Yair ShelegAre women permitted to sing in public? Are Arabs allowed to live anywhere they choose? Can teachers legally go on strike? The answer to these questions is affirmative, according to the laws of the State of Israel. Halakha (Jewish religious law) ostensibly has no answers to most of the questions relating to the management of a modern state - particularly one in which the majority of the residents are nonreligious. Indeed, this assumption about halakha, which for years was accepted by the majority of rabbis, is one of the reasons they legitimized the existence of the civil judicial system in the country. But now this approach is being challenged.
A few months ago, Naftali Bar-Ilan, a rabbi from Rehovot who is totally unknown to the general public, quietly published a four-volume work entitled, "Mishtar ve'medina beyisrael al-pi hatorah" ("Regime and State in Israel According to the Torah"). If its principles are adopted, women will not be permitted to sing in public, for reasons of modesty; Arabs will not be allowed to live in communities close to the state's borders, for reasons of security; and teachers, like all those engaged in holy work, will not be able to strike.
In his opus - published by the partially state-funded Ariel Institute for Torah research, headed by the chief rabbi of Haifa, Shaar Yashuv Cohen - Bar-Ilan tries to summarize halakhic perceptions of the state, ranging from the system of the regime to the quality of the environment. The work's 1,700 pages cite 1,300 references and contain 16,000 footnotes and comparisons to more than 50 existing constitutions worldwide. Working alone, the author, an autodidact with no scientific or academic training, devoted 20 years of his life to the project without any public funding (other than from one prize for Torah study). It was all done in his spare time. Bar-Ilan decided to embark on this undertaking after serving as the rabbi of a religious kibbutz, Be'erot Yitzhak, following the Yom Kippur War.
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"As a community rabbi you actually cope with most of the public questions a state copes with," he explains. "In the final analysis, there is a great deal of similarity between a community and a state, even if a state is far stronger, of course. After writing a book about the laws of tzedakah [charity], I felt a desire to tackle broader public thought, and thus I came to deal with the rulings that apply to society and the state."
A monarch for Israel? Bar-Ilan's work differs radically from others in the judicial sphere. For one thing, its assertions are not always unequivocal. In many cases, as is common in the world of halakha, it presents the debates between religious authorities over various subjects. For example, concerning the authority of sages to lay down new regulations, in order to meet changing needs, Bar-Ilan cites the approach of Rabbi Ovadia Yosef (the spiritual mentor of Shas) and of another chief rabbi of Israel, the late Rabbi Ben Zion Uziel, who grant such authority - as well as the position taken by the Hazon Ish (the late Rabbi Abraham Isaiah Karelitz) and the late Rabbi Yaakov Kanievsky, who are vehemently against this. At the same time, in many cases, Bar-Ilan offers his opinion concerning a specific dispute, whether by citing the approach most congenial to him first, or by distinguishing between positions he quotes in the primary text and those he consigns to footnotes. Thus, when addressing the question of women's enfranchisement he first quotes the arbiters who permitted this in principle (the late chief rabbis Yitzhak Halevi Herzog and Uziel), and then the responsum entitled "Seridei eish" ("Remnants of the Fire"), which permits women to vote only to preserve "darchei shalom" ("peaceful ways") so as not to offend them, and Hazon Ish, who states that women can vote only by "emergency order" (intended to prevent the weakening of the religious public's electoral power).
How did you allow yourself to make decisions?Bar-Ilan: "First of all, as a rabbi that is my prerogative. Second, I try to decide according to the prevailing consensus in halakha. One could, of course, write the book from the viewpoint of the Satmar Rebbe, but after all he represents a small group."
Contrary to books on civil legislation, this work in question does not specify punishment for those who violate rules and regulations. Another difference is that Bar-Ilan does not deal only with the practical rules of behavior that can be subject to exact judgment and punishment. As though realizing the dream of organizations concerned with the quality of government, Bar-Ilan does not distinguish between criminal behavior and behavior that is "only" in breach of ethics. His work sets forth the ethical standards required of leaders: honesty, good judgment and moderation, dedication, long-range planning, success in winning public support and more. "It is important for me to feel that, in contrast to the modern world, which in the final analysis examines its leaders according to the criminal criterion - whether they perpetrated an offense - the Torah approach examines first of all the leader's qualifications and virtues," says the rabbi.
Asked about the tension between halakha and the formal rules-of-the-game of democracy, Bar-Ilan says that in his opinion no such situation exists: "The fact that the regime that appears in the Bible, and also the one designated for the messianic period, is monarchic, is not binding for our time. The power of the Scriptural king also derives from the fact that this is the regime the people wanted and agreed to. What this means is that the supreme criterion for a regime according to halakha is the consent of the public, and in our time such consent is accorded only to a democratic regime."
