Volume 21 Number 31
Produced: Sun Aug 27 0:17:44 1995
Subjects Discussed In This Issue:
Halachic Legitimacy of Israel Government Decisions
[Steve Ganot]
Halachic Significance of Israel Government Decisions
[Carl Sherer]
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From: Steve Ganot <STEVEGAN@...>
Date: Fri, 25 Aug 1995 00:57:35 GMT+0200
Subject: Halachic Legitimacy of Israel Government Decisions
Recently Rabbi Karlinsky, Carl Sherer, David Guberman, Eli Turkel, and
others have discussed the legitimacy of Israeli gov't decisions, both
theoretically and in relation to the present negotiations with our
neighbors.
Both sides of the discussion seem to lead to the same conclusion: if the
Israeli govt has special halachic significance (perhaps its authority is
equivalent to that of a Jewish king), then the govt apparently has the
authority to take special extra-halachic measures for strategic reasons
-- even to withdraw from parts of Eretz Yisrael. And if the govt has no
halachic significance, then there can be no issur in its withdrawl from
parts of Eretz Yisrael.
Without getting *too* political, I must point out that the govt of
Israel has not annexed most of the territories in question. If we
consider the authority of the Knesset as binding (either Jewishly as the
present equivalent of a Jewish king or in general as dina d'malchuta),
then we must be careful to use *its* definition of what it considers its
sovereign territory and what it considers land under military occupation
pending a peace agreement with our neighbors.
If the authority of the State of Israel is binding, than so are the
international agreements to which it is a signatory, and so is the
general system of international law to which it proclaims adherance.
One cannot accept the rule of a modern nation-state while giving it more
extensive sovereignty than our modern system of nation states
allows. And by all interpretations of international law, the authority
of the Israeli govt in those parts of Eretz Yisrael that are under
military occupation is limited and temporary.
Thus, we should question whether the formulation "the proactive handing
over to non-Jews of parts of Eretz Yisrael that had been in the hands of
Jews" is even appropriate. In what way can we consider the occupied
territories, which no govt of Israel has ever considered to be part of
its own sovereign territory, "in the hands of Jews"?
The question has been raised whether this govt has the authority to end
the military occupation of parts of Eretz Yisrael. Again, if it is like
a Jewish king, apparently it does. And if it is like any other govt
(dina d'malchuta), obviously it does. The military occupation was never
considered a permanent situation but rather a temporary measure. This
is one point upon which I think the Israeli Left and Right can agree,
even if they disagree on the best replacement for military rule. As
such, each govt must consider *not* whether it has the authority to
*end* the occupation, but whether it has the authority to *continue* it.
Finally, while I appreciate Rabbi Karlinsky's direct approach to the
entire issue, I must respectfully question his analysis of the last
Israeli elections. In what way are some seats in the Knesset "Jewish
seats" and some "Arab seats"? In what way are some parties Jewish and
others Arab? These imprecise terms certainly cannot be used as the
basis for important halachic decisions. Since Israel does not register
votes according to ethnic or religious categories, one can only
speculate as to who voted for each party. It is well known that all
parties receive votes from both Arabs and Jews, and Arab Knesset members
serve in parties of the Government and the Opposition.
Elections are an imperfect but useful way to establish the govt
according to the will of the majority of voting *Israelis*. We have no
better way of acertaining whether the ruling coalition has the support
of a majority of *Jewish Israelis* than public opinion polls. That
being the case, it would seem that we cannot give Israeli Governments
the special halachic status of melech.
On the other hand, perhaps the question is not whether this or that
individual govt is Jewishly legitimate, but whether *the system* is
Jewishly legitimate. Perhaps we should ask not whether this or that govt
is supported by a majority of Israeli Jews, either at election time or
at every single moment of its rule. Perhaps the relevent question is
whether or not a majority of Israeli Jews are willing to accept the
authority of our democratic system, even when sometimes the majority of
Jews may find itself in the Opposition. Note that the Opposition is
still part of the system. It wants to overthrow the particular govt in
power and change some of its policies, but does not want to dispense
with democracy altogether. So while the ruling coalition may not have
the status of melech, perhaps the Knesset as a whole does. And there is
no doubt that the Knesset still has a majority of Jewish members,
represents mostly Jewish voters, and is the preferred form of government
to a majority of Jewish Israelis.
