Chapter Five: Openings for Halakhic Renewal

Halakhah’s current silence vis-à-vis the new realities would appear to suggest that the existing normative fabric of Halakhah – the one shaped in exile and in the pre-eighteenth-century framework – should continue to apply today without change. The hopelessness of this silence was described above at length. It is, however, possible to construe this normative halakhic silence in a different way, namely, as a silence that conceals a positive and relevant approach to contemporary change. I am referring to the possibility that the sages of our generation, exercising their halakhic discretion, may decide that specific areas of contemporary life – areas that they will carefully define – are simply not regulated by Halakhah but are under the legal purview of other authorities, such as state law.

The notion of a lack of halakhic jurisdiction can be arrived at with two different approaches. The first claims that Halakhah does not deign to regulate certain realms of contemporary reality which fall outside its purview. According to this view, Halakhah is not all-encompassing, but rather, contains certain ‘gaps’ or ‘open spaces’. The second and more moderate approach claims that although ab initio and in principle the scope of Halakhah is unlimited, in practice and as part of contemporary halakhic policy, halakhic sages refrain from implementing Halakhah in prescribed areas.

I have described elsewhere at length the differences between these two approaches:70 the former approach deals with “conceptual inaccessibility”, meaning that actual reality is substantially broader than legal reality and includes human realms of activity that are essentially non-justiciable. By contrast, the latter approach argues that the inaccessibility of Halakhah to the regulation of certain realms of activity is due to “institutional inaccessibility”, that is, the product of a deliberate decision to abstain from implementing its conceptual accessibility. The practical difference between the two approaches is clear: whereas conceptual inaccessibility precludes any option of halakhic rulings in the area of the “halakhic vacuum”, institutional inaccessibility is reversible and hinges upon policy considerations on a given subject at a particular moment in time. An activist legal halakhic policy can expand the scope of the halakhic applicability only if the halakhic vacuum is a result of institutional inaccessibility, but not, of course, if it follows from conceptual inaccessibility. Let us consider the application of each approach.

1. Conceptual Non-Justiciability
The possibility of a halakhic recognition of conceptual inaccessibility concerning broad areas of human endeavor would entail considerable halakhic boldness, since it clashes with the widespread perception that God, “by His very nature”, can regulate all aspects of life.

There is, however, no clear theological impediment to preclude, in principle, the religious notion that God, the source of all authority, chose to restrict the scope of Halakhah and leave areas of societal endeavor to autonomous human decision. In truth, few thinkers seem to have adopted such an approach. Thus, for instance, Leibowitz holds that Halakhah is essentially personal and, therefore, does not regulate activity in an actual political framework.[71]

In practice, the perception of Halakhah as being all-inclusive is very common. The religious ethos indicating that all reality is considered in halakhic categories and that there is no realm untouched by it has become entrenched in all Orthodox communities, both traditional and modern. To be precise: one should not infer from this an actual attempt to base every aspect of life on halakhic categories. Rather, such an attitude reflects a deep internalization of a principled world-view affirming that Halakhah is all-inclusive.

The view of Halakhah as being all-inclusive has a strong symbolic foundation: it proclaims to the believer that traditional Jewish civilization has a compelling position concerning all aspects of life, and this position is what endows human existence with meaning. Hence, the strategy stating that Halakhah lacks justiciability in principle, particularly concerning the large issues that influence and are influenced by the relationships between religion and state, appears to hold little promise as a solution for these problems.

2. Institutional Non-Justiciability
There is greater and more realistic potential in an halakhic strategy of abstention from halakhic rulings on specific issues (although maintaining that such rulings are possible in principle), a strategy that emanates from a substantive decision of halakhic leaders concerning the desirable halakhic policy on such issues.

Some have adopted this interpretation to explain Halakhah’s normative silence on broad spheres of Israeli public life since the creation of Israel. In their view, halakhists have refrained from deciding on such issues as Israel’s foreign policy, or on the character of political rule, not because they cannot react in principle, nor because Halakhah lacks satisfactory judicial precedents to these questions, but because of a positive decision stating that at this time, silence is the most fitting halakhic view on these matters.[72]

The most prominent example of this approach is the attitude of some halakhists to the question of land that came under Israeli rule during the Six-Day War. Alongside the large majority of halakhists who have expressed a halakhic stance on both sides of this question,[73] are those who argue that Halakhah must deliberately refrain from establishing norms on such issues. The arguments adduced for this policy vary: some argue that the nature of these questions are such that they are subject to constant change and, therefore, Halakhah respects the changing will of the people over time.[74] Others argue that since these questions touch upon issues of life and death, their importance justifies a democratic decision[75] or recourse to experts.[76] In general, some halakhists view a political reality that derives from a collage of defense, political, social, economic, and other considerations as an area of policy unsuited to the narrow, a priori confines of halakhic normativity, and as such, decisions on these issues should therefore be left to the general public through its elected representatives.

3. The Difficulties
How far can the implementation of this strategy be extended with regard to broad areas of friction between religion and state?

First, a policy of halakhic non-intervention is possible when no relevant halakhic precedent is available on the issue under consideration. However, many of the questions affecting the relationship of religion and state stand at the very core of the historical halakhic endeavor, and contemporary halakhisits would therefore find it difficult to implement this strategy in such areas. On the other hand, most of the existing halakhic precedents are taken from what we would today categorize as “private law”, and as such, the application of such precedents to issues of religion and state – clearly in the realm of “public law” – would appear to be greatly problematic. This would therefore appear to reinforce a deliberate policy of halakhic silence.

Second, one needs to be cognizant of the fact that as the realm of non-justiciability expands, the scope of religious influence will contract. Thus, for instance, a halakhic policy that chooses to restrict the scope of Halakhah only to the private sphere will certainly ease the friction between religion and state. The price, however, is that the public sphere of Jewish existence, including sovereignty itself, will not be shaped by Halakhah, the central expression of Jewish civilization. A full-fledged implementation of a non-interventionist halakhic policy would relegate Halakhah to a marginal role, excluded from the normal discourse of a sovereign state.

What is the proper policy for future halakhists? Is it preferable to endorse an all-encompassing, engaged halakhic strategy which – even if it deals in original ways with the new realities of sovereignty – will certainly strain the already difficult quest for harmonious existence in a Jewish and democratic state? Or is it perhaps preferable to endorse a halakhic response that is restricted and minimalistic – that of a by-stander – thus effectively lowering the intensity of the conflict but at the cost of a potential trivialization of the meaning of Jewish existence in a Jewish and democratic state? Both are difficult options, but halakhists must contend with them fully consciously and choose the proper balance between them.[77]