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Chapter One: Introduction
The centrality of state law and of legal bodies in Israeli society is axiomatic. The long arm of the law reaches everywhere, and recently, it has been meeting with popular resistance. The law’s prominence and its increasing involvement in our lives have been of constant concern to Israeli politicians, academics, and journalists.
A similar development, though less obvious to the wider public, is presently taking place concerning the place of Halakhah (Jewish religious law) in Israel’s Jewish religious communities. For many religious individuals, Halakhah is the central, almost exclusive expression of contemporary Jewish culture. Halakhah is the source from which they derive most of their life practices, as well as the substance of their Jewish identity. Although the religious space is not devoid of values, philosophy, creativity, and historic memory, primacy is unquestionably reserved for normative statements, such as ritual injunctions, responsa, commandments, and transgressions.
Is there any room for comparison between these two developments? Can one cause-and-effect narrative, one unified frame of meaning, explain the tendency of Israel’s Jewish society toward the “lawlization”* and “halakhization” of reality? Leaders within both normative systems may not be unduly pleased with these parallels, and may even view the very comparison as an affront to the ethos of their own system. Scholars of the two systems may also argue that each system needs to be considered separately, resting their case on a series of substantive distinctions that can and must be examined. Thus it may seem, for example, that these systems differ in the source of their authority (a social contract v. a divine command), in their purpose (social-material attainments v. religious-spiritual perfection), in their target audiences (the citizenry v. the members of the Jewish religion), and so forth. Yet, given that both function within one socio-cultural reality, the question of whether they have a common denominator is worth asking. This paper will present a unifying theory that can clarify the preference of Israelis, both religious and secular, for legal solutions. In so doing, I will indicate the price we pay because of the heavy shadow that state law and Halakhah cast upon Jewish society in Israel. The analysis will also suggest parameters for the necessary reform.
Let me open with a personal reference. I belong to those segments of the Jewish Israeli public who are simultaneously subject to the rule of the political sovereign and to the rule of God. We observe mitzvot (the commandments) on the strength of our religious responsibility, and abide by the law on the strength of our civic responsibility. For me and others like me, normative duality in its more common Israeli manifestation creates a genuine existential difficulty, unique in its character and entailing considerable practical implications. We are fully and unreservedly committed to the rule of law (except for obvious reservations anchored in widely accepted democratic principles). At the same time, we are fully and unreservedly committed to Halakhah (as interpreted within the religious circles to which we belong). Subjectively, we approach both legal systems as part of our primary and unconditional responsibility. State law cannot compel freedom of religion; as part of its adherence to values of tolerance, it is also wary of harming religious sensibilities. Hence it is difficult—though not impossible— to find actual conflictual situations that require choosing between these different loyalties.[1] The main point, however, is that the very consciousness of this normative duality—both elements of which are dominant—is not easy for a person who is aware of and sensitive to his twofold commitment.
When faced with the inner discourse of either of the two legal systems, such persons become conscious of their alternative commitment, which, as noted, represents a cultural perspective (sometimes) antagonistic toward the discourse in which they are participating at a given moment. This realization is even more pronounced for the religious judge, lawyer, or law professor. In court and in the law faculty they are challenged by Halakhah; at the bet midrash (where Talmud is studied) or in their Torah studies they are challenged by the law. Although they are at home in both worlds, they are doomed to observe each of them also as outsiders. Their cultural and professional world is nurtured by both sources, and therein lies their advantage; but their yearning to attain full intimacy with both is marred by the emotional and intellectual difficulties stemming from their dual commitment. Sometimes their friends in each of these worlds, who are usually aware of this dual pledge but do not share it and have difficulty internalizing its complexity, may ascribe to them a touch of strangeness or distancing from their own “truth” when they discover the “other side” of the religious jurist’s commitment.
This “confession” may clarify why, notwithstanding my legal training, I am tempted to suggest in some parts of this paper a strain of social criticism. My writing here is sometimes personal, and I have deliberately refrained from weeding out evaluative or judgmental statements. I write here as a man of a time and a place who has a unique perspective because, for better or worse, I am rooted in two worlds. The “situation” I describe is personal but definitely not private, since it is relevant to my surroundings. The cautious reader should certainly take into account my personal background, as well as the limitations of the legal prism through which I observe the world outside the law.
