Adapting Law to Life

The discrimination suffered by Israel's non-Jewish citizens brings Judaism into disrepute in the eyes of the world, to say nothing of rendering the religion less than just and righteous in Jewish eyes as well.

The establishment of the State of Israel marked a radical change in the reality of Jewish life. As such it required radical rethinking of some aspects of Judaism and halakha (Jewish law) as well. Some called for the establishment of a Sanhedrin to deal with these problems, but this was not done and probably couldn't have been done at that time.

Now, however, a self-appointed group calling itself The New Sanhedrin has seemingly taken this responsibility upon itself - with questionable results. At a recent meeting in Jerusalem, with Rabbi Shmuel Eliyahu, the chief rabbi of Safed, Rabbi Yaakov Yosef and Rabbi Menachem Porush, this group issued a halakhic declaration against selling Jewish-owned land in Israel to Arabs. Not only did they declare the practice forbidden, they also ruled that any Jew who does so may not lead prayers, be called to the Torah or be counted in a minyan. While not a exactly constituting excommunication, such sanctions would still be very serious for an observant Jew.

If that is their way of thinking, it is apparent to me that we are better off without a New Sanhedrin, or at least without this group handling the radical rethinking that may be needed today. If this is Jewish law, then I for one certainly do not want a state ruled by halakha.

What would we say if any modern democratic nation were to outlaw the purchase of land by Jews? For that matter, how do we respond when we hear of similar rulings among Palestinian leaders? Shouldn't we be beyond a similar anti-gentile law in Judaism?

Non-Jews live here and are citizens with equal rights. They are entitled to equal protection under the law, although here, as in many countries, the law and the reality of life for minorities are not always the same. But for Jewish law to discriminate against them with regard to property rights, among other things, is to bring Judaism into disrepute in the eyes of the world, to say nothing of rendering the religion less than just and righteous in Jewish eyes as well.

One would have to look hard to find justification for such discrimination in the Torah. Rather, such an attitude is the consequence of years of exile. Indeed many of the enactments found in the Talmud and later codes reflect the conditions of exilic life rather than of a sovereign nation.

Many laws were formulated for theoretical situations that might exist one day when sovereignty was restored but had no relation to reality. A negative attitude toward non-Jews was expressed that was a reaction to persecution and discrimination at their hands. Many laws and attitudes toward the Land of Israel were viewed through the lens of statelessness and the danger that Jews who remained in the Land would abandon it.

Today we live in an entirely different reality.

The philosopher Yeshayahu Leibowitz insisted that Jewish law must recognize the needs of a Jewish state in such matters as Shabbat observance. But there are many areas aside from ritual matters that need to be addressed as well if Jewish law is to successfully confront the reality of Israeli statehood.

The studies of Jewish law and of Jewish life in general that have been undertaken since the 19th century have shown without a doubt that changes in Jewish law have always taken place in response to new political, economic and philosophical realities under which Jews have lived.

As we have seen, not all the changes that exile caused Jewish law to undergo were negative. The Judaism that emerged sometime during the Second Temple period and thereafter, as codified in the Mishna at the beginning of the third century C.E., was substantially different in practice and even in belief from that which is found in Scripture. Later, life in the Middle Ages had its own needs and these too were met by poskim who found ways to accommodate law to necessity.

As one of the outstanding scholars of Jewish scientific study, Solomon Schechter, wrote: "Liberty was always given to the great teachers of every generation to make modifications and innovations in harmony with the spirit of existing institutions. Hence a return to Mosaism would be illegal, pernicious and indeed impossible."

In one way or another, the sages made progressive changes, reinterpreting some laws of the Torah and making the death penalty a virtual impossibility. Indeed authorities found it possible, through the use of such principles as "the ways of peace" and "beyond the scope of strict law," to modify and expand many teachings in the direction of greater tolerance and justice.

Thinking no less bold is needed today to retain the continuity of Jewish life, law and lore from the Torah onward, yet to make the modifications required by the new reality in which we live. How unfortunate that we do not have a religious leadership that has the courage and ability to do so.

We may not need a Sanhedrin, but we do need religious leaders who are committed to Jewish law and recognize the way in which it grows and changes to meet the needs of the times. We need leaders who will seriously tackle the question of adopting halakha to the conditions of statehood and sovereignty.

Rabbi Reuven Hammer is the head of the Rabbinical Court of Israel's Masorti (Conservative) Movement and a former president of the movement's International Rabbinical Assembly.