Volume 21 Number 21
                       Produced: Tue Aug 22  7:24:40 1995

Subjects Discussed In This Issue: 

Halachic Legitimacy of Israel Government Decisions
         [Shaya Karlinsky]
More on Following Orders
         [Carl Sherer]


From: Shaya Karlinsky <msbillk@...>
Date: Mon, 21 Aug 1995 16:40:08 +0300 (WET)
Subject: Halachic Legitimacy of Israel Government Decisions

     It is difficult to comment on the peace process and present
situation in Israel, while avoiding "political postings."  I have
refrained from entering "into the fray " over the past few weeks, due to
a combination of a heavy schedule and a hesitation to involve myself in
what most people still view as politics.  But the situation requires
some comment, and a recent posting on the subject of the Halachic
legitimacy of secular Israeli governments serves as a springboard.
     It is quite significant that Dr. Himelstein (MJ 21/15) needed to go
all the way back to the 1950's to find Torah authorities who give
Halachic legitimacy to actions of the duly elected government of Israel.
What is even more significant is the precise language used in those
opinions.  And it is important to examine the historical and political
context in which they were rendered.
     The quoted opinion of Rav Shaul Yisraeli, zt"l, will probably
illustrate the point most graphically.  Especially since he was still
alive to witness Oslo, and to voice his extreme opposition to everything
the government was doing, along with his opinion of the illegitimacy of
those actions.
     He is quoted as having written (in 1949):
>"It follows from the above that all governmental appointments made in
>Israel through elections, IN WHICH THE MAJORITY OF THE PEOPLE DECIDE...
>...has authority in everything related to leading the people, as the
>authority that the KING IN ISRAEL had."
     The emphasis has been added. At the time this was written in 1949,
"the majority of the people" clearly meant a majority of Jews.  At the
time, and for decades afterwards, right up until 1992, it was
inconceivable for an Israeli government to be formed with less than an
absolute Jewish majority of 61 seats.  This lack of a Jewish majority is
one of the reasons Rav Yisraeli, zt"l, himself gave, in public forums
after Oslo, for the illegitimacy of what the Rabin/Peres/Meretz
government was doing.  This government came to power with Rabin's
"blocking majority."  The fact that Labor, Meretz and the Arab parties
controlled 61 seats, versus 59 for the right wing plus religious
parties, enabled Rabin to be the one to form the government.  But Labor
and Meretz together had only 56 seats; the Arab parties provided the
other 5 of the needed 61.  Relying on Arab votes to decide the policies
of the Jewish state may be democratically legitimate.  But is it
Jewishly legitimate?  Can it have the of authority of the King of
Israel? Is it binding on Jews in line with the Halachic opinions quoted
by Dr. Himelstein?  It is something that none of the Poskim ever
hypothesized in the 50's and 60's and 70's.  Because no Zionist leader
ever allowed it, not in theory and not in practice.
     An additional question that needs to be raised is the Halachic view
of "Ministerial responsibility" and "Party discipline" which combine to
create a situation where only 51% of the cabinet ministers
(representing, in theory, only 51% of the people) can force the entire
group of the government's Knesset members to vote for a policy some of
them actually oppose.  What have the "majority of the PEOPLE" decided in
such a case?

     There is one other point in Rav Yisraeli's opinion that leads to
the opposite conclusion of that indicated by Dr. Himelstein.

>it is similarly possible to appoint a council which together will have
>this authority. Accordingly, it appears that a government appointed by
>MEANS OF CORRECT ELECTIONS has authority in everything related to
>leading the people, as the authority that the King in Israel had."

