Courting Justice

Don't miss an episode! Subscribe to the Madlik podcast: Spotify | Apple Podcasts | Google Podcasts

and Join Madlik on Clubhouse every Thursday at 8:00pm Eastern so you can participate in our weekly live discussion of the Parsha

The Principle of Majority Rule. An instructive example of synthesis of Jewish and democratic values lies in the very values themselves. The concept of democracy as a concept of public law, that a decision of the majority obligates the minority, is not found in the teachings of the Talmudic Sages. The biblical statement “follow the majority" refers to a judicial majority— namely, a majority of judges—and to the concept of presumptions, not to the idea of democracy.

The connection to democracy arose with the rise of the Kehillah (the Jewish community) in the 10th century. Prior thereto, leadership by a single individual was the practice, originally by a king, and later by a president (nasi) in the land of Israel, and by an Exilarch (resh galuta) in Babylonia. From the 10th century, and until the advent of the Emancipation, Jewish communities enjoyed juridical autonomy much as other national and social minorities did, in exchange for a heavy communal tax burden. It was at that time that the concept of representative leadership arose.

The Halakhic authorities of the time debated the question of majority rule in communal affairs. One great scholar, Rabbenu Tam, held that the majority could not bind the minority. (This was, in fact, the view accepted by European corporate law in the Middle Ages.) However, the view of most Halakhic authorities was that the biblical command “follow the majority” also applied to public affairs, and this view prevailed.

As Asheri said, “If a few individuals could veto an enactment, the community would never be able to legislate,” and “there could never be a communal enactment, for when would a community ever agree unanimously on anything?” The principle of majority rule was also arrived at by equating the public with the court, so that majority rule was applied, not only to the judicial function, but also to communal legislation and other public affairs.

The Fundamental Rights of the Minority. But Jewish law went beyond the democratic principle of majority rule. Like current Western democracies, it also protected the basic rights of minorities. A good example is provided by an enactment in the community of Mainz in the 12th century, according to which every resident had to pay a fixed amount in taxes, even if the individual was prepared to take an oath that he was impoverished and could not pay the tax. Three Halakhic authorities of Mainz (the Jewish High Court of Justice of those days in Germany) held this enactment to be invalid, declaring: “Does the fact that they are the majority give them a license to be robbers!”

It is noteworthy that this statement originally appeared in the Talmud, but in relation to a different matter. In that particular case, the public used a path through the property of an individual, and the rule was stated that they could continue to do so. The question was then raised in the Talmud: “May the public rob an individual of his property?” In the case brought before the Halakhic authorities in Mainz, no actual property was involved. The statement was used by the rabbis of Mainz as a basis for formulating the concept that a majority—even a democratic majority—may not steal [Eminent domain gs]

This and all further quotes are from: The Values of a Jewish and Democratic State: The Task of Reaching a Synthesis Menachem Elon

The Composition of the Majority:

The Principle of Equality. As to the question of what constitutes a majority, Jewish law exhibits an interesting development. An enactment adopted in the 12th century in the communities of France and Germany reads: “If the townspeople wish to adopt an enactment for the poor or any other enactment, and a majority of the upright citizens consent, the others may not nullify the enactment.” The majority is thus made up of the “upright citizens”—those who are scholars, or have a high social and economic standing. A similar rule was established by the Catholic church, a short time later: corporate law, then applicable in Europe, was that the majority could not bind the minority, yet the Fourth Lateran Council of 1215 established that local governors were to be chosen by “the greater or most sound part” (maior vel sanior pars) of the population, a formula similar to “a majority of the upright citizens.” We find a similar characterization of what constitutes a majority in many Responsa in Spain and Germany.

An examination of the creative devices of Jewish law in developing the existing law to respond to the needs of the time and the social climate is indeed enlightening. Such adjustments were accomplished in various ways: interpretation of existing sources; reliance on basic legal principles (such as: “Its [the Torah’s] ways are pleasant ways and all its paths are peaceful”) reliance on custom and legislation; as well as turning to aggadah and legal philosophy. This last method was especially instrumental in solving many difficult legal problems.

Summary.

To the question: what is the synthesis of the values of a Jewish state with regard to the nature of democracy?, the answer is clear. The Jewish heritage, from the 10th century onward, developed the concept of majority rule. In addition, in the 12th century, at the latest, the principle of minority rights—that the majority cannot rule solely on the basis of power— was accepted. As we have seen, there were various views on the question of equality. Arriving at a synthesis of the values of a Western democracy and of a Jewish state, as provided in the first section of the Basic Law: Human Dignity and Liberty requires us to follow the ruling of Elijah Mizrahi, who advocated complete equality in constituting a majority. To arrive at such a synthesis, a judge who deals with questions of democracy, the rights of minorities and equality of citizens must thoroughly examine the values of a Jewish state, namely, the legal analysis contained in the above-mentioned Responsa, and the historical situation which produced the demand for equality, as is reflected in the Responsa themselves and in other historical sources.

