Halakha and Democracy Gerald Blidstein

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Gerald J. Blidstein

Prof. Blidstein, a member of Tradition's editorialboard, is M. Hubert Professor of Jewish Law at BenGurion University of the Negev in IsraeL.

Ii AN DEMOCRACY

I

The topic requires that I describe a possible modus vivendi be-tween halakha and democracy, or at least outline the structure ofsuch a venture. It is understood, therefore, that neither compo-

nent in this equation-neither halakha nor democracy-will be totally

rejected. I shall attempt to describe the resources available in both thedemocratic and halakhic traditions which can be enlisted in makingsuch a modus vivendi possible.

My discussion can take two rather different points of departure.One can assume that halakha and democracy are both inescapable factsof our life in the 20th century and consequently strive to accommodatethem both, much as one might discuss how to prepare the community

for living with an epidemic or a war. Or one can believe that both phe-nomena are profoundly positive and that one would wish to live in a

world constituted by both. Naturally, tensions will arise even betweentwo positive phenomena-occurrences of which the Talmud itself isfull-and priorities wil have to be established. There wil be painful

choices to make and we can expect to encounter unsolveable dilemmas.

My point of departure is that democracy is a value. We abide by it

not only as the law of the land which we must accept willy-nily; we are

faithful to it as something we have internalized and in which we believe.

Nonetheless, I do not intend to commit myself to the proposition thatdemocracy is the inevitable conclusion of Jewish political thought, nordo I wish to argue that it has historically developed out of Jewish think-ing and behavior. I would say, though, that democracy is profoundly

coherent with much of the basic structure of the Jewish world~view, and

that we find in our commitment to democracy a concrete, specificexpression of ideals that are central to our view of ourselves as Jews. In

certain readings, moreover, democratic institutions and processes would

have halakhic value. All in all, I think that the halakhic community has

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Gerald J. Blidstein

more than enough reason to enthusiastically embrace democracy as a

fulfillment of its own basic commitment to human dignity.

In a word, if R. Soloveitchik understood Adam I as a model forthe technological control of one's physical environment, we may alsounderstand Adam I as implying the human control of one's politicalenvironment. True, the Rav himself identified Adam I with the faceless

collective and found true community only in the covenantal realityengendered by Adam II. But if the "image of God" in man implieshuman dignity, as the Rav argued, then this is to be found in politics aswell as in technology-perhaps even more in the former than in the lat-

ter. For the former, in our day, speaks to the assertion of human rights,

grounded in the basic identity of the person as created in God's image.Thus, the political community may be located somewhere between thefaceless collective and the covenantal community, with its metaphysical

characteristics and yearnings.

It is indeed most important at this juncture that halakhic Judaismcommunicate its wholehearted and principled embrace of democracy,especially in IsraeL. It would seem, as I read the signals, that the term

"democracy" has become a code-word for both the extreme secular left

and the extreme right, non-Zionist as well as Zionist. As is common, all

agree in their fundamentalistic abuse of the concept. For some elements

in the left, it has become a term which can be used to preach a total uni-versalism, familar to us since the Enlightenment at least, as a denial of all

specifically Jewish characteristics on both the social and personal levels.

For certain elements on the religious right, it has become a term of deri-sion by which Zionism and the idea of a Jewish state in the modernworld may be fought. In certain variations, more common in groupswhich attempt to fuse the religious and the political right, it is a termthrough which the decision-making process of the Jewish state (and the

decisions it has made) can be denied legitimacy. It is crucial, therefore,

that while embracing democracy, we reject its identification with anassimilatory universalism. And it is all the more crucial that we embrace

democracy as implying, in our concrete reality, the basic legitimacy ofthe Jewish state, its political processes, and the Jewish and human vision

by which it is nourished. Needless to say, I do not think we should share

the rejection of universal human concerns so endemic in certain religious

circles, nor adopt a position which sacralizes the state.

My wilingness to embrace democracy while not asserting its pure-

ly Jewish pedigree needs some clarification, I think. Overall, this com-

mitment strikes me as similar to a number of other commitments we

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hold.l We are committed to the monogamous ideal, for example; weboth expect and idealize fidelity in marriage and condemn equallyeither partner who betrays. Now, we know full well that both biblicaland talmudic traditions differentiate, on the halakhic level, betweenhusband and wife in this matter, and so do not share this commitment.

We also realize that the emotional depth of our commitment is nottruly generated by the communal takkana of Rabbeinu Gershom whichbanned polygamy. On the positive side, we do feel that monogamy isstrikingly coherent with the basic vision of marriage and the human per-

son described in the tradition from First Man and Woman on. Ourcommitment to monogamy fulfills that vision, even if it may have beenachieved through the impact of patterns found in other cultures.

So too, I think, as regards our horror at slavery. The tradition is, on

the whole, tolerant of the institution-we are not. I say "tolerant"-notuncritical, for we know well that Biblical texts find slavery unpalatable,

and rabbinic traditions are positively criticaL. True, Biblical legislationwhich limited enslavement of Jews to six years weakened the institution;

and the provision of the death penalty for killing even anon - Jewish slave

in certain circumstances undermined the essential perspective which saw

the slave as non-human, property alone. But all this having been said,halakha lives with human bondage. Here too, our complete rejection ofslavery fulfills the biblical vision of man created in the image of God and

the Edenic ideal of two free individuals-even if, historically, we do notowe the abolition of slavery or even our present understanding of the

content and problematics of freedom to the Jewish historical or intellec-tual experience alone.

Now, I know well that both these examples are not fully congru-ent-especially on the halakhic level-with the matter at hand. Bible

and halakha hardly command either polygamy or slavery, but theymight-to choose a striking example-mandate monarchy. To be hon-est, though, we would stil have to admit that our rejection of polygamy

and slavery, especially on the emotional and ideological levels, goes far

beyond the value-neutrality of the halakha. This revulsion is simply not

produced by the flexibilty halakha allows alone; indeed, a consciousness

rooted in halakha, taken narrowly (and deaf to a wide range of biblical

and aggadic passages), might not find slavery or philandering so intoler-

able. But we are not, in these matters, the creatures of halakha (or of

Jewish texts) alone. The acknowledgment ofhow complex, yet delicate

the historical formation of an authentic Jewish consciousness can-legitimately-be, is profoundly relevant to our understanding of howour identity is shaped.

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Gerald ¡. Blidstein

The previous discussion led to a frank exposure of this writer's

attitude towards democracy; it is no less important, I believe, to clarifY

one's atttude towards the State of IsraeL. Israel, as Eliezer Goldman has

pointed out, is not simply a "fact" to which halakha must respond. Thehalakhic response will be different, we can be sure, if Israel is seen as a

regrettable fact or as a welcome one, a situation which is met with neu-

trality or one which is embraced. This essay is written from a perspective

which sees the restoration of Jewish self-government as a partial fulfill-

ment of milennial hopes. This restoration, as the broader physical,social, and spiritual reality that has been created in Israel, engages theemotions as well as the intellect. In less euphoric terms, the Israeli situa-

tion forces the interaction of "religious" and "secular" populations toan extent unknown in diaspora conditions, one of the positive andpromising aspects of Israeli life-for both populations. Put into terms

familar to us from the writings of R. Soloveitchik z"l, berit goral ("the

covenant of destiny") is palpably real in Israel; it underlies our perilousexistence and provides much of the satisfaction to be experienced inIsraeli society. U nfoftunately, both halakha and democracy are now

divisive terms and concepts. For good or il, democratic procedures andideals do not only enable a meeting of the camps; their rejection by uswould signal a clear rejection of those Jews for whom democracy is abasic value. The religionist is often feared as one denying the funda-mental human/Jewish integrity of those who do not share his way oflife; the rejection of democracy, which is taken as the crystallzation of

the commitment to human rights and the basic dignity of each person,would be a major confirmation of that fear.

II

I shall begin by taking democracy, with Schumpeter and Dahl, at itsmost minimal and least ideological-as a system in which citizenschoose their government, a government which possesses both adminis-trative and legislative functions. Now, it has been maintained, even by

some who would be satisfied with this minimal and uncritical definitionof what "democracy" requires, that halakha and even such democracyare in principle opposed, thus making it impossible for halakha and anyform of democracy to co-exist.2 A similar position is implied in the writ-

ings of some religionists. This basic claim derives from the democratic

belief in the sovereignty of the people and the idea that authoritativelegislation is rooted in that sovereignty. For a religionist, on the other

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hand, the sovereign is God, the ultimate author of authoritative norms;

for him or her to accept popular sovereignty as expressed in a legislative

body would be to betray a basic principle. The contrast is total and dev-

astating to any possible rapprochement of halakha (or any normative

religious order, for that matter) and democracy.

These different views as to the ultimate source of norms (and val-

ues?) might indeed lead, systemically, to ongoing conflict over specifics,and we would have to contend with that possibility in its proper place.

But I do not think that the contrast described above should, in itself, and

as a matter of principle, rule out the mutual accommodation of halakhaand democracy. One ought recall that halakhists have, from talmudic

times on, allowed and encouraged popular participation in governmental

spheres, as we shall see; and that legislators, even of non-religious com-

mitment, will frequently adopt laws based on what are for them ultimate,

transcendent, non-relativistic values. In truth, then, neither side is quite

as doctrinally pure as one might imagine.But no less significant, in our context at least, is that our prime

concern is whether the two systems can work together-not whetherthey can fully harmonize their respective ultimate truths. Now, I do notintend to retreat completely into pragmatism, but it would be wise notto brandish the potential fundamentalisms of both democracy3 andhalakha, or to reject any possibilty of mutual interaction by staking outmetaphysical positions.

III

It cannot be denied, though, that even the minimalIstic definition ofdemocracy broached above-that the people periodically elects its gov-

ernment, and that such government has both executive and legislative

authority-does not necessarily dovetail with halakhc structures of gov-

ernance. The Mishna assumes that the people Israel is ruled (or co-ruled) by a king, recording no dissenting view, and Maimonides codifies

the command to appoint a king, making it the norm. There is no honest

way, I believe, to reduce a hereditary monarch who possesses great, ifnot absolute, power, to a symbolic figurehead, or to convert Maimon-ides' monarchy into a West-European constitutional democracy. It will

clearly not do, either, to argue that the people may 'democratically' elect

to be ruled by a monarch; that is simply a formalistic abuse of the con-

cept. Nor, I think, can one take refuge in the pragmatics of the situation,

claiming that halakhic communities have existed over the centuries on a

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Gerald J. Blidstein

completely different, non-monarchic footing. (We shall, indeed, come

back to ths precedent, but only after a painful detour.) For we are deal-

ing with a matter of concrete and unambiguous halakhic-not philo-sophic-principle, one which requires a principled answer. It will not domerely to concede that the monarchic ideal is not, in truth, a live option

for many of us sitting in this room.

