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.