solutions they offer, Jewish law included. This is not a demand to accept Jewish law as binding law, but a demand that legislators be open to other systems and draw different solutions from them.
National-cultural considerations
There are, however, those who argue that introducing elements of Jewish law into the law of the state is required for cultural-national reasons, apart from its religious aspect. These arguments usually speak only about introducing specific clauses from Jewish law into state law, not about adopting it in full as the law in force. Personally, I doubt how much value there is in this, and as noted it is also impractical because of the lack of knowledge among legal professionals and legislators. Beyond that, there is a problem here that Aharon Barak already pointed to, namely that the coherence of the system may be undermined. Jewish law rests on different assumptions, and sometimes halakhic or legal clauses have unforeseen consequences elsewhere. The artificial transplantation of legal clauses from one system into another, especially when the character of the two is so different, may create incoherence and contradictions.
In my article "Is Jewish Law Hebrew Law?" I gave the laws of bailees as an example of this. Ostensibly this is a neutral field in which there is no obstacle to bringing the rules of Jewish law into the law of the state. But even in this neutral legal context, a problem arises. The laws of bailees assume that the bailee owes an oath to the depositor. The role of the oath is to ensure that his claim is true (otherwise he can do whatever he wishes with the deposit while it is in his house and nobody can know about it). If the halakhic laws of bailees were introduced into the law of the state, the oath would have to be omitted. But what is the point of exempting an unpaid bailee from liability for theft and loss if one does not require him to take an oath to verify that this is indeed what happened? This opens the door to no small number of legal absurdities. Beyond that, I do not see the advantage of the laws of bailees in Jewish law over the laws of bailees in Israeli law. On the contrary, Jewish law itself states that one may stipulate around the laws of bailees—that is, there is freedom of contract, so any two people can set the terms of a bailment contract as they see fit. So what is wrong with the existing law as a kind of stipulation that is valid even according to Jewish law? Without clear advantages to the halakhic system, why should legislators be persuaded to use it specifically? This brings us to the main point in this discussion.
The suitability of pure Jewish law for governing a state and society
It is hard for me to see Smotrich convincing our legislators that Jewish law in its entirety, with all its details, is the optimal solution to the problems of a modern state (or even a pre-modern one). You know what? Let him convince me first. He can of course argue that this or that halakhic provision is more efficient and just than any other legal alternative (I doubt how many such provisions one can find), but to arrive at such a sweeping conclusion regarding Jewish law as a whole seems to me science fiction. Not because the legislators do not understand, and not because they are resistant (although both are true), but because that simply is not the situation. It is not true that Jewish law offers the most efficient and just solution to every aspect of law. Far from it.
Many have already noted that pure Jewish law is not suited to the practical governance of society. In Jewish law there is no duty to pay for damage caused indirectly, one does not punish without prior warning and acceptance of that warning, a robber is not punished at all (he merely returns the stolen property), rulings are not issued on the basis of testimony from witnesses disqualified under Jewish law or on the basis of a single witness, self-incrimination is not accepted, and so on and so forth. Beyond that, it is not even clear what exactly "Hebrew law" is, since there are opinions in every direction and disputes concerning almost every law you can think of. And I have not even mentioned the well-known rules of "kim li," which Rabbi Herzog already said prevent Jewish law, as it stands today, from being implemented as law that actually governs in practice. For these reasons and others, the medieval authorities (Rishonim) already write that in practice it is impossible to govern society according to pure Jewish law. Rashba, in a responsum, even rebukes a community that wanted to implement Jewish law literally, and told them they should be glad that they were not obliged to do so—in other words, that they were freed from the constraints of Jewish law and could act more properly and effectively. It was clear to him that a non-halakhic system would be more efficient and just.
Because of all this, the religious court is supposed to bridge the gaps and plug the holes through action outside the formal law. Ran went even further and wrote in his Eleventh Derashah that the halakhic legal system is fundamentally built on two parallel systems: pure Jewish law, which operates according to the rules of Jewish law in the courts, and in addition a legal system of the king's law, whose purpose is to plug the gaps and which operates alongside it. I have already written here on the site more than once that, in my opinion, the authority of the religious court to act outside the formal law draws its force from the law of the king, and in fact this is a condition for Jewish law to be able to cope with the practical management of society at all.
Back to viewing Jewish law as the law in force
This picture casts the claims about implementing Jewish law as the law of the state in a problematic light. Assuming that the law now in force is the best and most efficient law that legislators and jurists have arrived at, there is no reason to think it would change within the framework of Jewish law. The opposite is true: if that law solves the problems in the optimal way, it is likely that Jewish law too would adopt it within the framework of the law of the king or through the activity of a religious court acting outside the formal law. In the end, in a state governed by Jewish law, the law would be very similar to the law now in force. What fits pure Jewish law—excellent; what does not fit—will be adopted as a solution outside the formal law. In bottom-line terms, this would amount to almost a full conversion of the law now in force. In effect, what would happen is mainly that the judges would put on frock coats and hats instead of the customary toys worn today, but would continue to act as they have until now. Therefore the more realistic and correct proposal should be to adopt state law and incorporate it into Jewish law, not to incorporate Jewish law into the law of the state. Of course, after one incorporates state law and the law of the king into Jewish law, acting in accordance with them is halakhically legitimate and obligatory. But it is hard to call this a change consisting in the adoption of Jewish law into state law. What we have here is the granting of halakhic legitimacy to what is already happening in practice today (see a particularly ridiculous example below in the discussion of Rabbi Arusi on Liberman).
A note: so what is the significance of Jewish law?
The picture I have described raises the question: what, then, is Jewish law about? How does one build a legal system that cannot actually govern society in practice? What value does it have at all? This question does not concern the implementation of Jewish law in state law, but halakhic theory itself. Briefly, I will say that the legal part of Jewish law teaches us a kind of metaphysical truth and not a practical instruction. Studying it is understanding the will of God, but it is not a means for governing society. I cannot go into this here in detail, and I refer the reader to my article on obligations and rights in Jewish law.[4]
Example: breach of an election promise
In Column 84 I discussed a phenomenon of rabbis who try to prove Smotrich's claim that Jewish law contains solutions that do not exist in the ordinary legal system. I dealt there with the question of state's witnesses, and showed how ridiculous the arguments are. Rabbi Ratzon Arusi was one of the speakers there, and a few days ago Itay drew my attention to another article of his in the same vein, this time on Jewish law's relation to the breach of election promises. Rabbi Arusi explains there that Liberman breached an election promise, since he promised to act toward the establishment of a right-wing government and his insistence caused it not to be formed. According to him, under Hebrew law Liberman should have resigned, and his list too ought to be disqualified, with no ability to run in the next election.
