Shoftim (Individual & Community)

Torah and “Secular” Law—May the Two Walk Together?

A Hebrew version of this essay appears in this week’s Shabbat Shalom, the parashah sheet of the Religious Peace movement, Netivot Shalom, widely distributed in synagogues throughout Israel. Contributions to the movement, at P.O.B. 4433, Jerusalem 91043, are most welcome.

About two months ago, when public controversy about the book Torat ha-Melekh and the brief detainment for questioning of Rabbis Dov Lior and Yaakov Yosef were at their height (see HY XII: Pinhas), there were people who invoked the slogan, “The Torah is above the law.” But is this really so? What, if anything, is the role of law, legislated by a secular body like the Knesset, in halakhah? This week’s parashah, Shoftim, which contains a set of laws defining the various institutions of government in the Jewish commonwealth envisioned by the Torah, including a section concerning the authority of the Hakhamim and the Sanhedrin in particular (“When a matter of law shall be too difficult for you… According to the Torah which they teach you … do not deviate to the right or left...”: Deut 17:8-13) seems an opportune occasion to examine the relation between Torah and law in some detail.

There are numerous ways of answering this question. One principle frequently invoked is that of דינא דמלכותא דינא: “The law of the land is the law”—that is to say, a Jew is required to be a law-abiding citizen of the country within which he lives. But this rule applies primarily, if not exclusively, to Jews living in the Diaspora, under non-Jewish rule; the underlying premise or subtext seems to be that maintaining good relations with the Gentile world, of not offending the rulers upon whose grace and good will the Jewish community has traditionally been dependent, is of primary importance. While this reason is perhaps not quite so relevant since the Emancipation, particularly in contemporary Western democracies, where the equal rights of all are guaranteed by law, and the Jewish community is not held accountable for the sins of its individual members (not even Bernie Madoff!)— the rule as such is still basically in force. In any event, in Eretz Yisrael, in a sovereign Jewish state, however secular, the situation is clearly totally different, and different principles apply.

Another halakhic model for understanding the authority of the Knesset, the judiciary, and other organs of the state is that of Jewish self-government in medieval Europe. Throughout the Middle Ages Jewish communities had various organs of self-government, chosen or elected by the community or by the elites of money and pedigree, that functioned alongside the mara de-atra (local rabbi) and the bet din (Rabbinic court). These bodies had responsibility for those matters that were not specifically halakhic—e.g., raising and distributing moneys to run various communal institutions, taxes and levies imposed by the non-Jewish rulers, relations with the “outside” generally, etc. This body was known as ziknei or nikhbedei ha-‘ir, shiv’ah tuvei ha-‘ir, or simply ha-kehillah or ha-kahal (“the elders / distinguished men of the city”; “the seven good ones of the city”; “the community”). These bodies had the right to legislate various takkanot and gezerot—edicts and ordinances—which then had halakhic power, after receiving the stamp of approval of the rabbis. Furthermore, during the 16th and 17th centuries there was even an over-all representative body for matters of common concern to all the Jewish communities in Poland and its environs, Vaad Arba ha-Aratzot, the “Council of the Four Lands.”

The noted jurist and legal philosopher Professor Menahem Elon, in his great compendium Ha-Mishpat ha-Ivri and elsewhere (including personal conversation with this author), has suggested that the Knesset enjoys a position of authority at least equivalent to that of the shiv’ah tuvei ha-‘ir and that, being democratically elected by the entire Jewish (and non-Jewish) population of the country, its laws and decisions are binding halakhically. Needless to say, in light of this view there is no justification for displays of contempt towards it or ignoring it, as has happened upon occasion.

I recently read a study by Dr. Haim Shapira relating to two other approaches to law outside of the strictly Rabbinic purview. Among other things, he mentions there the approach of R. Nissim of Gerona (the Ran; Spain, 14th century), who speaks of what he calls “the law of the king” (mishpat ha-melekh) as a parallel system of law, alongside that of the Torah. The Ran claims that the king (or other Jewish ruler) has the right and authority to legislate laws and statutes rooted in Torah principles of justice and equity, albeit not necessarily following the specific details of Torah or Talmudic law. One of the reasons for such a body of law is that Torah law is extremely strict in matters of criminal law, imposing requirements of testimony and prior warning making it all but impossible to convict a person of serious crimes, i.e,, those carrying the death penalty. While these strict procedures are admirable for their humane spirit, expressing the concept of the innate dignity of the human being created in the Divine image, it was felt that these laws did not provide adequate sanctions to discourage criminals and wrongdoers; hence, an alternative system of law and punishment was needed to insure the overall welfare and order of society.