Thus, there is no way of avoiding the question of whether Judaism

is inevitably wed to a monarchic ideaL. We all know of the prophetSamuel's strong opposition to the appointment of a king, despite theostensibly clear Deuteronomic command to do so. (On the surface, this

opposition reflected Samuel's resentment at the monarchic infringe-ment on the Kingdom of God, not his concern for social liberty; but asBuber pointed out, the rule of the Judges, which a hereditary monarchywould supplant, had some profoundly proto-democratic elements.)Actually, of course, that command is somewhat ambivalent, and this

ambivalence probably led to the tannaitic discussion of whether thepeople Israel were in fact unambiguously commanded to have a king, adiscussion which continues in later midrashim. Some geJonim, in fact,decided the question in the negative, as did R. Sa'adya and Ibn Ezra in

their commentaries. Maimonides, of course, decided with a thunderous

positive. Let us note, however, as a distinctly minor counterpoint, thateven Maimonides adopts the consensual view of political legitimacy, a

view which sits uneasily with the monarchic ideal.4

Certainly, one cannot point to many dissenting voices, but they

are there and have possibly become more audible in modern times.Abarbanel is well-known for his anti-monarchic posture. Netsiv-who,incidentally, is no milquetoast in matters political-takes Deuteronomy17 to mean that if the people so desire, one is commanded to appoint aking, but that the people are not obliged to so desire to begin with. R.

Yeruham Perlow mounts a frontal attack on the Maimonidean decision,claiming that according to standard rules of adjudication (kelalei pesak),

there should be no monarchic imperative at all.s R. Kook argues that

monarchic authority derives from the people, so that when the monar-

chy lapses, such authority returns to the people. Taken literally, this

analysis says nothing about the non-desirability of monarchy per se; butit may be read as a way of providing the theoretical basis of a non-monarchic polity, as it were, as well as a way of providing the modern

Jewish community with political legitimacy.6 R. Hayyim David HaLevihas claimed that Maimonides' monarchism is not really representative.And R. Aharon Lichtenstein has outlined the halakhic notion of the"civil sovereign-initially a chief judge or monarch but conceivably an

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oligarchic or democratic entity as Well."7 It may be said, of course, that

this and similar comments reinterpret (rather than reform) the monar-

chic structure, understanding it as merely one mode (among many) of

providing necessary governance. But the methodological issue, whichwould be of great interest in another context, is not our concern here-

which is to report on conclusions reached. Nor do I intend to urge that

these flexible positions dominate halakhic discussion, either now or inthe past. We are simply interested in seeing what resources the Judaic/

halakhic tradition possesses.

Naturally, a moment's reflection reminds us that the messianic

hope is intimately tied up with an expected monarchic restoration. How

can the messianic ideal, the belief in the coming of a Davidic scion, besquared with a willingness to forego that institution entirely? It does not

seem possible, then, to divorce political ideology from other areas ofsubstantive belief, which do seem committed to a specific view of Jewish

governance. Perhaps this problem did not prove decisive for those manywho denied the monarchic imperative; this, while true, is somewhat cold

comfort. Some, such as R. Shlomo Goren, have worked with a concept

of a 'messianic era,' no mean re-interpretation in its own right. Perhapsit is wiser to leave the messianic monarchy of the end of days in therealm of that future whose structure and content is known only to God,

all the while wondering whether the belief in redemption, so rich in both

in its personal, national, and universal aspects, ought be so powerfully

focused on the person of the redeemer in any case. Indeed, there are

some aggadic indications of the downplaying of the messianic element inthat redemption in the interest of the kingship of God.8

iv

But if personal, hereditary monarchy can contribute little to a democra-tic halakhic society, the institution is most relevant in a structural sense.

Basically, its existence demonstrates the legitimacy and desirability ofpolitical governance, that is to say: governance which is by definitionnot in the hands of religious leadership. From that perspective, one canspeak of the 'civil sovereign' in a broad sense, so that it can be manifest-

ed in a variety of institutions: melekh, of course, but also takkanat ha-

kahal, dina de-malkhuta dina, and so on. Most discussions do, it istrue, consider these distinct, stressing those aspects in which they differ

(e.g., the centralized malkhut as over against the local kahal; does dinade-malkhuta dina apply to a Jewish government in the Land of Israel?);

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Gerald J. Blidstein

but there is much sense in considering them as points along a common

continuum. We speak, in brief, of those institutions which are devotedto tikkun olam. Furthermore, the norms of "civil sovereignty" haveoften required a considerable degree of self-government. This has been

the case especially in the case of the medieval community (kehilla)founded on the type of partnership adumbrated in the talmudic model

of benei ha-ir. Indeed, it is possible that the poverty of physical powerwhich characterized that community encouraged greater participationby the populace, as sanctions (for example) were of necessity social and

consensual, rather than physically coercive. Naturally, medieval histori-

cal reality and normative requirements were often far from moderndemocratic expectations (even keeping in mind that these too exhibit

considerable variety!), but the basic thrust is there.

Such governance co-exists with the Sanhedrin in the ideal Mishnaic-

Maimonidean presentation, requiring both a separation of powers, and

very likely, a separation of areas of authority. The monarch, to return toR. Lichtenstein's phrase, is the 'civil sovereign,' while the Sanhedrin,clearly, institutionalizes the religious leadership. These are distinctly differ-

ent institutions in their competencies and personneL. Generally speaking,

such differentiation is possible and coherent only if it is also accompanied

by a functional differentiation, such that each institution is authoritative

in distinct spheres. In the ideal halakhc polity, the civil sovereign and the

Sanhedrin would recognize each other's role and function, meshing with

no more friction than exists in any other system predicated on a division

of powers.This line of thought has been developed programmatically by R.

Nahum Rabinovitch.9 Rabinovitch, too, sees the monarchy as a manifes-tation of political governance, a governance which continued in different

form in the organized community of the middle ages, when lay leader-ship was halakhically endowed with civil authority contingent on theconsent of the populace. Major aspects of democratic theory are, thus,integrated into the halakhic world-view: civic authority is held by lay per-

sons, not by sacral, or even halakhic, figures; and political authority is

wielded by virtue of popular consent. Indeed, on a more basic level, thecommunity per se seems to have been endowed with legislative rights.10

All this assumes a civil authority which legislates as well as administers-

much as the medieval community did in its takkanot ha-kahal, a position

staked out in its most thoroughgoing form by R. Nissim of Gerona.ll R.Rabinovitch also posits a firm and apparently easily discerned distinction

between the areas governed by civil authority and those governed byhalakhic authority. Thus, R. Rabinovitch provides a proposal which dis-

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arms the major conflct in which halakha and political democracy are

apparently embroiled. Civil legislation, which is the proper bailwick of

government, is not the realm of halakhic authority. This is more easily

claimed where one can assume a lacuna in the halakha; but the examples

of communal takkanot, which legislated even in areas where halakhicregulations already existed, produces a broader precedent. Thus, ade~

quate halakhic room is created for popular, democratic authority.Now, Rabinovitch is most vulnerable precisely on his assertion that

the realm of "civil sovereignty'" is firmly separated from that of reli-gious authority. He has adapted R. Nissim in a way which locates him in

the realm of the ideal rather than in the realm of the reaL. It has long

been maintained, after all, that the organic unity of ethics and religion is

one of the jewels in the crown of Judaism, and Jesus' "Render untoGod what is God's and unto Caesar what is Caesar's" has been con-demned as a fundamental denial of that unity. Halakha, after all, legis-

lates both bein adam la-havero and bein adam laMakom. And so, as R.Aharon Lichtenstein has written,

Judaism has consistently regarded the sacral and mundane as distinct butnot disjunct. Pervasive halakhic norms relate to all areas of personal and

communal existence . . . . The ideal polity, then, is one in which religion

and state interact. . . . The halakhic state is thus ruled jointly. . . . Given

the broad latitude of halakhah . . . large tracts of personal and communal

life-virtually the whole social and economic sphere, for instance-are, in

effect, independently ruled by two powers whose wills may . . . conflict.

Martin Golding put it more pithily: "Is there a role for secularpolitics within the Jewish tradition?" Furthermore, "In the area inwhich halakha, or the tradition taken broadly, is not controllng, howdo Jews participate as Jews?"l2 Thus, it might be thought a sorry situa-tion if Jews, qua Jews, had nothing to contribute to the social and eco-nomic discussion. And from a different perspective, "monarchic"authority did historically involve itself, as it was expected to do, in issues

of religious observance, especially on the levels of sanctions.l3

But these considerations and dilemmas do not rule R. Rabino-vitch's fundamental assertion out of court, even if they may be expected

to lead to occasional (and legitimate) jurisdictional conflict betweenreligious and civil authority as well as to the quest for a broad Jewishethos in areas that are not determined by halakha. Thus, and frustrat-

ingly, neither the Talmud nor Maimonides provides any key by which

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Gerald J. Blidstein

one could distinguish between the functions of Sanhedrin and king,even though this differentiation is a clear fact.