When I read this, I did not know whether to laugh or cry. I had not seen such a collection of nonsense in a long time. It is nonsense on the practical, legal, and halakhic levels. On the practical level: how exactly are we to define the party that is disqualified? If the same people establish a party under a different name with the same platform, will they be able to run? If it is the same party but without Liberman? (After all, the decisions there are not made by democratic vote.) Beyond that, why does Rabbi Arusi decide that Liberman did not keep his promise? He insisted on his platform, as every party owes its voters. On the contrary, had he compromised, that could have been seen as a breach of an election promise. Why, in his opinion, did the Haredim not breach an election promise? After all, they too insisted (it takes two to tango). Is it because Liberman supports Netanyahu that he must accept every dictate from him and cannot negotiate over the government's basic guidelines?
Needless to say, Rabbi Arusi is true here as well to his usual path, and accompanies these remarks with declarations about the greatness of Hebrew law (as compared to the current law of the state). Alongside this he juggles groundless interpretations in order to show that this is indeed the conclusion demanded by Hebrew law (which is of course sheer nonsense), all in order to display its greatness and the richness of its splendor. Rabbi Arusi brutally forces Jewish law ("Hebrew law," in his terminology) to say what he himself says, and now explains to us that these pearls were given to Moses at Sinai.
And this is what I wrote there in response to that link:
Since I want to believe that the man is not a complete idiot, and since his remarks are absolute nonsense from so many angles that it would take an encyclopedia to spell them all out, the inescapable conclusion is that we have here a combination of three winning elements:
- The 'Arachim-lecturer' effect: the intense desire to show that Hebrew law has a solution to every failure of other legal systems. As described in the column above.
- Hubris: the assumption that what I myself (= Rabbi Arusi) think is the word of God given at Sinai.
- A rather simplistic line of reasoning that may be true and may also not be (in my view, M.A., absolutely not): I myself (= Rabbi Arusi) think Liberman should resign. As described in the column above.
The meaning of all this is that instead of Aharon Barak, who explained to us that what he thinks is the law of the state and therefore there are no lacunae and state law has a solution to every problem (there is no need to resort to 'the principles of justice, equity, and peace of Israel's heritage'), now Ratzon Arusi explains that what he thinks is the word of God, and now there are no lacunae and Hebrew law has a solution to every problem. So why resort to Israeli law (on which Rabbi Arusi wrote a doctorate) if there is such an original and authentic solution straight from Sinai?! Exactly as in the matter of state's witnesses described in the column above.
I remarked there that these statements parallel Smotrich's remarks, who wants the state to be run according to Jewish law, although in Smotrich's case one can give his words a meaning that is roughly reasonable (see above), something that, to the best of my judgment, cannot be done in any way with respect to Rabbi Arusi's remarks.
But for our purposes there is an especially interesting point in what he says there. There is not the slightest hint in Jewish law of the principle Rabbi Arusi is speaking about. It is his invention from beginning to end. He explains that a political promise is like a binding legal act, unlike general law, which does not view it as such ("I promised, but I did not promise to fulfill it"). Where does he get that from? And if this is a binding promise, does violating it necessarily require disqualifying the party? Does this appear in the writings of Rav Hai Gaon, in the Torah, or in the Mishnah? I only know that even a contractual promise is usually not valid in Jewish law, and its violation does not necessarily void the sale or the contract. All the more so in the case of a political promise.
One can perhaps bring sources this way and that (so long as we use enough imagination and creative interpretation), but what is common to all of them is that these are the reasonings of one sage or another, and they are worth exactly as much as the reasonings of one judge or another. If we were persuaded that this is how one ought to act, we would legislate it into law even without the violence Rabbi Arusi inflicts on Jewish law. And if we are not persuaded that this is an optimal solution, then why should the fact that we find such things in Rashba's responsa (even if we do find them, which I very much doubt) be any reason to adopt it? Rashba's responsa are not a binding source, nor are they Hebrew law. That was Rashba's own reasoning, and I may adopt or reject it as I see fit. After I reject it, I too will write a responsum in Rashi script bound in gold letters, and behold, "Hebrew law" will now say exactly what Israeli law says.
What Rabbi Arusi would really like to say is that the law should be amended so as to disqualify a party that breaches an election promise. I do not think this is correct, and certainly not realistic, but it is a legitimate claim. So let him make it, without forcing Hebrew law for that purpose, and without false propaganda. On the contrary, if we are persuaded that this is indeed the correct and necessary step and we adopt it in the law of the state, then perhaps it can now be brought into Jewish law as well. As noted, the more logical direction is the reverse of what Arusi and Smotrich propose: from state law to Jewish law, not the other way around.
My impression is that Rabbi Arusi is trying cynically to exploit the public mood, which has grown sick of our corrupt political system, and to ride it in order to advance the prestige of Hebrew law. He invents a halakhah that says what everyone wants to hear—and in this way proves that Smotrich was right: if we adopt Hebrew law, everything will go smoothly. As is well known, in Bnei Brak or Jerusalem, or in the Haredi and religious parties, we have never heard of an election promise being broken. They have never prevented the formation of a right-wing government, and have always acted with endless good faith and honesty. Only Liberman introduced the phenomenon of the breach of election promises.
This is a demagogic and shameful propaganda article, in which a leading rabbi in Israel who also earned a doctorate in law puts forward arguments at the level of a kindergarten child. If someone wants to listen to such nonsense, good luck to him. But when this is said in a way that also represents me (as someone to whom Jewish law is dear), here I must protest. If this is what represents Hebrew law, I want no part of it. It only proves why these fellows must not be allowed to decide anything on the practical plane, and so long as Hebrew law has not been consolidated and shaped (that is, until it more or less absorbs Israeli law into itself) it should not seek the crown of leadership. In a kind of ironic inversion, Rabbi Arusi and Smotrich prove by their own words why it is in no way right to apply Hebrew law as the law in force in the state.
