7
Diversity, Tolerance, and Sovereignty
MENACHEM FISCH
LIKE ALL RELIGIONS of long standing, Judaism does not speak in one voice, and perhaps never did—certainly not on the issues under consideration. It is customary to distinguish three major streams or movements within contemporary Judaism in the West—Orthodox, Conservative, and Reform—each standing for a cascade of further divisions. The three movements differ primarily in their attitude to halakah, the code of Jewish law. Whereas Orthodox Jews accept halakah as the first place of reference and sole arbiter of authority, Conservative Judaism sees halakah as a crucial source of value holding “a vote, but not a veto” in determining personal behavior. Reform Judaism, by contrast, insists upon the primacy and ultimacy of personal autonomy in grounding religious norm and individual conscience. Although all three are, sociologically speaking, relatively recent developments, Orthodox communities alone boast full allegiance to a code they consider dating back to at least the talmudic era of late antiquity. This essay is written from an Orthodox point of view, from that of halakah as it is understood and practiced today by the majority of Orthodox Jews. I do so for three reasons. First, in being an Orthodox Jew myself I prefer to “report” from a perspective I feel I can speak for, and to deliberate questions that are real for me. Second, and more significant, bound by deep religious conviction to a strict and richly detailed system of ritual and social norms, Orthodox Jews are challenged far more seriously by problems of ethical diversity than their more liberally motivated Conservative and Reform coreligionists. Third, and for me most important, is the extremely potent reality of these problems for the state of Israel. Israel is unique in being the only modern society in which many observant, halakically committed Jews not only serve as municipal and parliamentary representatives of their communities but partake actively in executive extracommunal governmental roles. It is here that traditional Orthodox Judaism is swiftly and uneasily awakening to problems akin to those discussed in other communities. I say “akin to” because they are not identical. Problems of ethical diversity loom large in this context but do not always manifest themselves in questions of citizenship, physician-assisted suicide, or even same-sex unions as acutely as they do from the perspectives of other ethical systems. I shall try in what fol-lows to characterize the problem and a possible solution to it from the viewpoint of halakic Judaism without straying too far from the guide-lines we have been asked to follow.
Ideal Societies
In one sense Orthodox Judaism’s choice of ideal society is obvious. Owing to its built-in sensitivity to the right of all citizens to the culture, lifestyle, and religion of their choice, modern multicultural democracy is by far the form of host government most favored by Orthodox Jewish communities. The communal autonomy granted by such a state provides and protects the cultural, educational, and religious space needed for them to run their lives as they see fit. The price to pay, though, is as obvious as the choice, for by the same token, in such a state many whose cultural and religious choices promote or enable forms of conduct deemed sinful and heretical in the eyes of halakah will be equally provided for and protected. Preference for such a political setting requires (protest, civil action, and lobbying permitted by the law notwithstanding) undertaking in advance to live and let live within it. Ethical diversity is a necessary consequence of multicultural-ism. To desire such an environment requires, at the very least, accepting as ethical a diversity that is sanctioned by the law of the land. Needless to say, the more decided and rigid one’s own ethical system is, the greater the chance of finding within that permitted diversity systems diametrically opposed to one’s own.
Setting aside the much-discussed question of how liberal a liberal government should be toward violations of liberalism among its autonomous communities, let us look at the same tension from the oppo-site direction. To what extent, let us first ask, can observant Jews, participating in a larger liberal society, silently put up with what they strongly consider to be sinful and heretic practices of neighboring communities? How far does halakah permit one to go in tolerating others for the sake of maintaining one’s own autonomy? The question is one of ethical plurality—not at the managerial level, but of ethical plurality nonetheless.
Of course, the question of tolerance only arises when intolerance is a viable option. If a community is powerless to raise its voice and take action against the sinners and heretics outside its boundaries, its put-ting up with them means nothing. On the other hand, one does not actually have to be in power to take such action. The levels of protest, civil action, access to the media, and boycotting permitted in most modern democracies provide sufficient means for one community to make the life of another quite unpleasant. Today Orthodox Jewish communities in the Western world enjoy such power like any other and are fully capable of loudly voicing their views for and against the various ethical systems they encounter. For them, as never before, the decision to put up with sinful conduct outside the community has ceased to be a matter of necessity and become a matter of choice.
Let us be clear about the question we are asking: what is required of observant Jews in liberal democracies is not to rethink their notions of sin and heresy but to reconsider the appropriate attitude toward the sinful and the heretical required of them by their religion. Needless to say, the question does not arise with respect to all forms of conduct frowned upon by Jewish law but only with respect to those considered desirable by some, and at least permissible by state law. What is minimally required is not for Judaism to change, or even to relativize its ethics, only to be able, in meaningful religious ways, to justify passively turning a blind eye to the forms of sin and heresy legally practiced outside its own communities. On this, I argue, halakic Judaism comes relatively well equipped.
But is the culturally autonomous community, keeping politely to it-self within a wider liberal state run by others, all that contemporary halakic Judaism aspires to politically? For many Orthodox Jews the answer is still a firm yes. Prior to the messianic era, they argue insistently, such an exilic existence is all God-fearing Jewish communities are allowed actively to pursue. On these grounds the vast majority of Orthodox rabbis vehemently opposed the newly formed Zionist movement at the turn of the century.1 Since then things have changed, however. For the last hundred years, and especially since the establishment of the state of Israel in 1948, the comparatively small group of halakically committed pro-Zionists2 has grown steadily to the ex-tent that today the vast majority of observant Jews living in Israel participate actively in state and municipal politics. They are organized in a number of religious parties—ranging from the religiously pro-Zionist to the religiously a-Zionist (i.e., politically indifferent), and excluding the relatively small group of religiously anti-Zionists—whose representatives occupy key positions at the municipal, parliamentary, and governmental levels. For them, I submit, the question of the ideal society for halakic Judaism becomes exceedingly more difficult.
The reason is simple: at the managerial level turning a blind eye to the halakically objectionable is no longer enough. To partake actively in running (as opposed merely to living in) a liberal democracy requires more than to tolerate passively those with whom one disagrees. Observant members of the Israeli government—the ministers of education, the treasury, or the interior, for instance—cannot get away with merely ignoring those they consider sinful and heretic. As managerial level executives of a multicultural society they are required to take active responsibility for the well-being and welfare of all communities—including those whose lifestyles they consider blatantly objectionable. Jewish law distinguishes between passive toleration and active enabling. There is a clear halakic line to be drawn between employing passive judicial restraint and abstaining from taking action against the halakically objectionable, and going out of one’s way to assist them. For halakic Judaism the question of the ideal society is hence an extremely tricky one depending on the nature of the halakic warrant sought.
Halakah as it stands permits Jewish rulers to grant considerably less freedom to their subjects than they would have liked their rulers to grant them as subjects. The discrepancy between looking at questions of ethical diversity from above and from below, as it were, becomes especially problematic in Israel where Orthodox Jewish communities find themselves for the first time in the modern era having to tackle the problem from both perspectives simultaneously.3 In what follows I do my best to discuss the general question of ethical plurality, as well as a number of specific problems from each of the two halakic perspectives, with a view to highlighting the difference between the diaspora and Is-raeli case. I then conclude by suggesting a way of reconciling the two approaches within the world of halakic discourse.
