Rabbinic responsa on the status of a Jewish minority government

Does an Israeli Jewish minority govenment that rests on the backing of Arab parties have halakhic validity and authority?

Rabbi Eliezer Melamed

OpEds Joint List
Joint List
פלאש 90

1. Responsum of Rabbi Shlomo Goren ztz”l on the Status of a Jewish Minority Government Supported by Arab Members of Knesset 

“Your question in your letter dated 23 Tevet 5754 (1993) on my reply to you from 3 Tevet 5754, regarding the status and authority of the Israeli government today, when this government does not have a Jewish majority in the Knesset, but relies on the votes of Arabs. I wrote you that according to halakha this government does not have the validity of a majority, so its directives, if issued, to vacate settlements in Yesha, have no validity and authority by the majority of the people, and you are now asking:

הרב שלמה גורן בכותל
צילום: דוד רובינגר, לע"מ

Photo: Rabbi Shlomo Goren zts"l at the liberation of the Western Wall (credit: David Rubinger)

A) What are the halakhic foundations of this determination?

B) Does this rule apply to all directives of a government that does not have a Jewish majority, or perhaps, just about its directives on basic matters, and what are considered basic matters?

Answer: My Halakhic ruling, regarding the government's authority and legal status, when (the government) does not rely on a Jewish majority but on Arab Knesset members to complete the majority that this government relies on, including some Arab Knesset members, haters of Zion, who are ready to give a hand to the destruction of the State, and deny our national and historical right to the Land of Israel - its decisions have no authority or validity. This is because there is no doubt that these Arab Knesset members should not be added to [create} the majority of the government.

We learn this from many halakhic sources.

  • The first source that the Arabs in Eretz Yisrael have no right to form part of the government and complete the majority of the government can be learned from Maimonides (Rambam), who wrote in the Laws of Kings (1:4) on what is stated in Deuteronomy (17: 15): 'You may not appoint a foreigner who is not one of your brethren,’ This does not apply to the monarchy alone, but to all positions of authority within Israel.  A Gentile may not serve as an army commander, a leader of fifty, or as a leader of ten. He may not even supervise the allocation of water from a stream to various fields. Needless to say, a judge or a nasi should only be a native-born Israelite, as it is stated (ibid.): 'Appoint a king over you from among your brethren.' This implies that all appointments must only be 'from your brethren.’”

Similarly, we learned in Tractate Kiddushin (76b): "So they went before R. Joseph. Said he to them, we have learned: 'Appoint a king over you from among your brethren,’ this implies that all appointments must only be 'from your brethren.'

  • And in Sefer haChinuch (Mitzvah 498) he wrote: "From the laws of the commandment is that which they, may their memory be blessed, said that we only set up a head of authority from the seed of Israel - and even if he is appointed over a watercourse to distribute from it to the fields. And this prohibition regarding the monarchy is practiced at the time that Israel is on its land in its settlement, and it is from the warnings (negative commandments) that are upon the whole community. And regarding other positions of authority in Israel, this prohibition is practiced in every place that they are. As it is forbidden for them from Torah writ to appoint a man that is not from the Children of Israel over the community’.

From these things we learn that Arab Knesset members do not have the status of Knesset members when it comes to their jurisdiction over Jews. But their jurisdiction extends only to the Arabs, as we have found in the Rambam's ‘Laws of Kings’ (9:14): "How must they [Gentiles] fulfill the commandment to establish laws and courts? They are obligated to set up judges and magistrates in every major city to render judgement concerning these six mitzvot and to admonish the people regarding their observance.”

From this we learn that the restrictions on the appointment of Gentiles to any positions of authority is only over Jews, but as for authority over Gentiles, they may, and maybe we are even commanded, that they be appointed to all authoritative positions concerning Gentiles. But as far as the appointment concerns Jews, they must not be appointed to any authoritative position in any way, as the Torah (Deuteronomy 17:15) warns: "'Appoint a king over you from among your brethren," "this implies that all appointments must only be 'from your brethren,” as the author of Sefer Chinuch emphasizes, that it is forbidden from the Torah to appoint a person over the public who is not Jewish.

