Gerald J.

Prof. Blidstein, a member of Tradition's editorial board, is M. Hubert Professor of Jewish Law at Ben Gurion University of the Negev in IsraeL.

tween halakha and democracy, or at least outline the structure of such a venture. It I understood, therefore, that neither compoThe topic requires thatis describe a possible modus vivendi benent in this equation-neither halakha nor democracy-will be totally rejected. I shall attempt to describe the resources available in both the democratic and halakhic traditions which can be enlisted in making
such a modus vivendi possible.

My discussion can take two rather different points of departure. One can assume that halakha and democracy are both inescapable facts of our life in the 20th century and consequently strive to accommodate
them 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 phenomena are profoundly positive and that one would wish to live in a world constituted by both. Naturally, tensions will arise even between two positive phenomena-occurrences of which the Talmud itself is
full-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 that democracy is the inevitable conclusion of Jewish political thought, nor
do I wish to argue that it has historically developed out of

Jewish thinkthe Jewish world~view, and

ing and behavior. I would say, though, that democracy is profoundly
coherent with much of the basic structure of

that we find in our commitment to democracy a concrete, specific
expression 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
TRITION32:1 / (Q 1997
Rabbinical Council of America


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 for the technological control of one's physical environment, we may also
understand Adam I as implying the human control of one's political environment. True, the Rav himself identified Adam I with the faceless

collective and found true community only in the covenantal reality engendered by Adam II. But if the "image of God" in man implies
human dignity, as the Rav argued, then this is to be found in politics as
well 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 the faceless collective and the covenantal community, with its metaphysical
characteristics and yearnings.

It is indeed most important at this juncture that halakhic Judaism communicate 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 universalism, 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 modern world may be fought. In certain variations, more common in groups which attempt to fuse the religious and the political right, it is a term
through 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 an
assimilatory universalism. And it is all the more crucial that we embrace

democracy as implying, in our concrete reality, the basic legitimacy of
the 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 purely Jewish pedigree needs some clarification, I think. Overall, this commitment strikes me as similar to a number of other commitments we


hold.l We are committed to the monogamous ideal, for example; we both expect and idealize fidelity in marriage and condemn equally
either partner who betrays. Now, we know full well that both biblical

and talmudic traditions differentiate, on the halakhic level, between
husband and wife in this matter, and so do not share this commitment.

We also realize that the emotional depth of our commitment is not
truly generated by the communal takkana of Rabbeinu Gershom which banned polygamy. On the positive side, we do feel that monogamy is strikingly coherent with the basic vision of marriage and the human per-

son described in the tradition from First Man and Woman on. Our
commitment to monogamy fulfills that vision, even if it may have been achieved 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"-not
uncritical, for we know well that Biblical texts find slavery unpalatable,
and rabbinic traditions are positively criticaL. True, Biblical legislation which 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 of
slavery 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 not

owe 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 congruent-especially on the halakhic level-with the matter at hand. Bible

and halakha hardly command either polygamy or slavery, but they might-to choose a striking example-mandate monarchy. To be honest, 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 of

how complex, yet delicate the historical formation of an authentic Jewish consciousness canour identity is shaped.

legitimately-be, is profoundly relevant to our understanding of how

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. The halakhic 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 neutrality 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 the
emotions as well as the intellect. In less euphoric terms, the Israeli situa-

tion forces the interaction of "religious" and "secular" populations to
an extent unknown in diaspora conditions, one of the positive and
promising 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 perilous
existence and provides much of the satisfaction to be experienced in Israeli society. U nfoftunately, both halakha and democracy are now

divisive terms and concepts. For good or il, democratic procedures and ideals do not only enable a meeting of the camps; their rejection by us would signal a clear rejection of those Jews for whom democracy is a
basic value. The religionist is often feared as one denying the funda-

mental human/Jewish integrity of those who do not share his way of life; 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.

I shall begin by taking democracy, with Schumpeter and Dahl, at its most minimal and least ideological-as a system in which citizens choose their government, a government which possesses both administrative and legislative functions. Now, it has been maintained, even by
some who would be satisfied with this minimal and uncritical definition of what "democracy" requires, that halakha and even such democracy are in principle opposed, thus making it impossible for halakha and any form of democracy to co-exist.2 A similar position is implied in the writings of some religionists. This basic claim derives from the democratic belief in the sovereignty of the people and the idea that authoritative legislation is rooted in that sovereignty. For a religionist, on the other

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 devastating 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 values?) 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 halakha
and 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 commitment, 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 whether they can fully harmonize their respective ultimate truths. Now, I do not
intend to retreat completely into pragmatism, but it would be wise not

to brandish the potential fundamentalisms of both democracy3 and
halakha, or to reject any possibilty of mutual interaction by staking out metaphysical positions.