One last word of introduction: rather than discuss ideal, theoretical models of statehood that have been suggested from time to time in premodern halakic writings, I concentrate in what follows on the two real latter-day contexts in which halakically committed Jews now freely confront ethical diversity—namely, latter-day Israel and the other Western democracies. With the establishment of the state of Israel Jews regained full political sovereignty for the very first time since long before the first formative halakic texts came into existence. For the best of two millennia self-rule was envisaged in halakic writings, if at all, only in the most remote and idyllic terms, never as a realistic possibility. The few texts in which a more detailed conception of Jewish statehood is attempted were written long before the emergence of the modern nation-state.4 Modern Israel is not of Orthodox Jewish making. It preserves an ethical diversity far wider than halakah is capable of accommodating prima facie. It poses a real, rather than a theoretical challenge to traditional modes of thought—perhaps the greatest challenge to halakah of the modern era, certainly the most urgent one. But first to the problem of ethical plurality outside of Israel.
Ethical Diversity from Below
Halakic Judaism’s capacity for passively tolerating objectionable ethical systems adhered to beyond the confines of the community is almost unlimited. In this respect, the question of ethical pluralism can be answered by halakic Jews, by means of a healthy, pragmatic, halakically motivated tolerance. “Ethical pluralism,” in the normative sense of the word, is the wrong term to use in this context, however, and, I am tempted to say, so is “tolerance.” Pluralists attach value to other systems of thought and welcome their existence. Halakic Judaism, as it is currently understood by its practitioners, does not.
Toleration is different. To merely tolerate a person, an idea, or a form of conduct does not imply attaching intrinsic value to its existence. To tolerate per se is minimally to agree to put up with the objectionable, to suffer in silence its unwelcome presence. To merely tolerate a person, idea, or form of conduct implies not looking upon it favorably in any way, or being curious to find out more about it, but only a willingness silently and passively to accept its existence. Most existing ideas of tolerance come grounded in liberal assumptions on the nature of hu-mankind. We tolerate other people’s beliefs because one’s beliefs are regarded one’s private business, or because individual autonomy is held sacred. As it stands, Jewish law contains nothing comparable with the sanctioning of an individual’s right to cultural freedom or of individual autonomy in modern liberal thought. Halakic Judaism tolerates the objectionable not in respect of someone else’s rights but in order to avoid unnecessary trouble. The halakic principles employed to justify slackening halakic standards (when applicable) out of a concern for social or political tension are mipnei darkei shalom and mipnei darkei eiva—that is to say, for the sake of peace or for the sake of avoiding hostility. In theory this boils down to a rather crude, ad hoc, and wholly practical version of Kant’s categorical imperative—not: do not do to others that which you would not like others to do to you, but rather avoid doing to others what the law would have otherwise required you to do to them for fear of them not appreciating your noble intentions and retaliating by doing the same or worse to you. Such reasoning is morally coarse to say the least, pragmatic in the bad sense of the term, but it is genuine, and, most important, it works admirably well.
Like most religions, Judaism discriminates in two different and largely independent ways. Halakah discriminates, on the one hand, between prohibited and permitted conduct and, on the other, between people: between members of the faith and those who are not. (I am ignoring here discrimination within the community—for example, be-tween male and female members—on which something more is said later.) In a variety of situations, Jewish law discriminates against gen-tiles qua gentiles—sinful or not. (These situations range from the purely ritual [e.g., exclusion from certain ceremonies] to the worryingly ethical [e.g., a status lower than Jews in certain life-saving situa-tions].) One may speak therefore of two separate forms of religious toleration: a willingness to put up with objectionable conduct, and a willingness to include the other where the other would otherwise be excluded. Both are easily accommodated by the pragmatism of arguing “for the sake of peace.” “In a city populated by Jews and gentiles, Jewish and gentile administrators are appointed,” states the Talmud of Palestine, “taxes are collected [equally] from Jew and gentile, [from which] the needs of the Jewish and gentile poor are [jointly] supplied.” One does not discriminate between the Jewish and gentile sick, the Talmud goes on to rule, one attends equally to the dead of each community (although strictly speaking Jews and gentiles should be allocated differ-ent cemeteries), and pays equal respect to their respective mourners—all in the interest of peace.5 According to this fundamental ruling, halakah actually encourages forming shared, representative administrations for “multicultural” societies, to risk an anachronism, rather than insist on Jewish control. But that is a different issue.
In principle at least, observant Jewish communities encounter no problem refraining from taking the offensive action required of them by halakah whenever there is the slightest chance of retaliation. Though the metaphysics that back them may not always be to every-one’s taste (e.g., when looking for ways around the halakic prohibition against desecrating the Sabbath to save the life of a non-Jew), overriding halakic prohibition with principles like “for the sake of peace” is about all that is needed for halakic Judaism to live peacefully amid the sinful, the heretical, and the non-Jewish.
An interesting point to notice is that while concern “for the sake of peace” provides halakically meaningful justification for not doing what one would otherwise be required to do, it provides no justification for remaining silent about it. Excluding situations where one prefers to keep a low profile for the sake of peace, one would expect communities with firm positions on controversial issues to at least participate in the public debate where such debate is allowed. To agree to tolerate other positions does not mean giving up your own. It is not as if Orthodox Judaism’s views on the moral issues currently debated in the United States are uncomfortably extreme. Halakah may not always accord with the most liberal approach, but it hardly ever coincides with the other extreme. And yet, outside Israel, one hardly ever en-counters serious Orthodox Jewish involvement in any of the public ethical debates. Such questions are frequently raised in sermons and in the lively responsa literature, and are firmly, and to a great extent unanimously, ruled upon by Orthodox halakists without, however, any visible proselytizing intention of causing anyone else to improve their ways. Orthodox Jews have quite thoroughly absented themselves from the public moral debate everywhere but in Israel—so much so that it seems inappropriate to describe their attitude to the moral diversity that they encounter outside Israel as one of toleration. Sheer indifference seems more like it. Orthodox communities in the West, though perfectly welcome as bona fide members of society, tend to keep to themselves politically, and appear to show extremely little if any inter-est in influencing the public sphere—other, of course, than to lobby for their own communal needs. It is not as if they would have liked to make a stand but refrain from doing so for the sake of peace. It is more as if they simply couldn’t care less.
