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Chapter Three: The New Reality
Our surroundings are changing and dynamic, and our generation is experiencing a reality unimaginable to our ancestors. Alongside the consequences of scientific and technological development, we are undergoing an essential transformation concerning the individual (e.g., the central role of human rights), society (e.g., the disintegration of the family unit), the state (e.g., globalization and the waning of the nation-state in favor of multinational and international organizations), the economy (e.g., the redistribution of wealth due to the increased value of intellectual property at the expense of physical assets), and our perception of reality (e.g., the broad, if manipulative, accessibility of information). Modern legal systems are deeply invested in an ongoing struggle with the broad implications of these and many other changes. Halakhah too, despite its current conservative sensibility, is not exempt from this task, and only by embarking on it will we avoid turning it into a museum piece.[30]
The general difficulties faced by contemporary halakhic authorities in their attempt to deal with new phenomena are sharpened and rendered more onerous in the context of the tension between religion and state in Israel. The novel aspects of this reality, relative to that which prevailed in the formative period of Halakhah’s development, are profound and far-reaching, almost to the point of an absolute dichotomy between them. Three of the major changes are detailed below.
Halakhic Law Loses Supremacy
Halakhah has functioned as a living legal system throughout all stages of Jewish history. There is, however, a clear and unidirectional process that, over the course of time, has progressively restricted religious institutional authority over the Jews. Generally speaking, Jewish history may be divided in this regard into four periods.[31]
In the first period – which begins with the biblical era, extends through the period of the Mishnah and the Talmud, and also includes the geonic era – the Jewish people lived in one or two main centers, namely Eretz Israel and Babylon. Throughout this period, the Jewish community functioned within a centralized autonomous framework. The locus of authority in Jewish society was accepted by all Jews as well as the foreign ruler, where this was applicable. Throughout this period, the legal authority to enforce Halakhah rested simultaneously in two bodies – the religious leadership, that is the rabbinic establishment in its various forms (such as the Sanhedrin and the heads of yeshivot) and the political leadership (such as the king, the elders, the exilarch, the nasi).
The second period extends from the end of the geonic era through the period of the medieval and early modern scholars (the rishonim and aharonim) and up to the eighteenth century. In this period, centralization and hegemony in the Jewish world come to an end, replaced by the decentralization and atomization of political and administrative life in general, and of the legal-halakhic structures in particular. Jews were dispersed among various autonomous communities, each functioning as an independent “closed economy” that produced and consumed legal norms within the framework of Halakhah. Legal authority shifted from the center to the periphery, and each community perceived itself as a self-contained political entity with its own independent institutions of communal leadership (e.g., the head of the community, supra-regional structures such as the Council of the Four Lands) and of the rabbinate. Both the communal institutions and the rabbinate developed Halakhah simultaneously, one alongside the other.
The third period, which begins in the eighteenth century, is characterized by the growing weakness of the Jewish community, whose general powers are diminished and legal autonomy restricted. This development follows from two decisive changes in the world beyond the Jewish communities. The first is the idea of the modern state, which develops at this time. The state’s central authority strives to implement its sovereign powers directly over all the citizens and, therefore, seeks to weaken the autonomy of mediating elements such as the community, the church, the professional guild, and so forth. Second, a process of emancipation is set into motion in some parts of the Jewish diaspora, promising everyone, including the Jews, civic and social equality. Communal autonomy, including legal autonomy, is thus attacked from two flanks: the government curtails the community’s power to coerce its accepted norms, and community members cease resorting to its institutions, including its legal institutions, because they place increasing trust in the general legal system. As a result, the legal autonomy of Jewish society is lost and Halakhah loses its exclusive, or at least central, role as the legal system regulating the life of Jews.[32]
The fourth period, in which we now live, begins with the establishment of the State of Israel. From the perspective of halakhic law, this period differs only slightly from the one preceding it, since, with the exception of specific issues of personal law, Halakhah does not function as the dominant legal system. Nevertheless, this period is crucially different from the previous one due to the existence of Jewish sovereignty. Despite the significant number of Jews who continue to live in diaspora communities without such autonomy, the creation of the Jewish state has meant that a large segment of the Jewish people once again lives under centralized and sovereign Jewish rule.
This description points to something significantly new concerning the sources of halakhic authority in our time. During the first two periods, which were the formative periods of Halakhah with lasting impact upon Jewish history, Halakhah existed in conditions of institutional duality, nurtured by the judicial rulings of both the communal and religious establishments. The sources of authority were variegated: alongside the rabbis, who contributed their sophisticated understanding of its religious-spiritual basis, Halakhah was also created by the communal leadership, which had a sophisticated understanding of its extra-religious implications. During the third period, the intra-Jewish communal establishment dissolved and the power of the religious establishment was also considerably weakened. In the present period, for the first time in Jewish history, a weak religious establishment coexists with a strong political establishment that is not only autonomous but also sovereign.