[1] Some of these points appear in my article "Is Jewish Law Hebrew Law?".
[2] The root of this confusion is the expression "Hebrew law," which today is interpreted as a synonym for Jewish law. For me, "Hebrew law"—an expression I dislike—means the legal part of Jewish law: civil law—monetary law, evidentiary law, and the like. We are speaking about most of Hoshen Mishpat (and perhaps a bit of Even HaEzer, but I will not enter that part here).
[3] See on this in my article on causing a secular person to commit a transgression.
[4] I also suggest reading my article that deals with the comparison between the halakhic legal system and other legal systems.
Discussion
You can see that on Wikipedia too. 🙂
Where is this Rashba?
With God’s help, 3 Sivan 5779
Comparisons regarding the legal significance of the moral obligation to keep promises, between Torah law and other legal systems, may be found, for example, in the article by Prof. Aviad HaCohen, “On Keeping Promises – Between Law and Morality” (on the Da’at website), and in the article by Dr. Karin Yefet, “Administrative Promise: Its Birth, History, and End – But Why Was It Sentenced to Death?”, in which the author calls for adopting the position of Jewish law that gives binding force to a public promise.
Best regards, Sh.Tz.
Hello.
Many thanks (in the style of “yasher koach,” “chazak uvaruch”) for another enlightening post.
Just in the last few days I read your article “Is Halakha Jewish Law,” and two prophecies are speaking in one style.
Precisely from you I would have expected agreement with the theoretical possibility (as for the practical implementation of such a step at this stage, I completely agree that it is absurd, but what can you do, lately the cannabis leash has been loosened). For all your arguments are based on the claim that there is no fit between Torah law and present-day reality, but after all our master has already taught us, repeated it, and repeated it a third time, that it is definitely possible to create a paradigm for changing halakha in accordance with modern reality. If so, our master is refuting himself, and should agree with Rabbi Smotrich’s argument for applying Jewish law in our state.
As for the claim itself, that even if they insert clauses from Jewish law it has no value because there will no longer be any difference between the two systems—even if I were to accept this assumption (which at first glance I do not), in any case it is obvious that there is value in observing halakha for the sake of observing halakha, and this is no worse than a Noahide, of whom Rambam wrote that if he acts not because of God’s command then it has no value.
One more point: between your lines you wrote that grama is a concept unsuited to our times. Since I also saw that your friend Prof. Nadav Shnerb makes a similar claim, and I am brutish and do not understand why in the time of Hazal it was suitable, and in our time it is not suitable—after all, it is simply a determination with quite a bit of logic to it—I would be glad if you would elaborate a bit on this point.
I think that at the root of the matter the rabbi here is following his own view (if I understood correctly), that morality and Torah were not given by one Shepherd, whereas Rabbi Arousi presumably holds that morality is grounded in the Torah and therefore whatever is moral will also be Torah-based.
And that is what I humbly tweeted.
Vol. 4, responsum 311. Its wording is brought in the article “Is Halakha Jewish Law?”
Heaven forfend that the seed of Abba bar Abba should say such a thing. I have written several times exactly the opposite: that morality and halakha were given by one Shepherd, and were it not so morality would have no authority. And if morality is part of the Torah, then there is no need to take it from the Torah, since the law too is obligated to morality.
To call for introducing Jewish law into legislation when what one really means is making the law moral—that is idle pilpul, like the claim that no religious person is a thief, because if he is a thief then he is not religious.
I did not write that it is unsuited to our time. I wrote that it is unsuited to running a society, even in their time. True, in our time it is even more problematic, because most damages are by grama.
And as for the value in observing halakha for halakha’s sake—after all, that is exactly what I was talking about when I said that in any event this will not be the case here. On the contrary, even if they insert explicit and pure halakhot (not from the domain of morality), there still will be no value in it because their observance will not be for the sake of observing halakha.
Why is it unsuited to running a society? In the case of inadvertence, I assume it is completely suitable; and if because of intentionality, then he is liable in the heavenly court, and it is certainly possible to enforce matters of liability in the heavenly court. I would be glad if you would elaborate.
From the proof from morality in your notebooks I understood that morality is indeed from God but is not included within the Torah, and that is what I meant by saying they were not given by one Shepherd. If I understood correctly, for that reason the rabbi adopted Kant’s definitions of morality.
I admit that I read the notebook like Ben Dorsai’s half-cooked meal, and even so I would be glad for a brief response.
Even in the case of inadvertence it is not suitable, because a person who causes damage unintentionally must pay, whether it is grama or not. And if you want to implement moral laws, then again we are not dealing with pure halakha. To enforce matters of liability in the heavenly court is like punishing outside the law.
I do not know why you saw in my words that it is not included in Torah. It is not included in halakha. In Torah there are expectations of moral conduct (such as “And you shall do what is right and good”).
I adopt Kant’s definitions independently of that, simply because they seem right to me.
If so, what is the concept of not going to gentile courts?
Especially since Ran speaks about a government not operating according to the Torah, and he is the one who wrote Derashah 11.
?
“Gentile courts” means a foreign legal system and judges who are unfit. The incorporation of additional laws into halakha has to be done by a Torah body (a Sanhedrin). And of course in contexts outside civil law.
Regarding the purpose of halakha, the rabbi wrote that “the legal part of halakha teaches us some metaphysical truth and not a practical directive. Studying it is understanding the will of God, but not a means of running a society.”
In fact, in my humble opinion the rabbi is mistaken. The legal part of halakha (the pure part, without punishments outside the law) is meant for a society in a spiritual state that is no longer occupied with internal quarrels merely because there is an external threatening law (the king’s law), but rather dwells in a kind of minimal unity, where there are still sometimes sins between one person and another, but society wants a justice system that is more mercy than strict judgment. In that way one can maintain the halakha of a robber who merely returns the theft, and without a rigged trial and punishments according to the strict law. This is an intermediate state between “each swallowed his fellow alive” and “they shall neither hurt nor destroy on all My holy mountain.” And this is somewhat like the reality of testing the sotah and the heifer whose neck is broken, which operated only when such cases were rare, and then the Divine Presence rested upon Israel and these were used as tools to purge evil from our midst so that the Divine Presence would not depart or rise up in our midst and consume us. But when murderers and adulteresses became numerous, then the Divine Presence had already departed and thus there was no place for them. What I wrote is also correct regarding capital punishments by the court for desecration of Shabbat, etc. We are speaking of a situation in which even the one being put to death would want such a reality of purging evil on the one hand and confession and entry into the world to come on the other. And similarly this is a vision for the future of maintaining a Torah state (note well: not a halakhic state!) that is not primitive (the intermediate state, maturity; today we are in a state of adolescence. There is no spirituality, and the spirituality of the past existed in primitive vessels).