It cannot be denied, though, that even the minimalIstic definition of
democracy broached above-that the people periodically elects its government, 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 coruled) 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, if not absolute, power, to a symbolic figurehead, or to convert Maimonides' 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

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 philosophic-principle, one which requires a principled answer. It will not do merely 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 prophet Samuel's strong opposition to the appointment of a king, despite the
ostensibly clear Deuteronomic command to do so. (On the surface, this opposition reflected Samuel's resentment at the monarchic infringement on the Kingdom of God, not his concern for social liberty; but as the Judges, which a hereditary monarchy
Buber pointed out, the rule of

would 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 the
people Israel were in fact unambiguously commanded to have a king, a discussion 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, that
even 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 Deuteronomy 17 to mean that if the people so desire, one is commanded to appoint a
king, 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 monarchy lapses, such authority returns to the people. Taken literally, this

analysis says nothing about the non-desirability of monarchy per se; but it may be read as a way of providing the theoretical basis of a nonmonarchic polity, as it were, as well as a way of providing the modern
Jewish community with political legitimacy.6 R. Hayyim David HaLevi

has 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

oligarchic or democratic entity as Well."7 It may be said, of course, that this and similar comments reinterpret (rather than reform) the monarchic structure, understanding it as merely one mode (among many) of

providing necessary governance. But the methodological issue, which
would be of great interest in another context, is not our concern herewhich is to report on conclusions reached. Nor do I intend to urge that

these flexible positions dominate halakhic discussion, either now or in
the 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, be squared with a willingness to forego that institution entirely? It does not seem possible, then, to divorce political ideology from other areas of
substantive belief, which do seem committed to a specific view of Jewish

governance. Perhaps this problem did not prove decisive for those many
who 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. Perhaps it is wiser to leave the messianic monarchy of the end of days in the realm 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 in
that redemption in the interest of the kingship of God.8

But if personal, hereditary monarchy can contribute little to a democratic halakhic society, the institution is most relevant in a structural sense. Basically, its existence demonstrates the legitimacy and desirability of political governance, that is to say: governance which is by definition not in the hands of religious leadership. From that perspective, one can speak of the 'civil sovereign' in a broad sense, so that it can be manifested in a variety of institutions: melekh, of course, but also takkanat ha-

kahal, dina de-malkhuta dina, and so on. Most discussions do, it is
true, consider these distinct, stressing those aspects in which they differ (e.g., the centralized malkhut as over against the local kahal; does dina
de-malkhuta dina apply to a Jewish government in the Land of



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 devoted to tikkun olam. Furthermore, the norms of "civil sovereignty" have often 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 power

which characterized that community encouraged greater participation by 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 modern
democratic 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 MishnaicMaimonidean presentation, requiring both a separation of powers, and very likely, a separation of areas of authority. The monarch, to return to R. Lichtenstein's phrase, is the 'civil sovereign,' while the Sanhedrin, clearly, institutionalizes the religious leadership. These are distinctly different 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 manifestation 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 the consent of the populace. Major aspects of democratic theory are, thus,
integrated into the halakhic world-view: civic authority is held by lay persons, not by sacral, or even halakhic, figures; and political authority is

wielded by virtue of popular consent. Indeed, on a more basic level, the
community 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 by
halakhic authority. Thus, R. Rabinovitch provides a proposal which dis-


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 halakhic regulations 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 religious 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 unto God what is God's and unto Caesar what is Caesar's" has been condemned 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 but not 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 secular politics within the Jewish tradition?" Furthermore, "In the area in which halakha, or the tradition taken broadly, is not controllng, how
do Jews participate as Jews?"l2 Thus, it might be thought a sorry situaJews, qua Jews, had nothing to contribute to the social and ecotion if

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. Rabinovitch's fundamental assertion out of court, even if

they may be expected to lead to occasional (and legitimate) jurisdictional conflict between religious and civil authority as well as to the quest for a broad Jewish
ethos in areas that are not determined by halakha. Thus, and frustrat-

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


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, of in adam laMakom,

course. Bein adam la-havero is as normative as be

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 where
halakha 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 do
both). Similarly with tikkun olam: while a halakhically mandated goal, the precise avenues and modalities for its achievement leave much for
non-halakhic discretion. Pushing a bit further, the idea of halakhic lacunae-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). 14

But the basic claim of the model here described is not merely that

the civil sovereign operates in the narrow interstices left unfilled by
halakha, 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 administrative/ executive (and even legislative) activity of the state may be

halakhically indifferent-and it is this sphere with which R. Rabinovitch
is largely concerned. The opposing claim would be that halakha is allencompassing, that there is a halakhic answer-existent or potential-to

all significant problems. This, then, is the basic issue to which the paradigms of malkhut and takkanot ha-tsibbur are relevant. Naturally, the issue is made more complex by modern reality, which adds at least two complications. First, it is difficult if not impossible to guarantee that the contemporary 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 on their prerogatives, but, more profoundly, incorporates "alien systems" into the halakhic lacunae. This issue has indeed been raised in discussions of the legitimacy of the Israeli legislative and judicial systems.


