For the remainder of the year, our shiurim in Yeshiva on the Methodology of Psak Halacha are going to be focused on test cases. I wanted not just to talk about the process, but to take some critical cases and show how it works. As I have said before, to really understand the Halachic process, one must have some combination of actual experience with poskim, as well as have read around 10,000 teshuvot and watched how experts have dealt with issues over the year. In honor of Yom HaZikkaron and Yom HaAtzmaut, our first topic was the role of Religious Zionism in psak. The shiur is available and sources are available here.
We began with an overview of what defines Religious Zionist Psak broadly speaking, using the outlines of Dr. Aviad Hacohen (here). Obviously, as he notes, there are gray cases, but his outline is a helpful starting point nonetheless. Below is his basic summary:
- Areas of Occupation
- Laws of the State
- Laws of Modernity
- Harnessing Halakhah for Political Ends
- Methodology and Sources of Decision Making
- Koah de-heteira adif
- State-oriented/unifying approaches
- Uses of Eretz Yisrael Sources
- Use of Modern Research Tools and “Outside Literature”
- Style and Form
- Modern Hebrew
- Media of Communicating Conclusions
- Substance of rulings
- Religious Zionist Issues
- Issues Arising from the Establishment, Existence, and Activities of the State of Israel
- Penetration of Religious Zionist Ideology into “Traditional Areas of Halakhah”
To spell is out a bit: poskim who are driven by the conviction that the modern State of Israel is religious important tend to engage in specific kinds of halachic dialogue (in addition to classic material). They focus on the issues that arise from having a Jewish polity and trying to engage in all the new questions that arise (technological, social, etc.) through a national lens. They are also cognizant of the effect Halacha can have on legislation, especially as there are laws that reflect halachic values, and take that into account. Any issues that relate to Zionism or the state are important for their worldview. Often the positions they develop effect the traditional areas of Halacha. For example, a novel position about pikuach nefesh on Shabbat that is developed in the context of the army can affect how poskim treat regular Shabbat questions.
They also tend to be focused on a psak that can work for the entire nation. Thus, they factor in the value of national unity, among religious and secular Jews, for example, into psak. This often means that they prefer lenient positions. Due to their desire to poskan for a wide community, they often convey their rulings through more popular media, such as Facebook or other places on the internet. Shut SMS is a very good example.
Dr. Hacohen notes that some poskim, though definitely not all, also give more precedence to sources from Eretz Yisrael, such as Yerushalmi, and outside sources, perhaps like Josephus.
Much of this literature is written in modern Hebrew and in organized articles rather than in winding articles written in rabbinic Hebrew. The journal Techumin is a classic example.
The specific case we examined was the question of setting up a police force on Shabbat. When the Jews were a minority, they can leave this job to others. In Israel, this cannot be done. Thus, the question was posed to many poskim in the early years of the State. We focused on R. Herzog and R. Yisraeli, as well as an article from Machon Tzomet.
R. Herzog, the Chief Rabbi of Israel, took a stab at it, and from his teshuvot (on the sources there is only one), many of the issues raised above become evident. Right away, you see that his teshuvah is written in modern Hebrew and is organized by section. It engages with the political issue of setting up a police force, something necessary for the functioning of the state. He goes through the details of crimes in Israel, the percentage of them that are lead to life-threatening situations, and establishes the necessity of finding a solution, in other words, finding a leniency.
The main Halachic issue is understanding the parameters of pikuach nefesh. He notes that purely statistically, when dealing with a state, many more things are pikuach nefesh. If something will only be life-threatening in 1/1000 cases, in might not be pikuach nefesh. However, when you are dealing with millions of people, statistically, there will almost definitely be a case which qualifies. Thus, he tries to expand the definition of pikuach nefesh. However, he recognizes that just because we are dealing with a nation, we can’t define everything as pikuach nefesh and erase Shabbat. This tension is typical – trying to deal with new issues, while balancing classic values. Neither Shabbat nor pikuach nefesh can lose out. However, R. Herzog does not come to a conclusion of where to draw the line, claiming that while he hopes religious people will become part of the police forces, as most members are not religious, he does not need to issue a final ruling. This reflects both a conviction that the ultimate goal for the state is that it should be able to function halachically, but a recognition that the reality is not that way. Still, his belief in the ideal forces him to explore the issue.
R. Herzog, while he finds ways to allow the police to answer the phone and drive to an incident, he does not allow patrols in cars or for police to return to base. As for the former issue, he encourages patrols to be done on foot or bicycle. As for the latter, he notes that Rambam allows soldiers who go out to protect Jews on Shabbat to return home with their weapons so they will not be discouraged from going in the future. Recognizing the difference between this case, a voluntary army, and the modern state, he notes that a paid police force can be told to remain in place after an incident as that is their job – when security is an official part of the government, we can expect people to their job even when it is not comfortable.
Reading through R. Herzog’s teshuvah highlights a mix of realism and idealism, a conviction that Halacha must respond differently to the needs of a state, and that religious people must be part of the life of the state.
R. Yisraeli, responds to some of these points, reflection a different vision. First, along with other poskim, he claims that national pikuach nefesh seems to be even more different than a matter of statistics. As is clear in other poskim, there is a belief that a nation has a different status, and at some level national quality of life equals pikuach nefesh. Thus, we need to relate to the issues differently. He comes up with the category of hecsher pikuach nefesh to explain his expansive leniencies.
Another disagreement is R. Herzog’s willingness to not poskan when the question is not practical. He first argues that R. Herzog’s willingness to recognize a category of those who ignore Halacha, is wrong. The job of a [religious Zionist] posek is to rule for the ideal, as if everyone did keep the Torah. [In a later teshuvah, concerning religious soldiers switching shifts on Shabbat (shiur available here, teshuvah on the source sheet), R. Herzog seems to accept this argument.] His Religious Zionism makes him rule for the ideal and the nation of shomrei Torah.
He is also not willing to accept that we would have to rely on a Shabbat Goy, as he wants a self-sufficient Jewish state. R. Rozen (in a footnote in the Techumin article), citing R. Kook, notes that even an ideal state will include non-Jews, and therefore we can come to the conclusion that we will need non-Jews to do certain things in the state. This, it seems is a very fundamental dispute about the vision of a Jewish state, and by preference is with R. Kook.
Yet another aspect of Religious Zionist Psak is the recognition of how many issues arise, and the willingness to preempt them. This is evident in all the Machon Tzomet does, to create lights and writing implements that can be used in the army and in hospitals that minimize Shabbat violation. R. Rozen, in articles cited in the references on the source sheets, discusses the all the practical steps they took to come up with ways to write reports, take fingerprints, and many other issues that come up.
There is much more to say on this topic and all related topics, but that’s it for now. It should be clear, however, how significant of an effect a belief in the value of the modern State can have on how one thinks about psak.
For the first time as a resident of Eretz Yisrael and the Modern State of Israel – Yom HaAtzmaut Sameach!