How do you like your halakha?
Three main issues create the gap between the positions of proponents of Israeli democratic discourse and the prevailing view among rabbis: the attitude to laws that are contrary to halakha (Jewish religious law), the status of non-Jews and the status of women. As far as these three issues are concerned, there is an especially large gap between the two camps over the rights of non-Jews. Apparently, the reason for this is related to the fact that proponents of religious-Zionist discourse have in recent decades adopted a very right-wing stance on the political map, whereas in all other areas, they actually tried to bridge the gaps between themselves and the secular world. An additional reason concerns the fact that Jewish-Arab relations are perceived as problematic even among the secular public and therefore it seems as though the rabbis find more legitimacy to radicalize their positions in this area.
These are some of the findings of a study I conducted on behalf of the Israel Democracy Institute on the positions of prominent rabbis in Israel regarding the concept of democracy that was titled, "The majority - rules?" The most outspoken rabbi regarding this issue, Rabbi Shlomo Aviner, explicitly states that non-Jews have no right to citizenship in the Jewish state, and that to obtain it, they must convert. On the other hand, Rabbi Motti Elon, a popular lecturer, thinks non-Jews can obtain the rights of citizenship only if they declare that they do not have any political ambitions that would undermine the authority of Israel as the state of the Jewish people, and if they accept the seven Noahide Laws (which are defined in halakha as the moral laws that apply to all humanity: prohibitions against idolatry, profaning God's name, murder, adultery, stealing, eating the limb of a live animal and the obligation to maintain a fair judicial system).
On the other hand, Rabbi Yuval Cherlow "permits" non-Jews to obtain the status of citizens, but stresses that "in issues relating to the Jewish identity of the state, it would be necessary to determine a proportional majority for Knesset votes." He also thinks that non-Jewish judges should not be appointed, except to the High Court of Justice - where the nature of the issues heard justifies such an appointment - and stresses that these appointments do not stem from security reasons, but from religious principles and therefore apply also to Druze and other non-Jews who serve in the Israel Defense Forces and identify with the state.
These are the views of three of the 19 prominent Israeli rabbis included in the survey, which also features Ovadia Yosef, Avraham Shapira, Mordechai Eliahu, Shlomo Aviner, Yisrael Lau and others. All the rabbis received a request to be interviewed for the purpose of the study, but some of the most important among them (such as Yosef, Shapira and Eliahu) - declined. For them, as well as those who were interviewed, written sources were reviewed: halakhic responsa, articles on matters of principle published in the past and public statements.
In one case, the views of a rabbi who died several years ago, Rabbi Eliezer Shach, were also reviewed. The reason for this was that his heir, Rabbi Yosef Shalom Elyashiv, has addressed the issue of democracy in a significant manner. Rabbi Shach's views were included based on the assumption that his positions continue to guide the Ashkenazi ultra-Orthodox public in this area today as well.
Democracy as cancer
The ultra-Orthodox world's presence in this research project is very limited and includes just two rabbis (Rabbis Shach and Yosef). This is due to two reasons: one, in the ultra-Orthodox world there is a clear hierarchy, especially when it comes to public questions (as opposed to halakhic questions relating to the individual), and only "great scholars of the generation" have the right to determine the public's position on these issues. Second, in ultra-Orthodox discourse, nuances relating to democracy can hardly be found.
In effect, democracy does not interest the ultra-Orthodox as an issue that is important as a matter of principle, because in their world only Torah values exist. Therefore, Rabbi Shach also only refers to democracy in passing in several statements (such as the one in which he compares democracy to cancer, because "only the sacred Torah is the true democracy"). As far as Rabbi Yosef's attitude to democracy is concerned, one can only learn indirectly from halakhic responsa he gave on relevant subjects.
In contrast to them, religious-Zionist rabbis accepted the values of the Jewish secular and democratic state and the question of the tension between democracy and halakha is much more meaningful for them. Many of them have over the years published articles discussing this issue and there are many different opinions among them.