Paradoxically, the level of indifference exhibited by Jewish communities to the moral space facilitated by state law, and to the moral choices made by others, changes as if it were a direct function of their degree of halakic seriousness. The stricter one is, the more seriously one takes one’s religious duties, the less, it seems in the Jewish case, is one concerned with how other individuals and communities live their lives. In place of the religiously meaningful mechanisms of judicial restraint and considered toleration made available by halakah (that serve in themselves to elevate the value of peaceful coexistence) diaspora Or-thodox Jews largely display an attitude of unconsidered apathy to-ward the moral choices and lifestyles of all but their very own. Apathy and moral indifference are not uncommon Western maladies. Latter-day philosophical relativism doesn’t help on this count either. Al-though of a kind, the Orthodox Jewish case is different, however, and hardly a modern or postmodern phenomenon. An understandable result of centuries of oppression and persecution, it is the defense mech-anism of the less emancipated exhibiting an instinctive, disengaging, almost austere, ethnocentric dismissal of the outside world. Typical of very many Orthodox communities throughout the Western world is a deeply entrenched sense of not belonging, of having no responsibility, and of having no desire to be responsible for anything or anyone out-side the enclave of their own community.
The upshot for the problem of ethical diversity is clear enough. Whether for the sake of the peace, or out of sheer indifference, as long as state law does not require Jews to violate halakah, the fact that it permits others to do so, or even sanctions such violations, poses Orthodox Judaism no problem at all. Observant Jews are by no means ethical pluralists, let alone ethical relativists. Their views on the problems under consideration (though not always identical) are firm and determined. Still, halakically autonomous Jewish communities are ideal (if silent and inactive) partners to as widely diverse an ethical plurality as liberals would have. As long as they are allowed to keep to themselves, and their rabbis granted the authority to make their own decisions and issue their own rulings on such issues as abortion, physician-assisted suicide, and one-sex unions, ethical pluralism is not a problem for diaspora Judaism.
The situation in Israel, however, is another matter entirely.
Managing Ethical Diversity: The Problem of Sovereignty
As noted at the outset, there remains a minority of ultra-Orthodox Jews living in Israel who continue to view themselves “exiled by the hand of Israel.”6 Their hostility toward Israelis, Israeli society, and the Israeli government and legal system ranges from a furious tight-lipped scorn to passive disobedience. They refuse to engage. In particular, they exhibit no desire to form an opposition within Israeli society or in any other way influence anyone or anything beyond the locked gates of their own community. If one ignores their ideological hostility to the very idea of a (nonmessianic, secular) Jewish state, their attitude toward the ethical diversity existing outside the community is, in practice, much the same as that of their Orthodox brethren abroad—they too couldn’t care less. In the past Jews were powerless to react. Today, in Israel as in other Western democracies, this is no longer the case, as Orthodox Jews know very well. And yet, as noted, many or-thodox communities speak and act as if it were. They seem to prefer to be viewed and to view themselves as incapable of making a stand, than as having chosen not to. If diaspora Orthodox Jews can still be described as having not yet fully comprehended the fact that they are ruled by a genuinely benign and welcoming alien state, the same can-not be said of the Israeli ultra-Orthodox. Their insular exilic existence is consciously self-fashioned—far less a failure to adjust than a considered and largely self-constructed preference. They seem truly to prefer living inwardly devoid of civil or social responsibilities at the mercy of an oppressive alien state—not unlike ancient Israel’s desire to re-turn to Egyptian captivity rather than accept the responsibilities of freedom. Due to its self-imposed, exilic mind-set, the anti-Zionist, Israeli, ultra-Orthodox minority remains austerely indifferent to the ethical diversity of Israeli society, and hence unproblematic in terms of the issues under consideration. For the vast majority of observant Israeli Jews, however, the problems are real, and by no means as easily avoided.
By assuming municipal and governmental responsibilities, Orthodox Jews in Israel cannot remain indifferent to the moral choices of other Israeli communities, especially those supported by Israeli law. Nor are the halakic justifications for passively tolerating the sinful for the sake of maintaining the peace of much avail. For it is one thing for an Orthodox community to turn a blind eye to idolatry or to systematic transgressions of the dietary laws or the Sabbath restrictions by neigh-boring communities “for the sake of the peace,” but quite another for an Orthodox Jew to take it to be his job to assist actively and systematically such sinful conduct.
The role of government and municipal executives in multicultural democracies differs decisively from that of communal leadership. Whereas the job of the latter, even when acting as representatives of their home communities or cultures, is primarily to look out for their own, the former, regardless of personal conviction, assume responsibility for the security and welfare of all. The Israeli ministers of education, religious affairs, the interior, tourism, and the like cannot perform their governmental duties by merely turning a tolerating, peace-maintaining blind eye to what their religion considers sinful. It is their job, in their designated areas of responsibility, to actively ensure the security, the welfare, and the capacity of each and every community to flourish according to its custom and conviction (insofar as, in doing so, nothing is done to harm other communities, or to prevent them from exercising their own, identical rights, of course). If halakah firmly for-bids Jewish travel agents to assist actively or profit from Muslim and Christian pilgrims, for instance,7 it similarly forbids Jewish governmental officials to do so. But to volunteer such active assistance is the very job of the Ministry of Religious Affairs, of Finance, and of Education to name but three. Not only is the Ministry of Education, for instance, expected to assist Muslim and Christian communities in planning and funding their annual school trips to the holy places of their respective faiths but also, as a matter of course, is constantly engaged in improving the system—that is to say, in rendering their halakically objection-able activity all the more efficient and worthwhile. And the same goes for the gravely sinful behavior of unOrthodox Jews. The very same ministry is responsible for the ongoing activities of the various Israeli schools and youth movements—some of which are decidedly and, in the latter case, even ideologically irreligious. Most of their out-of-town activity—field trips, camping outings, hikes—are scheduled for the days held most holy by halakah. And, again, personal convictions notwithstanding, it is the ministry’s job not only to assist and fund such blatant and public desecration of the Sabbath and the High Holidays, but to study them year by year, learn from past mistakes, and render them all the more enjoyable, efficient, and effective! This is a far cry from grudgingly turning a blind eye to sin for the sake of peace.
Although it is obviously the most desirable form of government when viewed from below, as things now stand halakically, the liberal, multicultural democracy is at the same time the form of government most awkward for observant Jews to manage from above. The discrepancy is not paradoxical, but it certainly premises a moral double standard that requires urgent attention. From the point of view of the current state of Jewish law, the discrepancy is unavoidable, and the problem of ethical pluralism acute. If they are to abide by their halakic convictions, Orthodox Jewish legislators and members of government are powerless to do for others what they would have expected others to do for them. The social- turned liberal-democratic vision of statehood on which modern Israel has modeled itself is one that halakah, as it is currently conceived, is incapable of accommodating. From the administrative viewpoint of the sovereign, liberal democracy and Jewish law are to a large extent diametrically opposed.
In principle, Orthodox Israelis have three options, none of them easy. One is to relinquish all Jewish pretension for sovereignty at the metacommunal level. According to this view, dreams of Jewish independence should be limited to self-rule in the narrowest sense of the term. Judaism should be considered a purely communal affair, harboring no desire to rule or to manage the lives of members of other cul-tural or religious groups.8 Needless to say, such a position is untenable for those who regard national independence and political sovereignty as possessing religious significance. Orthodox Zionists reject it completely. Those for whom modern statehood is a religiously viable option—not to say a religious duty—have two further options: they can remain faithful to halakah as they find it and reject Western democracy as a halaki-cally inappropriate model for Jewish statehood. Or they can attempt to make room, from the point of view of the state, for a religiously meaningful approval of ethical pluralism by rethinking halakah along lines akin to latter-day developments in political philosophy. There is no other option. As we have seen, in the role of sovereign, one cannot, in principle, remain loyal both to halakah and to the ideas of liberal democracy as each of them stands at present. One of them needs to be significantly modified.
