Choosing between the Law and Torah

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Is the tension over the arrests of Rabbis Dov Lior and Ya’acov Yosef a precursor to an inevitable collision between Halakha and the judiciary? This question was at the core of a feature in The Jerusalem Post entitled Choosing between the Law and the Torah, by Jonah Mandel (July 9, 2011). In the excerpt below, you will find the perspective of IDI Vice President of Research Prof. Yedidia Stern on the book Torat Hamelech, the refusal of two rabbis who endorsed it to report for police questioning, and the religious community's response to this incident.

Bar Ilan University law Professor Yedidia Stern, who is vice president of the Israel Democracy Institute and one of the country's foremost experts on the tensions between state and religion, firmly rejects the notion that a rabbi—or anyone, for that matter—can independently decide that he should not be subject to an investigation.

"A person cannot be exempt from the rule of law, just because he has a subjective feeling that the law is being applied in a non-egalitarian manner," said Stern. "Allowing every person to decide when they think they should be investigated and when not is a formula for chaos. Imagine a Muslim sheikh—a religious leader like Lior, only from a different religion—being summoned for investigation on incitement. Would we think that he is allowed to say, I don't want to be investigated because my sector is discriminated [against]?" The place to raise charges of discriminatory implementation of the law is in court, he added.

Most of the speakers in the recent rallies for Lior and Yosef have evoked instances of intellectuals from the Left speaking out in a way that seemingly incites violence against the Right or settlers, as evidence that the legal system is biased and hence unworthy of cooperation.

But the reason academics from the Left are not summoned for questioning might be their lack of influence over people who would act out their violent words, Stern posited.

"Freedom of speech is the 'queen' of rights, certainly political freedom of speech," he said. "It's at the top of the 'pyramid' of rights. The instances in which it is limited, when a person is investigated over [remarks or writings], are rare.

The criterion for when freedom of speech is challenged is when it poses a clear and immediate danger to others."

He continued, "Whose remarks could be more harmful—the outrageous ones of Professor Ze'ev Sternhell"—who said it would be wise of the Palestinians to concentrate their terror solely against the settlements—"and his ilk? Do their words lead to action, or do those of rabbis?" According to the law professor, "if somebody from the Left were arrested for investigation, I don't think that within two hours their supporters would stop traffic and storm a court. The practical force of professors is smaller than that of rabbis."

The question of whether Torat Hamelech could lead people to violence was not one Stern could clearly answer.

"Unfortunately the book doesn't state that it's solely a study, theoretical, not to be acted upon, like many other books from this genre are and declare to be," he said. "Could this book help create another Baruch Goldstein? I don't know. But when important rabbis write endorsements, there is a type of empowerment to the dangers that could emanate from the book."

To Stern, it is clear that the rabbis should have heeded the police summons. He was also adamant that rabbis should not be exempt from legal responsibility for their teachings just because of their religious leadership positions—as members of the Right proposed in a recent bill, which the government shot down.

"The desire to create a legal extraterritoriality for religious leaders will surely give Muslim religious factors, who are enemies of Israel, the opportunity to preach against the state, without the possibility to act against them," he argued.

"Whoever feels that Islamic leaders should not be allowed to express themselves in ways that endanger us, whoever thinks that the legal system has to be able to be involved—must agree that rabbis should also" be within the parameters of the legal system, said Stern. "Whoever wants equality must give it, too."

The law professor, who wears a crocheted kippa, also took to task the claim that the Torah is above the law.

"To say so means the end of the rule of the law, since Torah applies to all of reality—it has a say on everything. And since that is the case, rabbis would be exempted from everything, there would be people to whom the law doesn't apply," he contended. "But what is Torah? And who would define it? The body that would have to set those rules would be the court. Do Lior and his supporters want the court to determine what is Torah and what is not?" The responsibility to heed to the authorities should be a religious obligation, said Stern, conjuring the verse from the Mishna that without the fear of the regime, there would be anarchy. "Doesn't the fact that you are a rabbi in Israel force you to act under the paradigm of the rule of law, out of a religious perception?"

The question then remains why a traditionally loyal public increasingly seems to be veering to the right and away from the state in recent years, at a time in history that more and more members of the national religious public are taking senior positions in the country's "secular" mechanisms.

"I fear that certain people from the national-religious public seek to sharpen the tension between Jewish law and the law of the land. They also benefit from it politically; it makes them stronger," said Stern.

"My feeling is that the Zionist religious public is moving toward the national leadership table. More national religious people than ever before are taking leading positions in the executive authority. The Knesset also has more people with skullcaps, [including] in secular parties. Over a third of the officers in the elite IDF units are religious, which is the true indication of future leadership; the legal system and media are also growing in numbers of religious members. Religious people are 'taking over,' which is a positive development for the state," he asserted.

"Instead of understanding that the entire nation expects reasonable, moderate leaders who can see the interests of the general populace, the Zionist religious leadership is pulling the more militant parts of that public to a fringe position of irrelevance and a lack of understanding of the historic role of the religious leadership," he said, adding, "There seems to be a desire to ideologically oppose the state."

Of Lior, Stern cautiously noted that "alongside his loyalty to the state, he also has a record of ongoing dispute with the state, on the issue of the attitude toward the Arab minority, among others."

The fact that more moderate rabbis like Haim Druckman attended the rally in support of Lior reflects the distortion in the debate over Torat Hamelech.

"Druckman does not agree with the content of the book," said Stern. "The battle became not over what the book actually says, but rather an attempt to decree on issues of principle. In the State of Israel, can a rabbi—in his capacity of a rabbi—say 'no' when the law tells him to show up for an investigation? I can't imagine such a reality; we can't let that happen. At the same time, a rabbi's freedom of speech cannot be diminished."

It was over 10 years ago that Stern published his seminal article "Halakha and Public Policy" on the potential clash between the two directives, and the issues raised there are more relevant than ever.

"At the end of the day, we are witnessing an almost inevitable process," he said. "Once rabbis decide that they want to express their opinion not only from a spiritual point of view, but also from a halakhic one, on issues like foreign and security policy; not only on issues like Shabbat and kashrut, but also on the borders of the land, peace and the attitude to Arabs—there will be a harsh collision."

He pointed out that the concept of rabbis decreeing on all topics, civilian included, is not a classic product of modern Orthodox Jewish thought, even from the national religious circles, but a development of Rabbi Zvi Yehuda Kook, who headed the Mercaz Harav Yeshiva.

"This attitude is not illegitimate, but one must understand that this line of thought will inevitably lead to clashes between state and religion," the law professor said. "Every question becomes halakhic.

Whoever does endorse that directive will have to find an inner halakhic mechanism to allow accepting the majority's decisions, even if it stands in contrast to what Torah would say. Otherwise, we are doomed to a civil war on the basis of Jewish law." 

The above excerpt originally appeared in an article by Jonah Mandel entitled Religious Affairs: Choosing between the law and Torah, which appeared in The Jerusalem Post on July 8, 2011. It has been reprinted with permission. To read the article in its entirety, click here.