A second legal principle mentioned by Shapira was that articulated by R, Moses of Coucy, author of Sefer Mtzvot Hagadol (Semag; France, 13th centuries). The Semag confronted a situation in which pious judges were reluctant to judge by Torah law, being overwhelmed by fear of error. Hence, the Semag recommended that, wherever possible, the judges stipulate to the litigants the condition that they agree to be judged, not by Torah law, but that the judge be free to rule on the basis of his own judicial discretion, understanding and judgment. (Note: This did not necessarily imply that the judge would rule on the basis of pesharah, serving as a mediator in arranging a compromise between the two sides—even though his words were interpreted thus by many of the poskim who came in his wake—but that he would rule on the basis of his own conscience and sense of justice.) Thus, the judge is not only permitted, but encouraged, to bypass Torah law as the final arbiter—an approach incorporated as a guideline in the Shulhan Arukh (Hoshen Mishpat, 12)!

In addition to these alternative approaches to judgment, there are a number of what might be called meta-halakhic principles, by whose means it is possible to introduce our own ethical insights, sensitivities and approaches to halakhah. The real problem is: What does one do if a given Torah law, or even an entire area of Torah, conflicts with our own best moral sensibility and values, or even with the sensibility and sensitivity of an entire culture, an entire generation? This is, of course, the underlying issue in the public furor surrounding Torat Hamelekh, and the underlying value conflict between its defenders and its critics (although I wonder how many of either its most passionate critics or its dogmatic defenders have in fact read it.)

1. Darkei shalom (“ways of peace”). This argument was developed specifically by R. Menahem Hameiri (France, 14th century) as a way of softening the bite of some of harsher Anti-Gentile halakhot brought in the Talmud (of the ilk cited by Torat Hamelekh). He argued that Jews may, in effect, ignore certain of these rules in order to ensure peaceful relations with the non-Jewish world, but added that, in principle as well, these rules only apply to the pagans who lived in ancient times, “in their days,” and not to the Gentiles with whom we interact today, who are monotheists and guided by the norms of civilized morality.

2. Natural Law. Rav A. I. Kook repeatedly speaks of the natural ethical sensibility implanted within the human being as an essential fundament of the Torah, as the basis of the religious personality, alongside the Sinaitic revelation. In several places in his writings he notes that, if a person feels a conflict between the natural ethical feeling implanted within us and what we read in the halakhah, something must be wrong—and it may well be that we do not understand the halakhah properly. (This point is developed in the section entitled Orot ha-Musar in Vols. 3 and 4 of Orot ha-Kodesh)

3. לפנים משורת הדין — “Beyond the letter of the law.” According to the Talmud, the truly good and pious person must not blindly follow what is written in the Talmud and the halakhic codes, but ought to go above and beyond it, to seek the maximal ethical perfection in every situation. Again, this concept gives broad scope for conscience and for human understanding of ethical demands.

4. הלכה ואין מורין כן — “It is halakhah, but we do not teach it as such.” This principle is typically invoked in cases where the implementation of the halakhah as written would be morally repugnant, or otherwise problematic. In such cases, the halakhah in question remains in force in purely theoretical terms, but is not applied in practice.

In conclusion, the slogan that “the Torah is above the law”—and by implication above all else—is a simplistic reading of the significance of Torah that ignores the deeper and truer meaning of Torah; at times, the literal demands of the Torah must pass through the filter of human ethical and moral sensibility. Or perhaps we might say that “The Torah itself is above the Torah”—that is, that a true understanding of the Torah is far deeper and more complex than the narrow interpretations given it by some.

POSTSCRIPT: A Wedding Sermon

Last Thursday night (August 25) I had the privilege of conducting a wedding in Akko. I would like to share the brief homily I made on that occasion with my readers.

