Volume 26 Number 68
                      Produced: Mon May 26 16:06:39 1997

Subjects Discussed In This Issue: 

Independence Day
         [Chana Luntz]
R Dr Haym Soloveitchik's Article
         [Chana Luntz]
Shalom Carmy's post in Vol 26:61
         [Paul Merling]


From: Chana Luntz <heather@...>
Date: Sun, 25 May 1997 14:11:02 +0100
Subject: Re: Independence Day

In message <9705250722.ZM21108@...>, Lon Eisenberg
<eisenbrg@...> writes
>Chana Luntz <heather@...>, as usual, did execellent
>research for her response.  Although there is the opinion, as she
>cited, that the current government constitutes (the equivalent of)
>"malkhut", I think that may still be what I originally referred to as a
>"kvetch", not invalid, just pushing the issue a bit.

Actually, I think the king argument is, in many ways, the most
halachically compelling - which is why I made the reference to Baba Kama
113b - because the Government of Israel raises the following halachic
problem: - On what basis is it legitimate for the Israeli government to
tax Jews in their own land, and why are such taxes not considered stolen
property, and their use as use of stolen property?  The answer that the
gemorra gives in Baba Kama is of dina d'malchusa dina - However that was
dealing with the case of a non Jewish king, in Bavel.  Thus we need some
halachic justification for the actions that most of us take - namely to
obey the laws and use the services of the State of Israel.

Some do extend the rule of dina d'machusa dina to Eretz Yisroel, but
there is serious Rishonic opinion that it is inapplicable.  If you
follow these opinions - then you are back to your problem, for which the
only solutions that have been seriously advanced are din melech, and din
of a kahal.

The other issue is that some rishonim have held that the halachic source
and basis for dina d'malchusa dina is in fact din melech - ie the
commandment in Devarim to make yourself a king like all the kings of the
nations around you - it is this last part that, according to these
opinions gives a foreign king the right to act as king.  These opinions
thus learn the powers of the foreign king, from the powers granted to
Jewish kings as set out in Shmuel and Baba Basra (cf the Rashba).  If
you hold this way then by definition, the powers of the Jewish State
ultimately source from din melech.

Now the alternative seems to be that a kahal has power to establish
rules for itself, which include establishing taxes.  But again the same
issue arises, on what basis can a kahal do this?  One answer (separate
from that of the direct answer that the kahal holds the reserve powers
of a king) is that a kahal has the powers of a beis din, and hefker beis
din, hefker [what the beis din makes ownerless is ownerless].  But the
question again arises - on what basis is the concept of hefker beis din
hefker - and although the gemorra refers to Ezra's power to make
takanot, - the further question as to what gave Ezra such power often
leads to the same answer - ie din melech.

Philosophically, you see, the fundamental question is, what halachic
basis is there for any exercise of power aside frome those limited
powers granted by the Torah.  And the only other source of power,
besides the Sanhedrin, within a halachic structure is a king. The Ran
expresses it as follows:

"But the goal of the judges and the Sanhedrin was to judge the people
according to the inherently true and righteous laws from which the Godly
will be infused into us, whether or not the well-being of society will
result from it.
Consequently, it is possible that sometimes non-Jewish law may promote
social welfare more than some laws of the Torah do.  But we are not
without recourse because of this, as whatever needs to be done to
promote social welfare may be fully accomplished by the king ... The
function of the judges was to judge only according to the laws of the
Torah, which are inherently just ... and the function of the king was to
perfect the achievement of social welfare and to do whatever the times
required."[Drashot HaRan 11 - Translation from the English Edition of
Menachem Elon's Mishpat Ivri p56 - p50 in the Hebrew Edition]

So, rather than being a kvetch - the issue of malchus won't go away in
any analysis of the underpinning of the legitimacy of the State. It is
the only theoretical basis that can make a unity of the three disparate
justifications for State power and authority, thus making the question
rather whether one adopts the "strong" or direct form of din melech - ie
that the State has power by virtue of din melech direct, or whether it
is a "weaker" form, ie has power via the kahal, or via dina d'malchusa
dina.  And it is the justification that most clearly sources to the
Torah itself.