Other perspectives should also be brought into play. The organic
unity of Torah notwthstanding, we also rule that in financial mattersdinei mamon-one may draw up agreements in violation of Torah-law so long as the parties involved give their consent.16 This license, which

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


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 fundamental point, though, is that this flexibilty exists, much as the distinction between Sanhedrin and king exists. The question is, rather, how deep this flexibility goes (for example, does it apply to public legislation, or to

agreements between individuals only?) and how powerful a role it
should 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 halakhically

committed oppose such a proposal on philosophical or utilitarian
grounds, but not on halakhic ones? May he or she not vote on his or her halakhic conviction? The topic of legitimate motivation in democratic society has been much discussed; yet most of us would feel it perverse to limit 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 of its societal ramifications as well as its purely religious ones? Perhaps. Clearly, though, there are other similar issues where the modern state cannot 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 activity
and the shifting of many areas of

its activity to more homogeneous com-

munal groupings. Though this stance may be attractive in theory, it would be hard to implement in the modern world. I also wonder whether this strategy is powerful enough to engage all the problems

R. Rabinovitch also argues that there is a basic reluctance on the part of halakhic institutions to use physical, coercive power. Fundamental 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 preferred to disavail itself of the capacity to inflct punishment. All this produces 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

Gerald J. Blidstein
turn is essential to doing the good and holy. Thus the modernist perspective, 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 to
undermine the use of coercive force as motivation for halakhic behavior.

This is quite different, incidentally, than the forswearing of force commonly found in modern halakhists such as Hazon Ish. These approaches 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 classic
apikoros 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 coercion-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 under compulsion. Now, it is patent that from the Bible on, halakhic perfor-

mance can (or even: should) be coerced and that punishment wil be
meted out to the miscreant. But much recent analysis, deriving largely

from the work of R. Me'ir Simha of Dvinsk, has concluded that such
coercion is valid only when it brings about an internal change in the

mind and heart of the person coerced, so that he or she assents to do what he or she was ostensibly forced to do.19 Such a change of heart
could 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 even ilegitimate. It may be claimed,20 of course, that this entire body of
thought is simply a recent accommodation to (or internalization of)

modernity, when even committed religionists do not insist on a full measure of coercion and where modern concepts of toleration have
made 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 practical
implications-does have significant support among contemporary halakhists. Yet this application of Or Same)ah to modern conditions is also based on a theory of deterioration; the Jew, it is claimed, has lost his bedrock identification with Torah. R. Rabinovitch, on the contrary, speaks of modern man's development towards a higher spirituality, and is here closer to certain idealistic

(and naive?) strains in the thouRht of R. Kook. Another interesting precursor is R. YosefEliyahu Henkn, who daringly suggested that the cessa17

tion of semikha was providentially brought about so as to make physical
punishment impossible, thus preparing Jewish society for the Messianic

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

between Sanhedrin and monarch dovetails with both the familar Western 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 no qualms 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 nonhalakhic figures in the area of civic governance alone. That, by definition, rules out the use of the political process to legislate in topics that

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


For the halakhic legitimation of a "civil sovereign" to be relevant in the present, we must be prepared to acknowledge the authority oflay institutions in a polity which does not grant authority to religious leadership per se, aside from a strictly restricted Chief Rabbinate. No Sanhedrin will exist in tandem with malkhut unless the religious community itself produces one; nor wil the talmudic-medieval review by the
local Torah-sage check the "civil sovereign." Certainly, many-but not

all-a medieval Jewish community functioned under precisely those conditions, but it (or at least the rabbinic estate) never made its peace with that situation. On the other hand, we should also do well to realize 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 broader
norms of justice and fair play. Would that the contemporary rabbinate in fact reasserted this role, a role there to be taken! Issues for such guidance abound.23

The halakhic (!) model described above carried with it no small surprise. Put bluntly, its bottom line is that little halakhic content should
be 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


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: Human Rights, and Basic Law: Freedom of Profession. There can be no denying, either, that both the milennial hope and historical reality made the restoration of a State crucial for Religious Zionists (and even for Jews who 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 spiritual
Uganda, as it were? It certainly seems perverse to understand the halakha in so narrow a way that it virtually reads itself out of social existence, denying what seems to be axiomatic for any self-respecting traditional Jew. Thus, so sensitive an observer as Pinhas Shiffman (himself

no advocate of religious legislation in matters of personal status) suggests that if Israel were to completely legalize civil marriage, much of the religious population would reconsider its basic identification with the State. Isaiah Leibowitz's assertion that Zionism could be satisfied by

a State in which Jews were not subject to political domination by nonJews 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 abandonment of coercive political power as a device for ensuring religious
behavior. It says nothng about the content of Jewish society, the possibil-

ty of constructing a meaningfl "Jewish street" through educational, voluntary, 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 culture. 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

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 democratic state completely disengage from all matters religious? Few Israelis, for

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 for

awhile now, conceding the matter only for fringe groups such as
Quakers-and the choice by parents of the education to be given their

children seems fully congruent with democratic rights. There is some coercion here, on the level of taxation and disbursement, but it is indirect and tolerable. Other such examples could be given, ranging from

support of neighborhood rabbis to purchase of mezuzot for government
offices. 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 halakhic

issues. 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 to the use of the menora as the official symbol of the State, and much in

between. (A basic and much-cited instance is the denial of political
legitimacy to parties which urge the end of the country's Jewish or democratic character-which is itself, possibly, a non-democratic rule.) These are, on the one hand, not halakhic in nature, as halakha mandates neither 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 is
merely 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 of
Return does not apply.

Now, a person committed to halakha can feel free to urge the repeal of the Law of Return, for example, as a violation of darkhei
shalom. Or he can defend it as either consonant with the nature of ethnic democracy or as similar to the restrictive immigration policies of
some well-known democracies. He can similarly oppose some of the

discriminatory 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 the
State as a whole.