However, despite this Torah prohibition on granting governmental powers to Gentiles over Jews, the question arises as to whether this Torah prohibition inhibits the appointment even be’di’avd (in retrospect), so that if Gentiles were appointed to authoritative positions over Jews in transgression of the prohibition and the Torah warning prohibiting appointing a non-Jew over the public, if, in retrospect, the appointment is valid, and he has authority in that appointment, even over Jews, or whether in retrospect, the appointment does not have legal validity because it transgressed the Torah commandment.

This halakhic problem is likely to depend on the dispute between Abaye and Raba in the Tractate T’mura (4b) -

-Abaye says: “Said Abaye: Any act which the Divine Law forbids, if it has been done, it has legal effect; for if you were to think that the act has no legal effect, why then is one punishable [on account thereof with lashes]?

-Raba however said: The act has no legal effect at all, and the reason why one is punishable with lashes on account thereof is because one has transgressed a command of the Divine Law”. 

And since everywhere when Abaye and Raba disagree, the halakha goes according to Raba, except for the cases indicated by the initials Y'AL KGM as we find in the tractate of Baba Metzia (22b), it turns out that even in retrospect, if they chose Gentiles and granted them governmental authority, and elected them as Knesset members, they are not given authority over the Jewish public, and consequently, they cannot be part of the majority to decide on national issues of the Israeli government.

This decision, whether in retrospect when Gentiles were appointed to rule in Israel if the appointment has legal validity or not, also depends on another fundamental problem, namely, wherever it is written in the Torah "you may not,” is the intention that only le’chatchila (in the first place) we are not permitted, or in retrospect what was done is not valid, as we find in Siferei de’Bei Rav in parshat Ki Teytzei (Deuteronomy 21:16) on what is written: "He must not give the son of the beloved wife birthright preference over the first-born, who is the son of the unloved wife,” in Sifrei Piska 216 Chazal exacted “He must not give preference – this teaches that he is not permitted to give preference.

You might think he is not permitted to give preference, but if he did, the son of the beloved wife gets birthright preference? The Talmud says: "He must not give preference – thus, if he did give preference, the son of the beloved wife does not get birthright preference over the first-born.”

Perhaps the same is true in our case, where it is written "'You may not appoint a foreigner who is not one of your brethren.” If one appointed a non-Jew over a Jew, it’s as if he did not. However, even the verse “He must not give preference” is also greatly disputed.

We also find in Sifrei parshat Re’eh (Deuteronomy 12: 7, piska 72): "However, in your own settlements, you may not eat," Rabbi Yehoshua ben Korcha said: ‘I can, but I am not permitted’, similarly it is said (Joshua 15: 63): ‘Judah could not dislodge the Jebusites, who were living in Jerusalem’, they really could, but they were not permitted. And Rashi interpreted: ‘Because of the oath which Avraham had sworn when he took the Cave of the Patriarchs from them’, etc.  But from this we have no proof that in every place written “you may not”, if the prohibition was transgressed, what was done is done.

But Ramban, in parshat ‘Ki Teytzei’ on what is written “He must not give preference” writes: ‘One who equates the bechor (eldest) to his brother in his inheritance, transgresses a negative commandment and a positive commandment, even though his words do not hold up in law.’ The same is true in our problem regarding the prohibition “'You may not appoint a foreigner who is not one of your brethren”, which the Ramban compares to the prohibition "he must not give preference,” in retrospect, if a Gentile was appointed over a Jew, the appointment is invalid in the opinion of Ramban. 

Another Halakhic Reason Not to Include Arabs in a Majority Government

There is another halakhic reason not to join Arabs for a majority in the government, based on the Gemara in Tractate Sanhedrin (26a), that explains the verse in Isaiah (8: 12) "You shall not call a band everything that this people calls a band.” Chazal said, this is speaking of a bond with the wicked, and a bond of the wicked is not counted.

The meaning of the verse is what is said there in the Gemara, when Sennacherib besieged Jerusalem, Shebna, and most of the crowd in Jerusalem wanted to surrender to Sennacherib, and give him Jerusalem, but Hezekiah the king and a minority of the people who supported him, opposed surrendering to Sennacherib. And Shebna, who was in charge of Hezekiah's house, wrote a note and shot it by arrow to Sennacherib outside of [the walls of] Jerusalem, saying that Shebna and his faction agreed to surrender, but Hezekiah and his faction did not, as written (Psalm 11: 2): "For behold the wicked tread the bow, they set their arrow on the bowstring.”