I will open with a description of normative duality within the context of a wider duality between Western and Jewish culture (Chapter Two). The main communities in the Jewish public arena in Israel—ultra-Orthodox, religious, and secular—find contending with cultural duality an arduous endeavor. In the past, each of these three communities had developed unique strategies for coping with cultural duality (Chapter Three). Recently, however, these strategies have been collapsing, given that Israel has shifted from being a consensual democracy to a democracy in crisis (Chapter Four). At present, I submit that the Israeli marketplace of ideas offers no significant ideological paradigms that might enable coherent functioning and the consolidation of a solid identity combining the two hegemonic cultural approaches. Given this lack, the ethical-ideological struggle intensifies and, in part, spills over onto the normative battleground. The analysis suggested here argues that “lawlization” and “halakhization” were meant to create a clean field for deciding the kulturkampf (Chapter Five). Each of these competing normative systems developed different attitudes toward its own values, with the law externalizing these values and Halakhah keeping them hidden (Chapter Six). Nevertheless, an interesting finding shows that each one relies on its own (opposite) attitude to values in order to reinforce judicial imperialism. Both the law and Halakhah proclaim the totality of their scope, aspire to implement this stance, and hint at their reluctance to ascribe any significant role in public life to the other system (Chapter Seven). This background clarifies some of the professional constructs of current Israeli law (such as expanded standing, judicial activism, involvement in areas pertinent to other authorities) and of Halakhah (such as monistic rulings, the lack of halakhic activism, rejecting the “new”) (Chapter Eight).
Lack of agreement among the communities making up Israeli Jewish society is too often translated into friction between competing normative orders that seek to regulate a given reality on the basis of different sources of authority and different value systems. Against their better interests, the law and Halakhah serve as the main ammunition in a kulturkampf.
This move carries a heavy price: waging this controversy in the normative arena vitiates the functioning of Israeli Jewish society. Exchanging a cultural discourse for a normative one leads to trivialization. The shift attempts to replace process with decision, inner experience with external dictates, public discourse with professional discourse, complexity with banality, dialogue with monologue. Israeli society as a whole must relinquish the delusion that normative answers to existential problems emerging in a diverse cultural reality are at all possible.[2] Cultural controversies cannot be settled through legal or halakhic discussions.[3] Instead, each of these communities should assume responsibility for developing genuine and relevant strategies for living with cultural duality. A rich repertoire of alternatives for coping with cultural variety is vital to Israel’s existence as a Jewish and democratic state.
Notes
* “Lawlization” refers to the filtering of reality through legal terms.
1. The freedom to observe religious commandments, derived from the basic defense of human dignity, is generally guaranteed by Israeli law, as is the protection of religious sensibilities. Yet, this freedom is not absolute. See, for instance, HCJ 292/83, Temple Mount Faithful v. Jerusalem Police Commissioner, PD 38(2) 449, 455; see also HCJ 7128/96 Temple Mount Faithful v. the Government of Israel, PD 51(2) 509, 521. Situations might be possible in which the relative balance between conflicting values could result in an affront to religious sensibilities, or even in an infringement of religious freedom. In two fascinating examples from recent Supreme Court decisions, the minority opinion argued that the majority ruling entailed a direct violation of one litigant’s religious freedom, tantamount to actual coercion to transgress a religious commandment. In CA 6024/97, Frederica Shavit v. the Rishon le-Zion Burial and Benevolence Society, PD 53(3) 600, the Supreme Court decided to allow the petitioner to engrave the tombstone with the deceased’s dates of birth and death according to the Gregorian calendar, despite a ruling of the official local rabbi (the mara de-atra) forbidding it. Justice Englard, in a minority opinion, posed the question: “Now we must decide if we will compel the burial society to allow an engraving on the tombstone forbidden by the halakhic ruling of the mara de-atra…. An important halakhic principle states that the public is bound by the halakhic rulings of the mara de-atra” (par. 16). Hence his conclusion: “In my view, this court is not authorized, in principle, to coerce a religious body—be it public or private—to act against one of its religious laws. This type of coercion