It is generally thought that Judaism coheres well with the republican democratic emphasis on self-government, but less well with the lib-


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 stress
group standards, traditions, and even rights, as over against the individualistic 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 (or
must) define a concept of the "good life" towards which they strive, rather than merely guarantee the individual's freedom to pursue his

own vision. Israel wil also be categorized as an "ethnic democracy"
rather than as a multi-national territorial state belonging indiscriminately to and defined by "all its citizens" .28 Israel has also been classified among 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 population (for whom the model does not hold, at least as yet).29 The assertion, stil frequently heard, that the modern territorial state is necessarily secular and ethnically or culturally neutral, does not fit either political reality or political theory.

It is worth putting on the record, I think, that communitarian
thought should not be completely attractive to us, reassuring as it seems to some to find a respectable modern intellectual trend which seems to
go 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 in
recent 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 communitarian modeL. In telegraphic terms, Israel would line up with "positive" rather than with "negative" liberty; with Lord Devlin rather than with Professor Hart. At the same time, I also think that these issues are not

as foreclosed or determined from a halakhic perspective as is often thought. We ought be very wary-from a Jewish point of view-of too
easy, or too sweeping, a surrender of our individualism.

The communitarian perspective suits the support given by most religionists to legislation which attempts to preserve an observant "public square" while not encroaching on the private rights of the non~observant. Whle this policy (which is classically liberal in both terminology

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

I suspect that it does not really derive from the classic-and powerfulhalakhic 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 specifically
halakhic. 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 individuals? Between what is done with state aid as over against what is done

with private funds? What "represents" the State as over against what does 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 that

such topics were social, not private, and hence subject to state controlthough not to the extent demanded in Israel today. Is limiting the amount 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, are not also at work. An interesting instance of this blurring is found in a recent paper
of Prof. Eliav Shochetman.31 Shochetman comes to the conclusion that religious coercion is legitimate and indeed mandated by talmudic and

medieval law. But he also accepts the entire contemporary halakhic thrust which makes categories like apikoros obsolete, at least as far as the punishment they invite is concerned, and even adopts the analysis spearheaded by R. Me'ir Simha of Dvinsk (though see my comment in n. 19
above), which makes coercion inapplicable-and indeed forbidden-in

modern conditions, even so as to prevent violations of halakha and not only 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 won broad agreement, is surprising.) But Shochetman then shifts gears, cites Israeli legislation (mentioned earlier) according to which Israel is to be a "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

Gerald J. Blidstein
"religious legislation" may derive, then, from broader policy considerations rather than from specific halakhic norms. Now, it is possible to justify 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 exposed to a less halakhically corrupting environment. But it may also be relevant to see the compromises hammered out-compromises which are in a constant state of flux, talk of status quo notwithstanding-as reflecting 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 process by which they are achieved, they are statements of policy and even principle. They represent not only what the traffic can bear, that is-the

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

Popular Israeli acceptance of religious norms of public behavior also derives less from their halakhic status than from their contribution to a communal standard (as well as, of course, their contribution to
political stabilty!). Besides reflecting the pragmatic quality of Israeli life, which concedes much to political and social realities, this wilingness to tolerate rabbinic control also reflects a communitarian understanding of society. Such toleration even allows modern standards of individual rights to suffer, as in the inabilty of a wife to initiate divorce proceed-

ings. Thus, most popular (and judicial) support for change in current
marriage/ divorce law focuses on the need to provide an alternative

structure for individuals for whom halakha cannot provide a solution, not on a complete reform of the current situation. Another broad area where this understanding comes into play is that of education, where despite 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.

"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

slightly: self-government is granted to all citizens of the modern territorial 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, to choose a striking generalization, with this Maimonidean statement, cited not infrequently by both ideologues and scholars as indicative of
what 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 to

serve 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, either
legally or morally.

A moderate exegetic response to these norms would be to read
them as direCted at assuring political acquiescence alone. In contemporary 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 an
issue concerning group relations, and eliminate the threat to individual

status and dignity. Perhaps even the requirement that the non-Jew not possess authority over a Jew-an issue to which we shall return anyhow-might be read that way, toO.34

of the right to define Israel in communitarian terms of some sort, is to
It strikes me that a broader attack on the problem, irrespective

note that both biblical and Maimonidean texts describe populations

conquered in war. Do we want to define the non-Jews as a conquered population? 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, democratic
norms of procedure and participation pose no small difficulty to the halakhic tradition. It is no secret that halakhic texts discriminate against

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


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 or giving testimony. And on the legislative level, "(Israeli) Rabbinic Courts, . . . with one exception, have never recognized any secular law as constituting a communal takkana"-largely because of the composition of the Knesset, which includes large numbers of the above cohort.36

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

40's, R. Herzog mobilzed a number of halakic techniques and arguments 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 representaJewish history. Second,
tives, was not to be consigned to the dust-bin of

that the religious population was obliged, in both conscience and

according to halaka, to welcome the founding of a Jewish state, even if it was encumbered with governmental procedures which violated the
halakha. The state represented an opportunity for immediate pikuJah

nefesh and eventual redemption, and these outweighed all negative considerations. Besides, acceptance of democratic standards was required by the U.N., upon whose patronage the founding of the State was conditioned; in a sense, there was no choice, and if democracy violated halakhic norms, it was a coerced violation. Indeed, R. Herzog suggested
that 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 a

rather indirect sort, to be sure). At the same time, there is evidence of
his fundamental assimilation and admiration of the basic democratic concepts to which he was exposed in the United Kingdom.