Bar-Ilan does not say so explicitly, but it would seem, in light of the great emphasis he places on the personal responsibility of the person who heads the government (similar to that of a king), that the democratic regime he would prefer is a presidential one. But he himself shies away from that conclusion: "It is true that a presidential regime meets the criterion of personal responsibility, but it is less compatible with other criteria, such as listening to the public. So I would not draw an unequivocal conclusion."
In any event, the demands halakha makes of politicians appear almost impossible to meet in today's terms. Their decisions would have to be made solely for the sake of heaven. They would be prohibited from criticizing one another publicly or from letting self-interest dictate their actions. Candidates running for office would not be permitted to make promises, much less to offer election bribes.
Some arbiters, such as the Hazon Ish, believed that people appointed to posts according to the party system that now exists lack halakhic validity as do their decisions, which are by necessity vacuous. Others, among them Rabbi Abraham Isaac Kook, accepted the party system. According to Bar-Ilan, halakha espoused the idea of the separation of powers long before Montesquieu. But contrary to the three powers that exist in the contemporary system, in halakha there are only two powers, and they are distinguished not by their authority but by their areas of activity. On the one hand there is the executive power, namely the monarch, who is empowered to legislate, execute the law and make rulings in regard to the political sphere and the organization of life in the state. On the other hand, the judicial authority (the Sanhedrin) is also empowered to legislate, execute the law and rule - in respect to the commandments of the Torah. At the same time, because the monarch, too, is subservient to the laws of the Torah, halakha grants clear supremacy to the judicial over the executive power. In the view of Bar-Ilan, the public is not authorized to forbid the court to interpret the constitution based on its judgment, because according to halakha, it is the judge who always "will be in those days." In other words, the judges of each generation possess sole authority to interpret legislation as they understand it. In even clearer words: In the ongoing clash between Justice Minister Daniel Friedmann and Supreme Court President Dorit Beinisch, halakha comes down clearly on Beinisch's side.
However, Bar-Ilan, who is extremely cautious about actualizing his concepts, has reservations about this last conclusion: "It is true that the conceptual principle gives the judicial system preference, but that power was granted only to dayanim [religious-court judges] who rule according to halakha. Besides, in practice many situations will arise in Jewish communities in which the leaders of the public will be the ones to decide."
'Limits of power' In contrast to the apparent compatibility of halakha to the tenets of democracy, when it comes to the content of legislation, unbridgeable tension exists. Bar-Ilan asserts that the laws of the state carry no power if they conflict with the approach of halakha. However, he is very careful about drawing practical conclusions from this principle: "The work portrays the ideal halakha, for messianic times; it is clear that in the present situation I recognize the limits of the power I possess."
Consequently, he says, he makes an effort to interpret halakhic rulings as much as possible in terms of the values of liberal democracy - for example, by trying to glean from halakha all the rights and freedoms accruing to women. There are two reasons for this approach. One is a matter of principle: to prove the validity of his assertion at the beginning of the book that "the Torah is able to propose a constitution for our time, too - a period in which the broad public is not willing to observe the precepts, and in which many adherents of other religions reside in the Land of Israel - which will be largely compatible with the liberal democratic approach that is accepted in all developed states." The second reason is that he himself has apparently internalized some of the values of the liberal approach and wants to see them preserved: "Not only because this is the way things are done in developed countries, but also because this is how they should be done, particularly in present conditions and circumstances."
In this connection the rabbi quotes Maimonides, who asserts that all the regulations are intended to strengthen religion and heal the world. "In my view, tikkun olam [repairing or perfecting the world] is the Jewish formulation for liberal democratic values," Bar-Ilan says, "and tikkun olam takes precedence even over strengthening religion. After all, our sages said that, 'even if the Jewish people commits the transgression of idolatry but there is peace among them, they will continue to exist; if there is no peace among them, they will not exist.'"
In other words, you maintain that liberal- humanistic values always take precedence over the values of the Torah?
"The Torah itself taught the world many liberal humanistic values, and any issue on which there is a clash between the values must be discussed on its merits."