1. The disparaging tone toward Rabbi Arousi is inappropriate, in my humble opinion.
2. Rabbi Arousi referred in his remarks to a ruling of a rabbinical court in Rehovot regarding breach of an election promise. Did the rabbi trouble himself to examine this ruling and its reasoning?
3. Rabbi Arousi did in fact address the question of the contradiction between Liberman’s election promises (on the one hand he promised a right-wing government; on the other hand he promised not to compromise on the draft law). He argues that Liberman knew in advance that a right-wing government would not be formed without the Haredim, and therefore his promise to sit in such a government includes a certain compromise with the Haredim on matters dear to them, including the draft law, exactly as had been customary in all previous right-wing governments (and as Liberman himself did in the past). It seems to me this is a perfectly reasonable argument.
4. It is obvious that one cannot find explicit proofs in Jewish law regarding the laws of parties and the like, for these did not exist in their time and communities. But what is wrong with drawing analogies, as is customary in every ruling on a modern matter?
Thank you. And I would add, from your own words, that one of the main problems of Jewish law or halakha is that it has no living legislator, only interpreters. A legal system dealing with interpersonal matters must be dynamic from the standpoint of legislation. As long as we do not have a halakhic system that legislates and not only interprets, there is no place for implementing halakha in these areas. Would you agree with me on this argument?
Hello Eilon.
You explain that I am mistaken because halakha is indeed aimed at governing an ideal society that never was and never will be. If you enjoy that formulation, instead of saying that it is not intended to govern a human society—health to you.
Hello Eliyahu.
Even little old me noticed that he addressed it, and his treatment is ridiculous. The Haredim also knew that no right-wing government would be formed without compromise (which they even agreed to). So should they too be disqualified? One need not examine the matter in detail to understand that this is demagogic nonsense. And we already saw this approach in column 83.
Completely. I would only add that when such a legislative body exists, the product will be about the current statute book. Except that it will undergo a strict conversion and its judges will wear frock coats (unless those Purim costumes are abolished by then).
This is what was written in the post: “Rashba in a responsum even rebukes a community that wanted to implement halakha literally, and told them they should be glad they are not required to do so—that is, that they are freed from the constraints of halakha and can act in a more correct and effective way. It was clear to him that a non-halakhic system would be more effective and just.”
I went through Rashba’s words (vol. 4, responsum 311) and found no trace of “that they should be glad they are not required to do so.” Here is the full Rashba.
You asked: The public agreed to appoint us as select men to eliminate transgressors, and we swore to do so. And it is written in the enactments of the agreement that we shall have authority, by the rule of the state, to discipline and punish bodily and financially, according to what seems proper to us. Inform us: if relatives testify about Reuven that he violated his oath, and the witnesses are people one can rely on; or if a woman and a minor testify, speaking innocently—do we have authority to discipline Reuven or not? Likewise, if the witnesses, or one of them, are related to Reuven, and we see indications that these witnesses are telling the truth, do we have authority to act on their basis, even though there is no testimony according to the majority [of formal requirements]?
Response: These matters seem simple to me, that you are permitted to do as seems proper in your eyes. For the things you mentioned were said only regarding a court that judges according to Torah law, such as a Sanhedrin and the like. But one who is charged with public order does not judge by the laws written explicitly in the Torah, but according to what he needs to do for the time, by authority of the government. For if not, they too could not impose bodily or monetary penalties, since fines are not judged in Babylonia, nor in matters that are uncommon. For nowadays we do not judge even loan cases by Torah law, because we require elohim—that is, expert judges—and we are mere laymen. Rather, we act as their agents. And when we act as their agents, it is in common matters, such as admissions and loans. But in uncommon matters, such as thefts, injuries, and other transgressions—not so. Likewise, one is not flogged or punished on the basis of his own admission, because a person does not render himself wicked as a matter of law. And even if there are valid witnesses, he is not flogged unless they warned him in advance. For a court does not administer lashes except after prior warning. But all these things apply only in a court that operates according to the Torah. Do you not see that David executed the Amalekite convert on the basis of his own statement? And they also said: We may flog and punish not according to the law—not in order to violate the words of the Torah, but to make a fence for the Torah. And there was an incident of a man who rode a horse on Shabbat, and they brought him to the court and stoned him. Not because that is the halakha, but because the hour required it, as is stated in Yevamot, chapter HaIshah Rabbah (90b). All the more so you, since the whole agreement was only that you should do what seems proper in your eyes, as is written in the letter of ordinance that you mentioned. And this matter is simple among us, and among all places that have such enactments between them, in these matters.
Oh come on, what is this idea of disqualifying a party that does not keep election promises?
I read that idiotic article a while ago; what is new to me here is that the author of that article studied law, and I do not know whether to believe that or not.
If the voters want them anyway, let them vote for them. Good for them. Nobody is forcing them to do it.
That is exactly what is written here. Otherwise why not implement halakha if possible?! After all, Rabbi Arousi taught us that halakha is the ideal legal system, no?! He wants people judged by it even in a secular system, so by laymen certainly they should be judged by it.
And should someone who ate garlic and whose smell emanates from him (judged by laymen) go on and eat more garlic (judge not according to Torah law)?!
Rather, Rashba tells them: be glad that you are not constrained by the limitations of halakha, and that you can judge in a more optimal and better way.
Not only did he study it. He teaches law.
That is not a serious answer. Why a society that never existed? I claim that this is how the Children of Israel were at the time the Torah was given, and in fact from then until the period of the prophet Hosea (there was a problem with idolatry but not with unity—a certain minimal threshold of it—which is what is needed for the ideality required for the pure legal part of halakha). As I said, it was ideal relative to us, but realities of murder, theft, etc. (and likewise the stubborn and rebellious son) did indeed exist, only much more sporadically (for otherwise the Holy One would not have commanded about them at all). I believe that the element of the king’s law also existed, as we see from Tanakh, as well as flogging and punishing outside the law, only that this was the exceptional case and not the rule. The rabbi’s concept of humanity is very narrow, tied to his recognition of current human reality. Does the rabbi understand how there were prophets and divine inspiration and miracles? I claim there is a connection between the spiritual reality then, of prophecy, and that of the fulfillment of the pure part of halakhic law.
