“Israel will not be a halakhic state,” Prime Minister Benjamin Netanyahu promised Monday, and for a change he was right.
Israel will not be governed by Jewish religious law, and in fact no government has ever been ruled in accordance with halakha. In the time of King David, not only was there no halakha as yet, but the Book of Deuteronomy had yet to be written.
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By the time halakha came about, with the completion of the Mishna in the second century, there was no longer an independent kingdom of Israel. And in the intervening period, the Hasmonean Kingdom absorbed Hellenistic concepts (Aristobulus and Hyrcanus are not Hebrew names), and persecuted and executed Jewish sages.
So when he speaks about Israel “returning to operate as it did in King David’s time,” MK Bezalel Smotrich is denying history. No wonder: Historical ignorance is a prerequisite for any fundamentalist vision.
Haaretz Weekly Ep. 29
As with other examples of theocratic ambition, such as the Islamic Republic of Iran, the Islamic State organization and the “Hindu nation” promoted by religious nationalists in India, the attempt to imagine a modern government based on religious law always necessitates the invention of a fictitious past and significant self-persuasion.
With just a few tweaks and minor adjustments, the story goes, we could then copy and paste ideas and institutions from the distant past into our world. This never works, and not just because such efforts are based on mythology to begin with. It doesn’t work because it completely ignores the radical changes that have taken place in the human condition.
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Not that there haven’t been rabbis who have tried to sketch a vision of a modern halakhic state. In the 20th century, Rabbi Shaul Yisraeli addressed this. Rabbi Naftali Bar-Ilan devoted four volumes to “Regime and State in Israel According to the Torah.” Rabbi Eliezer Yehuda Waldenberg wrote “Hilkhot Medina,” on halakhic issues in the modern state. Justice Menachem Alon wrote extensively on “Hebrew law” and, leaping forward, just last year Rabbi Ido Rechnitz published a book called “Medina KeHalakha: A Jewish Approach to the Challenges of Independence.” Still, no one has ever been able to come up with a framework that anyone but a handful of fanatics would consider realistic.
That’s not a coincidentce. The problem with halakha as it is today is not that its laws are bizarre or anachronistic. Yes, the punishment for theft is a fine amounting to twice the value of the stolen item, a ludicrous penalty that would permit people of means to steal to their hearts’ delight. Yes, halakha prohibits women from testifying or serving as judges — an insult to the intelligence of any rational human being. Such details can presumably be modified and updated.
The real problem is the fundamental understanding of humanity in halakha. According to halakha, human beings must obey divine law and cannot legitimately choose to do otherwise.
Simply put, halakha minimizes the significance of individual autonomy. The compulsion to observe the commandments is part of halakha, and it is also no coincidence that halakha permits both slavery and pedophilia. When there is no unequivocal recognition of the individual as an autonomous subject, then enslavement becomes acceptable, and when choice and consent are not a necessary condition for sexual relations, it’s no wonder that it is permissible to have sex with someone who cannot choose (and, on the other hand, consensual sex between people of the same sex is prohibited).
For its time, the Hebrew law was an advanced, enlightened system, and Jewish tradition brought into the world many principles that ultimately contributed greatly to modern humanism and liberalism. Yet today there is a fundamental tension between halakha and modern conceptions of humanity and liberty.
As a personal and communal commitment, a halakhic lifestyle can be deep and meaningful, but one cannot talk about a state operating in accordance with halakha without also talking about religious coercion. In fact, Waldenberg was an avowed supporter of theocracy, and Rechnitz’s book also clearly demonstrates that there can be no freedom of religion in a halakhic state.
Actually, one needn’t go so as far as picturing some future halakhic dystopia in order to understand that Smotrich’s proposal is not a good bet. It’s enough to look at what’s already happening in the Israeli systems that are in the hands of the Orthodox establishment.
The laws of marriage and divorce, over which the Chief Rabbinate holds a legal monopoly, have become a mechanism for coercion and injustice. Nonreligious couples are compelled to marry not in keeping with their beliefs, women are discriminated against under the marriage canopy as well as in the divorce laws and the rabbinical courts abuse many who come before them. Even without the blatant corruption and nepotism that is so rampant in the rabbinate, it would still be despised by the public – simply because the modern conscience rebels against coercion and discrimination.
Smotrich, whose “decision plan,” published two years ago, called for the Palestinians to either agree to live as subjects or to choose between emigration and death, has proved before that democratic principles are of no interest to him. It’s no surprise to find him leading the theocratic charge. Hardalim, or ultra-Orthodox Zionists, account for just 2 percent of Israel’s Jewish population, but intoxicated with the political power given to them by Netanyahu, they mistakenly believe the time has also come for their fundamentalist ideas. Placing them in the centers of decision-making will clearly lead to religious coercion and a shrinking of civil liberty.
“There is also a lot of room for democracy in Torah law,” Smotrich hastened to reassure everyone, following the uproar over his comments touting the imminent return of the Kingdom of the House of David. But this is not correct. There is room for Torah law in democracy, but not the reverse. The relationship is always one-way, because one conception is fundamentally tolerant and insists on individual rights and freedom of religion, while the other does not. Should Smotrich and company obtain the kind of power they desire, we will all be made quite aware of this.
Tomer Persico is a visiting assistant professor at the Berkeley Institute for Jewish Law and Israel Studies at University of California, Berkeley and a research fellow at Jerusalem’s Shalom Hartman Institute.