The Legal Character of a Jewish State

Law and legality are at the center of a Jewish identity. This has been the case since Hashem cemented Bnei Yisrael and their fellow travelers into a cohesive nation at Har Sinai by giving them the Torah. Quite literally, the Jewish people are built around Jewish law. The observance of halacha (Jewish commonlaw) has kept the Jewish people in-tact while other great nations have risen and fallen. On a practical level, it has granted the Jewish people the continuity, moral grounding, cultural basis, and conviction necessary to persist in an unstable world. Spiritually, it serves as the blueprint to the greater mission of being a holy nation and a benefit unto the world.

At Har Sinai, Hashem did not merely present the Torah to the Jewish people, He gave the Torah to the Jewish people. In the over 3,000 years since, Torah has not been just an ornament or symbol, but the basis of halacha, our national commonlaw which has developed from Sinai on the direction of Hashem:

“If a case is too baffling for you to decide, be it a controversy over homicide, civil law, or assault—matters of dispute in your courts—you shall promptly repair to the place that the LORD your G-d will have chosen, and appear before the Levitical priests, or the magistrate in charge at the time, and present your problem. When they have announced to you the verdict in the case, you shall carry out the verdict that is announced to you from that place that the LORD chose, observing scrupulously all their instructions to you. You shall act in accordance with the instructions given to you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left.”

Devarim 17:8-11, Sefaria translation

For the past three millennia, the greatest minds of Jewish history have adapted the laws given to the Jewish people at Sinai to each generation and each local community. It is an act of partnership between the past, the present, the future, between the human and the holy. Jewish culture, even today, is based deeply in this tradition. The Jewish people have kept halacha intact as halacha has kept the Jewish people intact.

With this in mind, one can imagine the frustration during the infancy of the modern State of Israel. After struggling for decades diplomatically and militarily to rid the Holy Land from British imperialist rule, the British finally relented and disengaged on May 14, 1948. That day, in the ensuing chaos, power vacuum, and incipient Arab invasion, David Ben-Gurion and the provisional government proclaimed, “a Jewish state in Eretz Yisrael.” Bafflingly, after decades pushing out the British to the end of a Jewish state, Ben-Gurion’s new government chose to adopt British commonlaw, not Jewish commonlaw, as the basis for the state’s civic law.

Rav Dr. Yitzhak Herzog, the chief rabbi at the time, was incensed. Rav Herzog recognized the general inferiority of British law compared to halacha, law created by the greatest minds of Jewish history with the approval and basis in Hashem Himself. Rav Herzog made note that “these people did not reach the level of civilized people until thousands of years after we stood at Har Sinai.” It is true, hundreds of years before Plato wrote his Republic, Jews were practicing three-branched government in Eretz Yisrael; the executive monarchy, the judicial Sanhedrin system, and the Kohanim, Levi’im, and captains of ten who represented the general public to government and Hashem as needed, fulfilling the emotional representation role of a modern-day legislature.

Rav Herzog would only become more distressed when Israel formally established its Supreme Court, filled with legal experts of British, not Jewish, commonlaw as its judges. In a Jewish governmental system, the Sanhedrin, a body of the 71 greatest Rabbis of the generation, is the intellectual center of the state and the supreme judicial body with halacha as its constitution. The Chief Rabbinate, created in 1921 by Rav Avraham Yitzhak haKohen Kook, the position which Rav Herzog held at the time, was specifically created as a precursor to a modern Sanhedrin, to be expanded from two to 71 members with a president and chief justice (av beit din) and assume supreme judicial power over Yisrael. Instead, the Chief Rabbinate, halacha, and the entire substance of Judaism was decidedly eclipsed by the legal system of the very empire the Jews had just spent over two decades fighting. On the day the Supreme Court was established, Rav Herzog boycotted the celebratory dinner and declared a public fast day.

As religious influence grew within Israel after the Six Day War, Rav Herzog’s lamentations began to evolve into more concrete programmatic solutions. Chief Rabbi Shlomo Goren, a successor of Rav Kook and Rav Herzog in that position, spent much of his career attempting to best fold halacha into the modern state. Rav Goren advocated for a two-dimensional legal system, maintaining Israeli civic law and democracy while grounding it in a halacha constitution. For all of Jewish history until very recently, Jews had lived under such two-dimensional legal systems. Inside and outside Eretz Yisrael, Jews lived under both halacha and mishpat hamelech, the laws of the king, ideally with halacha receiving precedence in any dispute (e.g.: a king proclaiming circumcision as illegal). Rav Goren argued that Israel can preserve its civic law, civic judicial system, and democratic character, just as Jewish kings have had their separate and respected edicts and courts, but under the oversight and scrutiny of halacha.