The expression “the values of the State of Israel as a Jewish and democratic state” is found in the Basic Law: Human Dignity and Liberty, which became law in the State of Israel as of March 1992. The section of the statute defining its purpose reads:1 The objective of this Basic Law is to protect human dignity and liberty in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state. A similar section can be found in the Basic Law: Freedom of vocation, also from 1992.2 This concept originated in the Israeli Declaration of Independence which, as stated in the early decisions of the Supreme Court, expresses “the vision and credo of the nation.”3 Indeed, from an ideological and theoretical point of view, this concept has been a subject of discussion within Jewish society since the advent of the Emancipation...

This kind of expression is unique to the Israeli legal system, and it has no parallel in any other Western democratic legal system. One does not refer to “the values of an American and democratic state,” or “the values of a French and democratic state,” or “the values of a Canadian and democratic state.” The laws of these countries speak of “freedom-loving” democracies, not of French or Canadian values. By contrast, in the State of Israel, the term “Jewish” expresses the very nature of the State. The reason for the unique situation in Israel is embedded in the history of the Jewish Nation, which for close to 3,000 years created and developed a legal system that governed the lives of the Jewish people when they had a sovereign state of their own—a relatively short period—and during the nearly two thousand years they lived in the Diaspora without political independence. During most of this period, until the “Emancipation” at the end of the 18th century, the Jewish communities throughout the Diaspora retained internal autonomy, including autonomous courts which operated in accordance with the Jewish legal system.

The question of the recourse to Jewish law for the interpretation of the law of the State of Israel today—with regard to the civil, criminal and constitutional law contained in the Halakhah7—has nothing to do with the relationship between religion and state, notwithstanding the nature of Jewish law as a national-religious creation.

.... there should be no doubt that the expression “the values of a Jewish state” must be interpreted, in the first instance, in accordance with the comments of the Chairman of the Legislative Committee of the Knesset at the bill’s second and third reading: “The law provides . . . that we are required to follow the values of the heritage of the Jewish people (moreshet yisra’el) and of Judaism.”8 Similarly, there is no doubt that the term “Jewish” includes the values of the period of National Awakening, as expressed by the Zionist movement, which led to the establishment of the State of Israel, which in turn enacted these Basic Laws.

The principal difficulty in finding a synthesis in this category of cases is ignorance of the sources and content at Jewish law, not the presence of value-based ideological differences of opinion. For this class of issues, one finds synthesis by thoroughly examining the issue in both sets of sources. This entails learning the topic from within Jewish law, in the wide sense of the term, from all its periods, and likewise, studying the issue as addressed in the sources of Western democratic thought. This method will find itself appropriate for each and every legal principle in civil, criminal and administrative-constitutional law, but in general, will not lend itself to finding a solution to what are a priori conflicts of ideological values, nor to questions regarding the relationship between the three branches of government.

The double mention of the word “justice” in the biblical verse “Justice, justice shall you pursue” was interpreted in the Talmud as follows: “One [mention of justice] refers to [a decision based on] law and the other to compromise.” The Talmud continues by giving the following example: The Heights of Bet Horon How so? When two boats sailing on a river meet, if both attempt to pass simultaneously, both will sink; but if one makes way for the other, both can pass. Similarly, when two camels meet each other on the heights of Bet Horon, if both proceed on their course, they will both fall, but if one makes way for the other [by going back until there is enough room to move to the side], they can pass [safely]. How should they act? If one is carrying a load, and the other is not, the one without the load should give way to the other. If one is nearer than the other, the nearer one should give way to the farther. If both are equally near or far, place a compromise before them whereby payment is to be made for the privilege of going first.

It is worthwhile mentioning what exactly are the heights of Bet Horon, geographically. Bet Horon is located in the mountains of Western Samaria, on the border of the territory of the tribe of Ephraim, and close to the territory of the tribe of Benjamin. It lies between two settlements, Upper Bet Horon, atop the mountain, and Lower Bet Horon, in the foothills. Both settlements are mentioned as early as in the Book of Joshua,154 and were the sites of a significant battle in the wars of Joshua. They are also wellknown as sites of historic military events as recently as during Israel’s Six Day War in 1967. Ma’alot [Heights of] Bet Horon, as the name implies, was a path on the mountain with a steep drop on each side. In ancient times, the path was extremely narrow, and two camels could not pass each other without the danger that one might fall into the abyss. As a result, it was necessary for the two camel-drivers to reach a compromise, as the Talmud explains.

