Rabbi Gershuni is a renowned rabbinic scholar and the author of numerous Halakhic studies. His essay was translated from the original Hebrew by Mr.Elliot Lerner.

 

THE TORAH OF ISRAEL AND THE STATE

Yehuda Gershuni

 

I.

     Rabbi Kook Z'l wrote in Mussar Hakodesh:

"The state is not the greatest and most exalted bliss of mankind. This can be said of an ordinary state which is not more than a large, mutually responsible society. But this does not apply to a state which is idealistic in its foundation, that has engraved on its very existence the highest ideals. Such a state is our state, the State of Israel, the foundation of God's throne in the world, whose entire object is that God should be One and His Name One, which is truthfully the greatest bliss. (p. 191)

     The religion of Israel is not an individualistic religion. It is rather a religion tied to all facets of public and private life. All of Israel are arevim (responsible) one for another because the entire nation of Israel is considered as one body, as one person composed of various limbs. This concept is explicit in the Jerusalem Talmud, Tractate Nedarim1.

Furthermore Rav Meir said, "We begin with him from what is written in the Torah 'Thou shalt not take vengeance nor bear any grudge'. They said, 'How would it be if you were a meat cutter and the knife wounded your hand, would you wound the other hand?' " (Explanation: If he cut one of his hands with a knife would he cut the other in return, similarly, since all of Israel is as one body, it is only right that one should love his friend as himself.)

 

     In tractate Rosh Hashanah, Rabbi Nissirn Girondi uses the above thought to explain the law concerning Birkhot HaMitzvah (Blessing over commandments). Even though one has already performed the mitzvah he can still make the blessing for others because of arevut (mutual responsibility). Since his friend has not fulfilled his obligation, he too has not fulfilled his obligation.

     The Maharal of Prague comments on the Talmudic statement2 that the Israelites were not responsible for one another until after they had crossed the Jordan. According to this explanation, the reason is that the land of Israel makes all Israelites dwelling upon her as one person. Therefore, when they came into Israel they became arevim (mutually responsible). The Avnei Nezer in Yoreh Deah3, added,

It is obvious that even now that Israel is in exile, the mutual responsibility remains. The reason clearly is that even though they were sent into exile, nevertheless the place of Israel is in the land of Israel. When we are in another land we are considered in exile because our place is not there, rather our place is in the State of Israel. It is a mitzvah to live in the land of Israel. It is therefore considered as if we are all in the land of Israel, our absence from the land of Israel notwithstanding…

 

     On the question of separating religion from the state and society, Rav Kook z'l concluded from his careful study of the modern history of Western Europe and Turkey that all advances towards liberalism and progressivism involved a break with religious traditions. The question is therefore asked, if most of the reforms of society in modern history occurred as a result of the destruction of religion, how can it be expected that in Israel social revitalization can be combined with a resurgence of religion?

     Rabbi Kook answered that the religion of Israel is different from all other forms of religion. There is no common denominator between them. The other religions are just a poor imitation of the religion of Israel. Therefore, he wrote, it is correct to state that the very religious framework of the nations of the world hinders social reforms. Their religions are of an old framework, which rest on their laurels. Society needs new life, the uprooting of old ethics and traditions. Contrarily, the religion of Israel is a source of continuous social and spiritual revival.  There exists a reciprocal influence between the two, through which religious revival brings, in Israel, the perfect reforms for the life of the community. He writes in Igrot R'eah:4

The spirit of religion, oppressed and shattered, that existed in Christian Europe and in Moslem Asia, could not live concurrently with a social revival, full of vigor and a lust for a shining life. In order to properly perfect this revival one needs the true light of God in the collective soul. This is found in Israel. The separation of religion and society is good for them, while it is dangerous for us.  However, if we will not go out to enlighten the darkness, to explain the difference between the religions, that is between a religion which should not be called by this proper noun by virtue of its superiority and sources, and an imitation which only has what it could draw from the source by way of thievery, the matter would remain hidden from the eyes.

