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Table of contents Ethic and Judaism Spring 2006 - Pesah 5766

    • Editorial - April 2006

Pesach 5766
    • Freedom and Responsability

    • The security situation
    • Courage and Determination

    • Reviving the Caliphate
    • Europe’s New Frontier of Bigotry
    • Too late ?

Ethic and Judaism
    • Who rules this country ?

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Who rules this country ?

By Rabbi Shabtai A. Rappoport
P. is forty five years old, and for the last fifteen years has been teaching constitutional law at a prestigious Israeli university. Recently, for the first time in his life, he found himself considering interfering with a major decision of a legal government. Moreover, this intrusion would affect one of the most important organs of the state – the army. The government was about to use the army to implement a politically controversial resolution, that in P.'s learned opinion had nothing to do with the constitutional and traditional duty of the army, namely, to defend the security of the country. P. also considered the government's resolution itself wrong, damaging to the country, and stemming from a cynical desire to protect key officials from facing criminal prosecution. P. thought it likely that by leaking some operational information that came to his knowledge, to people that will be affected by this resolution the entire operation might have to be abandoned. However, P. always considered the Jewish government of the state as a form of royalty that according to Torah law must be obeyed by all citizens. When its policy was thought to be wrong, these citizens could judge and punish the government in the coming elections, but they must not use subterfuge to fail its execution.
Indeed, the Torah commands (Deuteronomy XVII, 14-15) "When you come to the land… and shall say, I will set a king over me, like all the nations that are around me. You shall set him king over you, whom the Lord your God shall choose…" Maimonides (the Book of Precepts, Positive Precept 173) interprets: "We are commanded to appoint a King who shall unite our Nation and lead us… and whenever that King shall issue a command that does not contravene Torah laws, we are bound to obey this command…"
Rabbi Avraham Yitzhak Ha'Kohen Kook, the famous first chief Rabbi of Eretz Yisrael, who was a leading authority in Jewish law and philosophy, makes a novel proposition (Mishpat Kohen, Issues of Eretz Yisrael 144, 15-a) "As the laws and rules of government concern not only the King, but the Nation itself, the privileges provided by these laws revert to the entire Nation when there is no appointed King. Hence, any government established by the Nation possesses some of these privileges, especially these that pertain to the very ruling of the Nation". It follows that a legally elected government of Israel should be obeyed without dispute and reservation, just as a King should be obeyed. Maimonides excluded from this rule commands that contravene Torah laws, but it seems very unlikely that any political decisions will stand in direct contradiction to these laws. If the government must be obeyed according to Halacha, all the more so, one may not sabotage the execution of its resolutions.
Rabbi Nissim Girondi, the famous Torah authority of the fourteenth century (known as The Ran) proposed (Sermons of The Ran, XI) that a King may institute laws that deviate from Torah laws, in order to maintain a working order in society. Torah criminal laws, for example, are the epitome of heavenly justice, but they might be too unenforceable to act as a deterrent in an actual human society. The King should attend to this deficiency by making laws that are adequate for the period in which he reigns. It seems obvious that the adequacy of these laws and policies is given solely to the King's discretion, and a subject of the King may not violate these laws and policies because he disputes their suitability. A duly elected government should certainly be trusted with this particular responsibility and possess this privilege. As Kings of old could have been removed from office by prophets when they failed their duty, a modern day government may be removed by losing an election, but must not be disobeyed.
However, the Torah has an additional command for the King (Deuteronomy, ibid 18 -19) "And it shall be, when he sits upon the throne of his kingdom, that he shall write for himself a copy of this Torah… And it shall be with him, and he shall read in it all the days of his life; that he may learn to fear the Lord his God, to keep all the words of this Torah and these statutes, to do them". The Ran explains this commandment as a rectification to the King's ruling privileges: "Since the King is less bound to Torah laws than are the Torah Rabbis and judges, he requires a specific warning not to deviate from Torah statutes". This interpretation is unclear – what does it mean that the King may not deviate from Torah statutes, when this deviation and adjustment is his very responsibility.
It seems that the Ran clearly indicates that while the King may make his own rulings and create his own policies, in a sense he is an interpreter of the Torah, just as the Rabbis and the judges are. The Torah expresses G-d's Will regarding the Nation of Israel, and this Will must be elucidated and realized in practical rulings. The Rabbis interpret G-d's Will, and make Halachic decisions according to the legislation found in the Torah itself – they interpret the Torah according to the Torah. The King has more leeway, and realizes G-d's will according to his grasp of the country's condition and society's needs. These elucidations become the King's laws and policies. The King may not deviate from the Torah in the sense that he may not deviate from his honest understanding of G-d's will as it pertains to current circumstances. As long as the King is in office he is trusted to be acting according to this basic norm, and must be obeyed.
The noted Halacha authority of the nineteenth century, Rabbi Avraham Borenstein of Sochotshov (Avnei Nezer Yoreh De'ah 312) rules that modern day Rabbis are entrusted with the responsibility of kings of old in their communities, because rather than make "academic" Torah rulings, they are charged with the responsibility of leading their communities in Torah ways according to specific temporal requirements.
It follows that the obligation to obey the King, or the government, stems from the trust that they are faithful to their understanding of G-d's will, as expressed in the Torah. But the rudimentary requirement for such faith is the King's sincere fundamental commitment to G-d's will and to the Torah. However, when the regime declares, in its basic laws and in its actual policies, as it does in modern day Israel, that it has no obligation to the Torah, and it is absolutely secular, it cannot claim the privileges of the King according to the Torah.
Rabbi Kook himself, in a letter to Mizrachi members dated 1913 (Igrot Ha'Reiah II p. 134) declares that Zionism that "has nothing to do with Jewish faith and religion" could by no means be accepted by Torah observing Jews. Zionism, whose aim was to reestablish a Jewish state in the land of Israel, should not have defined itself as secular. A government which adopts a secular attitude is not a classical Jewish government that is akin to royalty, but is rather like a directorate of a commercial company, which derives its power from mutual consent of shareholders. It does not enjoy Torah privileges.
Hence P. has no Halachic duty not to interfere with the government's decision, and his actions should be guided only by the terms of the mutual agreement between the citizens and the government, which should be kept as long as the government did not grossly violate these terms, by an improper process of decision making and the improper use of the army to execute these decisions. P.'s decision whether to frustrate the government's plan should thus be made according to the terms of the democratic contract. He is permitted to decide that the intended infringement of this contract by the government allows him to interfere and prevent it.

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