Steve Ganot
<stevegan@...>
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From: <adina@...> (Carl Sherer)
Date: Fri, 25 Aug 95 16:31:40 IDT
Subject: Halachic Significance of Israel Government Decisions
Steven Ganot writes:
> Both sides of the discussion seem to lead to the same conclusion: if
> the Israeli govt has special halachic significance (perhaps its
> authority is equivalent to that of a Jewish king), then the govt
> apparently has the authority to take special extra-halachic measures
> for strategic reasons -- even to withdraw from parts of Eretz
> Yisrael. And if the govt has no halachic significance, then there
> can be no issur in its withdrawl from parts of Eretz Yisrael.
I don't agree with that conclusion *at all*. IF (and that's a very big
if) the Israeli government has the status of Melech (King), there is
still the question of whether it has the power to order the handing
over of portions of Eretz Yisrael. The Rambam in Hilchos Mlochim 3:9
would apparently sanction refusing to follow a King's orders if they
are in violation of Halacha and therefore if in fact handing over parts
of Eretz Yisrael is forbidden by the Halacha, then one would be
prohibited from participating in handing over parts of Eretz Yisrael
(or so I would argue at least - I understand that Rav Amital shlita
would argue otherwise). (I would add that we still have not discussed
the question of whether and under what circumstances it is permitted to
hand over parts of Eretz Yisrael. IMHO such a discussion is still in
order). If the government does not have the status of Melech that does
not necessarily mean that it has no halachic significance - it may well
be the case that the government has the same status as the government
of the United States or England in which case the axiom of dina
demalchusa dina (the law of the government is the law) would apply - a
discussion which I will save for another day - and if the order to
evacuate violated Halacha, one would have to disregard the order. And
if, as you assert, the government of Israel has no halachic
significance, it may well be the case that each resident of Yehuda,
Shomron, Azza and the Golan has to go ask his personal posek whether or
not he is permitted to abandon his home and under what circumstances.
> Without getting *too* political, I must point out that the govt of
> Israel has not annexed most of the territories in question. If we
Why do you think that a declaration of annexation is halachically
significant? De facto the territories are part of Israel in nearly
every sense of the word. Israelis who live in the territories pay
taxes like everyone else, serve in the army like everyone else and vote
like everyone else. Why do you place halachic significance on the
question of whether or not there has been a formal declaration annexing
Yehuda, Shomron and Azza?
> consider the authority of the Knesset as binding (either Jewishly as
> the present equivalent of a Jewish king or in general as dina
> d'malchuta), then we must be careful to use *its* definition of what
> it considers its sovereign territory and what it considers land under
> military occupation pending a peace agreement with our neighbors.
Where in Halacha is there a status of "land under military occupation
pending a peace agreement with its neighbors"? Can you quote a source
in Halacha for such a concept? Again, de facto, Israel is the sovereign
in these territories - why do you think Halacha requires that we
address this sovereignty in any other terms?
> If the authority of the State of Israel is binding, than so are the
> international agreements to which it is a signatory, and so is the
> general system of international law to which it proclaims adherance.
> One cannot accept the rule of a modern nation-state while giving it
> more extensive sovereignty than our modern system of nation states
> allows. And by all interpretations of international law, the
> authority of the Israeli govt in those parts of Eretz Yisrael that
> are under military occupation is limited and temporary.
So you would assert that "International Law" (which as a lawyer I can
honestly say that I have never understood) has the status of dina
demalchusa dina. On what do you base that assertion? It seems to me
that if you argue that International Law has the status of dina
demalchusa dina and therefore we must accept the decisions of a
majority of the nations of the World we would be required, among other
things, to sign the Nuclear Nonproliferation Treaty which most other
nations have signed. This strikes me as having *very* broad
implications and I suggest you might want to reconsider it.