The last option—that of refashioning halakah in ways capable of as-signing religious value to actively assisting halakically objectionable forms of conduct—is both the most desirable and prima facie the most unthinkable. I believe, however, that the formative texts of halakic Judaism contain important resources for the meaningful construction of such a position—a thesis I briefly outline in the concluding section. The other two positions do not solve the halakic problem but merely lower the ante: either by abandoning political sovereignty or by abandoning the most advanced (and highly desired from below) model of statehood. I pursue them in the present context no further.
Social Regulation
Bearing in mind the fundamental ethical double standard I have pointed to between the two ideal social frameworks—that by which to be governed as opposed to that by which to govern others—let us turn to the first problem we have been set. The problem of social regulation arises, of course, for both. The issue here steers closer to the latter, how-ever, in no longer being that of living in an ethical diversity, but that of stating normatively and in advance whether and, if so, when the power of the state should be invoked in order to determine the limits of ethical diversity. The difference between the situation inside and outside of Israel is still striking in this respect, despite the fact that the question is a normative one.
Questions of social regulation are relevant to both the upper and lower limits of ethical pluralism: how much and how little should be permitted? From a given ethical point of view the law can be found wanting either for enabling forms of conduct considered objectionable by the system in question, or for ruling objectionable forms of conduct that are held by the system to be one’s duty, or are at least considered perfectly benign. Concern for problems of the first kind—those to do with the law permitting too much—often reflects consideration for others, a concern for the moral standards of those with whom one dis-agrees. Taking a stand on such issues often bespeaks a sense of responsibility that extends beyond the boundaries of the community. Questions of the second kind, by contrast, normally premise a concern for one’s own.
Not surprisingly perhaps, the only questions of social regulation that have exercised Orthodox Jewish communities outside Israel have been those to do with the Jewish community directly. Despite the fact that Jewish law contains several categories of prohibitions addressed explicitly to non-Jews9 (and, of course, many, many more addressed to Jews qua Jews), I know of no Orthodox Jewish action taken with a view to impelling Western legislators to “emend the world” by setting the per-missible limits of ethical diversity in accord with these norms. What-ever Orthodox Jewish protest exists in this respect is motivated, as far as one can see, solely by self-interest. Although all Western systems of law are excessively liberal by any halakic standard, its promiscuity is challenged by Orthodox Jews only when they themselves are directly effected—as when certain forms of anti-Semitic rallying, art, and literature are permitted in the name of freedom of speech. Other than that, diaspora Orthodox Jews remain largely indifferent to the upper permissible limits of the ethical plurality in which they live.
Challenges to the lower limits are more common, yet equally, if natrally self-centered. Ritual slaughter, shehita, is a good example. One of the basic Jewish dietary laws has to do with the way an animal is put down. Halakah requires that it be done by means of a swift and deft slitting of the throat performed by a specially trained shohet. Eating the flesh of an otherwise kosher animal or bird killed any differently is strictly prohibited. Swedish law, for example, requires that animals be put down by certain, painless methods only, and prohibits Jewish shehita on moral grounds. Requests for separating men from women on public transport in and out of ultra-Orthodox neighborhoods in New York City are systematically turned down as unconstitutional, and the building of Succoth during the feast of tabernacles is known to violate municipal regulations in some cities. By the same token, although I know of none, one can imagine societies legislating against ritual circumcision for similar reasons (customarily performed publicly without an anesthetic). In cases such as these, Jewish attempts to impel legislators to allow the state to regulate cultural diversity more generously are not uncommon.
The paradox I pointed to at the outset is thus intensified. Despite the seriousness in which halakah is studied and followed by its practitioners, Orthodox Jewish communities remain generally unmoved by society’s promiscuity toward forms of conduct they regard ethically or halakically offensive (except when they themselves are affected). The law is, therefore, hardly ever criticized for being too liberal, but only for not being liberal enough. There seems to be no general (meta)ethical principle at work here beyond sheer ethnocentricity. If there was, one would expect Orthodox Jews to speak up in defense of other ethnic groups similarly constrained and on behalf of the morally depraved, for whom, in their opinion, the law is not strict enough. There is no sign of either. As long as exilic Orthodox Jews are allowed to practice their religion freely and to make their own ethical choices, they remain, it seems, all but indifferent to the limits of state involvement in setting the levels and regulating the boundaries of ethical diversity.
The situation in Israel is very different. In fact it is almost wholly reversed. There exists a small measure of state-imposed banning of custom for ethical reasons, though not against Jews, and never of actual religious law. (The state, for instance, prohibits marriages between minors although they are customary [but not religiously required] among certain Muslim communities.) No authentic Jewish custom or ritual is banned by Israeli law. With regard to community life proper, observant Jews do not find themselves in conflict with Israeli law. Orthodox Israeli Jews, in other words, have no reason to complain about the law being too restrictive. Orthodox complaint, and there is much of it in Israel, concentrates exclusively on the law being overly permissive.
Unlike anywhere else in the world, Orthodox Israelis campaign vigorously, and not unsuccessfully, for limiting what they take to be pub-lic violations of halakah proper and of what they take to be halakic sen-sibilities and sensitivities. For the most part, the issues in question are more ritual than ethical, although the involuntary imposition of ritual constraints certainly constitutes an ethical problem. Paradoxically, this is not altogether a bad thing. The bright side is that here one encounters, for the first time, at least in the modern era, real, if perspectival, Orthodox concern for the moral and religious character of the other. When Israeli television was first introduced, there was a huge fight about whether broadcasting should be allowed by law on the Jewish Sabbath. The question had nothing to do with the integrity of religious life among the Orthodox—many of whom continue to avoid television altogether. To this day, by the sheer force of Orthodox parliamentary bargaining power, public transport is discontinued by law on Saturdays and during the Jewish festivals in almost all Israeli townships, and food in state-owned institutions and modes of transport is kept strictly kosher. And one could cite many more examples of this kind. Unlike diaspora Orthodoxy, and unlike the militant anti-Zionist ultra-Orthodox minority, Israeli Orthodox involvement regarding questions of ethical plurality is motivated by more than narrow self-interest. Theirs is a deep concern for the moral and religious character of the wider society and the nature of the public sphere. Like their coreligionists abroad, Orthodox Israelis would prefer the ethical diversity in which they live severely limited; here, however, they are willing to do something about it.