And I claim that the rabbi is mistaken in thinking that the pure part of halakha is a kind of “expound and receive reward.” This does not fit the plain meaning of the verses (nor the plain meaning of the Mishnah and Gemara) or common sense. (In fact I claim that “expound and receive reward,” according to the opinion that this is the reality regarding the stubborn and rebellious son, is a kind of metaphysical truth—the amora said it was because of the very rare requirement of similarity in voice and appearance between the parents needed for carrying out the execution of the rebellious son—but the rebellious son is not a rare reality at all in the ancient world; see the Book of Proverbs.)
In the article you linked to, you wrote that in the laws of Choshen Mishpat there are aspects that are, in your view, “Torah.” For example, that presumptive possession can extract money.
In your opinion, are these foundations worthy of implementation in state law? Should they, in your view, be a guiding light for the legislator or the judge?
How fortunate, how fortunate, how fortunate we are to have such a rabbi.
By the way, what you wrote is intuitively obvious to 99% of people, but you formulated it perfectly.
With God’s help, 4 Sivan 5779
Perhaps there is room to say that an elected official who violated his promise to his voters is a “mistaken transaction,” since they did not choose him with this in mind, and had they known that this is what the elected official would do, they would not have voted for him. Therefore it would be proper to hold repeat elections in order to allow the voters who were misled to vote for a worthy candidate.
Best regards, Sh.Tz.
And a note regarding Liberman. It seems to me that he remained faithful to his promise to support Netanyahu, since he clarified that even if he would not enter a coalition with him, he would not support Gantz. It is quite possible that Netanyahu could have formed a right-wing government on the basis of 60 Knesset members and been helped by Liberman’s abstention.
It may therefore be that the example Rabbi Arousi chose was not a good one, but it is still good that he taught us that according to Torah law there is a legal obligation upon a public representative to stand by his word, to the point of the possibility of disqualifying his election because of this. Even if there is no practical chance that such a halakha will actually be adopted, there is still value in knowing such a halakha, in the hope that at the very least public figures who observe Torah and mitzvot will be aware of it and aspire to fulfill it.
In the end, it will not be this or that Minister of Justice who increases the influence of Torah law in the life of the state, but rather increased public awareness—especially among the religious and traditional public—of the light in the laws of the Torah. When within our own camp we become aware of and committed to the high standard of moral and social demands that Torah law places before us, these things will seep outward and affect broader circles: “when the oven is full, it warms its surroundings”….
For anyone interested,
To complete understanding of the rabbi’s opinion on the relationship between halakha and state, I just happened to see an important exchange that sheds more light on the matter.
I discussed those foundations here, and said that there is no point in implementing them in state law unless they have logic in themselves. The factual component in the various discussions is not Jewish law at all, and therefore is irrelevant to the discussion.
Fortunate are you, for your lot is good, that you have such a rabbi. But what about me? Why don’t I deserve it?
Sh.Tz.L., every time anew I do not know whether you write these things seriously or as a provocation. I judge you favorably that it is merely a provocation.
With God’s help, 4 Sivan 5779
The idea of annulling an agreement because of a future scenario on the basis of an “overriding presumption” was proposed by you in column 148, and on the basis of this principle you were even inclined to annul a marriage in certain situations.
Reason suggests that according to your view there, all the more so one should take such a consideration of “with this in mind” into account regarding elections, which in any case are for a limited period and are not meant to be “an everlasting edifice.” And when there is an “overriding presumption” that “they did not choose him with this in mind,” there is logic in advancing the “return of the mandate” to the misled voters.
But even according to the majority of decisors there, who are hesitant to annul a marriage on the basis of a presumption of a future “with this in mind,” there is room to think so in our case. After all, an election is not a “wedding,” and there is certainly logic in returning to the misled voters and giving them a renewed opportunity to choose someone who will not betray their trust.
And even if as a matter of law we say here too that we do not say “with this in mind” about a future scenario, there is still reason to enact a regulation and establish a “threshold condition” that a public representative must be a person presumed trustworthy, whose “yes is yes and whose no is no.” And after all, according to the Rashba you mentioned, a public representative is also granted authority to legislate and enact beyond the strict letter of the law for the sake of repairing the world. Shall such sweeping authority be given to any Tom, Dick, or Harry? Such sweeping authority should be given only to someone whose reliability and integrity can be trusted.
Best regards, Sh.Tz.
Sh.Tz.L., in the law too a contract is cancelled on the grounds of a mistaken transaction. So why do we need halakha? Was this ground for cancellation invented there?
By the way, here this is not at all cancellation by virtue of a future event. In that you are simply mistaken. According to Rabbi Arousi, the contract between him and his voters was not fulfilled and therefore the transaction is void. Someone who received payment and did not supply the merchandise must return the money, regardless of grounds for cancellation of “with this in mind” (and even mistaken transaction is not exactly this).
After all, I wrote that his basic claim itself could have been argued (though in my eyes it is nonsense), and my main claim is about taking the name of halakha in vain.
For two thousand years the Jews enjoyed legal autonomy (what historians call a corporation or estate). Throughout all those two thousand years halakha (or at least the Choshen Mishpat part of it) functioned as the basis of civil law in the communities. This did not harm them economically, and it functioned very well in exile. I completely agree with the rabbi that there are aspects that require updating, and for that one can use Israeli law, certainly on the criminal side but also on the civil side. But the very claim that a priori halakha cannot function as the basis of civil law in the State of Israel is factually contradicted by the reality of the communities in the diaspora.
It is true that halakha probably assumes that all those using it are religious Jews, and in that sense life in a secular state with a secular majority may indeed point to a problem in applying halakha to the whole State of Israel. But the very a priori claim that halakha cannot function as the basis for civil law simply does not fit the historical record.