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

ic theory. Besides noting that the question of women's "authority" was moot (Maimonides banned and the Tosafot apparently allowed), he proposed to narrow the (problematic) concept of serara altogether. Inasmuch 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 power alone. Thus, most if not all offices in a democratic polity would not


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. Herzog
noted that these possibilties were extended in medieval halakha to

include legislated, communal "consent" so as to allow the functioning of the Jewish community.40 Such consent was extended to legitimate
the granting of penal powers to as yet unspecified individuals, certainly

an exceptional situation. Building on these precedents, he proposed contemporary implementation of this rubric and its further-though
not unlimited-extension.

These two suggestions stimulate two distinct reactions, in me at least. R. Herzog's distinction between absolute and relative authority has little support in the text itself. In theory, of course, the democratically-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 distinction seems forced. This, despite the fact that the basic idea has seen

wide use (especially in the period during and following Golda Meir's tenure of office); and practical pesak, in this area as in others, wil often mobilze techniques that seem textually or conceptually questionable.
The use of the rubrics of "consent," on the other hand, is a different

matter. Indeed, the very existence and nature of these rubrics are most
interesting 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 the medieval period; it is also powerfully present in talmudic aggada and, possibly, in the biblical ethos itself. Second, we are dealing with a mechanism which, in its medieval version at least, bears some comparison with standard democratic doctrine and practice. Certainly, the rubric of
consent is open to the charge of formalism. Curiously (or not so curi0usly), consent theory, so often far out of touch with actual reality, is

widely 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 Jewish
public law.

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

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

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 might
argue, the Jews of this community consented to all it implies as regards its inhabitants. This itself, I grant you, is none too precise: what, exactly, does the territorial state "imply"? Certainly, there can be a difference of opinion here; many simplistic assertions have been made which do not cohere with the reality of territorial states in the actual world. But we 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 elected officials do not possess serara, but for R. Yisraeli, it is not the limited tenure and such which decide the matter. Rather, the modern elected
official is a representative of the community, and as such (R. Yisraeli

incorporates the shelihut paradigm) has no "authority" over the community. This, of course, is a more profound assimilation of the democratic ethos, though, as R. Yisraeli is careful to argue, one with clear tal-

mudic precedent. But R. Yisraeli takes one more crucial step. The state itself, 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 advanced

within the religious community. (He would doubtless reserve that
model 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 nonJewish citizens:41

It is thus obvious that just as if there were a business partnership
between 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 he
only 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 serara, 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).


This is a remarkable statement, no less in halakhic terms than in ideological ones. Appointment of a gentile as a shaliah is, of course, a
radical idea. But our interest lies in the ideological and political direction. 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 is possible because he adopts a minimalistic model of the state as a partnership, 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 company-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 the

state, as well as the conceptual grounding of this suggestion, are both very clear. As far as I know, though, R. Yisraeli never returned to this idea, 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 other
strands of the halakhic tradition which are generally seen as too flimsy

to bear much traffic-at least to rehabilitate them in terms of our educational discourse. As we well know, halakha prescribes that we visit the pagan (i.e., even idolater!) sick along with ours, bury their dead as we
do 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-serving 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 generate legislation providing for the rights of Jewish minors and to regulate the relations of kohanim and other Jews, it seems more adequate to return to the more "naive" reading of our rule and to stress its ethical implications, as did Maimonides. This is certainly the message of the terminology chosen, which is also idealistic, not egotistical or even pragmatic.43

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 in situations thus limited, such as in the burial of non-Jews, would represent 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, sharing

acts of benevolence may be enough. For a society which has more powerful political instrumentalities, more will be necessary. Mippenei darkhei shalom wil be seen dynamically, then, as a norm which expands and

contracts according to social realities and expectations. Where civil

equality is a basic expectation, it wil respond. Elsewhere, I have explored the idea that this dynamic quality may inhere in the norms of
kiddush 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.44

In 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 uncomfortable with some our of materials. True, halakha generally proceeds by interpretation, not confession; by the legal process, not by moral discourse. But I think that we ought not be ashamed of the fact of our discomfort and its sources. Such a situation is often just below the surface in the writing of R. Kook, and is probably one of the reasons for the fascination 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 find
some 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 sweep
well be that because of

either of these commitments under the rug or into the closet.45 It may its interpretative nature, the halakhic process gen-

erally proceeds by piecemeal procedures which maintain that the current reality 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 procedures 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-


tives: reality has changed, not principle.46 A less traveled route differentiates between the telos of a halakha and its-more flexible-instrumentality. This path wil be taken, generally, when the original halakhic category

is goal -oriented; treatments of the norm of tokheha provide a good
example of this.