On a theoretical level, the overlap described above does exist, ofcourse. Bein adam la-havero is as normative as be in adam laMakom,deriving from the same divine source and elaborated by the same

halakhic method and personneL. Yet, to begin with, both spheres have

their non-halakhic components; or to be more precise, areas wherehalakha provides a broad umbrella but no detailed guidance. Certainly,

the realm of piety leaves much to individual spirituality: one Jew will say

Tehillim and another will contemplate the heavens (a third will doboth). Similarly with tikkun olam: while a halakhically mandated goal,the precise avenues and modalities for its achievement leave much fornon-halakhic discretion. Pushing a bit further, the idea of halakhic lacu-

nae-a problem discussed much of late in the philosophy of law-is al-ready found in rishonim, with Ra'abad approving of the idea (in the

context of his discussion of dina de-malkhuta dina). 14But the basic claim of the model here described is not merely that

the civil sovereign operates in the narrow interstices left unfilled byhalakha, the "lacunae" within which Ra'abad legitimated din a de-mal-

khuta dina. The claim would be, rather, that much of the legal activity

of the state may be non-determined halakhically, that much of the ad-ministrative/ executive (and even legislative) activity of the state may behalakhically indifferent-and it is this sphere with which R. Rabinovitchis largely concerned. The opposing claim would be that halakha is all-

encompassing, that there is a halakhic answer-existent or potential-to

all significant problems. This, then, is the basic issue to which the para-

digms of malkhut and takkanot ha-tsibbur are relevant. Naturally, theissue is made more complex by modern reality, which adds at least two

complications. First, it is difficult if not impossible to guarantee that thecontemporary Jewish state will not legislate (or attempt to legislate) on

matters which are within the halakhic bailiwick. Second, halakhists have

long been sensitive to Jewish lay activity which not only encroaches ontheir prerogatives, but, more profoundly, incorporates "alien systems"into the halakhic lacunae. This issue has indeed been raised in discus-sions of the legitimacy of the Israeli legislative and judicial systems.

is

Other perspectives should also be brought into play. The organicunity of Torah notwthstanding, we also rule that in financial matters-

dinei mamon-one may draw up agreements in violation of Torah-lawso long as the parties involved give their consent.16 This license, which

provoked a major tannaitic disagreement, is no simple matter, on either

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theoretical or operative levels. This is not the place to enter into a dis-

cussion of this complex topic; suffice it to say that the great medieval

authorities had difficulties, I think, in setting the limits of this license,especially when the arrangement adopted was similar to the gentile law

of the time.I? One imagines, moreover, that the structures given by the

Torah are considered the superior and probative modes of behavior, so

that individual departures are allowed, not applauded. The fundamentalpoint, though, is that this flexibilty exists, much as the distinction be-tween Sanhedrin and king exists. The question is, rather, how deep thisflexibility goes (for example, does it apply to public legislation, or toagreements between individuals only?) and how powerful a role itshould play in our theory.

The problem exists in the other direction as well, of course. Let us

imagine a proposal to legalize assisted suicide. May the halakhicallycommitted oppose such a proposal on philosophical or utilitarian

grounds, but not on halakhic ones? May he or she not vote on his or herhalakhic conviction? The topic of legitimate motivation in democraticsociety has been much discussed; yet most of us would feel it perverse tolimit the halakhist's freedom in this matter.18 But isn't he urging the use

of the coercive power of the state to promote a religious value? Is this

legitimate only because the issue chosen can be argued on the basis ofits societal ramifications as well as its purely religious ones? Perhaps.Clearly, though, there are other similar issues where the modern statecannot but take a stand, and where the religionist's contribution would

be problematical in a world of firm distinctions. A clear by-product of R.Rabinovitch's proposal, I believe, is a minimalization of state activityand the shifting of many areas of its activity to more homogeneous com-

munal groupings. Though this stance may be attractive in theory, itwould be hard to implement in the modern world. I also wonderwhether this strategy is powerful enough to engage all the problemsraised.

R. Rabinovitch also argues that there is a basic reluctance on the

part of halakhic institutions to use physical, coercive power. Funda-mental to this tendency is the talmudic construal of laws of evidence so

as to minimize greatly the possibilty of actually imposing punishment;R. Rabinovitch also points to various instances where talmudic law pre-

ferred to disavail itself of the capacity to inflct punishment. All this pro-

duces a sacral halakhic institution which is fundamentally a teaching/legislating authority. Undergirding this entire thrust is a belief that the

trajectory of divinely guided human history is one which maximizes indi-

vidual human freedom as essential to the reality of free choice, which in

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Gerald J. Blidstein

turn is essential to doing the good and holy. Thus the modernist per-

spective, R. Rabinovitch urges, is adumbrated by the development of the

halakha itself and, indeed, lies at the heart of the halakhic vision.

The concrete implications of this trajectory obviously function toundermine the use of coercive force as motivation for halakhic behavior.

This is quite different, incidentally, than the forswearing of force com-

monly found in modern halakhists such as Hazon Ish. These approach-es are predicated, in one way or another, on modern man's loss of faith,

that is, on his decline. Hazon Ish, moreover, is interested in justifYing

the historic abandonment of brute force in dealing with the classicapikoros and the like-this, in a sense, deals with an issue that is no

longer actual in the Jewish community. R. Rabinovitch is interested in

the status of religious legislation, a much more subtle form of coer-cion-which means dealing with the present.

A more significant halakhic challenge to "religious legislation" per

se is raised by the question of the worth of halakhic behavior undercompulsion. Now, it is patent that from the Bible on, halakhic perfor-mance can (or even: should) be coerced and that punishment wil bemeted out to the miscreant. But much recent analysis, deriving largely

from the work of R. Me'ir Simha of Dvinsk, has concluded that suchcoercion is valid only when it brings about an internal change in themind and heart of the person coerced, so that he or she assents to dowhat he or she was ostensibly forced to do.19 Such a change of heartcould be posited in ancient times; it is hardly a legitimate assumption in

our time. If so, coercion-and state legislation would seem to fall under

this rubric, in spirit and possibly in letter-is both valueless and evenilegitimate. It may be claimed,20 of course, that this entire body ofthought is simply a recent accommodation to (or internalization of)modernity, when even committed religionists do not insist on a fullmeasure of coercion and where modern concepts of toleration havemade their mark even on authentic rabbinic greats.21 But whatever the

merits of this sociological analysis, the halakhic view I have summa-rized-a view which has both conceptual depth as well as practicalimplications-does have significant support among contemporary hala-khists. Yet this application of Or Same)ah to modern conditions is alsobased on a theory of deterioration; the Jew, it is claimed, has lost hisbedrock identification with Torah.

R. Rabinovitch, on the contrary, speaks of modern man's develop-

ment towards a higher spirituality, and is here closer to certain idealistic

(and naive?) strains in the thouRht of R. Kook. Another interesting pre-cursor is R. YosefEliyahu Henkn, who daringly suggested that the cessa-

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tion of semikha was providentially brought about so as to make physical

punishment impossible, thus preparing Jewish society for the Messianic

age.22

In a sense, R. Rabinovitch implies that the halakhic differentiation

between Sanhedrin and monarch dovetails with both the familar West-

ern distinction between church and state (at least insofar as the nature of

the authority held by each institution is concerned) and with some of the

major premises of liberal political thought. Consequently, he has noqualms with one further concrete implication of the proposal: there is in

principle-and not merely as a matter of tactics-no halakhc validity to"religious legislation." For halakha grants political authority to non-halakhic figures in the area of civic governance alone. That, by defini-

tion, rules out the use of the political process to legislate in topics that

are matters of religious significance-that is, bein adam laMakom. Mal-khut, the state with its coercive powers, is concerned with yishuv ha-olam

alone.For the halakhic legitimation of a "civil sovereign" to be relevant

in the present, we must be prepared to acknowledge the authority oflayinstitutions in a polity which does not grant authority to religious lead-ership per se, aside from a strictly restricted Chief Rabbinate. No San-hedrin will exist in tandem with malkhut unless the religious communi-

ty itself produces one; nor wil the talmudic-medieval review by thelocal Torah-sage check the "civil sovereign." Certainly, many-but notall-a medieval Jewish community functioned under precisely those

conditions, but it (or at least the rabbinic estate) never made its peacewith that situation. On the other hand, we should also do well to real-ize that, contrary to many voices heard nowadays, "rabbinic review"was not intended to check on the halakhic validity of communal legisla-

tion in the narrow sense, but rather on its coherence with broadernorms of justice and fair play. Would that the contemporary rabbinatein fact reasserted this role, a role there to be taken! Issues for such guid-

ance abound.23

v

The halakhic (!) model described above carried with it no small sur-prise. Put bluntly, its bottom line is that little halakhic content shouldbe legislated into a Jewish state, since the use of coercive political power

is what most characterizes the state. What, then, becomes of the very

phrase, "the Jewish state?" Indeed, it is relevant to remind ourselves

is



Gerald J. Blidstein

that the definition of Israel as a "Jewish and democratic state" has twice

been recently legislated into Israeli law, in both Basic Law: HumanRights, and Basic Law: Freedom of Profession. There can be no deny-ing, either, that both the milennial hope and historical reality made the

restoration of a State crucial for Religious Zionists (and even for Jewswho do not so define themselves), and that meant that it was the State,

specifically, which was to embody and concretize the religious renewal

of the people as well, a renewal which it seemed natural to anticipate in

statist terms and political arrangements. This was the Jewish dream. Are

we now to contemplate an Israel sans all Jewish content, a spiritualUganda, as it were? It certainly seems perverse to understand the hala-kha in so narrow a way that it virtually reads itself out of social exis-tence, denying what seems to be axiomatic for any self-respecting tradi-

tional Jew. Thus, so sensitive an observer as Pinhas Shiffman (himself

no advocate of religious legislation in matters of personal status) sug-

gests that if Israel were to completely legalize civil marriage, much ofthe religious population would reconsider its basic identification withthe State. Isaiah Leibowitz's assertion that Zionism could be satisfied by

a State in which Jews were not subject to political domination by non-

Jews may not accurately reflect the temper of the religious public.But we would do well to remember that the situation is not al that

bleak or one-sided. Even a most extreme formulation speaks of the aban-

donment of coercive political power as a device for ensuring religiousbehavior. It says nothng about the content of Jewish society, the possibil-

ty of constructing a meaningfl "Jewish street" through educational, vol-untary, non -coercive structures. Indeed, the palpable retreat of substantive

Jewishness in the current Israeli "public square," an accomplishment,largely, of mass communication and its messages, has been accomplished

under the aegis of a "Jewish state" in which "religious legislation" is a

growing norm.24 Thus, it is worth pondering whether the character and

content of mass communication, a factor of inordinate significance in the

creation of popular culture, is fundamentally related to the state per se.This query is true, to be sure, of many other components of modern cul-

ture. The religious option must compete with very powerfu and attactive

secular alternatives; "the unfortunate fact is that religion sometimes fais to

persuade." Broadly, it is time to realze that the association of religion with

coercion--n many levels-has produced a gross distortion of the content

of Judaism; certainly, a gross distortion in the way Judaism is perceived.Nor is it clear that the American model of a complete separation

of church and state is the only form of democracy. Must the democraticstate completely disengage from all matters religious? Few Israelis, for

19



TRADITION

example, reject the idea of state support for religious schools (both

Jewish and non-Jewish, of course). The state does see itself as responsi-ble for educating/socializing its young-as have democratic states forawhile now, conceding the matter only for fringe groups such as

Quakers-and the choice by parents of the education to be given theirchildren seems fully congruent with democratic rights. There is somecoercion here, on the level of taxation and disbursement, but it is indi-rect and tolerable. Other such examples could be given, ranging from

support of neighborhood rabbis to purchase of mezuzot for governmentoffices. Whether religion is itself better off supported by the state is not

our present concern; most religious Israelis clearly think it is.25

More significantly, much of the "Jewish" content of Israel is not

halakhic in nature at all. This content in fact offends contemporary lib-

eral democracy no less than the halakhic characteristics of the country,

but is defended by a clear majority of citizens. The problematics of a

state which is both Jewish and democratic involve more than halakhicissues. There is, after all, a wide range of phenomena by which the State

of Israel defines itself as Jewish. These range from the Law of Return tothe use of the menora as the official symbol of the State, and much inbetween. (A basic and much-cited instance is the denial of politicallegitimacy to parties which urge the end of the country's Jewish ordemocratic character-which is itself, possibly, a non-democratic rule.)

