Religious Affairs: Who's afraid of a halachic state?
Religious Affairs Whos
By MATTHEW WAGNERyaakov neeman new (photo credit: Ariel Jerozolimksi )
Justice Minister Yaakov Neeman aroused a public outcry this week by stating that "step by step, Torah law will become the binding law in the State of Israel. We have to reinstate the traditions of our forefathers, the teaching of the rabbis of the ages, because these offer a solution to all the issues we are dealing with today."
Neeman made the comments Monday night during a conference in Jerusalem on Jewish jurisprudence in monetary matters. Scathing public criticism was quick to follow.
Mavo'i Satum, an organization that fights for women's rights in the rabbinic courts, which are responsible for divorce procedures, said that those who implement Jewish law have "failed miserably to find solutions to modern problems and to develop innovations," and noted that after six decades the courts have still not appointed a single female judge."
Former justice minister Yossi Sarid expressed his fear that if Israel is turned into a state ruled by Halacha, there would be public stonings or burnings in cases of those who dared desecrate the Shabbat or were unfaithful to their spouse, or if two homosexual men had sexual intercourse.
Hiddush, an organization promoting freedom of religion, compared Neeman's step-by-step attempt to replace Israeli law with Jewish law to Yasser Arafat's step-by-step attempt to destroy the State of Israel.
On Tuesday, hoping to defuse the situation, Neeman took to the Knesset floor and clarified his comments. The Justice Ministry also sent out a statement in which Neeman basically retracted his remark.
But would the full implementation of Jewish law truly be similar to Iran's ayatollah state or worse?
DR. NAHUM Rakover, 77, winner of the Israel Prize in 2002 for his lifetime work in encouraging the use of Jewish law in the legal system, does not think so.
"The things that the justice minister said were not new," he said. "They go back to the Foundations of Law Act, which obligates judges to use Jewish law in their decisions. This law was passed by the Knesset in 1980. It says that every question that comes before the court in which there is no existing law or precedent has to be adjudicated in accordance with Jewish tradition.
"The former president of the Supreme Court, Yitzhak Kahan, recommended implementing the Jewish law even in cases where there was an existing precedent. But his opinion was not accepted. And former justice ministers Shmuel Tamir and Moshe Nissim and others tried to train judges and lawyers so they would have the knowledge needed to be able to implement the law."
Rakover, who was a member of a small group of students who learned at the Mercaz Harav Yeshiva nearly six decades ago, helped found the Jewish Legal Heritage Society, which publishes books and articles and organizes conferences aimed at making Jewish law accessible to a larger audience of judges, law professor and lawyers.
He served as deputy attorney-general between 1982 and 1999. During that time he worked to increase the influence of Jewish law on the legal system.
Over the years he has written more than 30 books, some of them translated into English, which explain the Jewish legal position on a diverse set of issues from environmental protection, to copyrights, to the right of privacy, to rehabilitation of criminals.
In addition he continues to edit a series of books called Hok Le'Yisrael, which looks at every section of Israeli law and gives the position of Halacha and rabbinical responsa literature relevant to the subject.
"Jewish law needs to be the one that leads us in all our dealings, whether in the Knesset or in the courts of law," said Rakover.
"Gentiles that I meet are surprised when I tell them that we do not rule according to the Jewish law. They say to me, 'The Jewish people gave to the world so many important legal concepts, and you yourselves don't rule in accordance with it?'
"Instead, here in the Jewish state we are forced to learn from foreign legal systems. This state of affairs in unnatural. It is only natural that here in the Jewish state we adopt our own legal tradition, just as we have adopted the Hebrew language and the land of Israel."
Despite Rakover's assurance that it would be possible to run a modern state in accordance with Halacha, there are a few sticky issues that would need to be ironed out first.
He prefers not to answer a question about the appointment of women as judges in courts that rule exclusively in accordance with Halacha. But he is willing to deal with other thorny questions.
A lot of secular Israelis are afraid that if tomorrow Israel becomes a state ruled by Halacha, people will be stoned or burned to death for transgressing sacred laws, or at the very least will be prevented from driving a car, going to a coffee shop, having a barbecue in their backyard or doing anything else that is forbidden on Shabbat.
People who think that the courts that rule according to Jewish law will mete out capital punishment do not know anything about Jewish law. Capital punishment is forbidden today.
Regarding religious coercion, according to Jewish law there is no obligation to force anyone to do anything against his will. And just as it is a mitzva to warn someone when you know he will listen to you, it is a mitzva not to warn him if you know he will not listen to you.
But giving public expression to Shabbat as a day of rest is important. In many Western countries it is accepted that one day - usually Sunday - is set aside as a day of rest. I visited a country where Monday was the day of rest, and on that day everything is closed. In Israel, which is defined in Basic Law: Human Dignity and Liberty as a Jewish state, it is only natural that Shabbat should be the day of rest.
I believe peoples' fears are aroused by the media and a few secular Israelis with a political agenda. It is a distorted impression. We need to look at things objectively.
What about the Halacha on women, non-Jews and secular Jews? These people are not even allowed to testify in a court.
Even if the witnesses are disqualified according the Jewish law, the two sides can agree to admit their testimony. The Talmud gives examples in which family relatives who are normally disqualified from giving testimony can nevertheless do so if both sides agree. And the decision obligates both sides. There are solutions in Jewish law for all possible questions. All we have to do is ask the questions. Today the halachic literature it is so accessible that we can provide the answers.
According to Jewish law if a Jew kills another Jew, he is punished by death, but if he kills a non-Jew there is no capital punishment. How does this fit into a modern Western state?
As I said before, there is no capital punishment today. But in principle the difference is that regarding the murder of a Jew the Torah is more stringent. But it is prohibited to kill anyone - Jew or non-Jew.
What about the rights of non-Jews under Jewish law?
Non-Jews are entitled to all the civil rights that a Jew is. The only difference between the two is national rights. Only Jews have the right to the land of Israel. It was given to us by God.
According to which borders?
I'd prefer not to get into that.
What happens when there is a contradiction between an army order and Halacha? For instance, between the commandment to settle the land of Israel and an order to evacuate settlements?
Discipline in the IDF is of utmost importance and each person cannot decide for himself about what is permitted to do and what is prohibited. But there is a concept of a manifestly illegal order. So there are things which a soldier cannot perform according to law.
Similarly, there are questions that arise between the contradiction between Halacha, which is the conscience of the religious soldier, and a military order.
In our present reality, there are many religious soldiers and officers who would have difficulty carrying out an order to evacuate settlements. Commanders should have the intelligence to refrain from giving a soldier an order that he has difficulty carrying out.