I wil close this section with an anecdote concerning Rabbi Soloveitchik, 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 in order to save the life of gentiles. The rationale-a traditional one for this topic-was darkhei shalom (or eiva) in its self-serving sense: if we didn't act in such a manner, Jewish lives would be put at risk. The Rav then commented that he didn't understand why the pesak had received
so much attention-he had issued similar directives to Jewish doctors

for many a year, and for similar reasons: the lives of Jewish patients would be put at risk otherwise. He was then asked whether, aside from
the substantive content of the decision itself, he felt morally comfortable with the rationale he had given. He said no, he was in fact uncomfortable 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 similar
rationale for allowing hillul Shabbat, clearly de of the gentile religionist of his day. Ora

ita ) for saving the life


Any attempt to construct a halakhic bridge to democracy faces a basic
problem. 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 is
dear that we are facing a new problematic-conceptually and practically. 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 halakhah in other locales, barely took place with respect to the governmental sphere. Modes of thought and intuition, models of response and initia-


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 "as
related to" is taken!) that R. Lichtenstein is not merely noting the fact

that no politically-oriented halakhic thought or literature was produced for two thousand years. His point, presumably, would be the same if Jews had sat in Europe and North Mrica writing monographs on the halakhic state. Such creativity would nonetheless have been detached from "the continuous historical scene"-because, simply, such a scene
did not exist, and so this halakhic creativity would have been flawed at

its birth; or more precisely, it would not have been viable in providing contemporary solutions. The implication of this, I believe, is that current halakhic thought, if it is to be true to the halakhic process, must

emerge from the "interaction" of halakha and the polity, from the reality of the problematic and from the parameters of possible solutions. The above citation was taken from a brief discussion of "Religion
and State," which may explain the focus on political theory and reality.

But the problematic to be confronted lies not merely in the political sphere. 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 respect for individual rights and equality; that, perhaps, is the major thrust of 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 particular
problem or arrangement is "not halakhic in the narrow sense" does not
solve much. The real question is how a particular suggestion sits with

the broader scheme of Torah, how it contributes to the kind of society we would like to see. (I would be disingenuous, I suppose, if I did not add that achieving a consensus defining "what we would like to see" is no 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 that express a loyalty to Torah but which do not derive from what we usually consider the halakhic process, its use of earlier literature or its characteristic 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 provide
all the guidelines, it is likely that non-halakhic (but not anti-halakhic)


perspectives and persons wil make notable contributions, as they have
done until now.

Despite the urgency with which our topic is being discussed both here and in Israel over the last few years, the belief that it holds the key to the forging of a new relationship between religionists and secularists, the fear that without a solution to our dilemma, the basic social fabric of Israel is apt to unravel-the question of halakha and democracy is not really central to the national consciousness even as it agonizes over conflcts rooted in religion. Certainly, tensions between groups are profound and growing, as is the overall desire that they be defused. But the average Israeli does not see a solution arising from a discussion-or a resolution-of our topic, but rather from a series of compromises to be worked out 'on the ground,' compromises which wil satisfy/not satisfy fully any group (thus guaranteeing their fairness) but will allow life to continue. 'Democracy and Halakha' is an abstract conceptualization, a question of principle; Israelis seem much too pragmatic to expect salvation 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 notthat pursuing each value to its consistent end wil destroy that possibili-

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

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

Our topic is of great interest, then, to intellectuals at both ends of the spectrum. Intellectuals with a halakhic commitment-people like
ourselves-are concerned to find a resolution in conceptual terms. Intellectuals 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 conceptual solution to the dilemma, attempts to find pragmatic compro-

mise solutions wil eventually grind to a halt for lack of principle. But the 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 con32

Gerald J. Blidstein

text, by constantly looking back at her, trying to see whether she never
wavered as she followed him out of


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

impact in that country where Jews do govern themselves as Jews, it does, I hope, reflect the existential concerns of the centrist Orthodox community. The nature and terms of our relationship with other Jews
and non-Jewish men and women is an acute problem for many. From
where I sit-a place where the pressures are powerful and the problems

are complex-it looks as though the halakhic tradition, as defined by its bearers, itself is on triaL. We may be quite capable of persevering, of course, day-to-day, but the intellectual and indeed spiritual basis on which we believe a better society should be constructed, seems inadequate-inadequate educationally and inadequate socially. Too often, we

have reaped the harvest of that inadequacy. In textual terms, the issue seems 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 historically?49

*1 have tried to provide references in English wherever possible, even referring
to secondary rather than primary sources. This paper was originally prepared for

the Eighth Ortodox Forum sponsored by Yeshiva University.

1. These two instances-monogamy/marital faithfulness and slavery-are
those chosen by Rabbi Nahum Rabinovitch (n. 9 below) as symptomatic of
the trajectory of halakhic ethics. While sharing his view of the significance of these topics, I do not agree with his view of the nature of their historical

development, as my summary indicates, and so I am able to derive a different lesson from them. 2. See R. Gabizon in Iyyunei Mishpat 19, 3 (July, 1995), p. 642. This entire
issue of the Tel-Aviv U. law review was devoted to the problem posed by

Israel as a democratic and Jewish state. The same point, taken to rather
grotesque lengths, is made by G. Weiler in his Jewish Theocracy (Leiden,

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

ernmental definition of democracy is adopted. See, too, E. Schweid, "Beyond All That-Modernism, Zionism, Judaism," Israel Studies 1, 1 (1996). A question wort pursuing in the context of our overall topic-and which

I confess to ignoring in the present discussion-is the degree to which
halakha could contribute to the democratic ethos. See M. Elon, Mehkerei Mishpat 13, 1 (1996), pp. 27-86.
3. For the use of the phrase "fundamentalistic democracy," see R. Shamir,