These are, on the one hand, not halakhic in nature, as halakha mandatesneither the Law of Return nor the menora. On the other hand, they are

both prime components of the Judaic character of Israel, in two senses.First, they are drawn from the repertoire of Jewish civilization or posit a

special relationship between Jews and the State.26 Second, and this ismerely the obverse of the above, they are not available to non-Jews, for

whom the menora is a meaningless symbol and to whom the Law ofReturn does not apply.

Now, a person committed to halakha can feel free to urge therepeal of the Law of Return, for example, as a violation of darkheishalom. Or he can defend it as either consonant with the nature of eth-

nic democracy or as similar to the restrictive immigration policies ofsome well-known democracies. He can similarly oppose some of thediscriminatory practices embedded in Israeli life (in the name of either

democracy or halakha!) or he can applaud them. The issue, then, is not

halakhic; it goes to the root of the national/ethnic character of theState as a whole.

It is generally thought that Judaism coheres well with the republi-

can democratic emphasis on self-government, but less well with the lib-

20



Gerald J. Blidstein

eral democratic emphasis on pluralism, tolerance, individual rights and

the political equality of all persons.27 Thus, it is frequently urged that

Judaism is comfortable with recent communitarian trends, which stressgroup standards, traditions, and even rights, as over against the individ-

ualistic ethos with which the modern West is usually identified. The are-

vut of each of us for all seemingly requires an organic view of the state,too. Similarly, Israel is lined up with "republican" rather than "liberal-

constitutional" states, that is, with the conception that states may (ormust) define a concept of the "good life" towards which they strive,rather than merely guarantee the individual's freedom to pursue hisown vision. Israel wil also be categorized as an "ethnic democracy"rather than as a multi-national territorial state belonging indiscriminate-

ly to and defined by "all its citizens" .28 Israel has also been classifiedamong the "consociational democracies" that are characteristic of some

pluralist societies, though this by virtue of the relationships obtaining

among its Jewish groupings exclusively, without regard to its Arab pop-ulation (for whom the model does not hold, at least as yet).29 The asser-

tion, stil frequently heard, that the modern territorial state is necessarily

secular and ethnically or culturally neutral, does not fit either politicalreality or political theory.

It is worth putting on the record, I think, that communitarianthought should not be completely attractive to us, reassuring as it seems

to some to find a respectable modern intellectual trend which seems togo well with traditionalism. Communitarianism is frequently relativistic,

as compared with the ultimately rationalistic ethos of some forms of tra-ditional liberalism. Furthermore, the rhetoric of communitarianism

(some of it, at least) occasionally reminds one of more sinister times inrecent European history.3D All this having been put on the record, it

does seem that Judaism's assertion of the centrality of the people Israel,the status of the community (tsibbur) and its role in defining individual

identity, the significance of tradition and past, does suit a communitari-

an modeL. In telegraphic terms, Israel would line up with "positive"rather than with "negative" liberty; with Lord Devlin rather than withProfessor Hart. At the same time, I also think that these issues are notas foreclosed or determined from a halakhic perspective as is oftenthought. We ought be very wary-from a Jewish point of view-of tooeasy, or too sweeping, a surrender of our individualism.

The communitarian perspective suits the support given by mostreligionists to legislation which attempts to preserve an observant "pub-

lic square" while not encroaching on the private rights of the non~obser-

vant. Whle this policy (which is classically liberal in both terminology

21



TRAITION

and concept!) does limit the hillul Shabbat, say, of numerous individuals,

I suspect that it does not really derive from the classic-and powerful-halakhic distinction between parhesya and tsina. That distinction would

not, I believe, treat closing Bar-Ilan Street to traffic on the Sabbath any

differently from closing it to cigarette smoking on that day; nor would it

treat Bar- II an Street any differently from any other street in the country.

I am not suggesting that the position of the haredi community is wrong

(or right), but that the distinctions they embody are not specificallyhalakhic. These distinctions are also, at times, quite crude and il-

defined. Are they meant to distinguish between what is done in public as

over against what is done in private? By groups rather than by individu-

als? Between what is done with state aid as over against what is donewith private funds? What "represents" the State as over against whatdoes not? Thus, it is certainly difficult to argue that current legislation,granting authority in matters of personal status to the rabbinate, does

not encroach on private lives; but states have historically often felt thatsuch topics were social, not private, and hence subject to state control-though not to the extent demanded in Israel today. Is limiting theamount of non-kosher meat available in the country a matter of public,rather than private, concern? Many more examples could be given; some

also raise the question whether other, non-spiritual considerations, arenot also at work.

An interesting instance of this blurring is found in a recent paperof Prof. Eliav Shochetman.31 Shochetman comes to the conclusion that

religious coercion is legitimate and indeed mandated by talmudic andmedieval law. But he also accepts the entire contemporary halakhicthrust which makes categories like apikoros obsolete, at least as far as the

punishment they invite is concerned, and even adopts the analysis spear-

headed by R. Me'ir Simha of Dvinsk (though see my comment in n. 19above), which makes coercion inapplicable-and indeed forbidden-in

modern conditions, even so as to prevent violations of halakha and notonly to compel positive observance. At this point, it seems that based

on halakhic analysis, state imposition of religion has to be dropped.

(Indeed, such easy acceptance of this position, which has hardly wonbroad agreement, is surprising.) But Shochetman then shifts gears, cites

Israeli legislation (mentioned earlier) according to which Israel is to bea "Jewish and democratic state," and proceeds to push for a program of

religious legislation based on that fact-despite its halakhic impropriety.

Paradoxically, and I perhaps exaggerate, Israeli legislation wil give

Judaism that which halakha does not!The religionist insistence on maintaining and even expanding

22



Gerald J. Blidstein

"religious legislation" may derive, then, from broader policy considera-

tions rather than from specific halakhic norms. Now, it is possible tojustify all the above by the simple argument that in an imperfect world,

one tries to salvage what is possible. If more "religious legislation"exists, then fewer Jews violate halakha, and others are at least exposedto a less halakhically corrupting environment. But it may also be rele-

vant to see the compromises hammered out-compromises which are ina constant state of flux, talk of status quo notwithstanding-as reflect-ing a way of grappling, on the ground, as it were, with the reality of a

Jewish people which does not find its identity halakhically in our sense.These compromises represent what different segments of the popula-tion consider not only livable but also legitimate. In other words,despite the pragmatic appearance of these compromises and the processby which they are achieved, they are statements of policy and even prin-

ciple. They represent not only what the traffic can bear, that is-the

maximum that can be extracted- but a reflection of where the peopleis J ewishly.

Popular Israeli acceptance of religious norms of public behavioralso derives less from their halakhic status than from their contributionto a communal standard (as well as, of course, their contribution topolitical stabilty!). Besides reflecting the pragmatic quality of Israeli life,

which concedes much to political and social realities, this wilingness totolerate rabbinic control also reflects a communitarian understanding ofsociety. Such toleration even allows modern standards of individualrights to suffer, as in the inabilty of a wife to initiate divorce proceed-ings. Thus, most popular (and judicial) support for change in currentmarriage/ divorce law focuses on the need to provide an alternativestructure for individuals for whom halakha cannot provide a solution,not on a complete reform of the current situation. Another broad areawhere this understanding comes into play is that of education, wheredespite a vocal minority, most Israelis do want the educational system to

expose their children to Jewish materials, and in a sympathetic way, so

long as this is not done in a missionizing or politically aggressive form.

VI

"Democracy" has thus far been defined in terms of self-government. As

we shall shortly see, we have not really engaged all the problems thrown

up to classic halakhic materials by even that minimalistic definition. But

the problems become more acute if we extend this definition even

23



TRADITION

slightly: self-government is granted to all citizens of the modern territo-

rial state, which itself derives from a basic conviction about individual

rights and human dignity. How do these principles square with the situ-

ation of the non-Jew in the Jewish polity? How wil they square, tochoose a striking generalization, with this Maimonidean statement,cited not infrequently by both ideologues and scholars as indicative ofwhat halakha prescribes:32

If the inhabitants make peace and accept the seven commandments . . .

none of them is slain, but they become tributary. . . . The servitude im-

posed on them is that they be humiliated and humble, that they not lift

up their heads against (anyone of Israel) but be subjected to them, that

they not be appointed to any offce that wil place them in charge of a

Jew in any way. The terms of the levy are that they be . . . prepared toserve the king with their body and their money. . . . (H. Melakhim 6, 1)

The insistence on humiliation and humbling seems Maimonidean,but the basic imposition of taxes and servitude is biblical, coming direct-

ly from Deuteronomy 20:10-11, and is unchallenged (even implicitly) by

the rabbinic tradition.33 Now, it is clearly impossible for any society even

resembling a modern democracy to adhere to these requirements, eitherlegally or morally.

A moderate exegetic response to these norms would be to readthem as direCted at assuring political acquiescence alone. In contempo-rary terms, this would mean an acknowledgment that Israel is the Jewish

state, acknowledging the ethnic nationalism inherent in that situation.This would effectively reduce the biblical-Maimonidean concern to anissue concerning group relations, and eliminate the threat to individual

status and dignity. Perhaps even the requirement that the non-Jew notpossess authority over a Jew-an issue to which we shall return any-how-might be read that way, toO.34

It strikes me that a broader attack on the problem, irrespective ofthe right to define Israel in communitarian terms of some sort, is tonote that both biblical and Maimonidean texts describe populations

conquered in war. Do we want to define the non-Jews as a conqueredpopulation? Do we have the right to do so? Or are we more inclined to

see them as fellow citizens, partners in the polity?

