A halachic state – yes or no? That’s the question many are discussing after MK Bezalel Smotrich said he dreamed of Israel’s justice system following Jewish law. For this statement, he was stridently attacked by both the political left and right, and many religious Knesset members, not to mention the secular media, joined the chorus.
A noteworthy voice supporting Smotrich’s aspirations is Professor Nahum Rakover, winner of the Israel Prize and perhaps the country’s leading expert on Jewish and modern Israeli law.
“Everyone who so vociferously condemn the prospect of a judicial system guided by the tenets of Jewish law simply don’t know anything at all about the subject,” he told The Jewish Press. “The more we return to the Divine foundations of justice and righteousness contained in the Torah, the greater the blessing and benefit to the Jewish people and to all the nations of the world.”
Born in Jerusalem in 1932, Professor Rakover studied in the Bnei Akiva Kfar Haroeh Yeshiva, Mercaz Harav Kook, and the Harry Fischel Institute for Talmudic Research. He received semicha at age 21, studied law at Hebrew University, and taught Jewish law at Bar Ilan University. In 1959 he was appointed Legal Advisor in Jewish Law in the Ministry of Justice, and in 1982 he became Deputy Attorney General.
Now he is senior researcher at the Jewish Legal Heritage Society and editor-in-chief of its publications. He has published over 30 books and hundreds of articles on Jewish law.
The Jewish Press: What is the Jewish Legal Heritage Society?
Rakover: Some 40 years ago, the Knesset passed the Foundations of Law Act, which stated that British Common Law would no longer be used when Israeli courts are unable to reach a legal decision where there was no existing Israeli law or judicial precedent to rely upon.
The new enactment decreed that the solution would be derived from the internationally-respected ocean of legal wisdom found in Jewish sources dating back to Talmudic and Torah times.
The Jewish Legal Heritage Society was established to undertake the necessary research and prepare the legal briefs needed for courts to reach decisions on a whole gamut of issues covered in Chosen Mishpat [one of the four books of Shulchan Aruch], such as commerce, unjust enrichment, copyright, rehabilitation of criminals, protection of privacy, human dignity, and much more.
Can you cite a few examples?
At the time, there was no law in Israel regarding privacy. Using Jewish sources, we formulated a new legal tenet, which, among other things, stipulated that it was against the law to reveal the secrets of another person.
Mishlei says, “A talebearer reveals secrets, but a person of faithful spirit conceals the matter.” We used this as the basis for a new standard whereby a person can be sued for disclosing a secret that leads to the personal shame or financial damage of the claimant.
Critics of Jewish law claim the Torah threatens the freedom of the individual, when, in fact, many of Israel’s laws safeguarding individual rights were derived from the research we did based on halachic sources.
Any other examples?
Yes. There was a law passed by the Knesset on the basis of a mishnah in Tractate Gittin involving someone who stole a beam and built a large building with it. Instead of ruling that the building be destroyed and the beam returned to its owner, the Sages enacted what they called a “takanat ha’shavim” requiring the thief only to pay the owner its monetary value of the beam for without demanding that the building be dismantled and the beam returned.
They ruled this way so as not to frustrate the thief to the point where he would despise the Torah and refuse to repent. This became the basis for a law we formulated that allows certain criminal transgressions to be erased from the record after a period of good behavior. This can be a great blessing because in many cases people with criminal records are denied job opportunities, service in the defense establishment, and the like.
This shows the unique quality of justice and mercy for which Jewish law is famous. The goal of this judicial ruling is not only punishment for the crime, but rather the rehabilitation and repentance of the criminal.
If Israeli civil law was governed by Choshen Mishpat, non-observant judges would be looking up teshuvos and “paskening.” Do we really want that? Shouldn’t Choshen Mishpat rulings be made by major poskim?
That’s one of the reasons why the Jewish Legal Heritage Society is so vital. Rabbis and experts are doing research into Jewish sources and preparing the background for judicial rulings. We already have published 11 comprehensive compendiums of Jewish law, and more volumes are in progress.
Of course, it would be wonderful if all of our judges were Torah scholars, but this is all part of the overall teshuvah of the nation that is promised, both by the Torah and the Prophets, as a later stage in the ingathering of the exiles to Zion. For this to come about, a national program of education is needed, both for the judges and the public at large.