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


4. For the general debate on the imperative of appointing a king, see my Ekronot 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 Ekronot, 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 parallel
doctrine according to which the Sanhedrin-not the king-is at times a

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

where the representative principle is to become operative: for R. Kook it rests in kingship (i.e., statehood), while for R. Soloveitchik it rests in the
functions of the Sanhedrin. It should be noted, though, that R. Shlomo

Goren espoused a view similar to that of R. Soloveitchik despite his own

commitment 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 historian. But we should recall that medieval culture was itself imbued with con-

cepts of representation similar to those implied in the writings of both
Rabbis Kook and Soloveitchik respectively. A broad-based theory of the representative basis of the halakhic judiciary is already found in Resp. Eliyahu Mizrahi, 57.

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

Religious Thought (New York, 1987), pp. 774-775. R. Lichtenstein indicated in conversation with me that the phrase cited should be taken in its normative, 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 extreme position is that of Isaiah Leibovitch, who held that Judaism mandates no
specific 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 below), 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 problematics of Jewish political thought (including the question, does such a thing exist?) is: B. Susser and E. Don-Yihye, "Prolegomenon to Jewish Political Theory," in D. Elazar, ed., Kinship and Consent (Ramat-Gan, 1983), pp. 91-111. Many of the topics discussed (or alluded to) in this
paper are treated in detail in E. Shochetman, Shenaton haMishpat halvri

16-17 (1990-1991), pp. 417-500. Marc Stern's fine essay, "Jews and
Public 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 in the American experience, its exposure of the common problematic is all the more iluminating.


Gerald J. Blidstein
8. For the rabbinic debate on monarchy, see my "The Monarchic Imperative," AJS Review 7-8 (1982-3), pp. 15-40, and n. 4 above. For rabbinic

reservations concerning the monarchic messiah, see E. E. Urbach, The
Sages, 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 Doctrine," in M. Kellner, ed., The Pursuit of the Ideal (SUNY, 1990), pp. 1528. 9. R. Nahum Rabinovitch, Darka she! Torah, which appeared with no pagination, date or place of publication. Rabbi Rabinovitch has informed me that
the 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: Halakhic
Theory," 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 takkanot

a de-malkhuta, etc. Shochetman's presentation of R. Nissim, who takes monarchic authority to its furthest limits, seems overly conservative. See M. Elon, Jewish Law, 1, p. 55-58; G. Blidstein, "Ideal and Real in Classical Jewish Political Theory," Jewish Political Studies Review 2, 1-2
ha-kahal, din

(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 and

State: 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 (and
my Ekronot, pp. 98-99); Ramban to Deut. 27, 26. For more specific in-

stances, see E. Kanarfogel, "Rabbinic Attitudes Towards Non-Observance," in J. J. Schachter, ed., Jewish Tradition and the Non-Traditional Jew
the significance of this phenomenon.
also Resp. R. MeJir of

(Northvale, N. J., 1992), pp. 3-36. Of course, one ought not exaggerate

14. For the major instance in rishonim, see M. Elon, op. cit., pp. 71-72. See
Roth en burg (Prague, 1608), 106,995: "Rules of taxation 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 "many
posekim accept the position of the Shakh" is somewhat misleading, since

many do not, as Shilo (see reference in n. 127) demonstrates. The question as to whether a legal system can contain lacunae remains moot, most conspicuously in the work of Hart and Dworkin. 15. For a forceful indication of the objection to lay judicial activity in earlier times, see S. Rosenberg, "Emunat Hakhamim," in i. Twersky and B. Septimus, eds., Jewish Thought in the Seventeenth Century (Cambrige, Mass.,


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

these historical tensions has not been much researched. The overall issue outlined 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 between
mamona and isura, see Elon, pp. 122-140. 17. See G. Blidstein in n. 23 above, pp. 39-42. The diffculties in artculating a firm rule here are evident in the materials cited by Shochetman, Shenaton, pp. 448-451; see as well pp. 431-432. Generally speaking, Shochetman makes many more judgments than his unambiguous prose suggests. 18. See Stern, (n. 7 above), pp. 184-189, and Golding (n. 12 above), pp. 204208, for further discussion and bibliography. The liberalist claim of Rawls, Nagel, and Ackerman, in Golding's summary, is that "in a religiously plural
society. . . propositions . . . that are rested. . . on religious convictions are

excluded from the debate, although any party could put them forward insofar as they might be asserted on grounds of so-called common modes of 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)): "The rule of coercion is applicable only as regards someone who wishes to fulfill

the commands of the Torah. . . . But as regards those of our generation, whose non-observance derives from a lack of faith in Torah and its commands . . . the rule that a court (or its appointed delegate) should coerce them by physical means does not exist . . . for even if we subdue them
physically, they will not be convinced of the truth of the mitsvah and wil

not agree to its observance willngly. Thus, the purpose of coercion is not achieved. . . 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 at

roughly the same time (op. cit., sec. 11, pp. 96ff; originally published in Ha Torah ve-haMedina 11-13 (1960-1962) J, the legislation of compulsory Sabbath rest in the public arena. I assume he held that such legislation was

not the equivalent of physical coercion. He also argues, in the latter essay, that the Israeli public will internalize mitsvot-at least the Sabbath- even if these are imposed by state law.