However we may tackle texts like the one above, democraticnorms of procedure and participation pose no small difficulty to thehalakhic tradition. It is no secret that halakhic texts discriminate against

the non-Jew, the non-observant Jew, and women, in this regard. Basic

24



Gerald J. Blidstein

texts deny the non - J ew or woman the ability to hold positions of politi-

cal "authority" (serara).35 They are barred from serving as judges orgiving testimony. And on the legislative level, "(Israeli) RabbinicCourts, . . . with one exception, have never recognized any secular lawas constituting a communal takkana"-largely because of the composi-tion of the Knesset, which includes large numbers of the above co-

hort.36

The initial, and possibly most serious, attempt to come to gripswith this situation was made by R. Isaac haLevi Herzog.37 Writing in the

40's, R. Herzog mobilzed a number of halakic techniques and argu-ments in suggesting how a modus vivendi between halakha and modern

democratic standards could be achieved (in large measure). This discus-sion was prefaced by two postulates. First, that the program of R.Nissim, which allowed for state authority parallel to and independent of

halakhc law, was unacceptable.38 Halakha, and its rabbinic representa-

tives, was not to be consigned to the dust-bin of

Jewish history. Second,that the religious population was obliged, in both conscience andaccording to halaka, to welcome the founding of a Jewish state, even if

it was encumbered with governmental procedures which violated thehalakha. The state represented an opportunity for immediate pikuJah

nefesh and eventual redemption, and these outweighed all negative con-

siderations. Besides, acceptance of democratic standards was required by

the U.N., upon whose patronage the founding of the State was condi-tioned; in a sense, there was no choice, and if democracy violated

halakhic norms, it was a coerced violation. Indeed, R. Herzog suggestedthat the State itself was a cooperative venture of the U.N. and the Jewish

people, thus further limiting the Jewish responsibilty for halakhic pro-

bity. Clearly, these last considerations reflect R. Herzog's basic rejection

of democratic ideals, which are tolerable only under compulsion (of arather indirect sort, to be sure). At the same time, there is evidence ofhis fundamental assimilation and admiration of the basic democratic con-

cepts to which he was exposed in the United Kingdom.

Be all this as it may, how did R. Herzog propose to narrow thegap between halakha and democracy in the areas noted? Two basictechniques predominate, both coherent, fundamentally, with democrat~

ic theory. Besides noting that the question of women's "authority" wasmoot (Maimonides banned and the Tosafot apparently allowed), heproposed to narrow the (problematic) concept of serara altogether. In-asmuch as it was derived by analogy to the king's authority, it ought to

be taken, R. Herzog argued, as referring to life-long, non-elective pow-

er alone. Thus, most if not all offices in a democratic polity would not

25



TRADITION

be considered "serara" and would not be barred to non-Jews or

women. Furthermore, R. Herzog mobilzed the far-reaching possibil-ties which exist in halakha for authorizing otherwise unacceptable per-

sons to hold office: by consent of the parties affected.39 R. Herzognoted that these possibilties were extended in medieval halakha toinclude legislated, communal "consent" so as to allow the functioning

of the Jewish community.40 Such consent was extended to legitimatethe granting of penal powers to as yet unspecified individuals, certainly

an exceptional situation. Building on these precedents, he proposedcontemporary implementation of this rubric and its further-thoughnot unlimited-extension.

These two suggestions stimulate two distinct reactions, in me atleast. R. Herzog's distinction between absolute and relative authorityhas little support in the text itself. In theory, of course, the democrati-cally-elected individual may be subject to his electors (much as even the

king ought to be, vide the story of Rehavam!); but all in all, the distinc-tion seems forced. This, despite the fact that the basic idea has seen

wide use (especially in the period during and following Golda Meir'stenure of office); and practical pesak, in this area as in others, wil oftenmobilze techniques that seem textually or conceptually questionable.The use of the rubrics of "consent," on the other hand, is a differentmatter. Indeed, the very existence and nature of these rubrics are mostinteresting in their own right.

First, we are dealing with a halakhic concept which goes back to

talmudic private law, and was found useful in Jewish public law of themedieval period; it is also powerfully present in talmudic aggada and,possibly, in the biblical ethos itself. Second, we are dealing with a mech-

anism which, in its medieval version at least, bears some comparisonwith standard democratic doctrine and practice. Certainly, the rubric ofconsent is open to the charge of formalism. Curiously (or not so curi-0usly), consent theory, so often far out of touch with actual reality, iswidely thought to be the Achiles' Heel of democratic theory, too;indeed, there are many political philosophers who would like to junk it.But it-that is, the consensual mechanism, if not consent theory in

toto-was widely used in medieval halakha, and is thus part of Jewishpublic law.

Attractive as this all is, I must confess that it leaves me somewhat

uncomfortable, for two contradictory reasons. On the one hand, wehave a sense, in reading R. Herzog, that we are witnessing the dissolu-

tion of a halakhic world, its sunset, so to speak. On the other hand, one

also feels that R. Herzog does not go far enough-for the world in

26



Gerald J. Blidstein

which we live, at least. Israel, after all, is a territorial state, with all that

implies as to the equal rights of its citizens to participate in its political

processes. Placed in that context, even the theories of "consent" out-

lined above seem paternalistic and grudging. Perhaps we can 'enlarge'

that theory: in the very act of creating a territorial state, we mightargue, the Jews of this community consented to all it implies as regards

its inhabitants. This itself, I grant you, is none too precise: what, exact-ly, does the territorial state "imply"? Certainly, there can be a difference

of opinion here; many simplistic assertions have been made which donot cohere with the reality of territorial states in the actual world. Butwe do point a direction.

I do not know whether R. Herzog's discussion was available to R.

Sha 'ul Yisraeli, but his own suggestions move in a similar direction,though taking matters further and deeper. He, too, argues that electedofficials do not possess serara, but for R. Yisraeli, it is not the limited

tenure and such which decide the matter. Rather, the modern electedofficial is a representative of the community, and as such (R. Yisraeliincorporates the shelihut paradigm) has no "authority" over the com-munity. This, of course, is a more profound assimilation of the democ-ratic ethos, though, as R. Yisraeli is careful to argue, one with clear tal-

mudic precedent. But R. Yisraeli takes one more crucial step. The stateitself, the argument continues, is to be conceptualized as a partnership,much as are the talmudic benei ha-ir (=townspeople). The novelty, of

course, is that R. Yisraeli applies this model to the state, thus eschewing

the more organic models of the nation-state which are usually advancedwithin the religious community. (He would doubtless reserve thatmodel for the people Israel as a whole, I(eneset Yisrael.)

The assimilation of the state to a partnership then leads R. Yisraeli

to make the following statement as to the participation of its non-

Jewish citizens:41

It is thus obvious that just as if there were a business partnershipbetween Jews and gentiles, one can divide the tasks among them, so that

the gentile administers the business, and, as such, issues directives and

decides what each wil do, etc., and this is not considered serara, for heonly represents the partners and issues directives in their name; so too) in

the greater partnership of the city and state (italics in original), the basic

content of the power of elected offcials is no different, they have no ser-

ara, but are only representatives of the community who function for its

well-being, and as such have received their special powers, . . . and it is

not forbidden to appoint the gentiles as representatives (shelihim).

27



TRADITION

This is a remarkable statement, no less in halakhic terms than inideological ones. Appointment of a gentile as a shaliah is, of course, aradical idea. But our interest lies in the ideological and political direc-

tion. Here, especially, R. Yisraeli's comments are striking.

R. Yisraeli is willng to incorporate the gentile into the functioning

of the Jewish state on an equal and non-paternalistic basis (though one

wonders how he would handle issues of giving testimony, etc.). This ispossible because he adopts a minimalistic model of the state as a partner-

ship, that is, essentially, an expansion of certain structures of private law.

This stance may have many overtones, moral as well as political, but it

certainly flies in the face of much current rhetoric and conceptualizing,

as I have pointed out. It is difficult not to recall R. Kook's critique of the

modern non - Jewish state as no different from a glorified insurance com-

pany-and his assumption that the Jewish state would be something of a

different order. R. Kook was thinking, of course, about the tasks of a

Jewish state, not its workings-but these matters are connected. Thus,one may wonder how the R. Yisraeli, who wrote this responsum,thought the manifold social (and religious?) responsibilties of a "Jewish

state" were to be fulfilled, and what its character was to be. He did argue

for the desirability of "religious legislation" .42 But be all this as it may,

his suggestion as to the integration of gentiles into the working of thestate, as well as the conceptual grounding of this suggestion, are bothvery clear. As far as I know, though, R. Yisraeli never returned to thisidea, which may have been more of a gambit than a position to which he

was committed.Perhaps, too, it is time to rehabiltate and, indeed, deepen otherstrands of the halakhic tradition which are generally seen as too flimsy

to bear much traffic-at least to rehabilitate them in terms of our edu-cational discourse. As we well know, halakha prescribes that we visit the

pagan (i.e., even idolater!) sick along with ours, bury their dead as wedo our own, support their poor along with ours-all this mippenei dar-

khei shalom (in the interests of peace). At first glance, we seem to be

speaking of the need for mutuality as a basis of stable group relations, as

a minimum. Now, I know that our rule is generally seen as a self-serv-

ing ploy mounted by a vulnerable community to ensure its own safety,not as a value-laden norm. But since the same rubric is used to generatelegislation providing for the rights of Jewish minors and to regulate the

relations of kohanim and other Jews, it seems more adequate to returnto the more "naive" reading of our rule and to stress its ethical implica-

tions, as did Maimonides. This is certainly the message of the terminol-

ogy chosen, which is also idealistic, not egotistical or even pragmatic.43

28



Gerald J. Blidstein

Even if we admit that the halakhic force of the idea may be de-rabbanan

(of rabbinic, rather than Scriptural, force), its implementation even insituations thus limited, such as in the burial of non-Jews, would repre-

sent a major revolution in patterns of thought and behavior.The point then becomes that if a mixed society is to exist in

morally dignified terms, it has to establish norms of mutuality among its

components. For a society which is not a self-governing entity, sharingacts of benevolence may be enough. For a society which has more pow-