And yet, energetic as the campaigning may become, at the metacommunal level the accepted rules of the game remain democratic. Once the majority has made its ruling, and the issue is settled legally, a grudging tight-lipped toleration kicks in naturally. There is bound to be some huffing and puffing, but by and large the rallying, lobbying, boycotting, and public protest remain well contained within the boundaries of perfectly acceptable civil action. As noted earlier, Jewish law comes well equipped when passive toleration is the order of the day. The problem for Israeli Orthodox Jews, I repeat, is far less that of living with parliamentary or municipal rulings they consider halakically objectionable than that of taking active responsibility as governmental executives for their implementation, once they’re accepted. Abiding by majority rule, even when in violation of the spirit or letter of halakah, is for halakic Judaism the kind of force majeure they are fully capable of silently (if sullenly) living with, as long as it does not entail active violation of halaka on their part. Taking responsibility for implementing such rulings does—and it is here, I have argued, that the most pressing problems lie.
Still, Israeli orthodoxy has come a long way in taking civic responsibility for society at large and, allowing for the full range of legitimate protest and civil action, in accepting the democratic processes of deci-sion making as the final arbiter. What it yet lacks is the capacity to view such diversity as religiously desirable, as something worthy of an enabling framework.
Citizenship
Although Jews have a long history of being denied the full rights of citizenship, it was normally not done on ethical grounds. Delineating the boundaries of nationhood and with them those of full-blooded citizen-ship is a problem the Western world has grappled with painfully until quite recently. The grounds for the debate, however, were hardly ever ethical. Israel too has its share of ethnic chauvinist extremists who, from time to time, question the right of non-Jewish Israelis to fully fledged citizenship and to determine the fate and national identity of the Jewish state. They demand that major national issues, ranging from questions of church and state to the sealing of peace treaties, require by law a “Jewish” or “Zionist” parliamentary majority. But, again, although the outcome is of major ethical consequence, the motivation of such groups is usually not.
Halakah has nothing to say on how civil society should handle ethically based disagreements about civil status, but from time to time ha-lakists have been exercised by certain questions of civil status and of the proper deployment of civil rights and duties. Let me briefly discuss one such issue by way of an example.
The question of the right of women to vote and to run for office was raised and debated in Palestine around 1920. The context was halakic, but some of the main lines of argument utilized by both parties were ethical.10 Rabbi Avraham Isaac ha-Kohen Kook, Ashkenazic chief rabbi at the time, ruled firmly against women’s suffrage. He organized his reasoning under three headings as answers to three separate questions: (a) Regarding the law: is it permitted or prohibited by halakah? (b) Regarding the common good: which of the options better promotes the common good for Israel? (c) Regarding the ideal which is better sup-ported by our moral consciousness? He goes on to explain: “The exposition must take all these values into account, for I must relate to all ranks [of the public]: the completely faithful of Israel for whom the ha-lakhic ruling is central, those for whom the nation’s is decisive, and those whose main view is to the moral ideal in itself.” Rabbi Kook’s consideration of all three aspects clearly bespeaks, even at that early date, a real sense of social responsibility extending far beyond the world of discourse of the community of his immediate followers.
Regarding halakah proper, he keeps his reasoning brief and simple: in all our canonical writings, he asserts, “we hear one voice; namely, that the duty of fixed public service falls upon men, for ‘It is Man’s manner to dominate and not Woman’s manner to dominate.’ Roles of authority, judgment, and testimony are not her domain, as all her honor is within [the confines of the home].”11 The pragmatic and moral arguments he offers follow suit. It is also in the common good not to allow women’s suffrage, because the “best of the gentiles generally and the best of the British people particularly” in whose hands lies the fate of the Jewish people’s claim to the land of Israel, expect of us to realize the values of the Bible, which they too hold sacred but lack the ability to live up to, and in which “the special feeling of respect towards Woman . . . is based and centered on domestic life.” The moral reasons offered by Rabbi Kook focus on the holiness of the Jewish household and the centrality of domestic peace and tranquillity for the quality of national life. “The psychological cause of the call for women’s right to participate in public elections in [other] nations,” he states, “comes fundamentally from the unhappy position of the masses of women in these nations. Had their family’s situation been as peaceful and dignified as it is generally in Israel, women themselves . . . would not demand what they term ‘rights’ of election for women in a manner that might ruin domestic peace.” He concludes that “We dare not obliterate the splendor of our sisters’ lives, and embitter them through the din of opinions and disputations of elections and political questions.” For the sake of family harmony, politics—the business of men—should be banned from the private domain and duly confined to its proper place: the public sphere.
Despite Rabbi Kook’s considerable standing among the Orthodox community during those years, and the fact that he was joined in his ruling against women’s suffrage by several other rabbinic authorities, his ruling went wholly unheeded. One reason for this was the sephardic Rabbi Ben-Zion Hai Uziel’s very different ruling issued in response to Kook’s. His conclusions were stated as firmly and as unequivocally as Kook’s: “A woman has the perfect right of participation in elections . . . [and a] woman may also be elected by the consent and ordinance on the community.” He offers an ethical argument in favor of his position, and an ethical rejoinder to Kook’s ethical argument against it. “It is inconceivable” that women be denied the right to vote.“For in these elections we raise leaders upon us, and empower our rep-resentatives to speak in our name, to organize the matters of our Yishuv, and to levy taxes on our property. . . . How then can one simultaneously . . . lay upon [women] the duty to obey those elected by the people, yet deny them the right to vote in the elections?” His rejection of Kook’s argument for domestic tranquillity is equally decisive: if women’s suffrage is to be prohibited
for the sake of preserving the peace at home . . . we must also deny the right of voting to adult sons and daughters still living in their father’s home. For in all cases where our rabbis concerned themselves with preserving tranquillity, they gave equal treatment to the wife and to adult sons living at home (see Bavli, Bava Metzia 12a–b). . . . But the truth is, that differences of opinion will surface in some form or other, for no one can suppress completely his opinions and attitudes. Rather familial love based on mutual labor is strong enough to withstand such differences of opinion.
He proves that, in addition, women may be elected by showing that the prohibition against appointing a queen stems not from halaka deeming women ineligible in principle for the job but from a concern for the “dignity of the community.” Public opinion is incapable of overriding considerations of the former kind, he argues, but has every-thing to do with the latter. If a majority of the community votes for a woman, it would be a violation of its dignity not to appoint her!
Rabbi Uziel won the day. Participation in the Israeli elections is still debated among the ultra-Orthodox, but even they make no halakic distinction between men and women in this respect. For Orthodox Judaism, women’s suffrage is no longer a problem. Furthermore, in two of Israel’s five Orthodox parties women also run for office.
However, the question under consideration is not that of Orthodox Judaism’s position on the issue of citizenship but that of its position on the way ethically based disagreements about citizenship should be handled. Let us imagine, then, that Rabbi Kook had won the day and ask what would have been his and his followers’ reaction to the state allowing women who felt differently to vote anyway. Although the question was never raised, had it been, it would have brought us back to the point I have been making all along. Orthodox women, even in Israel, would have followed the rabbi’s ruling and piously refrained from voting while grudgingly accepting the fact that other women do. They would have no problem whatsoever with the fact that others might think differently, and be allowed to do so, as long as they them-selves were able to live their lives as they see fit. Problems would only arise when an Orthodox Jew was put in charge of actively implementing the women’s vote law. It would be halakically problematic even if all his job amounted to was to inform women of their rights. As I have stated repeatedly, ignoring violations of Torah is one thing, actively promoting them is another.