With God’s help, 4 Sivan 5779
To R. M. A.—greetings,
Well then, from your words we were privileged to see that there is room for Rabbi Arousi’s reasoning not only from the standpoint of halakha (for which he brought a support from the ruling of the rabbinical court in Rehovot, and perhaps there are additional sources in Dr. Karin Yefet’s article on the “administrative promise,” to which I referred above). You added, from the standpoint of reason, that even from the perspective of state law there would be room to define the relationship between voter and elected official as a contractual one.
All that remains is to hope that the general legal system too will adopt this approach, which today is the preserve of Torah courts. And perhaps the new Minister of Justice, whose name is “Amir,” will influence the legal system to give status and legal force also to the “statement” of public representatives 🙂
Fortunate are you that you have grasped the quality of the “scholars of the Land of Israel,” who assist one another in matters of halakha, and brought support and aid to the words of Rabbi Arousi.
1
Best regards, Sh.Tz.
Smotrich (quite rightly from his perspective) did not speak about Jewish law but about Torah law.
This is a historical hallucination, not a historical fact. That legal system never functioned, not even in communities where everyone was religious (like Bnei Brak today), and when it did function it was only when they deviated from it. I brought the Rashba’s responsum.
Torah law requires parents to put their wayward sons to death.
As is proper. Unfortunately, however, Torah law—which usually sets unreasonable conditions for carrying out an execution—this time chose to set impossible conditions in order to execute a stubborn and rebellious son, so we will not be seeing that anytime soon. You will have to wait.
See also Maharshakh’s responsum, brought in R. Akiva Eger’s glosses to Choshen Mishpat 26, that merchants may judge among themselves not according to Torah law, since the matter is not possible otherwise.
With God’s help, Friday eve, Shabbat Kallah, 5779
It should further be noted that although the Rashba, in the responsum mentioned here, permitted leniency in the rules of evidence required by the Torah in criminal law because this served “the repair of the world,” to prevent lawlessness when there is no effective deterrence—still, what is at stake here is upholding a value important to the Torah: prevention and deterrence of wrongdoers.
With its stringent rules of evidence, the Torah required proof “beyond any reasonable doubt” so that no one who might be innocent should ever be punished. And although this reduces the effect of deterrence, on the other hand the example set by a legal system that is careful not to harm someone who may be innocent itself creates a healthy social atmosphere that influences individuals in a positive direction, and that positive public atmosphere may obviate the need for deterrence. Conversely, there are situations in which the public atmosphere is not good, and in them one must increase, by enactment, the effectiveness of deterrence.
However, the Rashba sharply opposes the sweeping adoption of a foreign law or custom in his responsum (vol. 6, responsum 254). He brings the example of collecting the ketubah from “the camels of Arabia,” where the local custom accords with the principle desired in the Torah, because since most of the business of the people of Arabia there is in camels, the woman relies there also on movable property. “But to learn from this to follow the ways of the gentiles and their laws—Heaven forfend for a holy people to behave so… And I say that anyone who relies on this to say it is permitted because of dina de-malkhuta dina is mistaken and a robber is he… and in general he uproots all the laws of the perfect Torah. And what need have we for the holy books that Rabbi and after him Ravina and Rav Ashi composed for us? Let them teach their children the laws of the gentiles and build for themselves patchwork altars in the houses of instruction of the gentiles. Heaven forfend that such a thing be in Israel…”
It would seem, then, that according to the Rashba there is room to make use of enactments and customs where there is a real need for repairing the world in accordance with Torah values, but not to adopt wholesale a foreign legal system “with all its trimmings” without a case-by-case examination of the need in each matter.
The Rashba’s words and much additional material are brought in Rabbi Yisrael Rosen’s article “Are Today’s Courts Considered Gentile Courts?” on the Tzomet Institute website.
Best regards, Sh.Tz.
An additional reservation that the Rashba places (in his responsum, vol. 3, responsum 109) on “the law of the kingdom is law” is that explicit legislation by the king is required, legislation that will be recorded in “the laws of the monarchy,” and not “what the courts judge for themselves according to what is found in the books of their jurists” (these words too are cited in Rabbi Rosen’s aforementioned article).
Best regards, Sh.Tz.
The question is whether your sources are not proof for my position. As Yuval Noah Harari wrote, a good historian can always find exceptional events, but an even better historian will always know how to understand that those events are in fact exceptional. In other words, precisely the fact that one has to say this—as Rashba and the Shakh do in certain cases—indicates how much this is the exception and not the rule. The rule continued to be judged according to Torah law and to swear according to Torah law. At the margins they noted that Torah law was not relevant and therefore gave ad hoc solutions, but they did not come to abolish Torah law entirely.
The truth is that I do not know the data well enough to decide, but I strongly suspect that despite the pretentiousness of both of you, neither do you. In my opinion, Rabbi Michi gives an a priori argument—but the history of science has given enough arguments presented as a priori and later shown to be mistaken. What is needed is, at the very least, the opinion of an expert historian who has been exposed to the data and understands halakha well enough to provide some sort of initial assessment and direction for research. The name that currently comes to mind is Haym Soloveitchik. But there are certainly others. I am also not sure enough data was preserved, or what can be inferred from the responsa literature, but that will certainly be more reliable than all the talk being tossed around here. Of course, that does not mean today’s socioeconomic reality is suitable for Torah law, but at the very least the question of the relation between today’s reality and the historical reality back then is required in order to make a proper assessment of what is possible and impossible.
In passing I would note, in the spirit of the Zehut party, that I once thought about the possibility of privatizing the civil court system into a voucher system of legal funds in which people would be judged according to what suits them. In fact, things Rabbi Michi wrote made me think that this is somewhat simplistic, and yet that possibility still exists.
Have a good week.
Sh.Tz.L.,
Criticism of breaking a promise to voters can be made only by the voters themselves in the next elections. Judicial review is simply not relevant to this matter, just as it is not relevant to examining the reasonableness of administrative decisions of elected officials or their proportionality. It is typical of a jurist to try to expand judicial review without even thinking about the enormous damage this would do to the democratic representation of the voters. We are already crying over the first troubles, and you want to add more??
I am not saying there is no room for breaking a promise, but that is only in the laws of Heaven. God forbid to bring this into human law.
