The Halachic State

by Rabbi Steven Pruzansky

The headline alone must send shivers down some people’s spines.

It has become fashionable in Israel to repudiate any notion of a medinat halacha, a state that is run according to Jewish law. Religious politicians who utter the phrase are forced to retract, and still its mere utterance clings to their biography as an obvious indication of their venality. Prime Minister Netanyahu has taken to beginning almost every speech about the judicial reforms with a disclaimer that “we are not creating a halachic state.” It is true that the judicial reforms do not envision a Torah state. Unspoken is that such a declaration by the PM and others repudiating a halachic state should be a point of pride; it is actually a point of shame.

The greatest fear of a medinat halacha pertains to enforcement and punishment. The specter of Iran, the Ayatollahs, the Revolutionary Guards and the morality police always lurk in the background, as if for us – what would be misnamed a theocracy – is actually a bludgeon that would be used to beat people, suppress them, and make their lives miserable. Such an approach is the product of much ignorance and not a little tendentiousness.

Even when the Sanhedrin functioned, enforcement of halacha in personal matters was rare and punishment – especially capital punishment – was almost non-existent. The Talmud (Makkot 7a) states that a Sanhedrin which executed an offender once every seven years – perhaps even once every seventy years – was considered a bloody, violent Sanhedrin. What detractors of the halachic state seem not to realize is that coercion of religious practice, including but even without punishment of offenders, is a failure of religion, not its success. To compel someone to engage in a religious ritual or requirement is almost by definition not construed as service of God – but rather service of man, and service of man that is prompted by fear of man and not reverence for or love of God. That is the degradation of faith and the opposite of what the Torah desires for us. Somehow, as implicit in the story of King Shlomo and the two mothers (I Melachim 3:16), harlots plied their trade while the First Temple stood. From other sources it is clear that that the same occurred during the Second Temple era within shouting distance of the holiest site on earth. It is certainly not that it was encouraged, God-forbid, but there are limits to human enforcement.

If so, once we get beyond the fears that there will be mass executions for driving on Shabbat and floggings for pork eaters (personally, I would not object to public lashing of abusive spouses or child abusers, but that’s me), what else exercises the detractors? To be sure, there are many who perceive halacha only through the prism of those groups that choose the most stringent opinions and make them normative and are otherwise less than fully engaged in building, defending or developing the nation. That is also the product of ignorance of halacha, as if Jewish law demands that every person must wear black and white (never a color) and women should never be seen in public. That was never the norm in Jewish life – especially when we were governed according to Jewish law. People whose only frame of reference for a Torah state is the fear of enforcement sadly miss the point; indeed, some fear punishment for their own sins while some fear the missed opportunity to punish others for their sins. Both are misguided.

Every sophisticated pulpit rabbi knows how to make the halacha “user friendly,” to be colloquial, which is not to say that everything every person wants to do must be accommodated by Jewish law. Sometimes the answer is “no,” and that “no” is conveyed in a way that reinforces to the questioner the beauty of the halachic system and how such conduct is unworthy of a servant of God. And sometimes the answer is “yes,” depending on the halachic reality, person, the question, and other factors.

Much of Jewish law already pervades Israeli society – Shabbat, the holidays, tzedakah, the primacy of Torah study – although we could certainly improve our fulfillment of the mitzvot between people in the way we talk to each other, drive on the roads, and care for the underprivileged. And Jewish civil law is used in legal adjudications in the Israeli court system although not as often as it could or should be (based on the Foundations of Law Act, 1980). Of course, it is not as if a halachic state will change little or nothing, for that would mean it is superfluous in a modern society.

The primary fear engendered by the imaginary bogeyman known as the medinat halacha seems to be the perceived loss of freedom for the non-observant to do what they want to do when they want to do it. These fears are stoked by people who delight in exposing extreme halachic opinions that are either distorted or not normative. But law by its very nature – secular or Torah – places limits on what we may or may not do, whom we may marry and how many at one time, how we conduct ourselves in public, and what obligations and rights individuals possess in society. The question really is what is the provenance of the value system that underlies the law? Is Western law, with its disconnect from all that is godly and the human degradation, corruption, unhappiness, and decadence it has often produced, morally superior to Jewish law? Actually, I think it is morally inferior, and the moral confusion it has sowed among youth, the god of materialism that it exalts, and the declining population in Western countries, is living proof of that.