And Hezekiah the King was afraid lest, God forbid, He would agree with the majority of the people who wanted to surrender to Sennacherib. A prophet came and said to Hezekiah: "You shall not call a band everything that this people calls a band,” in other words, it is a bond of the wicked, and a bond of the wicked is not counted.

Rashi there explained: “You of Hezekiah’s company, even though they are fewer than Shebna’s company, you shall not say: We decide according to the majority, to all that this people that is with Shebna, says, for this is a band of the wicked and is not counted.”

We learn then, that even though Shebna had a majority opinion of the people in Jerusalem to surrender to Sennacherib and not fight him, and Hezekiah was only supported by a minority of the people, the Prophet ruled that the majority of the wicked who sought to surrender to Sennacherib did not count as a majority compared to the minority who were loyal to the king and would not surrender to Sennacherib.

The same is true of our problem, the majority relying on Arabs, among them known for their hatred of Israel, should not be joined to form a majority, and they and the leftist Knesset members who wish to surrender to terrorists, should not be counted to form a majority in the Knesset. These Arabs must not be considered part of the majority in order to hand over parts of the Land of Israel to the Arabs. Because their verdict is like the majority of Shebna who sought to surrender to Sennacherib and give him Jerusalem.

From this it is clear that the Arabs among Knesset members who support the government in order to relinquish half of the sacred Land of Israel to murderers, are a bond of the wicked and not counted. Such a government is acting only by the power of a minority of the Jewish nation, and loses its authority.

This Halakhic Ruling Applies to All Government Directives That Do Not Have the Support of a Jewish Majority

As to your second question, does this ruling apply to all government directives that do not have a Jewish majority (or only to its directives on basic issues, and what are the basic issues). My answer is every issue in which the government does not have the support of a Jewish majority in the Knesset, its decisions are arbitrary and null and void, as they are based on a minority of the Jewish people, and it is a general rule in the Torah that in every sense of the law "a case must be decided on the basis of the majority" (Exodus 22:28).

Therefore, a government that relies on Arabs to complete its majority, is considered a minority government in every respect.

I sign with the blessing of Torah,

Rabbi Shlomo Goren

2. The Words of our Teacher and Guide, Rabbi Zvi Yehuda HaKohen Kook ztz”l

הרב צבי יהודה קוק בהנחת אבן הפינה לשילה. יושב מימינו ישראל אלדד
באדיבות משפחת בהרב וארכיון עפרה

Rabbi Tzvi Yehuda Kook zts"l (credit Baharav family and Ofra Archives)

On a Minority Government

As a result of the elections following the Yom Kippur War, two Jewish minority governments were formed. The first by Golda Meir, a government that survived only a month. The second, by Yitzhak Rabin (who had already transgressed once before on this issue).

Rabbi Tzvi Yehuda voiced vigorous protests against the government and against the Mafdal (then the National Religious Party NRP), which agreed to join it. He demanded that first, the minority government be completely dismantled, and only then could the Mafdal join. The Mafdal joined the two governments (see, Ba’Ma’arechet Ha’Tziburit p. 109). The following quote is paragraph 2 in a declaration written on the 17th of Tamuz, 5743 (1974), and was published in "Eretz Ha’Tzvi" p. 69.

"Kiddush Hashem (sanctification of God) is the foundation and root of the entire Torah, and Chillul Hashem (desecration of God) is the foundation and root of the destruction of the entire Torah. Kiddush Hashem is the glory of Hashem, and is revealed in the dignity of His nation, Israel, those close to Him and his Segulah (treasure). “And I dwell amongst my people” – “And sanctified by My glory,” in the supremacy of His radiance, salvation, and redemption, in the glory of His kingdom and His country.

"This appalling Chillul Hashem, desecration of Hashem, Yitbarach, Creator of the world, Caller of Generations and Setter of Boundaries, the boundaries of His People, His Nation, and His portion, is the tragic-comic result of despising our People and our country, in assembling this minority government for our state. “No credit (no way to justify, ed.)  is given concerning Chillul Hashem.” Decay cannot be corrected or healed, and by joining such a government, God forbid, it cannot be improved, rather, only by its elementary and absolute disqualification and annulment - and [forming] in its place, a healthy, thorough, and deep-rooted renewal."

From Rabbi Eliezer Melamed’s “Peninei Halakha: HaAm ve HaAretz”