Long ago, I asked Rabbi Yosef Soloveitchik about the value of preparing legal briefs based on Jewish sources that could be misinterpreted and misused by secular judges. He replied that the “all or nothing” approach is not the proper way, and that slow and patient progress was the best method to achieve the prayed-for goal of restoring our judges as in the beginning (“hashivah shofteinu k’varishonah”).
If someone like Bezalel Smotrich were minister of justice, couldn’t he simply pass a law that Israeli judges must be certified talmidei chachamim?
Theoretically, he might be able to push such a law through the legislative maze, but coercion isn’t the way. Right now, the majority is against such a dramatic change. We first have to educate the public to understand the basics of Jewish law and to recognize that its official adoption would bring great benefit to Israeli society.
The subject has to be learned in public schools throughout the country, in special forums on television, in books for laymen and judges, in law schools, and the like. Not only the dry laws by themselves, but the unparalleled justice, righteousness, and compassion of Jewish law, which is recognized in law societies and law academies all over the world.
Mishpat (law) alone is not enough if tzedek is lacking, as Hashem testifies regarding Avraham, “For I know him, that he will command his children and his household after him, and they shall keep the way of the L-rd, to do justice and judgment (tzedek and mishpat), that the L-rd may bring upon Avraham that which He has promised.”
What Israeli laws today would be different if the Torah were followed?
Take the situation of a terrorist who is captured as part of a larger plan to attack an undisclosed public concert in the country. The Israeli Supreme Court has said it’s forbidden to torture the terrorist to learn details of the planned attack. According to Jewish law, though, torturing the terror-gang member is permitted to save the lives of other people.
Another example is: When the police begin a criminal investigation, the media immediately endeavors to publicize the story with all of its details, whether the suspect is guilty or not. Afterwards, if the investigation is canceled and no charges are brought, the suspect can try to collect damages for his wounds, but there is nothing to protect his privacy from the outset.
Of course, if Israel’s justice system were run according to the principles outlined by the Chofetz Chaim, all of this unproven, pre-trial hearsay publicity would be forbidden and punishable by law.
Many people think a halachic state means stoning people who violate Shabbat and policemen arresting people for having non-kosher meat in their refrigerators. They therefore want nothing to do with it. How do you address this point?
No one is talking about infringing on a person’s private choices. Jewish law is not something enforced on the public with KGB agents, mock trials, executions, or long-term imprisonment.
For the last 2,000 years, since the exile of the Sanhedrin, the death penalty was not enforced. Even when the Sanhedrin sat in Jerusalem, our Sages have told us that if the beit din enacted the death penalty even once in seven years, it was known as a murderous Sanhedrin. According to Rabbi Eleazar Ben Azariah, it was called murderous if it enacted the death penalty even once in 70 years.
You hear complaints that the Torah devalues women, not extending them the same rights as men. They cite inheritance laws, for example, whereby sons inherit the wealth of their fathers, but not daughters. However, a thousand years ago, rabbinic authorities in Ashkenaz already made an enactment that provides for the inheritance of daughters. Additionally, every individual can write a will stipulating how he or she wants inheritance monies to be distributed.
No one is talking about interfering in the private life of an individual. What will be affected is the national public life of the Jewish people in the Jewish state concerning such matters as public bus and train transportation on Shabbat and government work projects.
We hope individuals will come to recognize how driving their cars on Shabbat adversely affects the Jewish character of the state and how eating lobster has an overall negative influence on their wellbeing, but in the meantime, policemen aren’t going to stop them and drag them out from their cars on Shabbat, and non-kosher products won’t be confiscated from kitchen closets.
What about public events like gay parades?
Here we enter the question of: What is a “Jewish state” – which Israel is defined as in the country’s Declaration of Independence and the State Basic Law? Is it just a name? Or does it mean that the values of the nation are to be in line with Torat Yisrael?
Matters like gay parades, so contrary to Jewish spirit and law, have broad national consequences affecting the moral education of our youth, our national connection to HaKodesh Baruch Hu, and the perception of Jewish life in the Holy Land by Jews in the Diaspora. We want to create an Israel that will attract olim who desire an environment of true Jewish life based on traditional Jewish values, not one that will develop into just another modern, liberal country where anything goes.
Societies filled with moral decay already exist in America, England, and France. The world doesn’t need Israel for that.