 

The nation of Israel is different from all other nations. It revealed to the world a faith in which is wrapped the highest philosophical truth: Unity of all the forces of nature and the phenomena of all the world under one single rule. The nation of Israel also revealed to the world basic ethics. All the drives of man, all his impulses and strengths must be subservient to the laws of ethics. Ethics is the soul of the world, righteousness is the pillar upon which the entire existence of the world is founded. It is the responsibility for which even God Himself is accountable, "The Rock, His work is perfect; for all his ways are justice. Shall not the Judge of all the earth do justly?"

 

     These two revelations materialized into a list of mitzvot ma'asiot (precepts for action). Without these mitzvot these two foundations would be left hanging in the air and have no continued existence.

     These mitzvot ma'asiot created the special way of life of the Jew which is purer and more exalted than any other way of life of any nation or people. It is the life of slight surrender not to drink from the cup of desire and pleasure until drunkenness, but also not to live a life of total abstinence. It is also a life which gives strength to both the body and the soul, a life which creates harmony between the body and the spirit.

     The nation of Israel went out into exile onto the face of the, earth prepared with faith, with morality, with the Scriptures and mitzvot ma'asiot, to be in every place a minority among a strange and hating majority. They have shown a miracle that has no comparison in history, to remain alive in a strange land. The strength of faith, which can move mountains and the foundations of morality, which are a result of that faith and the Scriptures, combined with mitzvot ma'asiot gave the nation of Israel strength and fortitude to wrestle against the storms that threatened to swallow it. They gave Israel the haughtiness and self-realization to see itself as a superior nation, a nation that stands above other nations. They allowed the Jew to see that it would be a decline to mix with other nations. They gave the Jew the recognition that he is fortunate to have his exalted faith, his superior ethics, his Torah and mitzvot. They brought the Jew to consider it a special privilege to carry Judaism despite the suffering it brings upon those who adhere to it.

     Thus Israel lived among strange nations for 2,000 years. From the midst of a story existence the Children of Israel knew how to continue to braid their golden chain of thoughts and ideas. They looked to the end and were confident in the return of the Children of Israel to their ancient homeland.

     The modern history of Christian Europe is inundated by a wave of opposition to faith. Naturalism and materialism became idols which people started to worship. That flooding wave also came to the camp of Israel. The foundations of faith started to weaken, and through the weakening of faith came weakness in the fulfillment of the mitzvot. Jewish life lost its original color and the life of the Jews came closer to the mode of life of the Gentiles. They looked upon the Gentiles with great respect and thereby fired up the desire for assimilation, as witnessed by the modern form of Reform or in the form of the Enlightenment which declared war on faith.

     The way of Enlightenment did not succeed. Countries came against the Nation of Israel armed with pogroms and oppression. They did not want to accept friendship and flattery from the enlightened ones. As a result, a segment of the Children of Israel returned and started to build "on a national feeling only." They thought that the nationalism of Israel must be exactly as that of the Gentiles, a nation as any other nation, land, language, but no religion.

     This concept of nationalism goes against the trend of Jewish history and has its roots in foreign sources an imitation of the nationalism of the Gentiles which is separate from religion. This way of completely changing Israel into a new creation, in order that it should lose its "Judaism" is absolutely wrong. The true Judaism is a religious nationalism where the two are inseparable.

     In order that a small number be capable of remaining faithful to its ideas and not surrender to its surroundings it requires a spiritual strength to abolish the values of the surroundings. They must be imbued with the conviction that the greatest treasure of all mankind, the ideals of Judaism, and the life of the Israelite nation, is in their hands. A few keepers of the faith will carry the Torah of Israel with the might of Maccabees, with stubbornness and haughtiness which is characteristic only of a nation which brought forth prophets. They will not fear the laughter and the taunting of the fools and will not stop before the cold atmosphere of apathy. With strength and might they will carry the pillar of fire of eternal truth that was lit at Mount Sinai. From behind them will be heard the voice of the God of Israel:

When thou walkest through the fire, thou shalt not be burned. And through the rivers, they shalt not overflow, for I will be with thee.