With God’s help, 7 Sivan 5779
To Y.D.—greetings,
In my comment above, “And perhaps from the angle of a mistaken transaction?”, in the last two paragraphs, I indeed wrote that it does not seem to me that strengthening Torah law in the life of the state will come from “this or that Minister of Justice.” First of all one must build the public’s motivation by letting it see the light in the laws of the Torah, and that is the importance of the work of those who make Jewish law accessible. Therefore I liked what Rabbi Arousi brought: that according to Torah law the promise of a public figure has legal force, in the hope that at least among commandment-observant Jews we will adopt this norm, even if it is hard to assume that such a norm can be implemented in the broader political world as well.
Best regards, Sh.Tz.
According to the direction I suggested—of a “mistaken transaction”—there is seemingly no injury to the democratic process, since the result of misleading the voters is “repeat elections,” returning the mandate to the voters.
1. What a pity that the honorable rabbi has descended to such a low level that any surfer can reach in and write things on a lowly level. However convinced you are of your arguments, you could have done so in a respectful way fitting for Torah scholars, and you should have spoken with Rabbi Arousi in a venue accepted by both of you. Such is the way of Torah, and thus it is proper to educate students accordingly.
2. To all those among the commenters who are observant, I suggest they consider their religious path when it appears that they understand your view that the Torah is not exactly suited to our generation. And perhaps this is a failure of the morality of the Torah “from Heaven”?
Hello to his honored Torah,
Attached is a link to a Torah lesson by Rabbi Arousi on the subject under discussion—of course, without offensive expressions. And about such things it was said: “Sages, be careful with your words,” for any lowly person may turn such expressions toward the honorable rabbi, “old goat.”
As one of the students, I expect that after his honored Torah inclines his ear to the words of Rabbi Arousi, there will be fulfilled in us: “And Hav and Suvah in Suphah” between these two giants of Torah.
You gave Rabbi Ratzon Arousi a great deal of satisfaction.
From minute 18:45, Rabbi Arousi refers to this article of Rabbi Michael Abraham.
Well, I listened to Rabbi Arousi’s remarks. I have to note that I agree completely with the way Rabbi Arousi rebukes Rabbi Michael Abraham here regarding the style of discourse and culture of discussion. After reading Rabbi Abraham’s enlightening column, when I heard Rabbi Arousi’s remarks I thought a second time that this style of discourse is entirely inappropriate. I am not speaking only about the form in and of itself, but also because, in order to clarify matters properly and arrive at clear conclusions—what each side says, what the arguments are—the voter should choose and be persuaded.
No response at all from our master Michi?
With God’s help, 11 Sivan 5780
See the article: “Lawsuit against Benny Gantz: He broke his promise to the voter” (on the Arutz 7 website), that tomorrow a lawsuit will be filed in the Tel Aviv District Court on behalf of 450 citizens against Benny Gantz for violating his promise to his voters not to enter a government with Netanyahu.
Best regards, Sh.Tz.
Because I saw that Rabbi Michi wrote elsewhere that he would discuss Rabbi Ratzon Arousi’s arguments only if they were in writing, I will gird my loins and write his main arguments.
1. His general view is that the Torah wrote monetary laws for a utopian society that never was and never will be, and our task is to draw analogies, as all the sages of the generations did. (That is how I understood it from a brief listen, and I did not delve deeply.)
And below are his specific arguments:
1. He did not propose to disqualify the list entirely, only to remove them from the Knesset because they did not abide by the election agreement and to bring in another party.
2. His halakhic remarks are based on a ruling of a monetary rabbinical court in Rehovot, and there it is explained in detailed halakhic fashion.
3. He never claimed that what he says was handed down from Sinai, only that this is what ought to be done in the given situation out of an understanding of halakha.
4. The Haredim compromised, and Liberman committed himself that a government would be formed. Meaning that he is obligated to join the government and compromise.
I still will not respond. If you want a discussion, you will have to do a better job. Bring his argument and my argument, and what he replies.
1. You: “How exactly are we to define the party that is disqualified? If the same people set up a party under a different name with the same platform, can they run? If it is the same party but without Liberman?” Rabbi Arousi: they do not enter the Knesset, and in the next elections four years later they can run. The list itself is not disqualified.
2. You: “Beyond that, why does Rabbi Arousi decide that Liberman did not keep his promise? He insisted on his platform, as is every party’s duty to its voters. On the contrary, had he compromised, that could have been seen as breaking an election promise. Why in his view did the Haredim not break an election promise? After all, they too insisted (it takes two to tango)? Is it because Liberman supports Netanyahu that he must accept every dictate of his and cannot negotiate over the government’s basic guidelines?” Rabbi Arousi: the Haredim compromised, and Liberman committed himself to forming a government and that there would not be elections; therefore he in fact broke his promise and should be disqualified and vacate his place.
3. You: “There is not the slightest hint in halakha to the principle Rabbi Arousi is talking about. This is his invention from aleph to tav. He explains that a political promise is like a binding act of acquisition, unlike general law, which does not see it that way (‘I promised, but I didn’t promise to keep it’). From where does he derive this? And if this is a binding promise, does its violation necessarily require disqualifying the party? Does this appear in the writings of Rav Hai Gaon, in the Torah, or in the Mishnah? I only know that even a contractual promise is generally not valid in halakha, and violating it does not necessarily void the sale or contract. So all the more so with a political promise.” Rabbi Arousi: this halakha is based on a ruling of the Rehovot rabbinical court, where the halakha is explained at length.
4. You: “The hubris: the assumption that what I myself (= Rabbi Arousi) think is the word of God that came down from Sinai.” And you also wrote: “The meaning of this is that instead of Aharon Barak, who explained to us that what he thinks is the law of the state and therefore there are no lacunae and state law has a solution for every problem (there is no need to resort to ‘the principles of justice, equity, and peace of the heritage of Israel’), now Ratzon Arousi explains that what he thinks is the word of God and now there are no lacunae and Jewish law has a solution for every problem. So why resort to Israeli law (on which Rabbi Arousi did a doctorate) if there is such an original and authentic solution straight from Sinai?! Just like in the affair of the state witnesses described in the column above.” Rabbi Arousi: the claim was never heard that this halakha came down from Sinai, only that this is what he infers from halakha.
5. You: “Essentially what Rabbi Arousi would like to say is that it is proper to amend the law and disqualify a party that breaks an election promise. I do not think that is correct and certainly not realistic, but it is a legitimate claim. So let him make it, without forcing Jewish law into service for that, and without false propaganda.” Rabbi Arousi: he really is saying to legislate such a law. And I note that he learned that this should be done from halakha, and therefore he thinks such a law should be enacted.