Life-and-Death Decisions, Human Sexuality, and Beyond: Valuing Ethical Diversity—Religious Possibilities
I think it has now become clear that the case studies selected for discussion add little to clarifying the main issue for halakic Judaism: namely that of accommodating ethical pluralism from a managerial po-sition. The current halakic debates on physician-assisted suicide and same-sex unions are as fascinating as they are pressing, but bear little on the main issue in question. Those interested will find engaging and accessible introductions to the two issues in Noam J. Zohar’s “Jewish Deliberation on Suicide”12 and Bradley Shavit Artson’s “Enfranchising the Monogamous Homosexual” respectively.13 Here too, the halakic tradition and the current debate have nothing to say about the proper way to manage second-order regulation and accommodation of con-trasting systems. On both issues, Orthodox communities outside of Israel, though firmly committed to the teachings of their rabbinic leaders, remain largely indifferent to the moral choices of other communities, as to the levels of legitimacy granted them by the law. The situation in Israel is quite different. Prior to voting, Orthodox Knesset members will do everything in their power to secure a majority in their favor. Protest may be loud and the rhetoric heated but only until the vote is taken. Once it is, the situation will closely resemble other Western countries, but with the one exception I have stressed repeatedly: in Israel there will inevitably be Orthodox government officials with the impossible task of actively enabling and vouching for the successful violation of norms they hold sacred.
The problem, to repeat, is not that of having to share political and social space with communities who knowingly conduct their lives in violation of halakah, nor is it the problem of determining the cultural-religious character of the public domain; it is that of taking responsibility for implementing and managing the very sharing. What is needed for halakically committed members of such a government is not tolerance, but some form of religiously justified pluralism (in the normative rather than in the descriptive sense of the word). But how is it possible to square pluralism with a system of thought and action that claims access to the ultimate Good based on transcendental truths? On what grounds can halakically committed Jews possibly view forms of conduct that are decidedly rejected within their religious communities as worthy of active promotion beyond their gates?14
Such grounds exist, I believe, along lines similar to those proposed, say, in Karl Popper’s The Open Society and Its Enemies. According to such an approach, the grounds for ethical diversity are primarily not to do with a moral duty to defend individual autonomy, or with a moral obligation to keep out of one’s neighbor’s hair. Popper’s position en-tails such liberal visions of individual autonomy but ultimately rests upon epistemological rather than moral or metaphysical arguments. Ethical systems diametrically opposed to one’s own are valued by members of the open society, not merely on moral or legal grounds, but out of a realization that the environment of a plurality of engaging, especially conflicting voices, is the setting in which one’s own system is best and most effectively articulated and developed.
The obvious advantage of grounding ideas in pluralism in this way is that it sidesteps the entire issue of fundamental rights, an idea halakic Judaism for one has great difficulty accommodating as an a priori given. The acknowledgment of humankind’s profound fallibility especially in the public sphere, of the fundamental time-boundedness and context-dependence of ethical judgments, coupled to the almost built-in instability of those very contexts, premises little more than that life, especially social life, is exceedingly complex and unpredictable, and that the chances of us making a mess of things are enormous—with this few would disagree. The upshot is an epistemic hesitance, modesty, and openness and an awareness that we are poor critics of our own ethical choices, that things are best done piecemeal, and that other viewpoints are not merely to be tolerated but to be highly valued, not for their own intrinsic worth so much as for their capacity to challenge our own by highlighting its flaws and shortcomings.
Of course, the Popperian option need not deny the idea that people have fundamental rights to whatever belief system or inoffensive form of conduct they see fit. The liberal and Popperian options are independent of one another but are not mutually exclusive. Liberalism alone, however, provides little incentive for building and maintaining a society transcending the boundaries of one’s own community. Acknowledging the other’s right to the belief system of his or her choice offers, in and of itself, little reason for establishing frameworks for living with others. Liberal rights provide sufficient grounds for tolerating others once they are around, but not for wanting to have them around. Acknowledging a person’s right to his beliefs entails an obligation to tolerate him holding to them but, of itself, attaches to them no intrinsic value. The Popperian option does. One wants to surround oneself with people who think and live differently in order to enrich one’s own be-liefs and lifestyle. On this inherently pluralistic model the other is not merely tolerated but is valued for his otherness. The beauty of it is that although the Popperian option is capable of delivering more than the traditional liberal options, it need not premise fundamental rights at all (although it need not deny them). If only for that, the Popperian option is an attractive alternative for religious systems whose capacity for accommodating a rights-based liberalism is severely limited. The argument from epistemic modesty is an argument for more than toleration. It is an argument for pluralism. Arguments from rights compel us to take seriously a person’s ethical choices but, of themselves, attach no intrinsic value to what he or she chooses; arguing from epistemic modesty, by contrast, attaches great intrinsic value to the outcome of their choosing but, in itself, cares little about their liberty to do so.
Furthermore, and perhaps most important, by allowing one to side-step the entire rights issue, the Popperian argument from epistemic modesty provides grounds for the type of two-tier thinking mentioned earlier. In fact, it justifies and encourages it. To recall, the problem of religious sovereignty is that of justifying religiously working at govern-mental level actively to ensure the security and thriving of forms of conduct held to be sinful in the eyes of one’s own religion. It is that of viewing forms of conduct that are actively condemned within one’s own community, as worthy of active support outside it. Now, the ideal Open Society comprises epistemically humble learners, rather than systematic agnostics. In a deep sense, the dynamic of Popperian enrichment is the more effective the greater the contrast between the various viewpoints, and the firmer they are initially held. Criticism—and subsequently the learning process that may come in its wake—is more effective the more there is at stake: the more serious the problems, the more cherished the solutions at hand. Ideally, a person or community prudently motivated by Popperian considerations of epistemic humility will seek partners to debate whose views are as seriously held as they are significantly different from their own. And when such considerations are applied to state politics, one, it seems, should regard as ideal a multicultural society comprising a plurality of relatively decided communities fairly confident in their views.
But is such an option available for halakic Judaism? Elsewhere, I have argued at length for the existence, within the formative texts of halakic Judaism, of a major school of thought whose self-conscious epistemic presuppositions closely resemble those of the Popperian school.15 The approach to which I am referring is aptly described in the words of Rabbi Naftali Tzvi Yehuda Berlin, writing in 1865 or so, in the introduction, section 5, to his monumental commentary on the Pentateuch: Ha’amek Davar.
Just as it is not possible for the wise student of nature ever to boast knowledge of all of nature’s secrets . . . and just as there is no guarantee that what he has accomplished in his investigations will not be invalidated by col-leagues in this generation or the next who elect to study the same things differently, so it is not possible for the student of the Torah to claim that he has attended to each and every point that claims attention, and even that which he does explain—there is never proof that he has ascertained the truth of the Torah [emphasis added].
