Ichud HaRabanim L'Maan Am Yisrael V'Eretz Yisrael

"Halacha and Democracy"

(The following letter was written by Rosh Yeshivat Mercaz HaRav, HaRav Avraham Shapiro Shlit"a, former Chief Rabbi of Israel, in response to queries made by a distinguished Member of the Knesset.)

In reply to your letter to me, I am answering in brief the questions you have raised.

A. There is no conflict between democracy and halacha. Throughout the long years of Diaspora the Jewish People maintained their existence everywhere by means of independently elected community institutions. They lived in a completely democratic manner, as we learn from the writings of the Poskim who discussed matters pertaining to the community's mode of life. In our own day too, the Knesset has, I believe, from the day of its establishment, functioned in a democratic manner in accordance with the will of all the political factions - including the religious parties who received the sanction of the distinguished rabbanim whom they follow. The only limit, in terms of the Jewish Law, to the authority of the elected members of the Knesset, is that they may not make any decisions in contravention to the halacha.

B. In a case where a law enacted by the government is in opposition to the piskei halacha which forbid what the government allows, there is no way that what is forbidden to a Jew becomes permissible, simply because the members of the government have decided otherwise.

The principle that there is no authority higher than that of the law of the Torah and the halacha is so simple and absolute, that no rav can have any doubts on the matter. Indeed, such a person's belief in Judaism itself is flawed, since he lacks the essential principle of Torah belief.

According to the halacha prohibitory laws can be set aside only by pikuah nefesh (the saving of a life) or when there is a mitzvath aseh (positive command) which overrides the loh ta'aseh (prohibitory law) .But these are principles which must be determined only according to halacha.

C. The absence of halachic literature on subjects pertaining to a Jewish state in contemporary times, will not impede distinguished rabbanim from pronouncing judgments in accordance with halachic precepts as laid down in the two Talmudim (Bavli and Yerushalmi) and in the writings of the Poskim. In each generation new issues are raised and resolved by the great Torah scholars of that generation by means of judgments based on halachic sources. Through their proficiency in all the mysteries of the Torah, the great Torah scholars can understand and delve deep into the very roots of the halachoth, and to them are revealed the foundations of the Law upon which they must base their judgments. And these things are simple and well-known.

D. If there are differences of opinion and disputes between authorized rabbanim in reference to a pesak (judgement) on some particular subject, the law in every case is, that where there is doubt concerning a matter pertaining to a Biblical prohibitory law, the judgement must be given according to the stricter interpretation; if there is doubt concerning a matter pertaining to a Rabbinical prohibitory law, it is sometimes permissible to depend upon the more lenient interpretation. (V. Yoreh De'ah para. 242, and the commentators there, on when to decide whether a matter is permissible or forbidden.) And in such cases too, the opinion of an expert rav must be asked.

An "authorized rav" is one who is recognised in the world of the Torah as a rav great in Torah and in understanding, erudite in all the branches of the Torah, in the Sha'as and in the Poskim. He can answer queries on all the problems covered by the four sections of the Shulkhan Arukh from Hilkhoth Trefoth to Ta'aruvoth and dinei agunah, and his judgments in halacha are accepted among the rabbanim.

E. The general rule that "the law of the land is binding" [dinah demalkhuta dinah] refers only to monetary matters and community affairs which can be settled to the mutual agreement of the parties involved. Legislation dealing with such cases can conform to the wishes of the civil authority, but the civil authority does not have the power to be a determinant in matters involving prohibitory laws of the Torah, by which a Jew is bound.

To the best of my knowledge, in all the years of its existence the Knesset has passed no law compelling the Israeli public to act in a manner which the rabbanim have opposed and which they have forbidden the Israeli public to obey. The only exception was the case of the military conscription of girls. The rabbanim pronounced this to be against the halacha, and decreed that religious girls must be exempt from conscription into the army. [The law on abortions, as it was formulated, and similar laws are certainly in opposition to halacha, but the Jewish public is not compelled to pattern its behavior according to them.] At any rate, it is not possible for us to prevent others from following such laws, but for ourselves and our children we must proclaim that it is forbidden to obey a law which is in opposition to the Torah.

We hope that you will find the way to ensure that our People do not find themselves in a situation in which they are faced with actual contradictions of the law of the Torah,

...and "love ye truth and peace."