is a grave infringement of the principle of religious freedom” (par. 21). Justice Cheshin related to this claim: “The controversies between the parties are, in fact, controversies between the will and the dignity of the individual—the petitioner—and the halakhic ruling issued by the mara de-atra to the burial society. The opinion of the mara de-atra, however, is only binding on observant Jews, or when compelled by state law. We must remember that the State of Israel is not ruled by Halakhah but by the law. Israel is a democracy ruled by law—this is the-rule-of-law…. Our considerations hinge on the individual, on the person, on his will, his well-being, his welfare—all according to state law. In principle, then, our state of mind is anthropocentric rather than theocentric” (par. 26). Chief Justice Barak chooses to answer the claim that the ruling transgressed freedom of religion in two ways. First, he clarifies that the ruling does not impose on the burial society an obligation to act contrary to the mara de-atra’s ruling, since engraving the tombstone is a task incumbent on professionals and not on the society’s members (par. 5). Nevertheless, Chief Justice Barak does acknowledge that this ruling might affront the religious sensibilities of members of the burial society and of other observant Jews among relatives of people buried at the cemetery. Second, Chief Justice Barak answers the claim of Justice Englard on the level of principle. In his view, a balance is required between two values (or liberties): freedom of religion and freedom from religion, both of which he considers aspects of human dignity. “We cannot say, then, that in the clash between freedom of religion and freedom from religion, one of them will always prevail…. The proper way is to strike a balance between clashing values or principles.… Within the framework of this balance, we must aspire to preserve the ‘core’ of each of these liberties … taking into account the essence and the gravity of the affront. The actual decision must take into account considerations of plausibility, fairness, and tolerance” (par. 9). Concerning the case in point, Chief Justice Barak decided that balance would be best served by preferring freedom from religion to freedom of religion.
The second case is a recent ruling, HCJ 1514/01, Yaakov Gur Aryieh et al. v. The Second Television and Radio Authority (unpublished). A group of observant Jews was filmed for a program that the television network wanted to screen on the Sabbath. The rabbi of the petitioners ruled that by appearing in a program screened on the Sabbath, they themselves would be transgressing a religious commandment, even if others (and not they) were involved in the actual broadcast, and even if it was accompanied by a caption stating it had been filmed on a weekday and they themselves had opposed its screening on the Sabbath. Chief Justice Barak, joined by Deputy Chief Justice Shlomo Levin, held that the religious transgression involved in the Sabbath broadcast was incurred by others (The Second Television and Radio Authority and its employees). Hence, the screening did not infringe the petitioners’ freedom of religion but only their religious sensibilities. Against the offended religious sensibilities of the petitioners, however, was the defendants’ interest in freedom of expression, and in the balance between them, freedom of expression prevails. Hence, the Court decided to allow the Sabbath broadcast. By contrast, Justice Dorner held that this was a direct affront to the petitioners’ religious freedom. Since they themselves appear in the film, they thereby become unwilling partners in an act involving the transgression of a religious commandment, as stated in the ruling of their mara de-atra. In her view, the ruling allowing the screening infringed the petitioners’ freedom to observe religious commandments, as understood by the petitioners and by the religious authority they accepted. The ruling allowing the Sabbath broadcast makes them unwilling partners in a desecration of the Sabbath, and is tantamount to “forcing the petitioners to transgress the commandments of their religion."
2. In the title as well as in the discussion, I refer to Israeli society, although this article deals only with Israeli Jewish society. Readers are invited to consider the relevance of the present analysis, with the necessary adjustments, to the context of Jewish-Arab relationships. Can Israeli society benefit from its cultural diversity, which reflects its national diversity? Is a forcibly imposed normative regulation the only option for dealing with the aggravated tensions between Arabs and Jews? Has the law actually played a central role in this arena so far? If not—why not? If yes—are there better alternatives?
3. Note that the call for reducing the role of the law in cultural decisions is addressed, above all, to Israeli society in general and not only to the judiciary. See ch. 9.
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