The greatest fear of a medinat halakha pertains to imagined enforcement and punishment. The specter of Iran, the Ayatollahs, the Revolutionary Guards, and the morality police always lurk in the background, as if for us – what would be misnamed a theocracy – is actually a club that would be used to beat people, suppress them, and make their lives miserable. Such an approach is the product of much ignorance and not a little tendentiousness.
However, even when the Sanhedrin functioned, enforcement of halakha in personal matters was rare, and punishment – especially capital punishment – was almost non-existent. The Talmud (Makkot 7a) states that a Sanhedrin which executed an offender once every seven years – some say even once every seventy years – was considered a bloody, violent Sanhedrin.
What detractors of the halakhic state seem not to realize is that coercion of religious practice, including but even without punishment of offenders, is a failure of religion, not its success. To compel someone to engage in a religious ritual or requirement is almost by definition not construed as service of God – but rather a service of man and service of man that is prompted by fear of man and not reverence for or love of God. That is the degradation of faith and the opposite of what the Torah desires for us.
Somehow, as implicit in the story of King Shlomo and the two mothers (I Melachim 3:16), harlots plied their trade while the First Temple stood. From other sources, it is clear that that the same occurred during the Second Temple era within shouting distance of the holiest site on earth. It is certainly not that it was encouraged, God-forbid, but there are limits to human enforcement.
If so, once we get beyond the fears that there will be mass executions for driving on Shabbat and floggings for pork eaters (personally, I would not object to the public lashing of abusive spouses or child abusers, but that’s me), what else exercises the detractors? To be sure, there are many who perceive halakha only through the prism of those groups that choose the most stringent opinions and make them normative and are otherwise less than fully engaged in building, defending or developing the nation. That is also the product of ignorance of halakha, as if Jewish law demands that every person must wear black and white (never a color) and women should never be seen in public. That was never the norm in Jewish life – especially when we were governed according to Jewish law.
Every sophisticated pulpit rabbi knows how to make the halakha “user friendly,” to be colloquial, which is not to say that everything every person wants to do must be accommodated by Jewish law. Sometimes the answer is “no,” and that “no” is conveyed in a way that reinforces to the questioner the beauty of the halakhic system and how such conduct is unworthy of a servant of God. And sometimes the answer is “yes,” depending on the halakhic reality, the person, the question, and other factors.
Much of Jewish law already pervades Israeli society – Shabbat, the holidays, tzedakah, the primacy of Torah study – although we could certainly improve our fulfillment of the mitzvot between people in the way we talk to each other, drive on the roads, and care for the underprivileged. And Jewish civil law is used in legal adjudications in the Israeli court system although not as often as it could or should be (based on the Foundations of Law Act, 1980). Of course, it is not as if a halakhic state will change little or nothing, for that would mean it is superfluous in modern society.
The primary fear engendered by the imaginary bogeyman known as the medinat halakha seems to be the perceived loss of freedom for the non-observant to do what they want to do when they want to do it. These fears are stoked by people who delight in exposing extreme halakhic opinions that are either distorted or not normative. But law by its very nature – secular or Torah – places limits on what we may or may not do, whom we may marry and how many at one time, how we conduct ourselves in public, and what obligations and rights individuals possess in society.
The question really is what is the provenance of the value system that underlies the law? Is Western law, with its disconnect from all that is godly and the human degradation, corruption, unhappiness, and decadence it has often produced, morally superior to Jewish law? Actually, I think it is morally inferior, and the moral confusion it has sowed among youth, the god of materialism that it exalts, and the declining population in Western countries, is living proof of that.
The transition to a halakhic state will require some adjustments to modernity, but which are already found within the system. Leading sages have pointed out that the classic rules of evidence (e.g., crimes must be witnessed by two qualified and unrelated witnesses who forewarn the criminal) are hard to sustain in a society where crime is rampant but already in biblical times the king – in our case, a duly elected government – was able to act extra-judicially in order to promote the general welfare of society. But the burden of proof generally required to prosecute illicit conduct should itself comfort the detractors who feel that a medinat halakha would encroach on their private, personal conduct. It never did, it is easy to see why it did not, and impossible to see how it ever could.
Additionally, litigation usually involves the resolution of clashing rights of two individuals or groups. I would prefer that the values underpinning those rights be grounded in the eternal Torah than in some transient human concoction. After all, that is what should be expected of a Jewish state – not the pale mimicry of foreign laws and values but the expression of the greatness of Judaism and our Torah.
Beyond that, what are the advantages of a medinat halakha? There would be nothing wrong with gently and lovingly encouraging the observance of Jewish law. Living a halakhic life – besides heeding God’s will – provides a sense of discipline, self-control, and meaning. It is abundantly clear that being observant is not a contradiction to having a full and consequential life. That is why we find Orthodox Jews who are lawyers and doctors, generals and engineers, tycoons and scientists, and even rabbis. The observant life does not require that we run away from society but that we engage it and sanctify it.
Recent studies have shown that observant Jews tend to be happier people. (Not everyone, of course. I know some gloomy people but often that entails their personal struggle to rein in instinctual tendencies that are prohibited and thus they live with internal dissonance. And as a general rule, the more unhappy the person, the more he or she feels the need to poke around in the private lives of others.) But having a purposeful life with built-in times for reflection on deeper issues, like Shabbat, is almost a guarantee of greater happiness and productivity in life. These are not merely mercenary considerations but are rooted in the very gift of the Torah to the Jewish people.
As such, failure to evolve into a medinat halakha is actually counterproductive. Such a state would enhance people’s lives, have greater respect for human dignity, and better marshal society’s resources to help the needy in all spheres. It would ensure that the law is applied equally and fairly to all and not, unfortunately, as we perceive the prevailing legal system today.
Worse, it is self-defeating! Our very claim to the land of Israel is based on the Torah. Ignoring the Torah undermines that claim, as there is no cogent or incontrovertible secular claim to this land. And as history has taught us, Jewish possession of the land of Israel is dependent on its level of observance, a point reiterated constantly in the Torah and the prophets.
Perhaps we are not yet ready for a medinat halakha, and of that we should be ashamed, not proud. A proud Jew yearns for the implementation of the Torah system. He does not dread it either because he does not believe in the Torah or does not properly understand it. And this is completely unrelated to the judicial reform controversy that does not envision a Torah state. We are heading in that direction; as the Midrash (Mechilta Yitro) states, “God would not save a nation that is forever disloyal.”
The false allure of Western progressivism still lingers in a segment of society and has to fade away. The fears of a medinat halakha also have to be assuaged, and one way to do that is for good people to stop demonizing it, disparaging it, apologizing for it, or running away from it. That requires education, patient and loving, accompanied by the realization on the part of today’s detractors that the halakhic life is rich and fulfilling, speaks to everyone, challenges but also gratifies us, and is fully applicable to a modern state. Surely there will be bumps in the road and much discussion about the details but nothing we can’t handle as a nation.
A good beginning might be a proclamation, similar in spirit to Israel’s Declaration of Independence, which enunciates our basic principles and aspirations to be a holy nation.
On the 75th anniversary of Israel’s independence, it is appropriate to acknowledge God’s gift of the restoration of Jewish sovereignty to the land of Israel. But we should acknowledge as well that God’s gifts were not limited to the land of Israel alone but also encompassed the Torah that was to be the governing constitution of that land. May we soon be worthy!
Chag Atzmaut Sameach!