Hebrew Law – Response to Comments
Academics – 2015
Halacha as Hebrew law
Reply to comments
Rabbi Michael Avraham
First, I am glad that my words have sparked discussion, as that was my very purpose in publishing them. The responses themselves (some of which are not defined as responses but as reflections on my words), can be categorized as follows:
Rabbi Ariel agrees with my statement that there is no point or possibility in integrating Halacha into Israeli law, and he only makes light of the disconnect I have created between morality and Halacha. Dr. Radziner mainly attacks the point, which is a side point from my point of view, regarding the lack of value in declarations of a Jewish nature (from the sources). He even adds that the motivations of most Jewish law scholars are cultural and not religious. Dr. Verhaftig is the most vehement opponent of my statement, and in his opinion there is religious and cultural value in integrating Halacha into Israeli law.
Due to the brevity of the platform, I will not be able to address every point raised, but will address the main points of all the responses together.
A. On methodology and trend
I will begin with a methodological note. As I wrote in my article, I do not wish to address meta-halakhic claims, nor what is said in the various books of ‘Thought’, or in the introductions to halakhic books. The method I have chosen is to examine the halakhic law in itself, or the halakhic law as a real phenomenon (similar to Yeshayahu Leibowitz, whose approach I am close to in my remarks on these issues). This method has many advantages, as it seems to me that it is difficult to draw binding and sharp conclusions from books of thought, from introductions to books, etc. The best way to examine things is as they are presented in practice. I believe that this has dispelled Dr. Verhaftig's bewilderment at my failure to address the eleventh sermon of the Rabbi (which I briefly mentioned). This will also explain why I did not quote the words of Maimonides in the Mora Hanebuchim (especially in light of the well-known fact that in many places in the Mora Hanebuchim his words contradict what he said in the Mishnah Torah), which Verhaftig and Radziner cited, and others.[1]
From here I will turn to a general comment on trends and motivations. Rabbi Ariel adds in his introduction (and also in the conclusion) that my intention is desirable (=to protect the law from foreign influences that will penetrate it), but my conclusion is undesirable (=since the law should not be separated from justice and morality). However, in my humble opinion, positions should not be determined according to trends and goals. My claims regarding the nature of the law and its relationship to morality were determined from my perception of the law, and not from a need to protect it from foreign influences, or from such and such trends. Therefore, they should also be examined in their own right, without any connection to their tactical advantages or disadvantages.
This is also the place to address Dr. Verhaftig's expectations. Verhaftig expects an important rabbi (!?) to "come out with the opposite reading" (that Israeli law will indeed be based on Jewish law). I will respond to this and say, and thank you for the certificate of honor I received, that I actually expect rabbis to tell the truth (at least as it appears to them), and not what is expected of them.[2] These things are reinforced against the backdrop of my perception (which Rabbi Ariel also agrees with) that the integration of Jewish law into Israeli law is wrong, and tactically harmful.
And more regarding Verhaftig's response on a similar matter. His response to Rabbi Hutner's parable that I cited is flawed by the fallacy of ad hominem, an argument for the person (and perhaps also ad populum, an argument on behalf of the majority). I am not here to defend Harediism (although on this issue my opinion is indeed close to that of the Haredi). See the words of Rabbi Ariel, who agrees with my words (and he is not suspected of Harediism, R.L.).
B. The Law from Sinai and the King's Law
In my article, I distinguished between two parts of halakha that, for some reason, Jewish law scholars do not tend to distinguish between (and Vardziner even turns this into an ideology in his words). It is the lack of awareness of this distinction that underlies some of the misconceptions about my words. I will repeat here the two parts as I defined them:
1. The pure part. The laws of the Torah as received at Sinai.
2. The additions. The king's judgment, various regulations, a court of beatings, and extraordinary punishments, which were added to the law so that it could be implemented in a real state.
It goes without saying that the second part is of course a valid part of the halakha. My argument was that it is a universal part that is also found in the revised laws of nations, at least those that are based on human moral values. Therefore, it is indeed possible to incorporate this part into Israeli law, but this has no value significance, for two reasons: a. This part is already found in Israeli law, even if it is not drawn from the sources of Jewish law. b. This part does not constitute a particular cultural flag (since it is also found in other legal systems),[3] and therefore the cultural value of the connection to the sources is not enhanced by its incorporation into the law. For these reasons, I dealt in my article mainly with the incorporation of the first, pure part of the halakha.
I will already present one implication of this distinction here: Radziner brings up in his remarks the property of the situmta and the custom of merchants that have become part of the law. However, these do not express a real Jewish uniqueness. On the contrary, there is a de facto qualification here of non-Jewish systems. In a similar way, almost any tax law (and perhaps other laws as well) can be qualified, but this would have no Torah value, not even a cultural-national one. Laws such as these help preserve the validity of Israeli law even without adapting it to 'Jewish law,' and therefore I will not deal with them at all.