>  I certainly support the concept of having a state and a
>government, but I would tend to minimize the application of such as equivalent
>to "malkhuth", so I can't see Yom Ha`Azmeuth as a celebration of the "king"'s
>ascent to the throne.

So on what halachic basis do you justify the legitimacy and existance of
a state and a government? (Remember that halacha does not have a concept
of the separation of Church and State, so that the Christian
understanding that the secular government operates outside the scope of
religious law is not applicable to us, if a state and a government is to
be legitimate at all, it must be understood and have a place within a
halachic framework).

The reason I am less happy with the strongest form of din melech,
because it can be directly associated with (and probably leads to the
conclusion of) "reshit smichat geulatenu" - which assumes that the State
of Israel is a direct rupture with the immediate past and more connected
with our glorious future.  The view that I prefer, following Rav
Hertzog, that the power of the State of Israel stems from the kahal is
one that gives greater continuity to our experience, as it links us to
the councils of the four lands and the various kehillos throughout the
last two thousand years that have been permitted to govern themselves,
to make their own laws and to collect their own taxes. The State of
Israel has a greater degree of sovereignty than these (although in this
increasingly globalised world, it is not as absolute as the sovereignty
of sovereign nations in times gone by), and it is in, instead of outside
of, the Land of Israel - but whether or not that constitutes "reshit
smichat geulatenu", I feel is a little premature to say.  But if you
understand the threefold balance of power within a halachic society is
made up of the Cohanim, who do the avodah, the Sanhedrin, who judge and
teach according to strict din torah, and the Melech, who provides for
social welfare, it also seems difficult to me to ignore that the
government of Israel occupies, in halachic terms, that final "head of
power" (whether or not it exercises it appropriately), and that it is
appropriate to give recognition [and appropriate kavod], within a
halachic context, to this halachic reality.



From: Chana Luntz <heather@...>
Date: Sun, 25 May 1997 21:14:49 +0100
Subject: R Dr Haym Soloveitchik's Article

I found the original article, and Micha Berger's and the other comments
on it fascinating (I am trying to get hold of the Tradition articles
written in response to the original).  And I have to confess I don't
know what i think about the original or about your responses.

But as the matter goes around in my head - I keep finding myself linking
the thesis of the article - ie of two traditions, a memetic tradition
and a textual one - with another thread on this list - that of the fish
that jumped out of the water on shabbas - and the person who did not
know what to do. 

Do people share my gut reaction that a person from the memetic tradition
would have put the fish back in the water - while someone operating out
of a textual tradition, who found themselves having to make a decision
without being able to consult the text, and without knowing the answer
would not have done so?  While the fact that those who would have put
the fish back in the water find themselves on the back foot, having
difficulty explaining why it is that they would have done so, or
justifying the legitimacy of why they would have done so, while those
'on the other side of this debate' have clearer arguments that one
"ought to have learnt the halacha so well that one knows what to do" 

Or do you think I am referring to something else altogether?

You see, it seems to me that the idea that "one ought to have learnt the
halacha so well that one will always know what to do" is a classic of
textualism - but it is, of course, impossible. Because people are
finite, and the situations we can find outselves in can be infinite, and
can occur at any of the stages of our lives - and thus even if we all go
on to be great gadolim in our old age - we could all have been just over
bar or bas mitzvah when we find themselves faced with a flying fish, and
no one around to ask, and a split second decision to make.

Perhaps it is only right that I should try and speak out of where I
stand, which is not, in this case, so easy for me.  Because while it is
easy to bring sources, and quote what others say, it is intensely
difficult to speak about what one believes.  But, in the circumstances
described, when faced with a dying fish and not knowing what to do, I
think I would have put the fish back in the water - and my
justification, what I would have thought at the time would have been
little more than -  "G-d will understand".