This fact involves two relevant dimensions. First, the Jewish people are, for the first time, led by an independent government that does not contribute to the formation of Halakhah. As a result, Halakhah loses the inner checks and balances that were at its disposal in the past, when pragmatic public leaders had influenced its development in ways that strengthened its character as a “living Torah”, one that regulated a dynamic human reality. Second, the Jewish people are, for the first time, led by an independent government that is neither interested – practically, ideologically, or symbolically – in the content of religious law and in the solutions it offers,[33] nor does it wish to take halakhic norms into account in its administration of public matters.[34]
Taken together, these two dimensions are a significant factor in the contemporary dilution of Halakhah. Since the state does not require halakhic solutions, these are not discussed and halakhic thinking on these matters declines. Since Halakhah is not influenced by people in positions of authority responsible for the actual functioning of the Jewish community, the balance vital to its preservation as a living Torah is unrealized.
Notes
30. In the picturesque metaphor of Haim Cohen, “Concern for Tomorrow” [Hebrew], Ha-Praklit 3 (1946), 38, 43.
31. For a more detailed description of the historical sequence and for further references see Yedidia Z. Stern, “Public Leadership as Halakhic Authority”, in Judaism: A Dialogue Between Cultures [Hebrew], ed. Avi Sagi, Dudi Schwartz, and Yedidia Z. Stern (Jerusalem: Magnes Press, 1999), 235.
32. On this matter, see the following passage from Eliezer Goldman, “Halakhah and the State” [Hebrew], in Expositions and Inquiries: Jewish Thought in Past and Present, ed. Avi Sagi and Daniel Statman (Jerusalem: Magnes Press, 1996), 408:
Emancipation and the abolition of Jewish autonomy were the kiss of death to the tradition of practical halakhic rulings on issues bearing on public life. In the course of only a few decades, large sections of Halakhah were transformed from central, daily concerns into arcane lore. In these circumstances, the learning atmosphere at the larger study centers became academic. Typical of the reality of Torah study at the end of the nineteenth and during the twentieth centuries is the large proportion of yeshivah heads within the circles of prominent Torah figures and the relatively small proportion of halakhists distinctively focusing on judicial rulings. In previous generations, the very separation between the rabbinate and the leadership of a yeshivah would have been quite exceptional.
33. Note that this is not the necessary state of affairs. A state could be possible where the leadership and most of the citizens are secular but its legal system draws on halakhic sources to a smaller or larger extent. Recourse to religious law need not be a product of commitment to a religious ideology; its sources could be national sentiment, historical attachment, and a yearning for Jewish identity, tradition, or culture. Furthermore, in long forgotten times, Halakhah was perceived as a stabilizing and cohesive foundation for people with different world views. In Zionism’s early days, some of the secular leaders of the Hovevei Zion movement sought to refrain as far as possible from a head-on confrontation with Orthodox Jewry, even at the cost of imposing Halakhah on the Jewish community in Eretz Israel. Ehud Luz describes this phenomenon in Parallels Meet: Religion and Nationalism in the Early Zionist Movement, tr. Len J. Schramm (Philadelphia: Jewish Publication Society, 1988) as “religiosity from love” (33). Thus, for instance, Eliezer Ben-Yehuda, a Hebrew maskil [scholar] with a distinctive national-secular orientation, held that religious laws are “the laws of our state”, and “our desire is not to transgress the commandments of the Torah and Talmud. We want to make Halakhah the cornerstone of all our efforts” (34). Ben-Yehuda and others supported these views because they thought they would thereby promote the national revival. Ultimately, these attempts failed, both due to the strong opposition of reformers within Hovevei Zion who refused to “surrender to clericalism”, and because the settlers chose to rebel, covertly as well as openly, against the religious way of life coerced upon them from outside.
34. Parenthetically, note that the implications of this reality for the shaping of Israel’s Jewish identity cannot be ignored. Most of the Jewish canon, which is the documentation of our heritage, involves variations on “halakhic literature.” Traditionally, the leadership of the Jewish people was largely in the hands of halakhic jurists. At least in the perception of some observant Jews, the alienation of the Jewish state in all its three branches of power from this dominant aspect of Jewish tradition drops a crucial aspect of the state’s Jewishness.
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