Even though this approach, which does not accord automatic precedence to religious values, is exceptional in the world of Orthodox halakha, it is hard to imagine any liberal democrat accepting Bar-Ilan's ideas. For example, in regard to the disparity between men and women, he finds that the halakhic distinction stems from the special sensitivity in Jewish religious law to the preservation of female modesty. Accordingly, women are not permitted to dance or sing in front of men. On the other hand, this same reasoning also discriminates in favor of women, such as in the case of ransoming female prisoners before male ones, or in exempting women from the obligation to provide for the family. By the way, as to the comparison between the status of women and the status of non-Jews, "It is clear that the status of Jews is higher; after all, they were with us at Mount Sinai." He quotes arbiters who explain that discrimination against gentiles is a value in itself, particularly in the Land of Israel, so they will not be tempted to flock to Israel and jeopardize the state's Jewish character. At the same time, he makes it clear that decisions concerning gentiles must also be subject to an orderly judicial procedure. Moreover, the difference between Jews and gentiles must give rise to discrimination in favor of the latter in relevant areas, such as "a state exemption from bastardy for children of gentiles who violated the incest laws." Bar-Ilan would also ban homosexuality, curtail the right to strike and allow punishment by flogging.
Do you accept all these forms of discrimination?"I am a person of halakha and my task is to present the position of halakha. As a follower of Rabbi Kook, I know that everything in the world contains an element of truth, and this applies also to the liberal approach. But that does not mean I have to accept the entire liberal approach. I also distinguish between ideological and practical liberalism: In my view, ideological liberalism is postmodernism - there is not one truth, but many truths. Practical liberalism says that I do not have to forgo my truth, but I recognize that I will not be able to realize it in full. As I said, it is a matter for the future that will come."
And in your view the ideological reality also includes discrimination of women or gentiles?
"First, many of the differences between the various groups will be modified in the messianic age, including the relations with the nations of the world (as the gentiles will then also observe the precepts). Second, I assume that in the messianic era the public will want and accept this reality: of a Temple and miracles. Part of the weakness of my approach today lies in the fact that there are no prophets and there is no Temple. True, it is difficult today to imagine how this transition will be effected, but 100 years ago it was also difficult to imagine that we would move from exile to life in the Land of Israel. Things are fluid, you see."
Cautious approachIn any event, he continues, the primary criterion concerning the functioning of the leadership is that it act with "composure": "It is clear to me that the way to reach the Torah state is not by revolutions and force, but calmly and patiently, and mainly by means of education and information efforts. I am not against religious legislation, but only in those cases in which the public at large can live with it."
Who will decide whether the public can live with it?"Not the rabbis. Just as a rabbi cannot rule on whether someone who is sick should eat on Yom Kippur - he needs the expert physician to examine how sick the person is - so, too, experts are needed in regard to religious legislation: the religious politicians. They are well informed about public affairs and they know what the public can digest in each period, and we have to rely on their opinion in this matter, just as we also have to rely on their opinion in the opposite case: on the question of which laws the religious public will not be able to live with."
Taking a cautious approach, Bar-Ilan refrains from providing relevant, present-day conclusions which might be thought to follow from his text - for example, when he is asked, on the basis of his constant emphasis on the obligation to respect the government and the judicial system, about the religious girls who recently denied the authority of that system and refused to identify themselves when questioned by the police about their presence at an illegal outpost in the West Bank. Bar-Ilan, one of whose four children was evacuated with his family from the Kfar Darom settlement in the disengagement from the Gaza Strip, is unwilling to give a direct answer: "My work contains the approach in principle toward the importance of obeying the law, but I do not take a stand on any current issue. In order to rule on a specific matter, one has to be familiar with all the conditions. Issuing a ruling is a very individual affair, which in many cases is influenced by the desire of the questioner himself. For example, if someone calls to ask whether he can attend a wedding even though he is in a year of mourning following the death of one of his parents, I tend to ask, 'Do you want a ruling that will exempt you from the happy event, or a ruling that will make it possible for you to attend it?' Because one can find endorsement for both possibilities in halakha. That is why I am also very careful in my congregation not to address current events in a general and public way, but only in response to a personal question someone asks me directly - and for the same reason I am not willing to address the question of the girls."
Rabbi Naftali Bar-Ilan might be unknown to the general public, but he enjoys a privileged lineage in the religious world. His great-grandfather, Rabbi Naftali-Zvi Berlin, was the last head of the Volozhin yeshiva, the "mother of the yeshivas," in the 19th century. Most of the important rabbis of Eastern Europe, among them Rabbi Kook, attended this yeshiva, as well as people who later gained fame in other areas, such as the poet Haim Nahman Bialik. Bar-Ilan's grandfather was Rabbi Meir Bar-Ilan, a leader of the religious Zionist movement in the pre-state period, who founded the daily newspaper Hatzofe and after whom Bar-Ilan University is named.
