Hebrew Law – A Response to the Responses

Akdamot – 5765

Jewish Law as Hebrew Law
A Response to the Responses
Rabbi Michael Abraham

First, I am pleased that my remarks generated discussion, for that very thing was my purpose in publishing them. The responses themselves (some of them are not presented as responses but rather as reflections in the wake of my remarks) may be classified as follows:

Rabbi Ariel agrees with my view that there is neither reason nor possibility to integrate Jewish law into Israeli law, and his only criticism concerns the separation I created between morality and Jewish law. Dr. Radziner mainly attacks what is, from my perspective, a secondary point: the lack of value in declarations of a Jewish character (drawn from the sources). He also adds that the motivations of most scholars of Hebrew law are cultural rather than religious. Dr. Warhaftig is the sharpest opponent of my position, and in his view there is religious and cultural value in integrating Jewish law into Israeli law.

Given the constraints of space, I cannot address every single point that was raised; instead, I will relate to the main points of all the responses together.

A. On Methodology and Orientation
I will begin with a methodological remark. As I wrote in my article, I do not wish to address meta-halakhic claims, nor what is said in works of Jewish thought of various kinds, or in introductions to halakhic books. The method I chose is to examine Jewish law in itself, or Jewish law as a concrete phenomenon (similar to Yeshayahu Leibowitz, whose approach on these issues is close to mine). This method has many advantages, since it seems to me difficult to draw sharp and binding conclusions from works of thought, from introductions to books, and the like. The best way to examine these matters is as they are actually presented in practice. I think this removes Dr. Warhaftig’s puzzlement at my failure to address the Ran’s eleventh homily (which I mentioned briefly). This also explains why I did not cite Maimonides’ words in the Guide of the Perplexed (especially in light of the well-known fact that in many places in the Guide of the Perplexed his words contradict statements he made in the Mishneh Torah), which were cited by Warhaftig and Radziner, and others.[1]

From here I turn to a general remark about orientations and motivations. Rabbi Ariel adds in his introduction (and also in his conclusion) that my intention is desirable (= to protect Jewish law from foreign influences that might penetrate it), but my conclusion is undesirable (= because Jewish law should not be separated from justice and morality). In my humble opinion, however, one should not determine positions on the basis of orientations and aims. My claims about the character of Jewish law and its relation to morality were determined by my understanding of Jewish law, not by a need to protect it from foreign influences, or by one agenda or another. Therefore they too must be examined on their own terms, without any connection to their tactical advantages or disadvantages.

This is also the place to address Dr. Warhaftig’s expectations. Warhaftig expects an important rabbi (!?) "to issue the opposite call" (namely, that Israeli law should indeed be based on Jewish law). To this I respond, while thanking him for the certificate of honor I have received, that I for my part expect rabbis to say the truth (at least as it appears to them), and not what is expected of them.[2] The point is strengthened in light of my view (with which Rabbi Ariel also agrees) that integrating Hebrew law into Israeli law is mistaken and tactically harmful.

One further point regarding Warhaftig’s response on a similar matter. His reply to the parable of Rabbi Hutner that I cited suffers from an ad hominem fallacy, an argument directed at the person (and perhaps also from an ad populum fallacy, an argument in the name of the majority). I am not coming to defend the Haredi outlook (even though on this issue my opinion is indeed close to that of the Haredim). See Rabbi Ariel’s remarks, which agree with mine (and he is hardly suspect of Haredism, heaven forbid).

B. Jewish Law from Sinai and the King’s Law
In my article I distinguished between two parts of Jewish law that, for some reason, scholars of Hebrew law are not inclined to distinguish from one another (and Radziner, in his remarks, even turns this into an ideology). The lack of awareness of this distinction underlies several of the objections to my remarks. I will restate here the two parts as I defined them:

1.       The pure part. Torah-level laws as they were received at Sinai.

2.       The supplements. The king’s law, various enactments, a religious court that administers lashes and punishments outside the formal law, which were added to Jewish law so that it could be implemented in a real state.

Needless to say, the second part is of course a valid part of Jewish law. My claim was that it is a universal part, one that is also found in the laws of civilized nations, at least those founded on values of human morality. It is therefore indeed possible to integrate this part into Israeli law, but that has no evaluative significance, for two reasons: a. This part is already present in Israeli law, even if it is not drawn from the sources of Hebrew law. b. This part does not constitute a particular cultural banner (since it is also found in other legal systems),[3] and therefore the cultural value of the connection to the sources is not intensified by integrating it into the law. For these reasons, my article dealt mainly with integrating the first, pure, part of Jewish law.

I will already note here one implication of this distinction: Radziner cites the situmta mode of acquisition and merchants’ custom, which became part of Jewish law. But these do not express genuine Jewish distinctiveness. On the contrary, what we have here is a de facto validation of non-Jewish systems. In a similar way one can validate almost any rule of monetary law (and perhaps other rules as well), but there would be no Torah value in that, not even a cultural-national one. Laws of this kind help preserve the validity of Israeli law even without adapting it to "Hebrew law," and therefore I do not deal with them at all.

