By HaRav Yisrael Rosen
Dean of the Zomet Institute
Yedidia Stern , a graduate of Yeshivat Kerem B'Yavneh, is a Professor of Law and the Vice President of the Israel Democracy Institute. He sent out a challenge for the Torah-true members of the Torah-Zionist camp in a series of three articles on the subject of "Zionist Halacha" (published in the "Shabbat" magazine of Makor Rishon during the weeks of Emor, Behar, and Bechukotai). Aside from his recognition that there has been significant development of "Zionist Halacha" in our generation, the main thrust of his articles consists of sharp criticism of what is "missing," in his opinion. He feels that the rabbis of our generation did not make a proper response to this challenge, as he puts it. Almost his entire essay is devoted to an analysis of a broad range of subjects which have appeared in the annual collection of halacha in "Techumin" from the point of view of relevance for the rejuvenation of the state, for Israel sovereignty, and for the need to formulate "Zionist halacha" that should accompany the authorities of the country and its component parts. (Note that I have been privileged to be one of the leaders of the Techumin project. This week we are happy to announce the publishing of Volume 36.)
This column of mine is not the proper forum to deal with the details of Prof. Stern's claims. I will merely make one double statement. His words contain a large measure of factual truth, but there are many possible replies to his analysis, both in general and with respect to specific issues. We can note with respect to Prof. Stern's Torah approach that as opposed to Prof. Yeshayahu Leibowitz, who challenged the Torah-true religious Zionists in the time when the State of Israel was established, Prof. Stern believes in the ability of the Torah scholars to "create Zionist halacha." Prof. Leibowitz, a master of ultimate assertive thinking, declared that halacha does not recognize the essence of a Jewish state! And there you have it! In passing, we want to praise the very fact that such a challenge was raised by the Vice President of the Israel Democracy Institute, an institution which is often considered to be on the other side of the issues (that is, emphasizing their commitment to democratic values) when it comes to discussions of the Jewish State and Democracy.
Here is one important note, which I write based on my 40 years of experience in this field (Zomet Institute is 40 years old):It is impossible to "create abstract halacha" without a regime for pilot testing and without responding to questions from the field. For example, the responsa of Rabbis Yisraeli and Goren were based on the fact that many religious people served in the IDF or lived in settlements and asked for help with halachic questions. The great developments in the subject of health and halacha are an echo of the questions of a large community which was interested in answers to current issues. Unfortunately, the dreams of the rabbis who lived when the State of Israel took shape to establish a Halachic State were not fulfilled: Rabbi Waldenberg wrote "The Halachot of the Land" and "Shabbat on the High Seas" as general treatises, without any opportunity for practical applications. The same is true of the work of Rabbi Herzog in the field of Jewish law, again without any actual field tests. In Zomet Institute we many times without success tried to generate general halachic works on subjects which are under-represented among kippa-wearers. Some of the examples are operating a fleet of boats, drilling for oil, communications media, firefighting, municipal waterworks (in Jerusalem – see my article in Techumin, Volume 29). Various articles which appeared in Techumin about the subject of police operations on Shabbat remained quite abstract until the founding of the religious police prep school "Faithful in the Police," which stimulates practical halachic creativity, as led by Rabbi Rami Berachiyahu. In short, the lack of relevant creativity stems from a low level of demand!
General Rulings as Opposed to Individual Halacha
This weekend of the holiday of receiving the Torah I am writing to reject Prof. Stern's thesis that there is such a thing as "Zionist halacha." This concept encourages a false viewpoint that anybody who holds to a "Zionist" approach must of necessity be more lenient, more liberal than others. Rav Avraham Yitzchak Kook and Rabbi Shlomo Aviner happen to be very stringent in their rulings, but nobody can cast any doubts on their Zionism! Their Zionistic outlook on life, including faith in redemption and celebrating our national independence, is not relevant for their halachic rulings. Rather, the important element of halachic rulings is whether they are relevant for an individual and a community or for the nation of Yisrael as a whole. Does a rabbi take into account in his rulings the current state of society or only the desirable state?
As examples, take some of the subjects which appear in the new volume of Techumin. One discussion concerns " A Woman who was Unfaithful in the Wake of a Mystical Influence." This is the subject of an article written by Chief Dayanim, Rabbis Shlomo Daichovsky and Eliyahu Abarjil, together with a psychological analysis written by Prof. Manny Koslovsky and Dr. Baruch Kahanah. The subject is neither "Zionist" nor relevant for governmental authority, but those who consider the issues involved will see that this is a social phenomenon and not an individual event. The broad outlook which includes important current events brings this into the category of "society and the state."
Take some other examples from the field of medicine, which would not fit into the "Zionistic" realm as it is defined by Prof. Stern:"Stopping Treatment of a Dying Person in Order to Treat another Patient" (Rabbi Zalman Nechemia Goldberg); "Wages of Physicians" (Shlomo Levi); or "Burial in Structures" (Rabbi Dr. Moshe B'eiri). These articles could easily have been written in foreign lands, and they would therefore not be defined by Prof. Stern as "Zionist" material. But it is clear to all those involved in halacha that they are solidly based on the Israeli scene. Their value stems from the fact that the discussion is relevant for general needs and is not geared only to individuals. Another example is the "dramatic" ruling by Chief Rabbinical Judge Uriel Lavie, who granted a divorce to a woman whose husband is in a vegetative state (the summary of this ruling, written by the judge, is being published for the first time in Techumin). This ruling has inhibited the rabbi's advance in his career. The ruling could have been written in the Ukraine or in Argentina, but the spirit which charges through it is very current in terms of the existing claims against the stringency of the religious courts in Israel.
In summary: The subject of current halacha will continue to move forward as long as the "demand" exists. The number of benches of the Batei Midrash in Israel is on the increase, and the "Torah of Eretz Yisrael" is alive and well, just as "a hammer shatters a stone" [Yirmiyahu 23:29] and like "a flame which will light the mountains" [Tehillim 83:15].