erful political instrumentalities, more will be necessary. Mippenei dark-

hei shalom wil be seen dynamically, then, as a norm which expands and

contracts according to social realities and expectations. Where civilequality is a basic expectation, it wil respond. Elsewhere, I have ex-plored the idea that this dynamic quality may inhere in the norms ofkiddush Hashem and hillul Hashem, as well; these, too, seem to respond

to, and assimilate, the expectations and standards of their surroundings

when these cohere with basic Jewish ethics.44In addition to scouring our sources, we can do something else,even though we are not accustomed to doing it explicitly, and that is to

admit that we have a problem. We can admit that we are uncomfortablewith some our of materials. True, halakha generally proceeds by inter-pretation, not confession; by the legal process, not by moral discourse.But I think that we ought not be ashamed of the fact of our discomfortand its sources. Such a situation is often just below the surface in thewriting of R. Kook, and is probably one of the reasons for the fascina-

tion it holds.Fundamentally, we relate to the non-Jews among us as fully human

possessors of tselem Elokim. (This is true outside Israel; in Israel, where

the political situation deepens our problem, the situation is more com-plex, and the previous assertion does not hold.) We wil have to findsome way of squaring that conviction with our no less fully held convic-

tion of the chosenness of the people IsraeL. But if one wants to take the

fusion of halakha and democracy seriously, there is no way to sweepeither of these commitments under the rug or into the closet.45 It may

well be that because of its interpretative nature, the halakhic process gen-

erally proceeds by piecemeal procedures which maintain that the currentreality and persona have so changed that the classical categories no

longer apply to them, and were not so intended. We have seen examples

of this phenomenon in our references to halakhic coercion. These proce-

dures may allow, as A. Ravitzky has urged (in his recent discussion of the

status of the idea of tolerance in the halakhic tradition), for the staking

out of a broad new position, without compromising any basic perspec-

29



TRAITION

tives: reality has changed, not principle.46 A less traveled route differenti-

ates between the telos of a halakha and its-more flexible-instrumentali-

ty. This path wil be taken, generally, when the original halakhic categoryis goal -oriented; treatments of the norm of tokheha provide a goodexample of this.

I wil close this section with an anecdote concerning Rabbi Solo-veitchik, z"l. I recall an evening dinner with some Stern College faculty

which coincided with a pesak issued by the then Chief Rabbi Unterman

(in the early '60's) that Jews were obliged to desecrate the Sabbath inorder to save the life of gentiles. The rationale-a traditional one forthis topic-was darkhei shalom (or eiva) in its self-serving sense: if wedidn't act in such a manner, Jewish lives would be put at risk. The Ravthen commented that he didn't understand why the pesak had receivedso much attention-he had issued similar directives to Jewish doctorsfor many a year, and for similar reasons: the lives of Jewish patients

would be put at risk otherwise. He was then asked whether, aside fromthe substantive content of the decision itself, he felt morally comfort-able with the rationale he had given. He said no, he was in fact uncom-

fortable with it; and he then proceeded to propose, provisionally, an

approach in which the ethical level of a culture determined its status,something very similar to what we find in Me'iri (who gave a similarrationale for allowing hillul Shabbat, clearly de Ora ita ) for saving the life

of the gentile religionist of his day.47

VII

Any attempt to construct a halakhic bridge to democracy faces a basicproblem. Concrete halakhic solutions generally grow incrementally.They rely on classical sources, but also on the experience of the halakhic

community in their creation and implementation over the years. Now,despite my earlier mobilizing of the Jewish medieval experience, it isdear that we are facing a new problematic-conceptually and practical-ly. R. Aharon Lichtenstein put it well:

. . . To an extent, the flow of events caught the halakhic world unawares.

In the absence of a Jewish state for close to two milennia, the process of

gradual adaptation-the grappling with new problems and the groping

for legitimate halakhic solutions that marked the development of hala-

khah in other locales, barely took place with respect to the governmental

sphere. Modes of thought and intuition, models of response and initia-

30



Gerald J. Blidstein

tive, patterns of judgment and action-a whole tradition of political the-

ory and practice as related to the continuous historical scene-was, as

the State of Israel came into being, relatively inchoate.48

Reading this, we might say (it depends on how the ambiguous "asrelated to" is taken!) that R. Lichtenstein is not merely noting the fact

that no politically-oriented halakhic thought or literature was producedfor two thousand years. His point, presumably, would be the same if

Jews had sat in Europe and North Mrica writing monographs on thehalakhic state. Such creativity would nonetheless have been detachedfrom "the continuous historical scene"-because, simply, such a scenedid not exist, and so this halakhic creativity would have been flawed atits birth; or more precisely, it would not have been viable in providing

contemporary solutions. The implication of this, I believe, is that cur-rent halakhic thought, if it is to be true to the halakhic process, must

emerge from the "interaction" of halakha and the polity, from the reali-ty of the problematic and from the parameters of possible solutions.

The above citation was taken from a brief discussion of "Religionand State," which may explain the focus on political theory and reality.

But the problematic to be confronted lies not merely in the politicalsphere. The fact that the largest segment of the Jewish people willngly

identifies itself as Jewish, all the while rejecting, in large measure, a ha-lakhic commitment, is part of the situation. So, too, is a growing res-pect for individual rights and equality; that, perhaps, is the major thrustof modern political culture.

In parallel fashion, it is not always possible to hide behind halakhic

skirts-as I have done in parts of this essay. Saying that a particularproblem or arrangement is "not halakhic in the narrow sense" does notsolve much. The real question is how a particular suggestion sits with

the broader scheme of Torah, how it contributes to the kind of societywe would like to see. (I would be disingenuous, I suppose, if I did notadd that achieving a consensus defining "what we would like to see" isno simple or obvious matter.) Now, it is possible simply to use the term"halakha" in so broad a sense that it simply substitutes for Judaism;

Rabbi Soloveitchik often does this. But clearly, many considerations thatexpress a loyalty to Torah but which do not derive from what we usual-

ly consider the halakhic process, its use of earlier literature or its charac-

teristic types of inference, wil come into play. I assume you realize that

I am not referring to what is presently called daYas Torah. On the con-

trary; to the degree that halakha "in the narrow sense" cannot provideall the guidelines, it is likely that non-halakhic (but not anti-halakhic)

31



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perspectives and persons wil make notable contributions, as they have

done until now.

VIII

Despite the urgency with which our topic is being discussed both hereand in Israel over the last few years, the belief that it holds the key tothe forging of a new relationship between religionists and secularists,the fear that without a solution to our dilemma, the basic social fabricof Israel is apt to unravel-the question of halakha and democracy isnot really central to the national consciousness even as it agonizes overconflcts rooted in religion. Certainly, tensions between groups are pro-

found and growing, as is the overall desire that they be defused. But theaverage Israeli does not see a solution arising from a discussion-or a

resolution-of our topic, but rather from a series of compromises to beworked out 'on the ground,' compromises which wil satisfy/not satisfy

fully any group (thus guaranteeing their fairness) but will allow life tocontinue. 'Democracy and Halakha' is an abstract conceptualization, aquestion of principle; Israelis seem much too pragmatic to expect salva-

tion to come from such intellectualizing.Nor is it pragmatism in the sordid sense. My perception is that

most want to hold on to both values, or more significantly, to the life-

experiences provided by both values, and assume-correctly or not-that pursuing each value to its consistent end wil destroy that possibili-

ty. The general assumption is that neither value can really accommodatethe other, but that consistency is less important than the riches offered

by each; ninety percent of the time, it would seem, it is possible toenjoy the fruits of these ultimately conflicting values.

Our topic is of great interest, then, to intellectuals at both ends ofthe spectrum. Intellectuals with a halakhic commitment-people likeourselves-are concerned to find a resolution in conceptual terms. In-

tellectuals with a secular commitment are eager to demonstrate that no

such resolution is possible, even if the average citizen finds value in his

splicing of a democratic polity with a Judaic-if not always halakhic-mode of life. It is possible, of course, that lacking a consistent con-ceptual solution to the dilemma, attempts to find pragmatic compro-

mise solutions wil eventually grind to a halt for lack of principle. Butthe opposite may be true, too; pursuing matters to their pure consistent

ends may demonstrate how irreconcilable the positions really are.Orpheus killed Penelope, Jean Anouilh reminds us in a different con-

32



Gerald J. Blidstein

text, by constantly looking back at her, trying to see whether she neverwavered as she followed him out of HelL.

Yet, although our discussion is not likely to have direct political

impact in that country where Jews do govern themselves as Jews, itdoes, I hope, reflect the existential concerns of the centrist Orthodoxcommunity. The nature and terms of our relationship with other Jews

and non-Jewish men and women is an acute problem for many. Fromwhere I sit-a place where the pressures are powerful and the problems

are complex-it looks as though the halakhic tradition, as defined by itsbearers, itself is on triaL. We may be quite capable of persevering, ofcourse, day-to-day, but the intellectual and indeed spiritual basis onwhich we believe a better society should be constructed, seems inade-

quate-inadequate educationally and inadequate socially. Too often, we

have reaped the harvest of that inadequacy. In textual terms, the issueseems to be: can the "divine image in man" become a more powerful

halakhic concept than it seems to be at present or than it has been his-torically?49

NOTES*

*1 have tried to provide references in English wherever possible, even referringto secondary rather than primary sources. This paper was originally prepared forthe Eighth Ortodox Forum sponsored by Yeshiva University.

1. These two instances-monogamy/marital faithfulness and slavery-arethose chosen by Rabbi Nahum Rabinovitch (n. 9 below) as symptomatic ofthe trajectory of halakhic ethics. While sharing his view of the significanceof these topics, I do not agree with his view of the nature of their historicaldevelopment, as my summary indicates, and so I am able to derive a differ-ent lesson from them.

2. See R. Gabizon in Iyyunei Mishpat 19, 3 (July, 1995), p. 642. This entireissue of the Tel-Aviv U. law review was devoted to the problem posed byIsrael as a democratic and Jewish state. The same point, taken to rathergrotesque lengths, is made by G. Weiler in his Jewish Theocracy (Leiden,

1988). Gabizon does argue, though, for the compatibility of Judaism (un-derstood non-halakhically) and democracy, provided the minimalistic, gov-

ernmental definition of democracy is adopted. See, too, E. Schweid, "Bey-ond All That-Modernism, Zionism, Judaism," Israel Studies 1, 1 (1996).A question wort pursuing in the context of our overall topic-and whichI confess to ignoring in the present discussion-is the degree to whichhalakha could contribute to the democratic ethos. See M. Elon, MehkereiMishpat 13, 1 (1996), pp. 27-86.