It seems that Radziner does not distinguish between the question of the halakhic grounding and validity of a given norm, and the question of its uniqueness and its belonging to "Hebrew law" in the ideological sense of the term. As stated, in my opinion too these norms are indeed valid from a halakhic standpoint, but the point I wished to emphasize is that by the same token any other Israeli law would be valid according to Jewish law, whether by the principle of dina de-malkhuta ("the law of the kingdom is law") or by the authority of the seven town leaders. There is no Jewish uniqueness here, and therefore the use of these mechanisms should not be seen as an integration of Hebrew law into the law. On the contrary, such mechanisms make integration unnecessary, at least partially.

Warhaftig, in his response, also addresses the "non-pure" part of Jewish law, and argues that the king’s law also draws from our sources, and that the king is subject to the rebukes of the prophets or the sages. He also cites the example of review by a "distinguished person" of administrative decisions, and more. Warhaftig tries to prove that this part too is particularistic, and that therefore there is value in integrating it into Israeli law.

But none of this is an objection to my remarks; on the contrary, these points only strengthen my claim. These supplements, which belong to the second ("non-pure") part of Jewish law, are not part of the pure law (as stated, I did not write that it is a part that is non-binding according to Jewish law, nor did such a thought ever enter my mind). This part is built almost entirely on moral foundations, and that is the sphere entrusted to the prophets, and the content of their rebukes. There is nothing particularly Jewish here, but rather universal human morality, which of course is also found in the Torah. Therefore I determined that this part does not differ essentially from the laws of the nations. Whoever wishes to integrate these parts into the law is pushing at an open door, but that is not what is at issue here. This claim is nothing but a confusion of the two parts of Jewish law that we distinguished above.

Warhaftig cites the remarks of Rabbi Neria and Rabbi Herzog, who asked: "Give us an opportunity and we will prove that the thing is possible" [= to run a state according to Jewish law, against the approach of the late Prof. Leibowitz]. It is important for me to note that these remarks are entirely irrelevant here. There is not even a hint in my words that Jewish law is unsuited to running a state. It is entirely suited to that, if we add to it all the additions required for that purpose (= the "non-pure" part of Jewish law), such as rabbinic enactments, the seven town leaders, the king’s law, and the like. This is another example of a confusion between the two parts of Jewish law that I distinguished above.

C. Between Morality and Jewish Law
Rabbi Ariel objects to the separation I made between morality and Jewish law. But my intention was only to distinguish between the pure part of Jewish law and morality. The second part is wholly intended to achieve the moral perfection that is sometimes impaired by the "religious" elements of the pure law. Surely it is inconceivable to say that our sages and our Torah are less moral than the laws of the nations. Shall a priestess be no better than an innkeeper?! My claim is only that Jewish law contains an additional component, beyond morality, for which there is no place in a civil legal system, since its foundations are religious rather than legal.

The examples of slavery and traffic laws brought by Rabbi Ariel are not objections to my remarks; on the contrary, they are two fine proofs of them. Rabbi Ariel himself argues that the traffic laws in a state governed by Jewish law would not differ in any essential way from those of the State of Israel today.

As for the laws of slavery in Hebrew law, if they were to be accepted within the framework of Israeli law, this would be only because they fit the spirit of the times, and because they are a better alternative to what currently exists in the law. The reason to adopt them would not be their Torah source, nor because they are part of Jewish law or of Hebrew law. Examples of this sort can also be found in Islamic law, or in any other legal system.

D. On the Motive for Integrating Hebrew Law into Israeli Law and on the Declarative Value of This Integration
Two further points remain for discussion in Radziner’s remarks: the motivation of scholars of Hebrew law, and the value of declarations:

As for the value of declarations, I would say that this question is marginal, and difficult to decide (it also touches on one’s attitude toward the state in general, and on that matter see my article that is due to appear in the forthcoming issue of Tzohar), and therefore I will not elaborate on it. I will only say that even if there is some value in declarations, it still does not justify so intensive an investment of energy and resources as scholars of Hebrew law would like to see and undertake.

As for the motives underlying the aspiration to integrate Hebrew law into Israeli law, I argued that some of them are not merely cultural (that is, based on the cultural value of integrating Jewish aspects into Israeli law), but also religious (that is, they come from a desire to "Judaize" the State of Israel, or to coerce observance of the commandments). Radziner, by contrast, argues that the motives, almost entirely, are based solely on cultural considerations.

It is difficult to decide questions of motivation, and the historical discussion is not our concern here. Therefore I will suffice with noting the fact that the overwhelming majority of scholars of Hebrew law belong to the circles of Religious Zionism. That correlation in itself calls for interpretation. Why does this "cultural" value not interest the broader public as well? Second, there is no need to look far afield, for all we need do is read a passage from Warhaftig’s remarks (in his response at the end of the chapter "On the Nature of Civil Law"):

In other words: I would expect an important rabbi to issue the opposite call: why should you judge according to your own reason and not according to our ancient heritage? Both paths lead to social order, but our path also contains a metaphysical-mystical dimension. And to secular people he would say: even if you do not yet recognize the religious value of our law, accept it for the time being as a cultural value.