To try and explain a little better - well, I guess one might say that in
terms of our relationship - well yes I let the side down a lot - through
lazyness, or meanness or cowardance - and those things are pretty close
to unforgiveable - and if I ever could manage to do it properly, there
is a tremendous amount of account to do - but this wouldn't be one of
those things for which I would feel i would have to make serious
account.  Because G-d would know that it wasn't that I wanted to violate
his shabbas, chas v'shalom, even if in absolute terms I did, it was just
that I was faced with a situation that illustrated my finiteness and
lack of knowledge - that I just didn't know what to do.  And when faced
with this situation, I could take one of two paths, a path of din, or a
path of rachaimim.  And yes, I could have stood there and wrung my hands
where I stood given, what I knew I could do, - and let a fish die.  But
"v'rachamav al kol ma'asav" - his mercy is over all his works -and if I
ask to be judged by a standard of rachamim rather than a standard of
din, then I need to act by a standard of rachamim and not a standard of
din - and maybe this sounds terribly arrogant, but somehow I believe
that acting with rachamim for a dying fish - such an act "calls" a
response of rachamim - that is somehow, deep down, it is in situations
like these that I trust that G-d will understand.

I don't know that I am expressing it very well - while a textual
discussion is easy, somehow our language does not seem properly equipped
for this kind of a discussion.  But am I right in thinking that those
who would not have acted do not trust that G-d will understand? Or am I
misunderstanding them?  And am I right in intuiting a connection between
the Soloveitchik article, Micha's comments and the different viewpoints
on the thread about the fish?



PS After I sent this to Avi, I realised one of the reasons that I felt I
was not expressing the matter right so I am sending it again, with this
little addition - because it is not that "G-d will understand", it is
that "G-d understands" -as in here and now and during.  But somehow
English doesn't seem to want to let me say that - it sounds very odd
when substituted into the text above, although I can't really work out



From: Paul Merling <MerlingP@...>
Date: Fri, 23 May 97 14:37:00 PDT
Subject: Shalom Carmy's post in Vol 26:61

        Shalom Carmy is of course correct. All I meant to say was that
despite all the Mussar I heard and studied in preparation for the Yomim
Noraim, I was just too young and immature to analyze myself and my
motives.  I know better now, but Chaval I am no longer in a Yeshiva
atmosphere for the Yamim Noraim.
         I remain unconvinced that the Yamim Noraim experience was very
different in today's Yeshivas compared to pre-war Yeshivas. However, a
great Bal-musar makes all the difference in the world. Reb Yaakov
Yicheil Weinberg recalls (I saw it in a recently published edition of
his Cheedushei Torah) a Yomim Noraim in Slabodke with Reb Yitzchak
Blazer(one of the 3 great disciples of Reb Yisraeil Salanter.) The
intensity that he describes is awesome. I never experienced anything
like it in my Yeshiva days.
          What I do react to is the notion of inexorable sociological or
historical laws. But there is no such thing. The future of Torah Judaism
is in our hands(Hakol Bydei Shamayim Chutz....)  The Rav in On
Repentance writes that he couldn't sleep nights due to worrying about
the Jewish future after the Shoa. Yet he and the other Gidolei Hador,
with Hashem's help, resurrected the Torah and created the present with
its truly unprecedented growth of Yeshivas and Kollelim.
           It is true that we have lost (due to the Shoa) what was
called Ahmcha (simple observant Jews) but we should not romanticize them
in a kind of noble savage myth. Some of this folk were indeed
Tsadeekim(very pious) as many Chassidic stories attest to. But almost
all the Chassidic Rebbes, especially in Poland and Galicia, have at
least for the past 120 years done everything they could to lift this
strata up and encourage Torah study among them and they did succeed to a
large extent.
             We should do likewise and reach out to our many brethren
who yearn for Dvar Hashem. With His help we will succeed in building
great bastions of Torah and Yiras Shamayim and merit thereby the
complete and everlasting Redemption.


End of Volume 26 Issue 68