Chapter One: Jewish Law and the Problem of Religion and State

Israeli society is struggling with complex and diverse questions regarding the relationship of religion and state: defining who is a Jew,[1] delineating the borders of the family unit,[2] shaping the character of the public realm,[3] engendering religious pluralism,[4] institutionalizing religion, and providing religious services.[5] The cumulative weight of the controversial issues that have appeared regularly on Israel’s public agenda over the last fifty years have shaken the country’s stability.

The serious, chronic nature of the tension between religion and state in Israel are manifestations of the basic difficulties arising from the encounter between traditional Judaism and a Western liberal state, and between Jewish Law (Halakhah) and state law. Among these difficulties are some fundamental issues: the question of the ideological and functional significance that Judaism and the state have for each other,[6] the binary sources of authority and the challenge of normative duality,[7] the demarcation of the limits of freedom of religion and freedom from religion,[8] and the place of a religious community in a civil society functioning within a liberal political framework.[9]

The discussion regarding issues of religion and state is conducted simultaneously on two levels: extra-religious and intra-religious. Participants in the extra-religious discourse are generally aware of the multifaceted nature of the subject. The complexity and the disciplinary diversity of this discourse finds expression in the fact that it includes jurists, philosophers, political scientists, politicians, sociologists, anthropologists, cultural studies scholars, and others. By contrast, the scope of the intra-religious discourse on religion and state is relatively narrow. The most commonly heard religious voices are political and philosophical, and although other voices are occasionally heard as well, a systematic halakhic concern with questions of religion and state is glaringly absent.

The relationship between religion and state in Israel is fluid and varies over time alongside a host of demographic,[10] economic,[11] ideological,[12] geographic,[13] political,[14] and sociological[15] changes. Those who seek to respond to these changes, however, instinctively seek solutions and norms (legal, social, political, cultural or others) that will deal – either through accommodation or confrontation or alternatives in between – with the “halakhic response” to issues bearing on the relationship between religion and state. The basic initial assumption of the participants in the professional and public discussion is that almost all facets of the elusive mosaic that enter into the relationship of religion and state in Israel – facts, norms, and ideas – can be subject to substantive negotiation between the various segments of Israeli society, except for one: the Halakhah.

This attitude to Halakhah, in my view, encompasses a dual assumption about the very nature of Halakhah. The first is that Halakhah is a monistic normative system, which speaks with only one voice, harmonious and clear-cut. Every question has one and only one “correct” answer, and the halakhist’s role is to uncover it. According to this line of thought, a halakhic dispute is an expression of a confrontation between a true and a false view.[16] The second is that Halakhah is a system whose commandments are fixed, such that it is not meant to react to transitory conditions and to changing human realities. This assumption ostensibly corresponds to the religious intuition expressed in the phrase “this Torah may not be altered”.[17] From this perspective, the religious legal system, to its last detail, is eternal and independent of temporal circumstances.[18]

For many, both religious and secular, Halakhah offers one clear-cut solution to each and every real-life problem, it is supra-historical, and it is oblivious to the dynamic qualities of all societal realities. So too, in the context of issues affecting the relationship between religion and state, the widespread outlook is that the accepted halakhic stance is both exclusive and independent of time, place, culture, or temporal social preferences.

There is, therefore, neither extra- nor intra-halakhic public demand to seek halakhic solutions to questions of religion and state. As such, when rabbinic voices are heard in public and professional discussions, it is largely in their capacity as social leaders or heads of political movements, but not as halakhists. All seem to agree that Halakhah is a basic given around which the web of conflicts of religion and state should be woven, but the Halakhah itself is untouchable. The result is ironic: although Halakhah sits squarely at the point of friction between religion and state, it is considered irrelevant to the discussion aimed at easing this friction.

In my view, this halakhic silence is not only unnecessary but, from a religious perspective, improper. The dual characterization of Halakhah noted above is unacceptable. First, a monistic perception of Halakhah is only one of the options recognized in the halakhic realm. An alternative long-standing tradition, both respected and entrenched, perceives Halakhah as a pluralistic system where many and varied voices resonate. According to this outlook, Halakhah does not offer one necessary answer to every question but rather a spectrum of halakhic reactions – limited, obviously, by the bounds of halakhic legitimacy – which include a variety of legitimate solutions.[19] Second, and more importantly, the understanding of Halakhah as eternal and as operating outside history and unaffected by the dynamics of reality distorts its fundamental nature. Halakhah has always been a living, vital force, a characteristic that has enabled it to respond to changing realities, to influence and be influenced as a “Torah of life”.[20]

The following discussion will analyze the silence of Halakhah and challenge the notion that halakhic discussion is irrelevant to the solution of questions concerning religion and state.

I will offer a basic analysis of the tension between halakhic conservatism (Chapter 2) and the new reality that Halakhah is supposed to regulate in our times (Chapter 3). In doing so, I shall delineate three central phenomena that the current intra-halakhic discourse, and certainly the general discussion of religion and state, should address. In my opinion, halakhic neglect of these three phenomena poses a real threat to the stability and cohesion of Israeli society on the one hand, and to the function of Halakhah as a “Torah of life” on the other. I do not share the view that Halakhah cannot, by its very nature, adapt to momentous changes in its surroundings. Despite the inherent conservatism of Halakhah, halakhic sages of earlier generations knew how to contend with similar situations when contemporary realities changed beyond recognition due to events outside their control (Chapter 4). A similar response, though not necessarily through the same means, is also required today. The gist of this paper is a systematic analysis of several possibilities for halakhic renewal in our time. Some of the proposed strategies are meta-halakhic (Chapter 5, Sections A and B), and some focus on the functioning of Halakhah itself at a normative level (Chapter 5, Sections C and D). Each of these strategies, admittedly, raises difficulties that will not be trivial for those who uphold Halakhah, but this does not exempt them from choosing one or some combination of these approaches. Halakhic resistance may prevent Halakhah’s return to its rightful position in the regulation of Jewish life in Israel, hindering our society from contending with the structural tension between religion and state.