 

     The hatred and separation that exists in Israel between religious and non-religious circles need not frighten the religious who carry the high and exalted ideals of Judaism because, in the end, the truth will vanquish all. That prominent minority that carries high the mission of the God of Israel should not separate itself from the Nation of Israel. They must accept upon themselves with love their mission. They should not fear the flame of hatred of religion that is breaking forth from the populace, "For I am with thee and thou shalt not be burnt in fire."

II.

CIVIL MARRIAGES IN ISRAEL

     I have seen the views of various religious people who want to separate the state and religion arguing that the hatred of religion is caused by the laws of the Torah and the laws of mamzerut that we force upon them to accept. They also claim such a policy of separation would not jeopardize the unity of the nation in view of the fact that a civil marriage would not create the status of a properly married woman. Hence, there would be obviated the problems of divorce and for that matter that of mamzerim.

     They are totally mistaken. There are among our brethren many that are apathetic, that generally keep traditions and are married by the rabbinate. However, should the question of divorce occur, they would obtain the divorce through the courts.  And should their wives remarry and have children the children would be mamzerim. There are also many Jews in Israel who married at religious wedding ceremonies. However, they would be satisfied with a civil divorce should the problem come up. In addition there are other considerations. A brother dies leaving a wife and children. The brother would marry his brother's wife who is forbidden to him when there is no mitzvah (of yibum) and the children would be mamzerim. Problems could also arise with regard to the questions of agunot  (deserted wives). Assume a husband of a Jewish girl is killed in war or lost in "endless waters" and it is impossible to find a heter. From the terrible suffering she would go and remarry a Jew in court. The children of such a marriage would be mamzerim. These things need very careful study.

     To abolish the Rabbinic authority on marriage in Israel by giving it over to civil law, endangers the purity of Jewish family and will cause many problems which are impossible to enumerate.

     In the work of Abraham Chaim Freiman,5 in which are collected almost all that the achronim said on the matter of civil marriage, there are cited the views of the Rabbis of Holland, which had instituted civil marriage in 1580. In the year 1741 a Responsum was Pri Etz Chaim, produced by the scholars of the Portuguese Yeshivah Etz Chaim in Amsterdam, ruled that civil marriage do not constitute a legal marriage. The Mahamrem Shik in Even Haezer6 also ruled likewise.

     A different scholar, however, Rabbi Simon Sidan from Tirna, publicized in the year 1883 a warning holding the stricter view. He said that there exists a question about the status of civil marriage in our times since the marriage is held in court before a city magistrate and subsequent to the marriage ceremony, the magistrate writes a special document stating that this man has taken so and so as his wife. Many times the magistrate who arranges this is a Jew and other officials involved may also be Jews. There may also be present Jews who are fit to be witnesses.                                              

     Rabbi Avraham Hacohen Krapeles7 writes in explanation of this law:

Since the civil marriage will be obligatory to all those who marry in the state, we cannot say that all the intercourses were done is sin. Perhaps the reason they never subsequently married according to Jewish law was because of a lack of money or for some other reason. Perhaps after many days they repented and had kiddushin through intercourse. We must heed the presumption that a man doesn't have intercourse with the intent of committing an act of prostitution. Therefore, one must be careful not to  arrange marriages for those who after previously been married in the courts, and have not obtained a get. One should not rule to allow such a marriage without asking a scholar.

 

     Rabbi Mordechai Leb Winkler added to these apprehensions stating that we must consider the possibility that kiddushin was effected through money, inasmuch as a civil marriage includes an exchange of rings. Since the groom spoke with the bride about marriage it is as if he gave her something of value and said to her that he is wedding her with it. There is also the concern that kiddushin was effected by contract, because the contractual arrangement in the court involves also the wording of kiddushin. If the man signed himself, there is also no need for witnesses.                                            

Rabbi Joseph Rosen wrote several responsa on the matter of civil marriage in Russia. He bases his view that civil marriage has validity on the positive precept, "And he shall cleave to his wife." The woman, therefore needs a get. In another responsa he expresses the apprehension that kiddushin through contract may be effective if the man signs the contract himself.8

 

It follows a fortiori that if civil marriages would be arranged in Israel, where all the officials are Jews, and very often there are Jews fit to be witnesses present, we definitely must worry about the possibility that such civil marriage possesses validity.

