Op-Ed: Basic Laws in the Jewish State
Rabbi Eliezer MelamedThe writer is Head of Yeshivat Har Bracha and a prolific author on Jewish Law, whose works include the series on Jewish law "Pininei Halacha" and a popular weekly column "Revivim" in the Besheva newspaper. His books "The Laws of Prayer" "The Laws of Passover" and "Nation, Land, Army" are presently being translated into English. Other articles by Rabbi Melamed can be viewed at: www.yhb.org.il/1
The New Knesset’s Mission
Recently, calls for a review of the status-quo in regards to religious matters have been voiced. Indeed so! The time has come to deal with the issue of the Jewish character of the State of Israel, and to regulate the fundamental principles underlying the status-quo in legislation.
Some people maintain that Israeli society is gradually distancing itself from the religious principles that guided the individuals who fixed the status-quo, and in our day and age, it is no longer fitting to impose religious practices by means of legislation, as in the past. However, taking a look at the list of the new Knesset, it is evident that the process is exactly the opposite – society at large understands the need to strengthen the Jewish identity of the State, and the various political parties complied with their wishes by adding religious candidates to their ranks.
As a result, there are nearly forty religious Members of Knesset today, and out of several others who are not regarded religious – many consider themselves to be traditional, and openly declare that the Jewish identity of the State is extremely important to them.
Regulating the Jewish Identity of the State in ‘Basic Law’
The time has come to pass a ‘chok yesod’ (Basic Law) regulating the status of Shabbat observance in all government and public frameworks. It is inconceivable that Shabbat, a value so central to the life of our nation, receives expression simply in interim agreements, or municipal bylaws. Just as the value of ‘kavod adam v’heruto’ (human dignity and liberty) is regulated in ‘Basic Law’, and not dependent on the goodwill of each and every decent and moral individual, so too, Shabbat must be regulated in ‘Basic Law’.
Presently existing laws concerning the status of marriage and divorce, according to which family relationships or their annulment are determined by ‘halakha’ (Jewish law) in Rabbinical courts, should also receive the superior status of ‘Basic Law’. After doing so, solutions can be found for personal and exceptional issues in various regulations, but such issues cannot interfere with the State of Israel regulating the sanctity of the family in ‘Basic Law’.
Presently, due to personal and exceptional issues, the Supreme Court gnaws away at the status of the Rabbinical courts and Jewish family values, in the name of the ‘Basic Law of Human Dignity and Liberty’. Regulation of marriage and divorce laws in ‘Basic Law’ will prevent this dangerous erosion.
The well-known ‘Law of Return’ must also be regulated as a ‘Basic Law’, seeing as it is one of the most distinct signs of the State’s Jewish identity, and because it is not a ‘Basic Law’, the Supreme Court gnaws away at, it in the name of democracy.
The observance of ‘kashrut’ (Jewish dietary laws) in government and public institutions should also be regulated in ‘Basic Law’.
The Jewish character of the I.D.F. must also be regulated in ‘Basic Law’, thereby allaying many of the concerns of the hareidi community.
The status of Torah study in yeshiva’s should also be regulated in ‘Basic Law’, as being one of the most essential values of the spiritual rebirth of the Jewish nation in its return to Zion.
Judaism and Democracy
Many representatives of secular society constantly claim that the State of Israel is “Jewish and democratic”. If so, it is unimaginable that the democratic side of the equation receives backing and significance in ‘Basic Law’ and in various other ordinary laws as well, while the Jewish side receives only limited and inferior expression in ordinary law. This imbalance creates a situation in which all legal conflicts between secular, liberal values and Judaism – Judaism is at a disadvantage.
It should be remembered that our Knesset still has the status of a ‘Constituent Assembly’, and consequently, it has the authority to enact Basic Laws, similar to drafting chapters to a constitution.
A committee of distinguished rabbis and legal representatives should be established to prepare a set of basic and ordinary laws, in order to legally regulate the Jewish character of the State of Israel.
The United States and Israel
Some people argue it would be better if all matters concerning Jewish identity were subject to freedom of choice, consistent with the principles of separation of Church and State in Western countries. The most prominent example of this is the U.S., where there is complete separation between religion and state, and at the same time, religion occupies an important place.
In actuality, the U.S. is a completely secular country. True, religion has an important place in the lives of the individuals living there, but as a country, it is secular. This is because the U.S. is a land of immigrants of different nationalities and religions, where the only common denominator is citizenship, and not nationality or religion. In contrast, the State of Israel was established by the Jewish Nation, out of the anticipation of generations of Jews to return the Land of Israel and build there a Jewish state, as envisioned by the Prophets.
The Individual and the Collective
Some people claim it is preferable for all religious matters to be left to freedom of choice, and as proof for this, they bring up the mitzvah of ‘brit milah’ (circumcision), where there is no law requiring one to do so, but nevertheless, over 90% of the public circumcise their sons out of free choice. Their claim, however, is based on a mistaken comparison between the individual and the collective. The mitzvah of ‘brit milah’, as well as ‘Leil ha’Seder’ (Passover evening celebration), are mitzvoth that the individual performs, while Shabbat, family status, the Law of Return, education, etc., are mitzvoth which receive expression in a public and national context, as well.
By nature, all public interests are burdensome on the individual to some extent. Nevertheless, everyone understands that when it comes to essential interests, it is necessary to regulate them in law, and not leave them to the free choice of each individual. Can the health system be based on the willingness of volunteers?! Can road traffic function adequately relying simply on the politeness of drivers?! Can tax collection be left to the goodwill of the citizens?! Education as well cannot function simply according to the absolute freedom of choice of parents. Therefore, anyone who cares about the Jewish identity of the State of Israel, must act to regulate its’ Jewish principles in Basic Laws.
It is noteworthy that this fundamental position was established with the support and approval of the founder of the Zionist movement, Dr. Herzl, and Rabbi Reines, the leader of the Mizrachi movement. Ever since then, the vast majority of the Jewish society has shown interest in preserving, and even strengthening, the Jewish character of the State of Israel.