Democracy and Halakhah in Israel

February 1, 2013
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Yair Sheleg

The tension between Jewish law, halakhah, and Israeli law is a tension that belongs to the field of ideas, which notes tensions between the practical guidelines of both systems of law and in their basic assumptions: The Israeli law, as in any Western concept, puts at its center the idea of human equality — certain basic rights of equality — and therefore “the discourse of rights.” Halakhah, on the other hand, puts at its center the idea of sanctity, and thus the obligations imposed on human beings, as well as the differences between different “types” of people: between Jews and gentiles, between men and women.

On the ideological level, it seems that the tension can’t be resolved. The attempts made during the modern era to situate ideas about “rights” on a theological level — that is, to find a home for democratic and humanistic ideas in Jewish sources — bumped up against the steadfastness of halakhah and its practical guidelines. While theological sources include a variety of opinions and the midrashic method allows for “reinterpretations” of the texts, maneuvering is greatly curtailed when it comes to Jewish law. And all the more so in an Israeli society that rejected the pluralism and openness of the American-Jewish halakhic approach and gave an exclusive status to Orthodoxy. Thus, Israeli-Arabs are faced with halakhic decisions that prohibit one from selling or renting them apartments because of ancient halakhic laws that prohibit permanent status in the Holy Land for non-Jews; women in Israel, who are forced to use the rabbinacal courts because of the exclusiveness of the religious system in issues of marriage and divorce, find discriminatory halakhic practices; gays and lesbians have difficulties being recognized by any group that has a religious affiliation because of the halakhic prohibitions against their lifestyle.

While the formal ideological-halakhic discourse is despairing to those seeking a more humanistic Judaism, change is beginning to occur in practice within the religious sector without formal rulings. A democratic and humanistic ethos has grabbed hold of the general religious public, even though the theological and halakhic establishments still hesitate to formally adopt this ethos.

These changes are manifest in many ways: There is a trend toward secularization (especially among the youth) within the modern-religious community, but not among the religious extremists, and voting for general (secular) rather than religious parties is increasing; the modern religious sector has taken on the rabbinical courts in their unfair judgments against and treatment of women; religious couples, though interested in halakhic marriage, are seeking alternates to the rabbinate; there is a growing de-facto legitimacy for same-sex couples. Even within the ultra-Orthodox community, one can see these initial symptoms as a harbinger of change. In the Haredi sector, for example, we see the paradox of success: Precisely because of the demographic swelling of the community, it can no longer maintain its insular and conservative nature. These developments suggest that the younger generation, in both Zionist and ultra-Orthodox sectors, is basically more open to a liberal and modern lifestyle and to the inherent values this lifestyle purports to represent. For example, candidates running on the slate for nonreligious parties — who are religious — are promoting a more liberal approach to religious issues than their secular counterparts, who generally avoid these issues.

The discourse about the growth of religious extremism is incorrect and expresses several errors. First, while there is a concern among religious parents — even moderate ones — about the effect of parental openness upon their children, the lifestyle of the parents remains and grows more modern (even among families living in exclusively religious neighborhoods). Second, especially within the modern-religious sector, the integration (professional and political) into the general (secular) social strata causes the sectarian frameworks — especially  the rabbinic, educational, and political — to be filled by people who are much more extreme. Because media coverage of the religious society usually looks to the leadership (rabbis and some politicians) rather than to the “grassroots,” it offers a more radical image than it should. A study by Asher Cohen, a professor of political studies at Bar-Ilan University, notes that 20 percent of the religious-Zionist sector identified themselves as “liberal religious,” while only 9 percent identified themselves as “ultra-Orthodox,” and the rest as “just religious.” When the study tested the lifestyles of those “just religious,” it turned out that about 75 percent of them are close to the liberal lifestyle, and only 25 percent are close to that of the ultra-Orthodox. Especially in times of tension, these people will reject extremism and support a liberal-democratic approach.

The circumstances of this change are linked to the experiences of the broader society — especially the transformation from a binary ideological division (between religious and secular), in which each side has its own set of values, to individual, post-ideological identity, in which persons can define for themselves with greater nuance how they identify with and uphold halakhic norms. Many secular Israelis, therefore, are adopting vestiges of religious Judaism, and many religious people are adopting new linkages to a more modern — and democratic — world.

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Yair Sheleg is a research fellow at the Israel Democracy Institute and a veteran journalist. He is the author of several books on the religious community in Israel, including, The New Religious Jews: Recent Developments Among Observant Jews in Israel and Following the Multitude: Rabbinic Attitudes Towards Democracy in Israel.

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