The sixth of the Seven Nuptial Blessings, sheva brakhot, begins with the words שמח תשמח רעים האהובים—“rejoice indeed, beloved friends.” There is something intriguing in this pharse, as I shall explain below; moreover, there are no less than four different textual readings of the third and fourth words: (1) רעים האהובים—re’im ha-ahuvim (“the beloved friends”). This is the reading found in standard editions of the Talmud at b. Ketubot 8a, and in most Ashkenazic Siddurim); (2) הרעים האהובים ha-re’im ha-ahuvim—an amended text, mentioned by Baer in his Siddur Avodat Yisrael (Rödelheim, 1868; reptd. Tel Aviv, 1957; p. 564) as intended to correct a grammatical nicety—namely, the need for the definite article on both the noun and the adjective that follows—itself a rather dubious point; (3) רעים אהובים re’im ahuvim (“beloved friends”)—the same, but without the definite article, treating both words as generic rather than specific. This reading is used among many Sephardim and appears in the Siddur Rav Amram Gaon and in Sefer Avudraham. In all three readings, the meaning is much the same; as Baer puts it: “The bridegroom and bride, who are connected by their mutual love to be re’im to one another”—a word that may be translated as “friends,” “companions,” “partners” or “spouses.”

(4) רעים ואהובים The fourth reading, brought by the Sheiltot de-Rav Ahha Gaon and in Rambam, Hilkhot Berakhot 2.11 (but compare Ishut 10.3, which is like (1) above) is re’im ve-ahuvim, with a connective vav—“friends and beloved”— in which the word ahuvim is not used as an adjective—i.e., “loving friends” or “beloved friends”—but the two words are each nouns: they are described as both friends and lovers.

I find this point to be a significant one. Our culture, at least in such popular mass media as television, cinema, and novels, holds great stock in “love,” in the sense of romantic/erotic/sexual love between man and woman, as a kind of holy grail; as one of the central focii of meaning in life; and as the desired—both necessary and sufficient—basis for marriage. Re’ut, by contrast, refers to what might be translated as friendship, companionship, partnership, camaraderie. It is used in this sense in the title of the song Ha-Re’ut, celebrating the battles fought by the Palmah during the War of Independence, in the sense of fellowship in arms. (If I may, I would add that this word has special resonance for me as the name of my youngest granddaughter.) It is a quality characteristic of those engaged in a joint enterprise which occupies much of their time and effort, to which one’s thoughts are devoted “heart and soul.”

Such a partnership, while less intense than romantic or erotic love, may in the long run be a more stable basis for a lifetime commitment such as marriage than the vagaries of subjective emotion and physical–bodily attraction. If marriage is indeed meant, not only as a satisfying relationship for the two parties involved, but as the basis for a family, which will in turn serve as a link in the continuity of the generations—and as a basis for the project of raising and educating children—the re’im model is at least as important as the ahuvim model.

Interestingly, the young couple who were the principles at this wedding, in addition to their personal relationship, work together in their profession, that of theater—the man as an actor, the woman as director—where they deal with weighty and important issues, such as that of the Israeli exile community in Germany, relations between Jews and Germans at this point in history, etc.

I conclude with two linguistic points, which may somewhat qualify the above: There is a difference between ahuvim and ohavim (אהובים / אוהבים). While the latter clearly means “lovers,” the former may also mean “dear friends.” As such, it may refer to the hatan and kalah and their young love (as suggested by Baer), but it might also be addressed to the hatan and kallah by the shushvinim, the companions who celebrate and rejoice with them, calling them “beloved friends.” As if to say: we, your companions, love you and wish you much happiness in your newly-established life as man and wife (remembering that the Sheva Brakhot are typically recited by the companions at the conclusion of the various wedding feasts, celebrated with a circle of a minyan of friends.) It then concludes כשמחיך יצירך בגן עדן מקדם—“just as your Creator rejoiced you [i.e., your forebears, Adam and Eve, the very first couple, of whom every new couple are somehow avatars] in the Garden of Eden, long ago.”

The word ahavah is not used specifically for sexual love, but for all varieties of love—love of parents and children, love of God, love of close friends such as David and Jonathan (the homosexual reading of which, popular these days in certain circles, seems to me forced); as well as the love between man and woman. I find it interesting that Shir ha-Shirim, the Song of Songs, the Biblical book celebrating love of man and woman (however interpreted), refers to erotic love primarily as dodim. Thus: כי טובים דודיך מיין (1:2) ; שם אתן את דודי לך (7:13); and many others. The word ahavah, by contrast, appears relatively infrequently in the book.

Finally, ra’yah may also mean “beloved” in the sexual or marital sense. The woman in Song of Songs consistently refers to her lover as dodi, while he refers to her as ra’ayati.

For more teachings on this parashah, see the archives to this blog for July 25 2006, July 18 2007, August 10 2008, and August 15 2009 (scroll down).