> Thus, we should question whether the formulation "the proactive
> handing over to non-Jews of parts of Eretz Yisrael that had been in
> the hands of Jews" is even appropriate. In what way can we consider
> the occupied territories, which no govt of Israel has ever considered
> to be part of its own sovereign territory, "in the hands of Jews"?
Because de facto it is - and I am not aware of *any* source in Halacha
that distinguishes between "military occupation" and sovereignty. Can
you cite one? The fact is that Israel has been the sovereign over
Yehuda, Shomron, Azza and the Golan for the last twenty-eight years and
I think that's the only fact the Halacha would look at in considering
what the starting point is for determining which Halachic issue must be
dealt with. Therefore, I think Rav Karlinsky's formulation of the
question - whether or not the proactive handing over of parts of Eretz
Yisrael is permitted - is the correct formulation of the halachic issue
which faces (or may face) us in the future.
> Finally, while I appreciate Rabbi Karlinsky's direct approach to the
> entire issue, I must respectfully question his analysis of the last
> Israeli elections. In what way are some seats in the Knesset "Jewish
> seats" and some "Arab seats"? In what way are some parties Jewish
> and others Arab? These imprecise terms certainly cannot be used as
> the basis for important halachic decisions. Since Israel does not
> register votes according to ethnic or religious categories, one can
> only speculate as to who voted for each party. It is well known that
> all parties receive votes from both Arabs and Jews, and Arab Knesset
> members serve in parties of the Government and the Opposition.
I think Rav Karlinsky was very clear in how he was defining "Jewish"
and "Arab" seats. He defined Jewish seats as being those parties who
were elected with the support of those who are committed to the
continued existence of the State of Israel and the Jewish presence
therein and "Arab seats" as those who are not. Israel does in fact
register voters based on religious categories - you have to show your
identity card when you go to vote and your identity card includes your
religion on it in plain letters. I think that what Rav Karlinsky was
trying to say that if you argue for the government to have the status
of Melech (which from the following paragraph of your post I gather you
don't), that status would be tainted by a dependence on non-Jewish
votes to obtain power. Since virtually no Jews wish to see the Jewish
presence in Israel come to an end chas v'Shalom, Rav Karlinsky
postulated that those who would vote for parties who wish to bring such
presence to an end would be non-Jews.
[Portions Deleted]
> does not want to dispense with democracy altogether. So while the
> ruling coalition may not have the status of melech, perhaps the
> Knesset as a whole does. And there is no doubt that the Knesset
> still has a majority of Jewish members, represents mostly Jewish
> voters, and is the preferred form of government to a majority of
> Jewish Israelis.
I think you've mixed up democracy with Halacha here. The Kneeset may
be a preferred form of government but that doesn't give it the status
of Melech. While it may be possible to make an argument that the
government has the status of Melech (as Mr. Himelstein has posted) it
is questionable whether that status can derive from elections in which
non-Jews hold the balance of power (consider the Torah's dictate of
"mikerev achecha tasim alecha melech" - you shall place upon yourself a
King from *amongst your brothers*), it is questionable whether the
Knesset is tainted by the presence of non-Jews therein, and it is
questionable whether elections in which some of the votes are
disregarded are halachically acceptable (as Rav Karlinsky pointed out).
Also, as Rav Karlinsky pointed out, Rav Yisraeli zt"l, who originally
made the argument for the Israeli government having the status of
Melech, stated that this government does *not* have it. Lastly, in
saying that the Israeli Knesset ought to have the status of Melech I
think you need to consider what the Halachic status of a non-Jew in
Eretz Yisrael is supposed to be, i.e. that of a gair toshav (keeps the
seven Noachide mitzvos but has no political rights). Democracy may be
best for the galus (exile) but it is certainly not halachically
mandated for Eretz Yisrael.
Shabbat Shalom
-- Carl Sherer
Adina and Carl Sherer
You can reach us both at:
<adina@...>
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End of Volume 21 Issue 31