This is not a concession, but a necessity. Citing Rashba, a medieval Sephardi Rabbi, Rav Goren pointed out that while halacha goes beyond the purview of most modern legal systems, its ability to enforce itself falls greatly behind. To even charge someone with a crime in a halachic court, one needs two uninvolved witnesses, proof that the perpetrator knew or was made aware of the crime and punishment, and proof that the perpetrator knowingly disregarded the warning. Needless to say, the burden of proof is excessively high. In order to have law and order in a country, there needs to be a mishpat hamelech, a more lenient but more effective legal system against crime and disorder because of its ability to more quickly address pressing societal issues and define its own standards of enforcement.

Further, Rav Goren cited his predecessor Rav Kook to connect contemporary Israeli civic law to the halachic idea of mishpat hamelech. Rav Kook wrote on the subject: “It seems to me that when there is no king, since the king’s laws relate to the general state of the nation, the right to legislate should revert to the nation in its entirety,” meaning that in the absence of mashiach, a popularly-elected legislative body like the Knesset would be authorized to pass laws with the binding power of mishpat hamelech. Even so, there should still be a single leader to helm the executive branch and function of the state before the mashiach is crowned. After all, this is what was done after the Syrian-Greeks were expelled after the Maccabean Revolt; Jews regained political sovereignty over Eretz Yisrael, the Davidic line refused to return from Babylonia, and so, in the absence of a melech, a nasi (president/prince) was crowned from the line of the Hashmonaim. In fact, this was done soon after the establishment of the state when Chaim Weizmann became the state’s nasi in 1949. However, the position of nasi in the State of Israel is taken very unseriously from without and within and should act and be treated with the gravity it deserves.

The way Israel decolonizes its legal system is quite simple. A Basic Law would be drafted establishing two things; the expansion of the two-man rabbinate into a full 71 member Sanhedrin and the recognition of the Sanhedrin’s judicial supremacy in matters of judicial review, over the narrow, civically-minded Supreme Court. The first measure is necessary to reflect the diversity and wholeness of the Jewish people and to tie the modern institution to tradition, harkening back to ancient Sanhedrinim Gedolim to the original of Moshe and the 70 zekenim. The second measure would establish halacha as the constitution of the state and Israeli civic law as the mishpat hamelech, the popular and necessary edicts and ordinances necessary for the state to function but existing under the auspices and allowance of halacha.

From there, the greatest Rabbis of our generation and each subsequent generation would be able to help guide Israel into a sovereign and independent future. Israel would be finally liberated from foreign laws, legal systems, and enshrined values and free to pursue its own, unique, authentic path as a government and as a civilization. Until that point, Israel remains under the rule of foreign law, and the reconvention and recognition of a Sanhedrin remains a necessary step to the progression of the Jewish people away from Galut, colonization, and suppression and towards sovereignty, authentic self-governance, and Geulah.

In 2004, an attempt to revive the Sanhedrin was made, headed by Rav Adin Steinsaltz, the Chabad great best known for translating the entire Talmud from Aramiac to Hebrew, often thought to be among the greatest rabbonim in recent Chabad history, second only to the Rebbe himself. Ahead of the 2006 election, this group of rabbis endorsed a proposed Basic Law:

“Torah ‘Basic Law’: Laws which are contrary to the laws of the Torah are not laws of the Jewish people, and therefore they are invalid. Any law which is contrary to the laws of Torah, legislated by the “Knesset” (including legislated amendments) or interpreted as such by judicial sources is a disqualified law. The authority to decide in these matters has been unconditionally expropriated by the central religious court based on the Torah (Bible) [the Sanhedrin].”

The movement failed to pickup steam in 2006 but was revived in 2019 when Bezalel Smotrich, then a Yamina MK, was being eyed for the open position of Justice Minister. Ahead of a potential move to the Justice Ministry, MK Smotrich promised to “restore Torah justice,” essentially endorsing the Basic Law proposal. While Smortich was passed over for the position, he soon broke from Yamina and started his own party which currently stands at seven seats and is polling higher for a future election. Recently, Smotrich’s Religious Zionist Party has increased cooperation with Shas, United Torah Judaism, and many members of Likud on issues regarding the Chief Rabbinate.

Some readers of this article may have expected a more substantive look into the gap-bridging necessary between halacha and current Israeli civic law as well as Jewish values and the predominantly foreign, Western values of the state. However, that is the beauty of this formal approach. With the crown of Torah restored to its rightful place at the helm of Jewish governance, these discrepancies in form and substance will be rectified in an orderly manner. Not only can Israel retain its proud democratic character and civic justice system, but it will truly be able to flourish under the guidance and advisory of halacha and our nation’s most esteemed scholars.