3. For the use of the phrase "fundamentalistic democracy," see R. Shamir,

Iyyunei Mishpat, op. cit., pp. 699ff.

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TRADITION

4. For the general debate on the imperative of appointing a king, see my Ek-ronot Mediniyyim beMishnat haRambam (Ramat-Gan, 1982), pp. 19-23,and my paper cited in n. 8 below; for consensualism in Maimonides, see

Ekronot, pp. 58ff, 154-160.5. Netsiv: Ha'amek Davar to Deut. 17:14; on monarchic power, see, e.g.,

Meromei Sade to Sanhedrin 20b, s.v. BaMishna. For R. Perlow, see Ekro-not, p. 20, n. 3.

6. R. Kook's view of the representative quality of kingship is stated in Resp.Mishpat Kohen, no. 154. Rabbi J. B. Soloveitchik developed the paralleldoctrine according to which the Sanhedrin-not the king-is at times a

representative entity: Kovets Hiddushei Torah (Jerusalem, n. d.), pp. 47ffOne wonders whether this divergence itself reflects a more basic disagree-ment as to the identity of the center of Jewish national life, and, hence,

where the representative principle is to become operative: for R. Kook itrests in kingship (i.e., statehood), while for R. Soloveitchik it rests in thefunctions of the Sanhedrin. It should be noted, though, that R. ShlomoGoren espoused a view similar to that of R. Soloveitchik despite his owncommitment to the centrality of Jewish statehood. The question as to

whether all these positions, stressing the representative idea as they do,refract modernizing tendencies, is one certainly to be asked by the histori-an. But we should recall that medieval culture was itself imbued with con-cepts of representation similar to those implied in the writings of bothRabbis Kook and Soloveitchik respectively. A broad-based theory of therepresentative basis of the halakhic judiciary is already found in Resp. Eliya-hu Mizrahi, 57.

7. R. Hayyim David HaLevi in Tehumin 8 (1987), pp. 365-368; R. AharonLichtenstein, "Religion and State," in A. Cohen, ed., Contemporary Jewish

Religious Thought (New York, 1987), pp. 774-775. R. Lichtenstein indi-cated in conversation with me that the phrase cited should be taken in itsnormative, de jure, sense, and not merely as referring to the historical, de

facto, replacement of king by oligarchic or democratic entities. See, too, R.Shlomo Goren in Shana beShana (1975), pp. 127-136. The most extremeposition is that of Isaiah Leibovitch, who held that Judaism mandates nospecific political or social structures at all: see his Yahadut, Am Yehudi,uMedinat Yisrael (Jerusalem, 1975), pp. 315-316. Actually, R. H. D.HaLevi (above) and R. Sha'ul Yisraeli, Resp. Amud haYemini (n. 19 be-low), pt. i. sect. 9, are not too far from this position, at least insofar as

structures of governance are concerned. A good introduction to the prob-lematics of Jewish political thought (including the question, does such athing exist?) is: B. Susser and E. Don-Yihye, "Prolegomenon to JewishPolitical Theory," in D. Elazar, ed., Kinship and Consent (Ramat-Gan,

1983), pp. 91-111. Many of the topics discussed (or alluded to) in thispaper are treated in detail in E. Shochetman, Shenaton haMishpat halvri16-17 (1990-1991), pp. 417-500. Marc Stern's fine essay, "Jews andPublic Morality," in D. Shatz, et aI, ed., Tikkun Olam: Social Responsibility

in Jewish Thought and Law (Northvale, N. J., 1997), pp. 159-200, com- .

plements my discussion on many points. Precisely because it is rooted inthe American experience, its exposure of the common problematic is all themore iluminating.

34



Gerald J. Blidstein

8. For the rabbinic debate on monarchy, see my "The Monarchic Impera-tive," AJS Review 7-8 (1982-3), pp. 15-40, and n. 4 above. For rabbinicreservations concerning the monarchic messiah, see E. E. Urbach, TheSages, I (trans. 1. Abrahams; Jerusalem, 1975), pp. 690-692. For a dissent-ing voice-though with a different set of issues-see S. Schwarszchild,"The Personal Messiah: Towards the Restoration of a Discarded Doct-rine," in M. Kellner, ed., The Pursuit of the Ideal (SUNY, 1990), pp. 15-

28.9. R. Nahum Rabinovitch, Darka she! Torah, which appeared with no pagina-

tion, date or place of publication. Rabbi Rabinovitch has informed me thatthe monograph has also been published in MaJalei Asor (Ma'ale Adumim,1988 ).

10. A. Grossman, in Shenaton haMishpat haIvri, 2 (1975), pp. 175-200; G.

Blidstein, "Individual and Community in the Middle Ages: HalakhicTheory," in D. Elazar, ed., Kinship and Consent (Ramat Gan, 1981), pp.215-256; M. Elon, Jewish Law 2 (Philadelphia, 1994), pp. 678-780.

11. On the legislative-as distinct from the executive-authority of the king,see E. Shochetman, Shenaton, pp. 425-34. Such authority is certainly

found in the realm of the "civil sovereign" taken broadly, as in takkanotha-kahal, din a de-malkhuta, etc. Shochetman's presentation of R. Nissim,who takes monarchic authority to its furthest limits, seems overly conserva-tive. See M. Elon, Jewish Law, 1, p. 55-58; G. Blidstein, "Ideal and Real inClassical Jewish Political Theory," Jewish Political Studies Review 2, 1-2

(1990), pp. 54-59; A. Ravitzky, "Kings and Laws in Late Medieval Jewish

Thought," L. Landman, ed., Scholars and Scholarship (New York, 1990),pp. 67-92. See, too, n. 31 infra. Stern's reading of R. Nissim (n. 7 above,

pp. 174-177) seems, on the other hand, to be too radicaL.12. Op. cit.; M. Golding, "Liberal Theory and Jewish Politics," in Tikkun

Olam (n. 7 above), p. 214. See, as well, A. Lichtenstein, "Religion andState: The Case for Interaction," Judaism 15 (1966), pp. 387-411;Shochetman, Shenaton, pp. 444ff, pp. 446ff.

13. For programmatic statements, see Maimonides, H. Melakhim 4, 10 (andmy Ekronot, pp. 98-99); Ramban to Deut. 27, 26. For more specific in-stances, see E. Kanarfogel, "Rabbinic Attitudes Towards Non-Observ-ance," in J. J. Schachter, ed., Jewish Tradition and the Non-Traditional Jew

(Northvale, N. J., 1992), pp. 3-36. Of course, one ought not exaggeratethe significance of this phenomenon.

14. For the major instance in rishonim, see M. Elon, op. cit., pp. 71-72. Seealso Resp. R. MeJir of Roth en burg (Prague, 1608), 106,995: "Rules of tax-ation are dependent neither on express talmudic law nor on (legal) analo-gy, but on the custom of the land." See, further, Shochetman, Shenaton,

pp. 449-450. The closure implied in the statement (n. 125) that "manyposekim accept the position of the Shakh" is somewhat misleading, since

many do not, as Shilo (see reference in n. 127) demonstrates. The questionas to whether a legal system can contain lacunae remains moot, most con-spicuously in the work of Hart and Dworkin.

15. For a forceful indication of the objection to lay judicial activity in earliertimes, see S. Rosenberg, "Emunat Hakhamim," in i. Twersky and B. Sep-timus, eds., Jewish Thought in the Seventeenth Century (Cambrige, Mass.,

35



TRADITION

1987), pp. 316-321, 330. Unfortunately, the scope and prevalence of

these historical tensions has not been much researched. The overall issueoutlined above is nicely restated by Stern (n. 7 above), pp. 167-180.

16. See M. Elon, op. cit., pp. 123-128; on the general distinction betweenmamona and isura, see Elon, pp. 122-140.

17. See G. Blidstein in n. 23 above, pp. 39-42. The diffculties in artculating afirm rule here are evident in the materials cited by Shochetman, Shenaton,

pp. 448-451; see as well pp. 431-432. Generally speaking, Shochetmanmakes many more judgments than his unambiguous prose suggests.

18. See Stern, (n. 7 above), pp. 184-189, and Golding (n. 12 above), pp. 204-208, for further discussion and bibliography. The liberalist claim of Rawls,Nagel, and Ackerman, in Golding's summary, is that "in a religiously pluralsociety. . . propositions . . . that are rested. . . on religious convictions areexcluded from the debate, although any party could put them forwardinsofar as they might be asserted on grounds of so-called common modesof reasoning."

19. The classic sources are Or Same)ah, H. Gerushin 2, 20; and H. Mamrim 4,3 (s.v. yesh); though see below. For other sources, see E. Shochetman (note

27 below), p. 288. More recently, R. Sha'ul Yisraeli has summed up(Amud haYemini (Tel-Aviv, n. d.), pt. i section 10, par. 8-9, pp. 95-96;originally published in HaTorah ve-haMedina 9-10 (1958-1959)): "Therule of coercion is applicable only as regards someone who wishes to fulfillthe commands of the Torah. . . . But as regards those of our generation,whose non-observance derives from a lack of faith in Torah and its com-mands . . . the rule that a court (or its appointed delegate) should coercethem by physical means does not exist . . . for even if we subdue themphysically, they will not be convinced of the truth of the mitsvah and wilnot agree to its observance willngly. Thus, the purpose of coercion is notachieved. . . where this is certain, we are forbidden to touch a hair on their

head." Despite this credo, R. Yisraeli also supported, in an essay written atroughly the same time (op. cit., sec. 11, pp. 96ff; originally published inHa Torah ve-haMedina 11-13 (1960-1962) J, the legislation of compulsorySabbath rest in the public arena. I assume he held that such legislation wasnot the equivalent of physical coercion. He also argues, in the latter essay,that the Israeli public will internalize mitsvot-at least the Sabbath- evenif these are imposed by state law.

Despite the wide currency enjoyed by the above reading of OrSame)ah, I believe it is flawed, or at least skewed. Throughout his discus-sion in H. Gerushin, R. Me'ir Simha maintains that inner consent isrequired only of the person who brings a sacrifice or enacts a divorce; phys-ical performance alone suffces in all other instances. This approach holdsthrough almost all the discussion in H. Mamrim as welL. It is only at thevery close of this latter discussion that R. Me'ir Simha adds, as a possibility.alone (efshar), that this same requirement of inner consent would hold forall mitsvot according to the position that "mitsvot require intentionality"

(mitsvot tserikhot kavvana). This is not the place to enter into a discussionof this suggestion, which R. Me'ir Simha presents as a cursory speculation.The fact that it has been seized upon so widely and presented as R. Me'irSimha's "position" is indicative, I think, of an ideological need.

