14 Mar ISRAELI JUDICIAL REFORM

Soon after the new coalition government established after the recent elections in Israel came to power, the new Minister of Justice announced the government’s intention to quickly push through the Knesset (parliament) a series of legislative reforms that would, among other things, seriously curtail the power of the judiciary branch and radically change the balance of powers between the different branches of government in Israel. The new coalition partners claim that their planned legislative reforms are needed to curb the excessive power of the Israeli Supreme Court and to restore the government’s ability to govern, which they allege has been usurped by the Court.However, critics of the proposed reforms see them as an attack on the separation of powers essential to any democracy and as an attempt by the government to remove any checks and balances on its own power. While the coalition is set on pushing through the legal changes as soon as possible, huge protests against these changes and the way in which they are being implemented have erupted in Israel.What is the Torah perspective in this ongoing debate? In this article, we would like analyze which of the two sides—if any—the Torah would side with.Torah Law on the establishment of the Jewish state:In the year 1917תרעח )( Britain had published the famous Balfour Declaration which stated its support for the establishment of a “national home for the Jewish people” in Palestine. Right then Rabbi Yosef Chaim Sonnenfeld worked tirelessly to ensure that if the Jewish state will indeed be established, it will follow the Torah way. Rabbi Sonnenfeld sent a letter to his brother, Rabbi Shmuel warning that we might lose the land if the state law will not follow ).עמודא דנהורא עמוד פבHalacha (Years later, in תרצז, the head Rabbis and Jewish leaders met in a convention called הכנסייה הגדולהשל אגודת ישראלto discuss this matter and try to find a system to run a Jewish State in a way that will follow the Torah. There was a conflict of how this could be done; on one hand there are clear Halachot which must be followed, while on the other hand some of those Halachot will endanger the existence of the young Jewish State and the Jewish people.For example, according to Torah law, all places of idolatry such as churches must be destroyed and idol worshipers must not have access to certain places in Yerushalayim. Houses and properties in the Holy Land must not be sold to non-Jews, etc. One can clearly understand the world outcry to such practices, especially in today’s day and age where everything is scrutinized and easily categorized as racism and apartheid.Another issue that faced the Rabbis at the convention was how to practically deal with the non-religious who had much more control than the religious leaders.The protocols decided upon by the Rabbis and leaders at the time are described in a booklet entitled “Hapardes”. The booklet explains that the Rabbis were against having an establishment of the Jewish state which will not be in accordance with Torah, but they also agreed that they had to find the path to work out the above dilemma. The booklet describes the spirit at the convention as a war zone, which got very heated with debates that lasted several long hours. Rabbi Wasserman and Rabbi Kotler, amongst many more Gedolim completely opposed the establishment. They explained that we can’t agree and give a hand to an establishment which is in direct opposition to the wait for the coming of the Mashiach, especially since it opposes the Torah in many ways.Other Gedolim believed the state may be established only if it will follow the path of Torah. Rabbi Isser Zalman Meltser wrote that they should try to ensure that the leadership will be following all Torah laws.On the other hand, there were Rabbis who felt that there is a great need to create such a Jewish state and to adjust the laws accordingly in order to allow such a state to survive. Rabbi Yitschak Herzog was amongst those who were pro having a creation of a Jewish state, even agreeing on some compromises, considering it a scenario of Pikuach Nefesh, hence allowing to overlook things which will endanger its existence.The Chief Rabbi of Yerushalayim at the time, Rabbi Zvi Pesach Frank, was one of the leading fighters against a state which doesn’t follow Halacha and wrote that if it’s not shaped in such a way, the religious people should not accept it as a Jewish state and continue the fight to ensure it changes.At the time two books were written on the topic, each explaining their opinion on the matter.One book was written by the Agudath Israel leader, Rabbi Moshe Bloy, called יסודותלחוקה במדינה היהודיתwith the vision of Rabbi Chaim Ozer, explaining in detail how to run a state with accordance of Torah with no compromising. The other book was written by Rabbi Yitschak Herzog called תחוקה, which sided with the לישראל על פי התורהcreation of the Jewish state with adjustments to fit the Torah law in a practical way which wouldn’t endanger its survival.The war didn’t end after Israel’s declaration of independence, which brought with it many opinions of whether the religious people should completely deny and ban everything in the state or accept things partially.Does Torah sides with ‘we the people’ to decide, or a court system?The above argument was regarding Torah and religious issues; but when dealing with questions which aren’t related to Torah, the poskim wrote that we must appoint elected officials to be in charge of legislating laws, which are elected by votes of the people, just like our modern time democracies. Upon their appointment, one must follow whatever they ראה שולחן ערוך יו״ד סימן ב’ בש״ע ורמא) ״כלdecide. (ציבור במקומו כגאונים לכל ישראל שתיקנו כמה תקנות)לכל ישראל״ (רשב״א ח״א סימן תשכט) מרדכי ב״מ סי’ רנז בשם רבינו גרשוםThe Rishonim(wrote that the people who were appointed have importance as the prophet Shmuel had: ״כל מישנתמנה על הציבור הוא כאביר שבאבירים, ויפתח בדורוכשמואל בדורו, וכל מה שעשה עשוי״There are other opinions on this, see the Maharik (שורש א, יד) who wrote that those who were elected are not permitted to legislate new ״אין לבני העיר כח לחדש תקנות, אלא רק לאכוףlaws: , but Le’halacha we את הציבור על מה שנהוג מקדם.״follow the first opinion.Enforcing Law and Order.Many of the Torah laws are lenient on the aggressor preventing proper deterrence. For example, one who was caught stealing is only obligated to return the stolen item. One can easily come to the realization that by not having proper punishment, the thief has nothing to lose which will bring up crime. How then do we ensure public safety, law and order?) שו״ת חלק ג’ סימן שצג הובא בב״י ס״בThe Rashba (wrote that we shouldn’t merely follow the laws of the Torah, but rather punish more than the Torah requires to cause deterrence. He explains that a society which will follow just the strict Torah law will bring crime up since the criminals will go unpunished. For example, one who kills according to Torah doesn’t get punished unless there were witnesses and warning, and he must verbally accept upon himself prior to the crime to be punished. The Rashba says that by merely following the Torah law, the society won’t survive:״אם אתם מעמידים הכל על הדינים הקצובים בתורה…נמצא העולם חרב, שהיינו צריכים דינים והתראה, וכמושאמרו חז״ל (בבא מציעא ל,ב) לא חרבה ירושלים אלא עלשהעמידו דיניהם על דין תורה… ונמצאו קלי דעת פורציםגדרו של עולם, ונמצא העולם שמם״Due to this, the Gemara (סנהדרין מו) concludes that a court may administer lashes and capital punishment even when not required so by Torah law. They may administer these punishments to erect a fence around the Torah, so that people will fear sinning.The Gemara brings an example to this from an incident which occurred involving one who rode a horse on Shabbat during the days of the Greeks, and they brought him to court and stoned him. This was not because he deserved that punishment, as riding a horse on Shabbat is forbidden only Rabbinically, but because the hour required it, as people had become lax in their observance of Shabbat and therefore it became necessary to impose the severe punishment for a relatively minor offense.This is also how the Shulchan Aruch starts his Choshen Mishpat Sefer (סימן ב’) to teach us that Bet Din should enforce punishments to oppress crime.