We see here a double discourse: when one speaks inward (= to the religious public), the terminology is religious, and when one speaks outward (= to the broader public), the terminology is cultural. The overwhelming majority of the articles written on the subject of Hebrew law are directed outward, and therefore one cannot infer from them any conclusion regarding the authors’ true motivations.

I would also add that if, in truth, the motivations of one scholar of Hebrew law or another are not religious but stem from other motives, I can only be pleased by that. My claims are directed toward positions, not toward specific individuals.

E. On the Character of Jewish Law
As stated, the only person who objects to my claims about the character of Jewish law is Dr. Warhaftig. However, I found no proofs in his remarks for his claims against my approach.[4] Warhaftig opens with a discussion of criminal law, and of the laws of evidence and punishment connected with it. In his remarks Warhaftig argues that the Torah’s criminal law may deal with a utopian society. If that is indeed so, that is precisely what I also said.

The claim that the Torah’s criminal law does not wish to lay down fixed rules because of possible changes in human nature sounds very plausible, but it does not withstand the halakhic test. Does Warhaftig think that the laws of punishment and evidence in the criminal sphere are not fixed in Jewish law (I am not dealing with the supplements and additions mentioned above)? On the contrary: these laws are so fixed that one cannot apply to them the judges’ discretion and estimations, unlike civil law (see, for example, Maimonides, Laws of the Sanhedrin, beginning of chapter 20, and compare the beginning of chapter 24 there).

As a rule, there is no point in expanding the discussion of criminal law, since in the end Dr. Warhaftig himself agrees that the Torah’s criminal law, even if it contains "legal" parts (something that I too do not deny), cannot be implemented in a real state (and as he himself writes, one cannot allow a murderer to go free merely because of the lack of testimony or evidence as required by the Torah, or allow a robber to enjoy the fruits of his deeds without any punishment apart from returning the stolen property). The addition of the "non-pure" part as a necessary legal correction has already been discussed above.

As for civil law, Warhaftig promises to prove that one cannot infer from criminal law to it, but he does not make good on the promise. I found no proofs in his remarks for this claim.

I would add that Warhaftig’s remarks read to me (and this is also what he writes explicitly) as a heartfelt lament, or as a protest springing from the heart, of someone with a Religious Zionist worldview in the face of the ongoing collapse of that worldview (see on this my aforementioned article in Tzohar). I, however, despite my genuine participation in the sorrow, seek to deal with matters as they are, without ad hominem considerations (see section A above) and without ideological assumptions of this sort.

[1]      This methodological question is very important, and in itself requires discussion and elaboration. Many articles suffer from drawing conclusions from non-halakhic texts, or from introductions to books of Jewish law. This is not the place to discuss the question of how faithfully such texts reflect Jewish law as a concrete phenomenon; let us only recall what the sages already warn us in the Talmud (Bava Batra 130b): "Our Rabbis taught: one does not derive a halakhic ruling either from study or from an incident, until one is explicitly told that it is the law in practice" ("Our Rabbis taught: one does not derive a ruling either from study or from an incident, until one is explicitly told that it is the law in practice").

[2]      The logical paradox here is intentional…

[3]      And see the example I brought in my article from the author of Hemedat Yisrael, which sharpens this point (he brought proof from the laws of the nations that determines what our king’s law should look like).

[4]      I will note here two remarks regarding specific points that arose in Warhaftig’s words: as for Maimonides’ statement about "a person does not render himself wicked" ("a person does not render himself wicked"), I cannot elaborate here, and the ground has already been well trodden by others. These words of Maimonides apparently contradict what is said in the Talmud. However, close examination of his remarks shows that he is not speaking at all about the rule "a person does not render himself wicked". As a rule, even according to Maimonides, like all the other medieval authorities (Rishonim), this rule is not a legal rule dealing with self-incrimination. In Warhaftig’s remarks there is a two-sentence discussion (without argument or proof) of my words regarding the Sabbath-rest of one’s animal. On this matter, the discussion is old, and it has no connection whatsoever to the issue of the Sabbath-rest of utensils. I will suffice here with referring to the Ritva’s novellae at the beginning of the chapter "Mi She-hekhshikh" (in tractate Shabbat), where he cites a dispute among medieval authorities as to whether this is an obligation on the person not to work with his animal or an obligation on the animal itself (of course, the owner of the animal is obligated to ensure that his animal does not desecrate the Sabbath; the point is not that the animal itself is obligated in Sabbath observance). Tzafnat Pa’neach on Bava Kamma 16 brings this as support for liability to pay for damage caused by one’s animal. I discussed this at length in my article, "On Liability to Pay for Damage Caused by One’s Property," Mishpetei Yisrael – Laws of Damages, Petah Tikva 5763.