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Gerald J. Blidstein

20. See T. Ross (n. 21 below), pp. 74-77.

21. For a survey of some halakhic responses to the modern non -religionist, seeA. Kirschenbaum, "Crisis Halakha and Heterodoxy Today," Judaism 14

(1965), pp. 88-91; S. Morell, "The Halakhic Status of Non-HalakhicJews," Judaism 18, 4 (Fall, 1969), pp. 448-457; D. Ellenson, "The Or-thodox Rabbinate and Apostasy," in T. M. Endelman, Jewish Apostasy in

the Modern World (New York, 1987), pp. 165-188. For discussion of R.

Kook specifically, see now T. Ross, "Between Metaphysical and LiberalPluralism," AJS Review 21, 1 (1996), pp. 61-110. Ross also gives bibliog-raphy on other figures.

22. Rabbi Y. E. Henkin in HaDarom 10 (EluI1959), pp. 5-9.23. See G. Blidstein in Dinei Yisrae113-14 (1986-1988), p. 33, n. 20; E.

Goldman, Mehkarim velyyunim (Jerusalem, 1996), p. 392. But see also E.Shochetman, Shena ton, pp. 476ff.

24. Stern (n. 7 above), p. 182, and the entire discussion, pp. 180-184. In anycase, it shU-uld be recognized that the "debate" is not merely of intellectualconvictions, but of life-styles, etc. For a point of view which does see thestate as a crucial actor in defining the content of the "public square," see

A. Lichtenstein (n. 12 above), pp. 396-398.25. For a lucid analysis of this issue, see E. Don-Yihye and C. Liebman inMolad 8 (28),25-26 (235-236) (August 1972), pp. 71-89.

26. See now Gabizon (n. 2 above) as well as the essay by A. Rozen-Zvi in thesame issue of Iyyunei Mishpat, pp. 479-519; see, too, Don-Yihye andLiebman in n. 25 above.

27. See C. Liebman, "Religion and Democracy in Israel," in E. Sprinzak, ed.,Israeli Democracy Under Stress (Boulder Co., 1992), pp. 273-292; D.

Elazar, Apiryon 6 (Winter, 1986/7), pp. 48-49.28. S. Smooha, "Modes of Conflct Regulation in Divided Societies," in A. D.

Smith, ed., Ethnicityand Nationalism (Leiden, 1992), pp. 31-32. Ethnicdemocracy is described as "Combining a real political democracy withexplicit ethnic dominance. The system qualifies as a democracy accordingto the standard criteria of the extension of rights to the entire population. . . political rights. . . and cIvilliberties . . . . (but) according a strcturedsuperior status to a partcular segment of the population . . . . the mostimportant (manifestations of superior status) relate to . . . the character ofthe state (its symbols, offcial language, religion, immigration policy)."

29. The classic work is A. Lijphart, Democracy in Plural Societies (Yale U.

Press, 1982). ConsocIational democracies negotiate coalìtions between thedifferent segments of their population, thus paying less attention to indi-vidual liberty. Israel is discussed on pp. 130-134. It is somewhat soberingto realize that according to some analysts, plural societies always produce

flawed democracy: for references, see pp. 232-234. Not surprisingly,consocIational thought has also proved attractive to traditionalist Muslimtheorists; see H. Deegan, Third Worlds: The Politics o/the Middle East andAfrica (London, 1996), pp. 52-59.

30. See S. Holmes, "The Permanent Strcture of Antiliberal Thought," in N.Rosenbaum, ed., Liberalism and the Moral Lif (Harvard U. Press, 1989),pp.227-253.

31. Mahanayyim 13,2 (n. s.) (1995), pp. 289-291.

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TRAITION

32. The passage figures, obviously, in the writing of Me'ir Kahane; but it wasalso presented as the standard halakhic view by Prof. Y. Harkabi, Shesh

HakhraJot Goraliyyot (Tel-Aviv, 1986), pp. 215ff; and see the entire discus~sion, pp. 211-234. Maimonides is the dominant figure in contemporarydiscussions of halakhic political thought, academic (as Harkabi demon-strates) or traditionaL. The reasons for this phenomenon and the price itextracts are topics for another discussion.

33. On the Jewish and non-Jewish sources of this passage, see my Ekronot, pp.238-240.

34. For a typical "revised" paraphrase of the Maimonidean formulation, see E.Aviner in Tehumin 8 (1987), pp. 356-357; the author clearly found it diff-cult to present an unvarnished version. See, too, the rendering found inthe Yale Judaica series, prepared for an American audience.

35. See, in addition to the material cited above, H. Melakhim 1, 4-5. Jews arealso familiar with this issue from the other side: both Christianity and Islamlong forbade the assertion of authority by infidels (including, of course,

Jews) over believers, a doctrine which led to persecution and expulsion.This often included domestic authority. Indeed, one of the major claims

which propelled Ayatollah Khomeini to power concerned the visible role ofnon-Muslims in the political and business structures of the Shah's Iran.The Jewish position stresses the political sphere, cf Maimonides' SeierhaMitsvot, Negative Command 260.

36. D. Sinclair, "Jewish Law in the State of Israel," in N. Hecht, et aI, ed., AnIntroduction to the History and Sources of Jewish Law (Oxford U. Press,1996), pp. 415-416. For a nuanced presentation of this position and itsbasis, see E. Shochetman in Shenaton, esp. pp. 463ff 486ff, where the dis-tinction between public law and private law is developed at length.

37. The major discussions are in the posthumously published 1. Warhaftg, ed.,Tehuka leYisrael al pi haTorah 1 (Jerusalem, 1989), pp. 2-12, 22-31, 39-

49, 95-113. Analysis ofR. Herzog's halakhic activity is a desideratum; seefor the present E. Shochetman, "R. Isaac Herzog's Theory of Torah andState," in Jewish Law Association Studies 5 (1991), pp. 113-125 (an entire

volume is devoted to studies ofR. Herzog's halakhic opus).The idiosyncratic, or, to adopt the description of Prof. Shalom

Rosenberg, "adventurous" work of R. Hayyim Hirschenson is, of course,relevant to our topic as well. Hirschenson frequently reaches conclusionsthat are more radical than those found in the work of other contemporaryrabbinic figures, and his argumentation is similarly more radical, thoughnot completely unprecedented. A comprehensive analysis and evaluation ofthis body of halakhic work is very much in order. See E. Schweid, Demo-cracy and Halakha (Jerusalem, 1994), especially pp. 47-77.

38. For the documentation of R. Herzog's correspondence with R. Hayyim

Ozer Grodzinski on this matter and his strenuous rejection of Ran's posi-tion, see 1. Warhaftg's "Introduction" to Tehuka leYisrael, p. 31, esp. n.19. Put briefly, R. Herzog's opposition to the founding of Israeli law onthe doctrine of R. Nissim (as R. Hayyim Ozer had suggested in the late30's), an opposition which was at the heart of R. Herzog's rejection ofRan's doctrine per se, I believe, was due to the fact that it allowed for the

complete side-stepping of the rabbinate and the halakha, a process which

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Gerald J. Blidstein

R. Herzog observed with great disappointment and bitterness, as he hopedthat the rabbinate which he headed would be involved in the formation ofthe Israeli legal system. R. Hayyim Ozer was more halakhically pragmatic,unencumbered as he was, in addition, by Zionist baggage and/or naivehopes. See n. 11 above as well. R. Herzog's halakhic objections to Ran hadbeen adumbrated by Resp. Avnei Nezer, Y: D., 312/47-49.

39. Consent usually functions in talmudic law (as over against mid rash and

aggada) on an individual basis and is concrete; it becomes more abstractand generalized in medieval communal law. A broad doctrine of consent isone of the theoretical bases of dina de-malkhuta dina, too. For a recent

(and well-taken) protest against an exaggerated use of consent theory inreconstructing Jewish political thought, see D. Gutenmacher, "The LegalConcept of Political Obligation in Medieval Spanish Jewish Law," DineiYisrael15 (1989-1990), pp. 63-95 (based on his 1986 N.Y.U. Ph.D. dis-sertation). See, too, Shochetman, pp. 456-459,495.

40. For the application of this model in medieval communal law, see my"Individual and Community," n. 10 above.

41. Op. cit., sec. 12, par. 8-9, pp. 137-8. This essay was originally published in

HaTorah ve-haMedina 7-8 (1955-1956).42. See n. 19 above.

43. See G. Blidstein, "The Import of Early Rabbinic Writings. . ." in S.Talmon, ed., jewish Civilization in the Hellenistic-Roman Period (Sheffeld,1991), pp. 64-72; Maimonides, H. Avoda Zara 10, 5-6, may well be takennot as a rejection of the universalistic ethos of H. Melakhim 10, 12, but (asmy friend Prof. A. Feintuch pointed out to me) as the outcome of the ideathat although the ideal state does not harbor idolaters, in a situation wherethese are present, darkhei shalom wil apply for reasons of principle, notexpediency.

44. "Tikkun Olam," in Tikkun Olam (n. 7 above), pp. 31-4.45. See C. Liebman, Attitudes Towards jewish-Gentile Relationships in the

jewish Tradition and Contemporary Israel (Capetown, 1983), as well as thepaper cited in n. 21a above.

46. A. Ravitzky, in A. Kasher, ed., Middot uRegashot (Ramat-Gan, 1994), pp.195-224. This essay is scheduled for publication in English translation inthe forthcoming Norman Lamm Jubilee volume.

47. MeJiri to Yoma 84b, s. v. pikuah (ed. Y. Klein (Jerusalem, 5730), p. 212).48. N. 7 above, pp. 777-778.

49. For a contemporary instance in which "the image of God" has been usedas halakhic currency, see the ruling of Rabbi J. B. Soloveitchik as cited byR. Immanuel Jakobovits in Torah she-he-al Pe 6 (1964), p. 64. The rubricalso features in the halakhic writings of R. B. Z. Uziel: see M. Washofsky,

"Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision,"in J. Reeves, ed., Pursuing the Text (Sheffeld, 1994), pp. 360-409.

39

Documents

Halakha and Democracy Gerald Blidstein