Despite the wide currency enjoyed by the above reading of Or
Same)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 is
required only of the person who brings a sacrifice or enacts a divorce; physical performance alone suffces in all other instances. This approach holds through almost all the discussion in H. Mamrim as welL. It is only at the very 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 for

all mitsvot according to the position that "mitsvot require intentionality"
of 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'ir Simha's "position" is indicative, I think, of an ideological need.
(mitsvot tserikhot kavvana). This is not the place to enter into a discussion


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, see A. Kirschenbaum, "Crisis Halakha and Heterodoxy Today," Judaism 14

(1965), pp. 88-91; S. Morell, "The Halakhic Status of Non-Halakhic Jews," Judaism 18, 4 (Fall, 1969), pp. 448-457; D. Ellenson, "The Orthodox 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 Liberal Pluralism," AJS Review 21, 1 (1996), pp. 61-110. Ross also gives bibliography 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. ton, pp. 476ff.
Shochetman, Shena

24. Stern (n. 7 above), p. 182, and the entire discussion, pp. 180-184. In any

case, it shU-uld be recognized that the "debate" is not merely of intellectual convictions, but of life-styles, etc. For a point of view which does see the state 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 in Molad 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 the

same issue of Iyyunei Mishpat, pp. 479-519; see, too, Don-Yihye and
Liebman 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. Ethnic

democracy is described as "Combining a real political democracy with explicit ethnic dominance. The system qualifies as a democracy according
to the standard criteria of the extension of rights to the entire population . . . political rights. . . and cIvilliberties . . . . (but) according a strctured

superior status to a partcular segment of the population . . . . the most
important (manifestations of superior status) relate to . . . the character of

the 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 the different segments of their population, thus paying less attention to individual liberty. Israel is discussed on pp. 130-134. It is somewhat sobering

to 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 Muslim
theorists; see H. Deegan, Third Worlds: The Politics o/the Middle East and

Africa (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.


32. The passage figures, obviously, in the writing of Me'ir Kahane; but it was
also 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 contemporary discussions of halakhic political thought, academic (as Harkabi demonstrates) or traditionaL. The reasons for this phenomenon and the price it
extracts 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 diffcult to present an unvarnished version. See, too, the rendering found in the Yale Judaica series, prepared for an American audience. 35. See, in addition to the material cited above, H. Melakhim 1, 4-5. Jews are
also familiar with this issue from the other side: both Christianity and Islam

long 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 of

non-Muslims in the political and business structures of the Shah's Iran.
The Jewish position stresses the political sphere, cf Maimonides' Seier
haMitsvot, Negative Command 260.

Israel," in N. Hecht, et aI, ed., An Introduction to the History and Sources of Jewish Law (Oxford U. Press, 1996), pp. 415-416. For a nuanced presentation of this position and its basis, see E. Shochetman in Shenaton, esp. pp. 463ff 486ff, where the distinction between public law and private law is developed at length. 37. The major discussions are in the posthumously published 1. Warhaftg, ed.,
36. D. Sinclair, "Jewish Law in the State of

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; see
for the present E. Shochetman, "R. Isaac Herzog's Theory of Torah and
State," 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 conclusions that are more radical than those found in the work of other contemporary
rabbinic figures, and his argumentation is similarly more radical, though not completely unprecedented. A comprehensive analysis and evaluation of

this body of halakhic work is very much in order. See E. Schweid, Democracy 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 position, 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 on

the doctrine of R. Nissim (as R. Hayyim Ozer had suggested in the late
30's), an opposition which was at the heart of R. Herzog's rejection of
Ran'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


Gerald J. Blidstein
R. Herzog observed with great disappointment and bitterness, as he hoped that the rabbinate which he headed would be involved in the formation of
the Israeli legal system. R. Hayyim Ozer was more halakhically pragmatic,

unencumbered as he was, in addition, by Zionist baggage and/or naive
hopes. See n. 11 above as well. R. Herzog's halakhic objections to Ran had
been adumbrated by Resp. Avnei Nezer, Y: D., 312/47-49.
39. Consent usually functions in talmudic law (as over against mid

rash and

reconstructing Jewish political thought, see D. Gutenmacher, "The Legal

aggada) on an individual basis and is concrete; it becomes more abstract and generalized in medieval communal law. A broad doctrine of consent is one of the theoretical bases of dina de-malkhuta dina, too. For a recent (and well-taken) protest against an exaggerated use of consent theory in

Concept of Political Obligation in Medieval Spanish Jewish Law," Dinei Yisrael15 (1989-1990), pp. 63-95 (based on his 1986 N.Y.U. Ph.D. dissertation). 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 taken the universalistic ethos of H. Melakhim 10, 12, but (as my friend Prof. A. Feintuch pointed out to me) as the outcome of the idea
not as a rejection of

that although the ideal state does not harbor idolaters, in a situation where

these are present, darkhei shalom wil apply for reasons of principle, not

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 the paper 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 in the 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 used as halakhic currency, see the ruling of Rabbi J. B. Soloveitchik as cited by R. Immanuel Jakobovits in Torah she-he-al Pe 6 (1964), p. 64. The rubric also 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.


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