6. His remarks were not at all connected to Smotrich.
7. You: “In a kind of reverse proof, Rabbi Arousi and Smotrich prove in their words why it is in no way correct to apply Jewish law as the law practiced in the state.” Why?
That’s it? This is what you are investing your energy in?
1. You did not answer. I asked who the list is that gets disqualified in these elections.
2. Unfounded nonsense. How does he know?
3. I am very glad. My words are based on a ruling written by the Archangel Michael.
All right, I’m tired of this.
General note: I notice that you ask a lot on the site and think very little about your questions. Please, think about the questions and formulate them in a clear and sufficiently thought-out way. There is no point in just corresponding meaninglessly when there is no real topic for discussion.
The truth is that I only meant to present Rabbi Arousi’s answers, not my own.
1. What do you mean? Yisrael Beiteinu.
2. Could be. But that is already a factual mistake. Why is it also the sort of argument a child in kindergarten would make? (He brings dubious proofs for it from various other politicians.)
3. I see we have moved into the realm of demagoguery. You claimed this has no connection with halakha and is entirely his invention, and he says it is based on a ruling of a rabbinical court. Don’t you think that contradicts what you said?
You did not answer the rest, so I have nothing to say.
And thank you for the comment.
It is not polite to trash a person here and then, when he responds, dodge hearing his answers. And no, hearing a second-hand summary does not count. The rabbi is only going on embarrassing himself with this approach and creating the sense that there is no search for truth here. Someone who troubled himself to listen to two hours of a reform female rabbi who was not Jewish can listen to the answers of a Torah scholar too, even if it inconveniences him.
Shame.
You can listen for yourself and see that the answers there answer nothing at all (and I listened to the entire lesson up to the point where he stopped answering. If the question was a question, then the answer was like dust blowing in the wind). If it is so important to you, then instead of expecting others to do the work, take one argument to which Rabbi Arousi gave his best answer and present it (transcript or summary), and spread the garment before the young of the flock.
Sorry, K.H., but the issue is not the quality of Rabbi Ratzon Arousi’s answers, but the fact that Rabbi Michi, by his own admission, did not bother to hear Rabbi Ratzon Arousi’s response and even suggests that we should give him an executive summary of the remarks. We are not speaking here of a question someone asks about a video, where Rabbi Michi quite rightly asks him to formulate an argument. The one who attacked here was Rabbi Michi himself (I remind you that he could have ignored him), and to demand that we represent Rabbi Arousi is simply not serious (and a mistake on Yishai’s part that he fell into this). By contrast, it is the full right of the one attacked to respond in the place and time appropriate for him, and Rabbi Michi’s suggestion that he respond here on this site is beyond ridiculous.
The fact that Rabbi Michi did not even bother to listen to the response is what is embarrassing and arouses the protest of the various writers (myself among them). Had he written that he listened and heard no new argument (and complained about the waste of time), that would have been legitimate, but he did not write that.
The suggestion to respond here on the site is indeed not serious, but the point is that responding in writing to oral remarks requires three times the effort: first, listening to the oral remarks, which are a two-hour video, instead of reading them, which would take ten minutes at most; second, summarizing the other side’s arguments in a concise form, each argument with its own banner; third, responding. Instead of having only stage three. All the more so when there is no good reason to think the answers add anything significant beyond what was said originally. I, having listened, think there is nothing there. If someone else listened and can present one argument with one good answer, then that is already a serious indication requiring real examination. In the meantime, those voicing protest either settled for lazy armchair protest or presented answers from Rabbi Arousi’s words that add absolutely nothing and give no appetite. And perhaps he listened after all.
With God’s help, Friday eve, “the scepter shall not depart from Judah,” 5781
To Y.D. / K.H.—greetings.
Whoever finds it difficult to listen to Rabbi Arousi’s lesson can examine the articles of Prof. Aviad HaCohen and Dr. Karin Yefet, to which I referred in my first comment, where the uniqueness of Torah law is well explained: it gives legal validity to the promise of a public figure.
Perhaps Judah merited the blessing “the scepter shall not depart from Judah, nor the ruler’s staff from between his feet” because he stood the test of keeping his promise to his father to bring Benjamin back, even though he could have excused himself with an excellent excuse and claimed that Benjamin himself was to blame for his predicament, since the cup’s being found in his sack was conclusive evidence that he was the thief.
Apparently Judah preferred not to rely on the Egyptian “law enforcement system” 🙂 but to remain faithful to his promise to his father, and thereby showed that he was worthy of being entrusted with the judicial system of the house of Jacob.
Best regards, Ami’oz Yaron Shnitzler, commentator on religion and law
With God’s help, Saturday night, “And I came from Paddan,” 5781
Sometimes a public figure has no choice, and unforeseen developments or information that he did not have at the time of the election campaign obligate him to make decisions different from what he planned and promised his voters.
For such situations one can establish a mechanism similar to the mechanism that the Torah established for “annulment of vows.” Even if the one making the vow has a “ground”—something he did not know at the time of his vow, something that had he known he would not have vowed—the one who vowed is not permitted by himself to “profane his word.” He must present the “ground” before a court, and if they find that the “ground” is valid, they will release his vow.
So too in a party. If the party has an elected council and/or a party court, the leader can bring the change in circumstances that requires a change in the policy planned beforehand before the council or the party court, and they can examine the matter with a more objective eye; and only with their agreement may he “profane his vow.”
Best regards, Yaron Fish"l Ordner
Paragraph 1, line 3
… make decisions different from what he planned…
Do you think that the legal rulings in the Torah were not suited to their time?
The Torah engages with Babylonian law in many places and with the custom of their times, as with the Hebrew slave: throughout the books of the Torah it progressively improves his condition compared to the condition of slaves in their time, which was unbearable. The condition of the Canaanite slave also improved over time, and Tavi, let us say, sounds like an ordinary servant.
Perhaps the study of the Order of Nezikin today should be changed so that it is based not (only) on Gemara but (primarily) on developing moral conceptions, and on that basis to rule law that could actually be used in our time (and of course in a form that would be open to change).
In this way it would be possible to adopt Jewish law—only it would not be Jewish, just a law of justice, as in the time of Hazal.
You can tell from the post that you didn’t study law…