However, it should be noted that even among most Zionist rabbis, there is a clear determination that the laws of the Torah take precedence. Even a moderate rabbi like Rabbi Yoel Bin-Nun states that "any legislation that negates or opposes Torah law as a matter of principle should be opposed, as should any government or judicial decision that specifically uproots halakha." Only two rabbis, Rabbi Menachem Froman and Rabbi Shagar (Shimon Gershon Rosenberg) strayed from the ranks on this matter. Both have a revolutionary position - influenced, undoubtedly, by their Hasidic connection and the already revolutionary tendency of Hasidism - that maintains that in a clash between halakha and democracy (Froman describes it as a clash between halakha and humanist values), there is no predetermined position and each case must be reviewed separately.
A matter of principle
There is a particularly interesting position in the writings of Rabbi Yosef. Dr. Ariel Picard, who wrote his doctorate on the halakhic world of Yosef, refers to a gap between Yosef's attitude to "captive infants" - those who do not specifically come out against the world of Torah but only received a secular education - whom he would like to bring closer into the fold, and those who he considers to be rising up in principle against the world of the Torah, with whom he is even more stringent than halakha is. In this spirit, it appears that Yosef sees the secular justice system as a key pillar of the second group, as one "who presumes" to take the place of halakha in issuing legal rulings for Jews. For that reason, he is especially stringent in his approach to them: He rules that not only is a person who observes the mitzvot prohibited from approaching the court of the state on his own volition (this refers to a civil suit - after all a criminal suit is not dependent on the citizen), but also that an attorney is not permitted to agree to represent someone in such a case.
One such example concerns the question of inheritance for daughters. According to halakha, in the event the deceased has both sons and daughters, only the sons inherit the assets. Israeli law, of course, rules otherwise. Some of the most important rabbis in recent generations, such as Rabbi Isaac Herzog and Rabbi Ben Zion Uziel, recognized the problematic nature of this halakhic ruling and in practice ruled as the law does (and they defined it as a takana [regulation] - the halakhic tool that enables halakhic changes by defining them as "temporary orders").
Yosef, on the other hand, insists on the position of halakha and at most is willing for religious families to reach an understanding among themselves on distributing the estate to daughters as well, but not out of subordination to secular law. In effect, even Yosef's famous statement regarding Aryeh Deri - "he's innocent" - was not only political, but also derived from an anti-legal halakhic position. Halakha, in contrast to the law, is not willing to hear testimony from a person "with an interest in the matter." This includes states' witnesses, at a time when Deri's conviction stemmed to a large extent from the testimony of a state's witness against him.
Courage to refuse?
Even though they speak of a sharp ideological divide between their position and that of Israeli law, the rabbis do not usually call for their followers to actively work against the laws that are contrary to halakha. The reason for this is that in most cases, these laws do not have any practical meaning for the religious person and the rabbis do not want to create a clash over issues of principle that have no practical relevance for them.
The issue of evacuating settlements, for example, is unusual in this respect - not only because of the right-wing ideological position of most religious-Zionist rabbis, but also because, in this case, it has a clear practical significance for thousands of religious soldiers and policemen (as well as for residents of the evacuated communities), who with their own hands will embark on an act that, as far as they are concerned, is halakhically forbidden.
In order to ascertain whether this is just a political stance or a matter of principle, the survey attempted to present the rabbis with additional situations where there is a practical clash between the position of halakha and the laws of the state; for example, when a religious population registry clerk is ordered by the High Court of Justice to register converts or married couples (for example, same-sex couples) who did not follow the dictates of halakha. In most cases, there was an apparent attempt to evade the dilemma, primarily by the response that the registration in documents of the state is in any case non-binding halakhically and therefore there is no problem realizing it. This, although Rabbi Yaakov Ariel, for example, stated that if he were asked to register a same-sex couple as married, "I would resign and not do it."
It is interesting to note that contrary to the prevailing image, the native Israeli rabbis, or those who spent most of their lives in an Israeli rabbinic milieu, were usually careful about legitimizing a "refusal to obey orders." On the other hand, the two rabbis who grew up in a Western culture, Rabbi Nachum Rabinowitz (from Canada) and Rabbi Aharon Lichtenstein (from the United States) were more inclined to use the tactic of "refusing to obey orders" for religious reasons. Apparently, these two rabbis were raised in a liberal tradition - where the concept of civil disobedience is much more acceptable than it is in Israeli society, while graduates of the Israeli state system were much more sensitive to the significance of the anti-state meaning of conscientious objection.