     Again, I have added the emphasis.  The Israeli elections of 1992
required a party to receive 1.5% of the votes to enter the Knesset with
ANY representation.  So tens of thousands of people who voted for
parties that received less than 1.5% of the total vote could and did
have their votes ignored.  There is a definite logic in this, given
Israel's complicated electoral system, in order to eliminate splinter
parties.  But, what happened in 1992 was the siphoning off of a few
thousand of the nationalist votes by a party headed by a famous
religious settlement activist.  Tehiya (the right wing party of Geula
Cohen and Hanan Porat, with a mix of religious and secular nationalist
voters and candidates, and from whose constituency most of those
splinter votes came) fell short of the 1.5% threshold by a few hundred
votes.  (It was so close, a recount was called in some precincts.)  The
votes of these two nationalist groups together, tens of thousands of
(Jewish) votes worth two seats, were ignored.  The dreams of a very
idealistic, but very naive, pioneer of the settlement movement cost the
nationalist/religious block the seat which would have made the
difference between a Rabin/Meretz government, supported by 5 Arab MK's,
and a Shamir/Religious government of 61 seats.
     Of course, these were the rules of Israeli democracy at the time,
and the system has logic.  But one would like to hear from contemporary
Halachic leaders that this system can claim the legitimacy accorded it
by the earlier opinions, and that the present constellation of forces
has Halachic validity resulting from "correct elections." Rav Yisraeli's
pronouncements after Oslo indicated his opinion.
     All of the above highlights the seeming contradiction between a
Jewish State and a democratic state.  There can be no assurance that a
truly democratic state will be a Jewish one.  And to ensure its Jewish
character would require a compromise in democratic principles.  But the
issue of the Halachic legitimacy raised in the opinions cited are not
built on a political philosophy (democracy) but on a Halachic one: Does
the elected government of the people residing in Eretz Yisrael have an
authority which is recognized Halachically in a way that differs from
the authority of the legislature of the state of Pennsylvania or the
British House of Commons over its constituents?
     As did Dr. Himelstein, I have not discussed the specifics of
whether what the government is doing actually violates Halacha.  I see
the two major issues that need to be examined in the present situation
as 1) the proactive handing over to non-Jews of parts of Eretz Yisrael
that had been in the hands of Jews; 2) whether the contemplated saving
of Jewish lives at some future time, the improvement of Israel's image
in the eyes of the world, and the tangible economic benefits of the
peace process justify the present acknowledged tangible danger to Jewish
lives that has been created.  Both of these questions should be examined
in as clear-headed and objective way as we would a question of eating on
Yom Kippur or determining the status of children born to a woman
following a questionable divorce.
     These are very difficult questions.  And in the present political
as well as religious climate, I am not sure that all our Torah leaders
are able to say publicly everything that they really think.

Shaya Karlinsky
Darche Noam Institutions


From: <adina@...> (Carl Sherer)
Date: Wed, 16 Aug 95 22:15:06 IDT
Subject: More on Following Orders

Shmuel Himelstein writes:

> c) Carl Sherer has a number of questions regarding the making of
> decisions on national security: "Who vested that power in the government
> and how was it vested? On what halachic basis is the government supposed
> to exercise that power? What does the halacha require the government to
> consider? Does the power to make such evaluations also apply to a
> government that does not recognize the primacy of the Torah? Does it
> apply to a government that delegates to itself the "right" to abrogate
> the Halacha whenever it so chooses?"
> While I won't deal with the questions in the order which Mr. Sherer
> brings them or with all of them individually, I would like to note that,
> (I) there has NEVER been a government in the history of the State of
> Israel that has recognized the primacy of Halacha. Pork is still

If Mr. Himelstein means that there is no government in the history of the
State that has governed on the basis of Torah, yes, this is unfortunately
correct.  If he means that no government *ought* to have the right to 
govern in Israel *except * based on Torah, I agree.  But NO government 
in the history of the State has ever held Torah and those who study it 
in the utter contempt in which this government holds them.  So as not 
to degenerate too deeply into politics, I will  cite only the Foreign 
Minister's slandering of David Hamelech and the former Education (and 
now Communications) Minster's libelling of Yosef Hatzadik as only two 
of many unprecedented lows which this government has attained.

