As the election for Israel’s chief rabbis approaches, I have been doing some research into different perspectives that have been developed to address the Halachic role of the chief rabbi and the chief rabbinate, in theory at least. I will present some of the analyses that have been offered over the next few days. For anyone who is interested in the topic, there is a very lengthy three volume set that was put together in honor of the Rabbanut’s 70’s year (it started during the time of the British Mandate and is therefore older than the State of Israel) – הרבנות הראשית לישראל: שבעים שנה לייסודה. A particularly helpful article in that volume is Dr. Itamar Warhaftig’s סמכותה ההלכתית של הרבנות הראשית that summarizes many of the issues. While I do not agree with all of his analysis, it opens up the issues and the perspectives that have been presented.
The Responsibility to Poskan – Based on Uri Dasberg and Itamar Warhaftig
The first issue I want to deal with, which I have dealt with before here, is the question of why qualified posekim must weigh in on Halachic issues. Uri Dasberg, in an article in Techumin 11, הבעת דעה ע”י הרבנים הראשיים לישראל, provides many sources for the conclusions I offered there and applies them to the Chief Rabbinate. His stated goal is to justify the existence of a rabbinate that weighs in on Halachic issues, even, perhaps, when they are not approached and asked to do so.
He first establishes, as I argued, that the obligation for qualified posekim to offer Halachic guidance stems in part from a fear that if they do not, unqualified people will. I was glad to see my basic argument offered in Shut Amar Shemuel 1 by Shemuel Ibn Chaviv. He first establishes from many sources that there is a positive commandment to poskan (Semak 111, Shut Rashbash 230, and others). Rashbash is particularly harsh in his argument that those who are approached for halachic guidance must provide it, claiming that failing to do so “closes his ears to the cries of the poor – והמעלים עיניו מהם הוא מכלל אוטם אזנו מזעקת דל. Amar Shemuel adds that that if one does not rule in such an instance, he violates the prohibition of lo taasu avel, do not cause a perversion of justice, as that is the natural result of allowing unqualified people to rule. Uri Dasberg suggests based on Rambam (Hilchot Talmud Torah 5:4) that one also violates lifnei iver. While it is difficult to justify this claim based on the formal rules of lifnei iver, Dasberg suggests that the obligation to offer rebuke generates a rabbinic extension of lifnei iver to extend cases like this (see his proof from Mahartz Chayes to Shabbos 3a). Dasberg finally claims that the obligation of scholars to teach Torah also generates an obligation to offer pesak.
Based on these arguments, Dasberg argues that it is the responsibility of the chief rabbinate to not only respond to questions, but to actively weigh in on Halachic issues, as many of the reasons above seem to apply even when the posek is not approached. Additionally, on a legal level, he points out that while some of the passages in the law that outlined the power of the chief rabbi, it implies he is only obligated to answer those questions he is asked, other passages imply that he must proactively advance Torah observance in Israel, which would accord with the more expansive Halachic position he advocates. [For more on the law, see Dr. Aviad HaCohen’s article in the above volume.]
Dasberg then advances an even more expansive claim. He points to several responsa that rule that a rabbi cannot accept to refrain from offering pesak. Even if a rabbi vowed to do this, it would not have any effect, as this would be a vow taken against the Torah. While there are certain circumstances when rabbis are encouraged not to rule, when those circumstances do not apply, a Rav has no choice but to weigh in.
In his most radical move, Dasberg asserts that the role of a rabbi is to weigh in on all Torah related issues, and most issues are included. Combining all of these positions, Dasberg develops a very expansive notion of the responsibilities and rights of the chief rabbinate.
A Few Comments
While in many places I agree with the Halachic analysis, and might agree with much of it when applied to a community rabbi, I think this argument is too ambitious in several ways. First of all, as Wahrhaftig points out, this must assume that all of Israel is the jurisdiction of the chief rabbinate. While Warhaftig provides an argument for that (we will return to this in later posts), and Dasberg assumes it, in reality it is almost impossible to argue that the chief rabbis hold this power. As Mori VeRabi, R. Lichtenstein writes in his article in that volume (also published in Tradition and Leaves of Faith) – no group really accepts its authority. The Charedim and Chilonim ignore it, the non-Orthodox groups fight it, and the often the Dati-Leumi community pays no more than lip service to its authority. This undermines the application of all the theoretical points to this context. This is despite that fact that the laws on the book may support the expansive understanding.
Second, while Dasberg admits in passing that there are cases where rabbis are supposed to stay silent (on the basis of Yevamos 65b and elsewhere), he does not flesh out the implications of this. While it may be true that a chief rabbinate, if accepted by all of Israel could, weigh in on all issues under the broad purview of Torah, this is rarely a good idea.
Third, as Rabbi Lichtenstein notes in several places, while central to belief in Torah is the belief that Torah and Torah leaders can speak to issues that are not strictly Halachic, that does not translate into saying that rabbis have the final say on all issues. Their input has most weight on Halachic issues, and while it may have some weight in other issues, one must distinguish the role a posek can play in the different circumstances. Dasberg fails to note this, conflating all issues as if they were subject to the same Halachic analysis. The exact parameters are difficult to define, but some nuance is called for.
There are many other issues to deal with, such as the basis of the argument that the chief rabbinate has jurisdiction over all of Israel, the other roles a rabbi should have, a more careful analysis of the realia, etc. Hopefully I will get to summarize some of the positions offered on those issues in the next few days.
 Dasberg cites a position of the Vilna Gaon that being derelict in this area in a subsidiary violation of murder. I do not know what that means so I will not deal with it.