However, Rabbi Berlin did not intend his surprisingly Popperian analogy of Torah study to science to apply to halakah. The model he attributes to the development of halakah is cumulative rather than revolutionary (resembling mathematical, rather than scientific, development). 16 Unlike the interpreter of scripture, the halakist, he urged, does not seek to invalidate and improve upon the efforts of his fore-bears, as does the exegete, but to build upon their rulings by concentrating exclusively on halakic lacunae.
Berlin’s two models of development differ in the treatment of their legacies. Halakists, according to Berlin, are wholly bound and obligated by the body of law they inherit and are, therefore, limited in their legislative efforts to questions on which no ruling has yet been issued. Biblical exegetes, by contrast, motivated by a profound epistemic modesty, are encouraged to challenge and improve upon former interpretations. Owing to their different attitudes to tradition, I have dubbed the two approaches traditionalist and antitraditionalist respectively. Contrary to Rabbi Berlin’s depiction—a view widely shared by halakically committed Jews—I believe there is strong evidence for the presence, within the talmudic literature, of a reflective and insistent antitraditionalist approach to halakah. As noted, I have made the case for this contention in a book-length study of the talmudic literature. It is a prevalent voice, which is detailed and valorized in a variety of talmudic texts and genres. One example will suffice in the present context.
The dispute between the Houses of Hillel and Shammai—schools of halakic thought that dominated the world of Jewish learning prior to the fall of Jerusalem in 70 C.E.—is regarded as the paradigm of halakic disagreement. The talmudic literature contains much legal and legendary material concerning the houses and the two sages to whom they owe their names. The dispute between them covers three hundred or so matters of halakah. In thirty-four cases, the texts record debates between them following the statement of their initial contrasting views. These allow the reader a glimpse of the different and the shared discursive practices attributed by the texts to the two houses. One such difference is highly significant. In seven of the fifteen dialogues in which the Shammaites are accorded the last word, the Hillelites are on record as having changed their initial view and “admitting” to that of their adversaries. In none of the eighteen cases in which the Hillelites are accorded the last word do the Shammaites change their mind. A willingness to retract and modify a bona fide halakic legacy in the face of counterargument is the hallmark of antitraditionalism. Nothing better attests to such a view than evidence of actual replacement of a former ruling. Unlike traditionalists, who are obligated absolutely by their traditions (and are, therefore, unable to abandon a ruling even in the face of a counterargument for which they have no answer), antitraditionalists, motivated by perpetual self-doubt, are constantly on the lookout for possible flaws and problems in the system. It is clear from this and a variety of other evidence 17 that the talmudic redactors responsible for these texts envisaged the two houses—whose disputes are formative of the talmudic enterprise—as apt representatives of the two approaches I have been discussing. It is also evident that major talmudic texts that comment on the houses’ controversy viewed it in the same terms. One such text asserts that the reason we follow the House of Hillel in matters of halakah is because it was humble and accommodating, and would not only give the Shammaite view a hearing, but went out of its way to hear it before stating its own.18
The talmudic antitraditionalist is what I have elsewhere termed a constructive skeptic, who translates his personal intellectual modesty into a powerful method of critical reasoning. The Hillelites’ attitude toward the Shammaites is more than mere toleration. They accord their adversaries more than the right to an opinion and freedom of speech. No, they desperately need them around, for the keen challenge they afford their own hesitantly held views. They disagree with the Shammaites bitterly, but value their presence not for the cozy security of agreement that they offer, but for the exciting, constructive effects of their criticism. They are valued for their profound otherness!
Of course, all of this is very much in-house, and there is much work to be done in order to be able to extrapolate from it to modern social multicultural environments. Still, the existence of a firm tradition of halakic antitraditionalism in the canonical halakic literature provides valuable resources for Orthodox Judaism to attend to the problems at hand. The most important of these resources are two: a legitimacy to rethink halakah on ethical grounds and, even more important for the present context, a healthy, religiously meaningful pluralism that allows one both to disagree keenly and to value deeply the existence of ethical systems opposed to one’s own.
Notes
1. For a superb survey and analysis of the variety of Jewish religious reactions to the Zionist idea, see A. Ravitzky, Messianism, Zionism and Jewish Religious Radicalism (Chicago: University of Chicago Press, 1996). For the Orthodox opposition to early Zionism, see pp. 40–78; for their latter-day outgrowths in Israeli society, pp. 145–80.
2. These roughly speaking comprised two groups who differed in their disagreement with the majority. Some joined the Zionist movement claiming contrary to the majority that the messianic era should be actively ushered in. Others ruled that seeking a political solution for the Jewish people should have nothing to do with messianism and be pursued regardless of messianic aspiration. For further details, see ibid., pp. 10–39, 79–144.
3. The problem I am pointing to is, of course, a general one, that is by and large confined to Israel in fact, not in principle. The most notable example of a non-Israeli politician facing similar circumstances is, of course, U.S. Senator Joseph Lieberman of Connecticut. Nor is the problem, in principle, an exclusively Orthodox Jewish one. Any governmental executive firmly committed to a system of norms significantly less tolerant than the law of the land is bound to face similar dilemmas.
4. See, for instance, G. J. Blidstein, “The Monarchic Imperative in Rabbinic Perspective,” AJS Review 78 (1982–83): 15–39; M. Lorberbaum, “Politics and the Limits of Law in Jewish Medieval Thought: Maimonides and Nissim Gerondi,” (Ph.D. dissertation, Hebrew University, 1992); A. Ravitzky, Religion and State in Jewish Philosophy: Models of Unity, Division, Collision and Subordination (in He-brew) (Jerusalem: Israel Democracy Institute, 1998); and M. Walzer, M. Lorber-baum, N. Zohar, and Y. Lorberbaum, eds., The Jewish Political Tradition, vol. 1: Authority (New Haven: Yale University Press, 2000), chap. 3, “Monarchy.”
5. Yerushalmi, Gittin, v, 47c.
6. This was the official position of the vast majority of non-Zionist Jews even after the establishment of the state. Since then, however, most Orthodox communities have accepted the existence and political authority of the state (de facto at least), participate actively in the elections, and are keenly represented at the legislative and executive levels.
7. Some years ago Rabbi Eliyahu Bakshi-Doron, Sephardic chief rabbi of Is-rael, was approached by an observant Jewish travel agent inquiring whether halakah permitted him to serve non-Jewish pilgrims to the Holy Land. The chief rabbi’s response is short and decisive. Although one is not required to hinder Muslim and Christian pilgrims actively, halakah clearly prohibits actively assisting them, let alone profiting from them in any way. (“Let the person who raised the question be rewarded twice,” the rabbi concludes, “once for his obviously genuine concern for peace, and again for concentrating hereafter on encouraging and assisting in bringing many, many Jews to The Holy Land.”) With regard to private travel agencies Rabbi Bakshi-Doron’s ruling poses no problem. It may sound awful, and terribly impolitically correct, but, in principle, can be lived with. Every religion has certain areas of seclusion from which nonmembers are barred. Such being the halakah (and as far as I can tell the chief rabbi’s reasoning is halakically impeccable), one can easily imagine separate travel agencies serving Orthodox communities to the ritual exclusion of others just as special kosher restaurants, bakeries, and wineries cater to the Orthodox. A serious problem arises, however, when the person seeking the rabbi’s advice is not a private entrepreneur but an Orthodox member of the Israeli cabinet.