It seems that Radziner does not distinguish between the question of the halakhic foundation and validity of any norm, and the question of its uniqueness and belonging to 'Jewish law' in the ideological sense of the term. As stated, in my opinion, these norms are indeed valid from a halakhic perspective, but the point I wanted to emphasize is that to the same extent any other Israeli law would be valid according to halakhic law, such as Dina Demalchuta or 7 Tovei Ha'ir. There is no Jewish uniqueness here, and therefore the use of these mechanisms should not be seen as an integration of Jewish law into the law. On the contrary, such mechanisms facilitate the integration, at least partially.
Verhaftig, in his response, also addresses the 'impure' part of the law, and claims that the king's judgment is also drawn from our sources, and that the king is subject to the rebukes of the prophets or sages. He also gives the example of an 'important person' criticizing administrative decisions, and more. Verhaftig tries to prove that this part is also particularistic, and therefore has value in incorporating it into Israeli law.
However, none of this is a denial of my words; quite the opposite is true: these things only strengthen my argument. These additions, which belong to the second part (the 'impure') of the law, are not part of the pure law (as mentioned, I did not write that it was a non-binding part according to the law, nor did it occur to me that way). Most of this part is built on the foundations of morality, and this is what the prophets believed, and this is the content of their rebukes. There is nothing particularly Jewish here, but rather universal human morality, which is also of course found in the Torah. Therefore, I have determined that this part is not fundamentally different from the laws of the nations. Anyone who wants to incorporate these parts into the law is breaking into an open door, but that is not what is at issue. This argument is nothing more than a mixing of the two parts of the law that we distinguished between above.
Verhaftig quotes in his remarks the words of Rabbi Neriah and Rabbi Herzog who requested: "Give us a chance and we will prove that it is possible" [=to run a state according to Halacha. Contrary to the approach of the late Prof. Leibowitz]. It is important for me to note that these things are not the main concern here at all. There is not even a hint in my remarks that Halacha is not suitable for running a state. It is certainly suitable, if we add to it all the additions necessary for this purpose (= the 'impure' part of Halacha) such as the regulations of the Sages, 7 Tovei Ha'ir, the King's Law, etc. This is another example of mixing the two parts of Halacha that I distinguished above.
C. Between morality and law
Rabbi Ariel is correct in the separation I made between morality and halacha. But my intention was to distinguish only between the pure part of halacha and morality. The second part, in its entirety, is intended only to achieve the moral perfection that is sometimes damaged because of the 'religious' elements of pure halacha. After all, it would be unthinkable to say that our sages and our Torah are less moral than the laws of the nations. Was a priestess a hostess?! My argument is only that there is another part of halacha, beyond morality, that has no place in a civil legal system, since its foundations are religious and not legal.
The examples of slavery and traffic that Rabbi Ariel gave are not objections to my words, quite the opposite is true: these are two beautiful pieces of evidence for my words. After all, Rabbi Ariel himself claims that traffic laws in a Halacha state will not differ substantially from the laws of the State of Israel today.
As for the laws of slavery in Jewish law, if they are accepted within the framework of Israeli law, it will be solely because they fit the spirit of the times, and because they are a better alternative to what is currently in force in law. The reason for their adoption will not be because of their Torah origin or because they are part of Halacha or Jewish law. Such examples can also be found in Muslim law, or in any other legal system.
D. On the motive for integrating Hebrew law into Israeli law and the declarative value of this integration
Two points in Radziner's remarks remain for discussion: the motivation of the Jewish legal scholars, and the value of the declarations:
As for the value of declarations, I will say that this question is marginal, and difficult to decide (it also concerns the attitude towards the state in general, and on this matter see my article that will be published in the upcoming issue of Tzohar), and therefore I will not expand on it. I will only say that even if there is some value in declarations, it still does not justify such an intensive investment of energy and resources as the experts in Jewish law would like to see and do.
As for the motivations underlying the desire to integrate Jewish law into Israeli law, I have argued that some of them are not only cultural (i.e. based on the cultural value of incorporating Jewish aspects into Israeli law), but also religious (i.e. stemming from a desire to 'Judaize' the State of Israel, or 'impose the commandments'). Radziner, on the other hand, argues that the motivations, for the most part, are based solely on cultural considerations.
