Thursday, December 10, 2009

Sacred And Secular, Again

The justice minister, Yaacov Neeman, caused a wave of criticism (with international ripples) this week, when he told a Jewish law convention in Jerusalem--and in the presence of many approving rabbis and rabbinical judges--that the Torah embodies "a complete solution to all the things we are dealing with," and that "step by step, we will bestow religious law upon the citizens of Israel and transform religious law into the binding law of the state." Many--including the opposition leader, Tzipi Livni--immediately bridled. Was this not promising to replace the secular state with a theocracy? Were we really going to run a modern country with a legal system ( if that's the word for it) evolved in the iron age?

The next day, Neeman clarified his remarks, which were meant to be practical, he insisted. "It is difficult for me to accept the things that were attributed to me, as though I had said that the laws of this country should be replaced with Torah laws. Yesterday I emphasized the importance of the rabbinical court system to the State of Israel. The Knesset is the legislator in Israel, and the interpretation of its laws is determined by the courts." Presumably, more and more civil matters should just be assigned to rabbinic courts.

ACTUALLY, THERE IS less here than meets the eye--less change, that is, not less danger. And Neeman's clarification, that he only meant that rabbinical courts take up more of the slack in Israeli civil life, is a jump from the frying pan into the fire. The problem is not adversion to Jewish sources per se. The problem is, precisely, the extension of rabbinical courts, whose judges have inched their way into greater and greater power since the state's founding, and now threaten the state's democratic foundations from within much as (and in alliance with) settlers from without.

Since the 1970s, you see, judges openly began to advert to biblical law, Talmudic precepts, the wisdom of the sages, and so forth, to deal with novel situations; what was called "residual law"--law for which there was no established precedent and which required new ethical interpretation. If judges struggling with a hard case could draw inspiration from, say, an opinion of Oliver Wendell Holmes, why could they not go back into Jewish sources to find an opinion? The result could be poignant, even "progressive," depending on the judge.

When, for example, the commission looking into Ariel Sharon's role in the 1982 Sabra and Shatila massacre, led by Chief Justice Yitzhak Kahan, called for Sharon's resignation, they did so based on a more or less novel legal precept, "indirect responsibility." They based this in turn on biblical and Talmudic sources, and (especially on this day of the Nobel Peace Prize) their reasoning should be quoted at length, just to get a sense of how impressive Jewish sources can be in dealing with a complex diplomatic and criminal matter:

A basis for such responsibility may be found in the outlook of our ancestors, which was expressed in things that were said about the moral significance of the biblical portion concerning the "beheaded heifer" (in the Book of Deuteronomy, chapter 21). It is said in Deuteronomy (21:6-7) that the elders of the city who were near the slain victim who has been found (and it is not known who struck him down) "will wash their hands over the beheaded heifer in the valley and reply: our hands did not shed this blood and our eyes did not see." Rabbi Yehoshua ben Levi says of this verse (Talmud, Tractate Sota 38b):

"The necessity for the heifer whose neck is to be broken only arises on account of the niggardliness of spirit, as it is said, 'Our hands have not shed this blood.' But can it enter our minds that the elders of a Court of Justice are shedders of blood! The meaning is, [the man found dead] did not come to us for help and we dismissed him, we did not see him and let him go - i.e., he did not come to us for help and we dismissed him without supplying him with food, we did not see him and let him go without escort." (Rashi explains that escort means a group that would accompany them; Sforno, a commentator from a later period, says in his commentary on Deuteronomy, "that there should not be spectators at the place, for if there were spectators there, they would protest and speak out.')


THE POINT IS, it was not the source of the precept that made it fit for a democracy. It was the judge. Kahan was born in Galicia, and had studied the law before immigrating to Israel in 1935. He knew very well the "indirect responsibility" of others during the Holocaust. He was a man devoted to "equal protection" and (let's call it) the Kantian idea that Jews had the responsibility to live by laws that might be applicable to all human beings. You had to ask, what if everybody did that? (Actually, this was Hillel's idea, too.)

Compare Kahan's marvelously humane stance to that of Rabbi Shmuel Avner, who heads the Ateret Cohanim yeshiva in the Muslim quarter of the Old City in Jerusalem, and whose works (among others) were distributed to troops before last year's Gaza operation: "When you show mercy to a cruel enemy," Avner said, "you are being cruel to pure and honest soldiers. This is terribly immoral. These are not games at the amusement park where sportsmanship teaches one to make concessions. This is a war on murderers. 'A la guerre comme a la guerre.'"

And what is a cruel enemy? Does it include a whole nation, including women and children?

[There is] a biblical ban [Avner writes] on surrendering a single millimeter of it [the Land of Israel] to gentiles, though all sorts of impure distortions and foolishness of autonomy, enclaves and other national weaknesses. We will not abandon it to the hands of another nation, not a finger, not a nail of it...Is it possible to compare today's Palestinians to the Philistines of the past? And if so, is it possible to apply lessons today from the military tactics of Samson and David?

The Torah, Neeman said (echoing Rabbi Kook), is "complete." Let's agree that it is a great chronicle, complete the way great fiction is true. The Talmud, correspondingly, is a record of opinions and interpretations of Torah. The question is, as it always is, who is looking for what? Would Zionism itself have happened had young Jews in the Pale of Settlement, feeling the enchantments of (what they called) "modernity," not gotten fed up with the opinions and interpretations of the ill-educated, bigoted, and sheltered men who dominated the shtetl? Should we now submit our disputes to our homegrown variety?

YAACOV NEEMAN, I hasten to add, is a far cry from Shmuel Avner. Neeman is an expert on tax law, and a founding partner with the late, former president, Haim Herzog, of Israel's largest international law firm, Herzog, Fox, Neeman. As the finance minister in the late 1990s, he helped shape Israel's global profile. (I have taught a member of Yaacov Neeman's family, and based on her brilliance and decency alone, I cannot doubt his good faith.)

No, Neeman's tragic flaw is not fanaticism. It is a kind of complacency in the face of status quo agreements with the orthodox "rabbinical court system." As I've written in The Hebrew Republic, and as the indispensable Gideon Levy puts it in his column today, Israel is already not a secular state in the sense anyone in the West would recognize.
The truly terrifying idea is not greater influence for Jewish law, but greater influence for rabbinic courts, which anyway have no place as an official arm of a democratic state. Let Neeman study Torah to his heart's content; let him find inspiration where he can. Just don't tell us that going to some yeshiva in Jerusalem prepares one even for an internship at Herzog, Fox, Neeman, let alone judging the disputes of modern citizens.

“I have never feared really religious people,” Chaim Weizmann, Israel’s first president and Zionism’s first great statesman, wrote in his 1940s memoir; “it is the new secularized type of Rabbi, resembling somewhat a member of a clerical party in Germany, France, or Belgium, who is the menace, and who will make a heavy bid for power by parading his religious convictions. It is useless to point out to such people that they transgress a fundamental principle which has been laid down by our sages, ‘Thou shalt not make of the Torah a crown to glory in, or a spade to dig with.’”