 

     Rabbi Judah Leib Zirelson also ruled that as long as two people lived publicly as husband and wife, a get is required, even though the marriage was only a civil one. He bases his ruling on the grounds that people shouldn't mistakenly say that a married woman can leave without a get9. We must also consider the possibility of kiddushin through intercourse and kiddushin through contract since the text of the contract in court included the language of kiddushin. He concludes by saying that it is incumbent upon the leaders of Israel to make sure that no Jewish girl should leave her husband without a get, even one who had gone astray and married not in accordance with the laws of Torah.10

     Rabbi David Zvi Hoffman wrote that in civil marriage one must be concerned with the likelihood of kiddushin through intercourse. If we decide that no civil marriage requires a get, occasionally we will be allowing .a married woman to remarry. How could we check each time to find out the reason why they were satisfied with only a civil marriage? Therefore it seems I necessary to necessitate a gel because of doubt. It is good to publicize that the reason for the get is that maybe they had intercourse intended as kiddushin11.

     In the year 5695 the Rav of Kovno, Rabbi Abraham Dov Ben Kahane Shapiro, proposed that the question of civil marriage be resolved by some form of collective decision of the Rabbinate, inasmuch as the issue is too delicate and sensitive to be handled by individual Rabbis. He felt that the question should not be decided individually because if so this would divide the house of Israel. One rabbi will allow such a woman to remarry. When her children will come to another place where the rabbis are more stringent on the issue they will be treated as mamzerim. There would be no way out. Therefore it is necessary that this question be decided preferably by a gathering of a proper number of Torah scholars or at least through an exchange of letters.12 The proposition was made to call together a gathering of the rabbis of Israel headed by the Goan Rabbi Kook z'l. However, with the death of Rav Kook z'l, the opportunity passed and the question remained without a decision.

     From all the Torah discussions on the matter we can see that the law is still unclear as to whether civil marriage necessitates a get or not. We can also see that the separation of religion from State would not remedy the problem of mamzerut in Israel. Rather, the nation would be split into two nations the religious and the non-religious and this would lead to divisiveness at a time when we need brotherhood and unity, while the issue would not be resolved but rather aggravated.

III.

WHO IS A JEW?

     Another important issue that cannot be answered by the separation of religion and the state is: Who is a Jew? According to the non-religious factions anyone can be accepted as a Jew just by declaring he is a Jewish national. He would then receive all the privileges of being a Jew. According to Halakhah the children born to a non-Jewish mother without a previous conversion are non-Jews.  Such disregard of the Jewish law which we have practiced thousands of years will destroy our national existence. A religious Jew will not be able to marry a non-religious Jew because the genealogy would be lost over the years. Non-Jewish children of mixed marriages would marry full-fledged Jews. The sanctity of the Jewish family as practiced for generations would come to an end because the obedience to the laws of Israel had crumbled.

     The nation of Israel, as a whole, must accept upon itself the responsibility for the existence and unity of the nation. The religious and non-religious alike who are serious about not wanting to tear the nation to pieces, who don't want to say, "It shall be neither mine nor thine; divide it," must come to a firm decision not to move the foundations of Judaism as practiced since the creation of our nation by Moses, and accept upon themselves the responsibility Judaism places upon them.

 

NOTES



1Chapter 9, Law 4.

2Tractate Sanhedrin 43.

3Section  126.

4Section 1, p. 215.

5Seder Kiddushin  Ve Nisuin

6Section 26

7Responsa Ohel Avahum, Section 103

8  Responsa Isafrat Paneach, Section 1, 26, 27.

9  Tractate Yevamot, Chapter 8:2

10Responsa Maarchei Leu, Section 87.

11 Responsa  Malamed Lehoil

12 Sharei lion, Jerusalem, 1935, p. 57.