The Comment by the Neziv There is a fascinating comment on this passage by Naftali Zevi Judah Berlin, known as Neziv, one of the great Halakhic scholars of the late 19th and early 20th centuries. He stated: If the law cannot bring about peace, there must be a compromise. This is what is taught in Tractate Sanhedrin: “Justice, justice shall you pursue”—one [mention of justice] refers to [a decision based on] law, and the other to compromise. The verse refers to a situation where a compromise is imposed and it is impossible to decide the case on the basis of the law. . . . Under the law, both may proceed and both will perish, or one of them will overcome the other and be saved at the other’s expense. But this is not a judgment of peace. This is why there is a mandate not to apply strict law, but to force a compromise. Law that does not bring about peace is not proper and desirable law, for the very definition and essence of law is to produce a judgment that resolves a dispute peaceably (mishpat shalom). Pursuit of justice in such a case requires the compulsion of a peaceful result by way of “‘compromise.” Since the result of insisting on legal rights is strife and contentiousness between the parties, a peaceful “compromise” is compelled. This is an excellent example of the application of law and justice in a way that brings peace.

The Neziv continues as follows: It would seem that this is what our Sages, of blessed memory. meant when they stated that the Temple was destroyed because they grounded their statements on the law of the Torah. This means that they did not want to forego their rights under strict law. Thus, they did not arrive at a peaceful solution, and did not see any necessity to compromise. The same can be said regarding every dispute between factions of the public. We cannot hope that one party will impose its views on the other party, based on Torah law, and that thereby the controversy will subside. Thus, the good and proper approach is that each of the parties appoint two representatives, with everyone recognizing that each party must compromise its own position so as to reach agreement with the other party. In this way, even the party’s own position will be preserved. And this is the approach of the Almighty. And he adds: “Whenever my eyes observe a dispute among the Jewish communities, a fire burns within me; accordingly, I cannot be silent until I have spoken on the subject.”

Law alone is not sufficient here. What is needed is the imposition of a compromise that can bring about peace.

Conclusion—A Continuing Debate:

The Hazon Ish and Ben-Gurion

To my deep regret, the knowledge of the Jewish heritage has progressively diminished among many Jews, young and old. This disturbing phenomenon is a very significant factor in the estrangements and splits that we see today. In the early days of the State of Israel, the interesting Talmudic passage regarding the heights of Bet Horon was the subject of conversation between David Ben-Gurion, one of the great founders of the State of Israel, and the Hazon Ish, R. Yeshayahu Karelitz, the leading Halakhic authority of the period. Of course, mention was made of the rule that the unloaded camel must give way to the camel that is carrying a load.

Ben Gurion and the Hazon Ish differed over which of them represented the camel carrying the load, which represents the burden of the heritage of the generations and the national vision. This is a legitimate and appropriate dispute. We should only be privileged to see the continuation of such a discussion today. Only in this way can the proper synthesis be found between the values of the State of Israel as a Jewish and democratic state.

See also: Redefining Israel’s Reasonableness Test; Israeli Supreme Court Justice Menachem Elon sought to ground the court’s controversial doctrine in empirical data and hard logic, with the help of the Talmud, BY WARREN ZEV HARVEY, AUGUST 06, 2023

See also:

Justice Elon showed me a basic truth within the rishonim: he pointed out that the Rosh, Rashba, Rashbash, Maharshal and many others contend that situmta and dina demachuta can accomplish much more than traditional halachic forms of effecting a deal through a kinyan. For example, this approach argues that although halakhah has no native mechanism for transferring ownership of an item that does not now exist in the world (davar she-lo ba la-olam), if the commercial practice of a particular society included a procedure for such transfers, halakhah would incorporate the practice as valid and enforceable.[1] To put it simply, despite the fact that no basic halachic form of kinyan permits someone to sell something that does not yet exist or to sell to someone who does not yet exist,[2] Justice Elon noted that the Rashbash states directly:

Great is the power of the community, which triumphs even without a kinyan… Even something which is not yet in existence can be sold to someone who does not yet exist [if community practice so provides].[3]

If Rashba is correct and commercial custom can allow transactions to be accomplished that could not otherwise have been achieved under Jewish law, it is possible that secular law can create obligations that – though profoundly not found in halakhah – could nevertheless be introduced into halakhah under the rubric of minhag ha-sokharim or dina demalchuta.

A Tribute to Justice Menachem Elon זצ”ל from a Student, Guest post by R. Michael J. Broyde 2013

See also: Menachem Elon: The Sweet Revolutionary, The late Israeli Supreme Court judge Menachem Elon, was a pioneer of Jewish and Israeli law. By Nathan Lewin, - 11 Adar 5773 – February 20, 2013