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Tuesday, November 01, 2005

Democracy and Halacha

A post on DB quickly descended into a debate about the application of halacha to the state of Israel. What struck me was the consistent use of the following argument:

"The state of Israel is not a religious state. The majority of its citizens are not religious. Therefore the proposal of halachic solutions to its problems is not necessary and even harmful. Rather, there is no obligation to try and push the state closer to halachic standards."

On a side note, I also learned that DB is a secret Satmar chasid when it suits his PC western conscience.

[UPDATE: Due to comments. I would like to point out that I am NOT revealing Dovbear's identity. I have no idea who he is or what community he belongs to. I was just saying that he HOLDS like a Satmar chassid when it suits him.]

I have heard the above argument before and always found it to be a funny one. Why is distance from perfection seen as permission to stop striving for perfection? The Torah should inform all areas of our life and to give oneself a blanket exemption from looking at the world through the lens of Torah seems dangerous. I would mind so much if I was actually confronted with arguments that the Torah does not want us to transfer the Arabs out. But the basic premise was that the Torah should not be a source for how the state of Israel behaves.

There was only one poster that tried to use sources. Jewropean claimed that transfer would go against the concept of kavot habriot (human dignity). I tried to explain to him that human dignity can sometimes override a rabbinic statute but has no force against a Torah law. He retorted with a gemara in Shabbat 81b where it is stated that human dignity overrides a negative Torah commandment. If you look at Rashi, he explains the negative command is the mitzva not to deviate from the rulings of the sages and this is only a heter to override a rabbinic enactment under certain circumstances. At least he tried to make a Torah argument.

The question is: Does the torah want us to strive towards a halachic state? Maybe the bigger question is what is the relationship between Torah and democracy. The earliest source that I have found that touches on this topic is the Ritva who writes (חידושי הריטב"א, עבודה זרה ל"ו, ב):

בכל תקנה שרוב הציבור והוא החשוב במניין ובחכמה, הסכימו בה אף-על-פי שהמיעוט
עומדים וצווחים, הרי הם חייבין במה שהסכימו הרוב, ובלבד שיהא נראה לרוב ההוא דיש
בגזירה ההיא תקנה לציבור ומתקנים כן על הכל בשווה.

In every enactment that the majority (that is greater not just in quantity but also in wisdom) establishes. In spite of the fact that a loud minority protests the enactment. The minority is obligated to accept the position of the majority as long as the majority does so for the greater communal good and that the enactment applies to all of the population equally.

We see here that the majority does have legislative rights and that a minority is obligated by what the majority legislate. This is assuming that the legislation is non-discriminatory and is well-intended (I assume this would exclude enactments achieved through corrupt means).

Maran HaRav Kook Zt”l also writes (משפט כהן סימן קמ"ד):

נראים הדברים שבזמן שאין מלך, כיון שמשפטי המלוכה הם גם כן מה שנוגע למצב הכללי של האומה חוזרים אלה הזכויות של המשפטים לידי האומה בכללה ו... גם כל שופט שקם בישראל דין מלך לו לעניין כמה ממשפטי המלוכה ובייחוד למה שנוגע להנהגת הכלל

It seems that at times when there is no king, since the halachot of kingship relate to the general status of the nation, then the rights of [the king] return to the nation as a whole ... thus any judge that is appointed in Israel has the status of a king vis-à-vis several powers [of a king] and especially vis-à-vis the leadership of the nation as a whole.

When there is no Navi or other method to choose a king, then the people themselves are the source of authority. This has been interpreted by some to give a blanket heter for total democratic freedom. This is actually not the case. Rav kook saw a democratically elected government to be an agent of the Torah in the same way that a king should be. The authority of such a government can not supersede Torah law and still be considered legitimate. The Rambam is clear in hilchot melachim (ג , י):

ואין צריך לומר אם גזר המלך לבטל מצוה, שאין שומעין לו

It does not even need to be said that if the king decreed to abrogate a mitzva, we do not listen to him.

See also Rav Shapiro's psak regarding a similar issue. Also see Rambam hilchot sanhedrin 3:8.

In the end, democratic government is a place-holder for true kingship. It, like a king, is obligated to uphold the halacha and to create a Torah-true society. When is veers of this path, it looses its legitimacy. This does not mean that anarchy should prevail, C"V. It just means that it is incumbent upon each and every one of us to create a society that will choose leaders that will uphold the Torah and its values. We must not confuse the appreciation we have for democracy as a system of government with a false appreciation for democratic values (when these values conflict with the Torah). A halachic state is something we pray and hope for. Someday, hopefully soon, it will be closer to being a reality.