8. Incredibly, despite their full participation in state politics, this remains the official ideology of one of the two Israeli haredi parties, who consistently pay it formal, ritual lip-service by insisting that their representatives receive full ministerial authority but without assuming the title of minister. By only becoming deputy ministers they avoid having to take the ministerial oath. Yet with no minister above them to answer to (the prime minister technically as-sumes the ministerial role himself ), they are able to assume responsibility without actually accepting it. To the best of my knowledge this has always been the case since the state was established in 1948.
9. These are known as the Noahide Laws: laws supposed by the rabbis to have been binding upon all of mankind prior to Sinai, and upon non-Jews thereafter. There is considerable disagreement in the talmudic texts as to the precise list of Noahide laws. Basing their exegesis on Genesis 2:16 and 9:4 some sources list the following: (1) not to worship idols; (2) not to blaspheme the name of God; (3) to establish courts of justice; (4) not to kill; (5) not to commit adultery; (6) not to rob; (7) not to eat the flesh cut from a living animal (Genesis Rabba 16:9, 24:5). Elsewhere (Bavli, Sanhedrin 56b) blasphemy and the establishment of courts are dropped in favor of the emasculation of animals and the pairing of animals of different species. Elsewhere still (Bavli, Hulin 92a) the list is much extended.
10. The two parties to the debate were Rabbis Abraham ha-Kohen Kook and Ben Zion Hai Uziel, who were both approached by concerned members of the religious labor movement, Misrahi, around the same time. For the two responsa, see respectively A.I.H. Kook, Ma’amre Ha-Re’ayah (Jerusalem: Avner, 1984), pp. 189–94 and B. H. Uziel, Piskei Uziel (Jerusalem: Mossad Harav Kook, 1977), pp. 228–34. For excellent English-language renditions of the texts and commentary by David Novak, see M. Walzer, M. Lorberbaum, and N. Zohar, eds., The Jewish Political Tradition, vol. 2: Membership (New Haven: Yale University Press, forthcoming), chap. 13, “Gender Hierarchy.”
11. Bavli, Yevamot 65b.
12. Dealing first with passive euthanasia and suicide, and finally with active euthanasia, Zohar skillfully traces the conflicting voices within halakic discourse. (More on the polyphonous nature of halakic discourse later.) Most agree that since God is piously regarded the sole bestower and taker of life, death, when imminent, should be allowed to take its natural course. Some conclude that “we are, therefore, forbidden to do anything to hasten death” and prohibit any form of human intervention (e.g., Rabbi Eliezer Waldenberg, Tsits Eliezer, vol. 8, “Ramat Rachel,” section 29, 1965), whereas others conclude to the contrary that it is, for the very same reason, our duty not to prolong a dying person’s life “artificially” (e.g., Rabbi Haim David Ha’Levi, “Disconnecting a Terminal Patient from an Artificial Respirator,” Techumin 2 [1981]: 304). Suicide, strictly prohibited for the same reason (“No creature in the world owns a per-son’s soul, not even his own”), also has its exceptions—even biblical exceptions. Martyrdom is, of course, one. More important for the question at hand is Saul’s apparently justified suicide. The nature of the legitimacy of Saul’s act is disputed by the rabbis, however. The most widely accepted position is that of Nachmanides, who opines that to accept “God as sovereign does not imply He is a Master without compassion.” In extreme situations, such as Saul’s, suicide is permited. However, in such cases, argues Zohar, it hardly makes sense to prohibit helping one do so. Still this seems to be the position of all halakists (as it is the situation in many non-halakic jurisdictions). See, for instance, Rabbi P. Toledano of London’s recent “A Responsum on Issues of Medical Halakha,” in J. Sacks, ed., Tradition and Transition (London: Jews’ College, 1986), pp. i–xv. For further details, see N. J. Zohar, “Jewish Deliberations on Suicide: Exceptions, Toleration, and Assistance,” in M. P. Battin, R. Rhodes, and A. Silvers, eds., Physician Assisted Suicide: Expanding the Debate (New York: Rout-ledge, 1998), pp. 362–72. See also by the same author Alternatives in Jewish Bioethics (Albany: State University of New York Press, 1997), chap. 2, “Death: Natural Process and Human Intervention.”
13. Artson’s intriguing paper is written with a view to break new halakic ground rather than summarize the halakic situation. Unlike euthanasia, there is very little, if any, halakic disagreement regarding homosexuality—which is flatly prohibited across the board. Artson sets out to meet the challenge, not by contesting former rulings, but by arguing that they were issued with a very different notion of homosexuality in mind than the type of relationship currently under discussion. Until recently, he argues, the very notion of a lasting, monogamous, sharing, single-sex union, of the type for which he seeks halakic recognition, was unheard of. All known ancient forms of homosexuality, he claims, were short-lasting, forced, abusive, and purely sexual. Single-sex marriage, he suggests, should therefore be treated as an halakic lacuna and dealt with irrespective of former rulings. For a keen and detailed discussion of this theme, see B. S. Artson, “Enfranchising the Monogamous Homosexual A Legal Possibility, a Moral Imperative,” S’vara, 3, 1 (1993): 15–26; J. Roth, “Homosexuality and Halakhic Decision-Making,” ibid., pp. 27–34; B. S Artson, “Response to Rabbi Joel Roth,” ibid., pp. 35–38.
14. This is a project very different from that of the halakic rethinking of specific forms of conduct. The innovative halakic moves suggested with respect to first-order problems such as women’s suffrage or single-sex unions are of major importance in Judaism’s ongoing confrontation with modernity. But they are of no significance to the problem of sovereignty, which asserts itself, I repeat, wherever the law supports violations of halakah. What is needed are not ways of viewing such ethical choices as unsinful but of viewing their existence as religiously valuable despite them being sinful.
15. M. Fisch, Rational Rabbis, Science and Talmudic Culture (Bloomington: Indiana University Press, 1997).
16. See, for example, his commentaries to Exod. 34:1, 27, and Lev. 18:5, his preliminary remarks to Deuteronomy, and most importantly his introductory essay to She’iltot de-Rav Ahai Gaon, entitled “The Way of Torah” (Jerusalem: Mossad Harav Kook, 1986), esp. pp. 5–12.
17. For further details, see H. Shapira and M. Fisch “The Debates between the Houses of Shammai and Hillel The Meta-Halakhic Issue” (Hebrew), Iyyunei Mishpat 22, 3 (1999).
18. Bavli, Eruvin 13b.