It is difficult to decide the question of motivations, and the historical debate is not a matter for debate. Therefore, I will content myself with noting the fact that the vast majority of Jewish law scholars belong to religious Zionist circles. This correlation in itself speaks volumes. Why is this 'cultural' value not also of interest to the general public? Second, there is no need to bring our bread from afar, since we have only to read an excerpt from Verhaftig's words (in his response at the end of the chapter 'On the Essence of Civil Law'):
In other words: I would expect an important rabbi to come out with the opposite reading: Why would you judge according to your intellect and not according to our ancient heritage? Both paths lead to social order, but our path also has a metaphysical-mystical aspect. And to the secularists, he would say, even if you still do not recognize the religious value of our law, accept it for the time being as a cultural value.
We see a double discourse here: when we turn inward (=to the religious public) the terminology is religious, and when we turn outward (=to the general public) the terminology is cultural. The vast majority of articles written on the subject of Jewish law turn outward, and therefore no conclusion can be drawn from them regarding the true motivations of the writers.
I would also add that if the motivations of such and such Jewish legal scholars are truly not religious but stem from other motives, I can only rejoice in that. My claims are against positions, not against specific individuals.
E. On the nature of Halacha
As mentioned, the only one who agrees with my claims regarding the nature of the law is Dr. Verhaftig. However, I did not find in his words any evidence for his claims against my approach.[4] Verhaftig begins with a discussion of criminal law, and the laws of evidence and penalties related to it. In his words, Verhaftig claims that it is possible that the criminal law of the Torah deals with a utopian society. If it were true, then that would be what I also said.
The claim that the criminal law of the Torah does not want to establish strictures because of possible changes in human nature sounds very logical, but it does not stand the halakhic test. Does Verhaftig think that the laws of punishment and evidence in the criminal field are not fixed in the halakhic law (I am not dealing with the aforementioned additions and completions)? The opposite is true: these laws are so fixed that it is impossible to exercise the judgment and estimates of the dayanim upon them, in contrast to civil law (see, for example, Rambam's Laws of the Sanhedrin, beginning of chapter 20, and compare with the beginning of chapter 24 there).
In general, there is no point in prolonging the discussion of criminal law, since in the end, even Dr. Verhaftig himself agrees that the criminal law of the Torah, even if it has 'legal' parts (which I am not denying), cannot be applied in a real country (and as he himself writes, it is impossible to let a murderer go free simply because of the lack of testimony or evidence as required by the Torah, or for a robber to enjoy the fruits of his deeds without any punishment other than the return of the robbery). The addition of the 'impure' part as a necessary legal amendment has already been discussed above.
As for civil law, Verhaftig promises to prove that there is nothing to learn about it from criminal law, but he does not pay the bill. I did not find any evidence in his words for this claim.
I will add that Verhaftig's words are read by me (and he also explicitly writes so) as a heartfelt grumbling, or as a heartfelt protest, by someone with a Zionist-religious worldview in the face of the constant collapse of his worldview (see my aforementioned articles in B'zahar). However, I, despite my (true) participation in the grief, seek to deal with things as they are, without ad hominem considerations (see section A above) and without ideological assumptions of this kind.
[1] This methodological question is very important, and in itself requires discussion and expansion. Many articles draw conclusions from non-halakhic texts, or from introductions to books of halakhic law. This is not the place to discuss the question of how faithful these texts are to halakhic law as a real phenomenon. We will only recall what the Sages already warn us about in the Talmud (Bava Batra 11b): "Our rabbis taught: A student should not learn halakhic law either from the mouth of a learner or from a deed - until he is told halakhic law in practice."
[2] The logical paradox here is intentional…
[3] And see the example I gave in my article from Baal Hemdat Yisrael, which sharpens this point (he brought evidence from the laws of nations that determines what our king's judgment will look like).
[4] I will make two comments here regarding specific points raised in Verhaftig's words: As for Maimonides' statement about 'no man considers himself wicked,' I cannot dwell on it here, and his path has already been explored. These Maimonides' statements seemingly contradict what is said in the Talmud. However, a study of his words reveals that he is not speaking at all about the rule 'no man considers himself wicked.' In general, also in the opinion of the Maimonides, like all the other Rishonim, this rule is not a legal rule that deals with self-incrimination. In the words of Verhaftig, there is a two-sentence discussion (without argument or proof) about my words regarding the striking of one's animal. In this matter, the words are ancient, and they have no connection to the issue of striking tools. I will suffice here with a reference to the Ritva innovations at the beginning of the chapter "He Who Darkened" (in Tractate Shabbat) which led to a disagreement among the Rishonim regarding whether it is an obligation on a person not to work with his animal or an obligation on the animal itself (of course, it is an obligation on the owner of the animal to ensure that his animal does not desecrate Shabbat, and it is not intended that the animal itself is obligated to observe Shabbat). Tzafnath Pa'an on Bava Kama 16 cites this as support for requiring payment for damages to one's animal. I expanded on this in my article, 'Regarding the Obligation of Compensation for Damages to One's Property', Mishti Yisrael – Laws of Torts, Petah-Tikvah 2003.