[OK, I am going to let this go through with a LOUD WARNING. I am getting
VERY TIRED of this. If you want to argue about the current government in
Israel, FIND SOMEWHERE ELSE. I am happy to continue a discussion about
the issues Halachic authority to govern etc. That means that you should
be able to formulate your posting with no reference to any particular
government or minister etc. If people can't, then I'll close down this
topic for say six months or a year. A fairly fustrated Moderator]

> press, etc. Does Mr. Sherer want to know the answer to his questions in
> general regarding the government and the primacy of Halachah, or only
> when a government which doesn't agree with his views is in power? (ii)

Actually I *would* like to know them in general - and I think I so stated
in my initial post on this subject some time back where among the questions
I asked was the halachic basis for soldiers in a Jewish army to follow orders.
No one has addressed that one yet.  Aren't I entitled to the same judgment
lechaf zchus which you believe Shimon Peres is entitled to? 

> IF (and it's a BIG IF) the government has the status of a Melech (king)
> - and there have been post-1948 Poskim who have ruled so - the Melech is
> often not even bound by much of Halachah, as, for example, being
> permitted to have a person killed for reasons of state, without having
> the required judicial evidence. That would certainly mean that in
> matters of state the government has a great deal of leeway. Given the

Which poskim have so ruled - that's precisely the kind of sources I
have been asking for over the last two weeks! And if they so ruled, did
they ever consider the possiblity of an Israeli government which would
be dependent on Arab coalition members to maintain their hold on their
power? Would that change the government's status as "melech"? I would
guess that it would - because a melech must be "mikerev achecha" (from
among your brothers), and the Arabs clearly are not.

[Note, here Carl clearly frames the question as a halakhic matter, not
do you agree with a coalition which requires Arab members to maintain a
majority, but is this a problem vis a vis "mikerev achecha". I have no
idea, but that is a question that can be addressed benachas - in a
civilized manner. Mod.]

> above, I think that all of Mr. Sherer's questions are simply not
> relevant to the case at hand. 

I think I've just demonstrated that my questions are VERY relevant to the
government's halachic status as a melech and to its right to govern
Clal Yisrael - or at least that portion that lives in Eretz Yisrael.
Calling questions irrelevant doesn't answer them.

> government's right to govern. Does Mr. Sherer claim that the government
> which passed the law applying the Law of Return to converts - without
> specifying "converted in accordance with Halachah" - was thereby an
> illegal one, and that all its decisions could be ignored?  Let's face

Actually I think the giyur Kahalacha situation was a little bit different.
Because in that case no one expected *me* individually to accept a
non-halachically converted person as a spouse for myself or my children,
chas v'shalom.  (Not to say chas v'shalom that I don't think Israel should
have a law that only giyur Kehalacha is acceptable).  This government 
is telling me that I can't settle in many parts of Eretz Yisrael, that 
I can't go to Meoras Hamachpaila much of the time (and if there's a 
"peace treaty" maybe ever), that I can't hike in Wadi Kelt, and that 
Rachel's Tomb should be moved 400 meters so we don't have to deal with 
the issue of Bethlehem (the latter idea was quickly dropped but it was 
reported in the press last month).

> it, while almost all governments have had religious members (this is the
> second or third time that that isn't so), in most cases the government

Actually this is the first government the Mafdal hasn't been in (although
they withdrew from one other one).  (Sorry about that - Mafdal is the
National Religious Party - also known as Mizrachi or religious Zionists).

> d) I agree with Mr. Sherer that a discussion about the Halachic aspects
> of giving up land in Eretz Yisrael for (let us say) a real peace is
> something which MJ should address. The key, though, to such a discussion
> should be the theoretical aspect - pressupposing a real peace can be had
> at the price of "land for peace," what should Halachic Jewry's position
> be? 

Yes, I agree that we need a halachic discussion of whether or not it is
permitted to give up land for peace.  But first I think we need to know
what the Halacha defines as peace.  Is it "ish tachas gafno u'teano"
(each person under his grape vine and fig tree)? Or is something less than
that also acceptable? And if real peace as defined in Halacha is not 
attainable, what then? Is there any justification for giving up land 
in Eretz Yisrael? 

> Vehu rachum ...

Well at least we can agree on something :-)

-- Carl Sherer
	Adina and Carl Sherer
		You can reach us both at:


End of Volume 21 Issue 21