The transition to a halachic state will require some adjustments to modernity, but which are already found within the system. Leading sages have pointed out that the classic rules of evidence (e.g., crimes must be witnessed by two qualified and unrelated witnesses who forewarn the criminal) are hard to sustain in a society where crime is rampant but already in biblical times the king – in our case, a duly elected government – was able to act extra-judicially in order to promote the general welfare of society. But the burden of proof generally required to prosecute illicit conduct should itself comfort the detractors who feel that a medinat halacha would encroach on their private, personal conduct. It never did, it is easy to see why it did not, and impossible to see how it ever could.

Additionally, litigation usually involves the resolution of clashing rights of two individuals or groups. I would prefer that the values underpinning those rights be grounded in the eternal Torah than in some transient human concoction. After all, that is what should be expected of a Jewish state – not the pale mimicry of foreign laws and values but the expression of the greatness of Judaism and our Torah.

Beyond that, what are the advantages of a medinat halacha? There would be nothing wrong with gently and lovingly encouraging the observance of Jewish law. Living a halachic life – besides heeding God’s will – provides a sense of discipline, self-control, and meaning. It is abundantly clear that being observant is not a contradiction to having a full and consequential life. That is why we find Orthodox Jews who are lawyers and doctors, generals and engineers, tycoons and scientists, and even rabbis. The observant life does not require that we run away from society but that we engage it and sanctify it.

Recent studies have shown that observant Jews tend to be happier people. (Not everyone, of course. I know some gloomy people but often that entails their personal struggle to rein in instinctual tendencies that are prohibited and thus they live with internal dissonance. And as a general rule, the more unhappy the person, the more he or she feels the need to poke around in the private lives of others.) But having a purposeful life with built-in times for reflection on deeper issues, like Shabbat, is almost a guarantee of greater happiness and productivity in life. These are not merely mercenary considerations but rooted in the very gift of Torah and the land of Israel to the Jewish people.

As such, failure to evolve into a medinat halacha is actually counterproductive. Such a state would enhance people’s lives, have greater respect for human dignity, and better marshal society’s resources to help the needy in all spheres. It would ensure that the law is applied equally and fairly to all and not, unfortunately, as we perceive the prevailing legal system today. Worse, it is self-defeating! Our very claim to the land of Israel is based on the Torah. Ignoring the Torah undermines that claim, as there is no cogent or incontrovertible secular claim to this land. And as history has taught us, Jewish possession of the land of Israel is dependent on its level of observance, a point reiterated constantly in the Torah and the prophets.

Obviously, this has to be a gradual process as so many modern Jews are estranged from Torah observance, many through no fault of their own. As such, perhaps it would be wise to begin with the Torah’s commandments, leaving aside rabbinic enactments and customs until observance takes root in a majority of the population. Ironically, a Jewish nation that honors and observes the Torah could ease some of the perceived burdens the secular population often complains about. For example, many authorities (including Rav Shimon Shkop) assumed that when the Jewish state would be established public transport could operate on Shabbat in a way that was acceptable according to Jewish law. In a secular state, such would lead to the disappearance of Shabbat and make a mockery of what is termed a “Jewish” state; in a Torah state, such could enhance the observance of Shabbat for all.

Perhaps we are not yet ready for a medinat halacha, and of that we should be ashamed, not proud. A proud Jew yearns for the implementation of the Torah system as he or she does for the Messianic era. Those who dread it do so either because they do not believe in the Torah, do not properly understand it, or wrongly compare it to the governance of communities in the exile.

We are heading in that direction in any event; as the Midrash (Mechilta Yitro) states, “God would not save a nation that is forever disloyal.” The false allure of Western progressivism still lingers in a segment of society and has to fade away. The fears of a medinat halacha also have to be assuaged, and one way to do that is for good people to stop demonizing it, disparaging it, apologizing for it, or running away from it. That requires education, patient and loving, accompanied by the realization on the part of today’s detractors that the halachic life is rich and fulfilling, speaks to everyone, challenges but also gratifies us, and is fully applicable to a modern state. Surely there will be bumps in the road and much discussion about the details but nothing we can’t handle as a nation. A good beginning might be a proclamation, similar in spirit to Israel’s Declaration of Independence, which enunciates our basic principles and aspirations to be a holy nation.

What could also diminish the fear and even increase the enthusiasm for a halachic state would be fostering the notion that such a state would be open, embracing, and joyous rather than angry and repressive. It would certainly help that cause if religious, observant Jews always reflected the Torah’s openness, depth and joy. When we model the Torah personality, or at least strive to do so, it increases respect and love for Torah.

On the 75th anniversary of Israel’s independence, it is appropriate to acknowledge God’s gift of the restoration of Jewish sovereignty to the land of Israel. But we should acknowledge as well that God’s gifts were not limited to the land of Israel alone but also encompassed the Torah that was to be the governing constitution of that land. May we soon be worthy!