Naftali Bar-Ilan was born in 1942 in Rehovot, "but when Grandmother died we moved to Jerusalem, to live with Grandfather." The family later moved to Rehovot and then to Holon. Bar-Ilan attended a religious high school in Tel Aviv and was drafted as part of a group from the Bnei Akiva religious youth movement that served within the framework of the paramilitary Nahal infantry brigade. He also resided in a Bnei Akiva "commune" in Jerusalem during this period. Later, like many of the members of the religious elite of his generation, he attended Merkaz Harav Yeshiva in Jerusalem. He fought in the Paratroops in the battle for Jerusalem in the Six-Day War, but was wounded almost immediately and was thus not among those who entered the Old City.
After the war he took part in the legendary dialogue presented in "Siah lohamim" (English title: "The Seventh Day") with people from Merkaz Harav - an exchange that would later be cited as marking the onset of tension between the moral sensibility of the young kibbutz members and the uncompromising national-oriented approach of the yeshiva students. (The renowned kabbala scholar Gershom Scholem was sharply critical even of the Hebrew they spoke.) Bar-Ilan feels he and his fellow yeshiva students were misled in the dialogue: "They did not tell us that it was going to be part of a book that would juxtapose us, the 'fanatic zealots,' with the bleeding hearts who 'shoot and cry.' We had no idea that they were also holding other conversations and interviews."
After his years in the yeshiva, Bar-Ilan embarked on a completely different path from the political road taken by his more famous colleagues, among them Hanan Porat and Yoel Bin Nun, immersing himself in anonymity as a communal rabbi. He began his career as rabbi of Kibbutz Be'erot Yitzhak and for the past 30 years has served in his hometown of Rehovot. The most significant public position he has undertaken is in dealing with halakhic questions arising from medicine and psychology. He teaches kashrut (religious dietary) laws in the nutrition department of the Hebrew University's Faculty of Agriculture in Rehovot and is a member of the ethics committee in the city's Kaplan Hospital. But after decades it turns out that while his friends implemented a life project in the form of a settlement enterprise of uncertain future, it was he, the unknown, who implemented a major literary undertaking whose shelf life looks a lot more promising.
Asked if he thinks his friends may have taken the wrong road, Bar-Ilan, always circumspect, says: "Each person has to work according to his talents. I think the sphere I entered is quite neglected. There were, of course, many who did wonders, but until now we did not have the full picture of the laws of the state, and the full picture is very important."
Reviving an old idea Naftali Bar-Ilan's propositions are undoubtedly the most detailed ever written in this vein, but hardly the first. Several efforts, most of them in the early years of Israel's existence, were aimed at inducing the fledgling state to accept from the outset a constitution that would be based on the "law of the Torah." At that time a number of leaders of the religious Zionist movement were considered salient supporters of a constitution for Israel, notably MK Rabbi Zerach Warhaftig. Their hope was that the constitution would reflect a traditional Jewish approach.
The first attempt was by Dr. Leo Cohen, a legal expert, who was asked by the provisional government at the time to draw up a proposal for a constitution. He accepted the challenge, and his proposal, which was also debated by the Knesset, afterward served as a basis for discussion in the religious Zionist rabbinical world. Among the important figures who were interested then in the subject were the country's chief rabbis, Herzog and Uziel. About 18 years ago, Herzog's writings on the subject were published as a three-volume work entitled "Huka leyisrael al-pi hatorah" ("A Constitution for Israel According to the Torah"). One volume publishes Cohen's proposal together with comments by Herzog and other senior rabbis (including Bar-Ilan's grandfather, Meir Bar-Ilan). The other two volumes contain Herzog's views on some of the constitutional issues that concerned him (without any connection to Cohen's proposal). As Bar-Ilan notes, "Rabbi Herzog was bothered in particular by a number of cardinal issues: the question of the inheritance law (the disparity between the halakhic approach, which discriminates in favor of the eldest son, and in favor of the males of the family in general, and the civil law on the subject) and the issue of the attitude toward gentiles. His book did not contain a systematic elaboration of all the subjects relating to the constitution of a democratic Jewish state."
After the failure of the attempts to persuade the Knesset and the public to accept a constitution of this kind, the religious politicians, including Warhaftig, became critics of the idea of a constitution in principle. Almost 60 years later, Bar-Ilan's opus revives the idea of a Torah-based constitution in a far more elaborate fashion, and also tackles questions that were not on the agenda at that time, such as economic and ecological issues
Source: Yair Sheleg. Magna Torah. Haaretz.com (12 Feb 2008) [FullText]
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