Why Israel Needs a Constitution

By Rabbi Alan Yuter
Posted Sunday, April 9, 2006 • Modified Wednesday, May 10, 2006

Neither David Ben Gurion nor the ultra-Orthodox community of Israel's young democracy want a Constitution for the State of Israel, albeit for different reasons. Ben Gurion maintained power that privileged the moderate Left in a coalition that became social democratic tyranny. By keeping the Communists and the Beginites of Herut out of the government and de-legitimizing them, Ben Gurion tried rule Israel by marginalizing alternative political voices. To his view, the party and its ideology rule, and not the people. Constitutions give rights to individuals and are what Ronald Dworkin, who takes rights seriously, are trumps of power. These individual rights ought to give way to the greater Statist good, as defined by the elite that is in power.

Ultra-Orthodoxy does not want an Israeli Constitution because it claims that Jewry already possesses a constitution, the Torah. And Israel does not need a Supreme Court because the Great Sages of Orthodoxy function in our time as the de-facto Sanhedrin. Their Daas Torah, or divinely inspired intuition, if obeyed by all Israel, would unite all Israel. After all, who but they possess the power, glory, way and life of Judaism to intuit Divine intention in modern times? Israel ought to be a theocracy, where the right rabbis will rule rightly. A Constitution that gives individual rights to citizens would limit the right of rabbis to rule effectively and appropriately by allowing dissident voices that might, in theory, question rabbinic authority, interpretation, policy, and divinely ordained inspiration.

In our time, the Israeli Supreme Court and the Council of Torah Sages are two very different aristocracies of law, value, culture vision, and authority. They also reflect two very different constituencies. The Council of Torah Sages, like the Israeli Supreme Court, is [a] the elite of its culture, [b] not elected by democratic vote, and is [b] not answerable to any group or polity who might subject its opinions to meaningful review. Both groups appoint its members, and neither group believes that it is accountable to an appointing authority. The Council of Torah Sages teach and preach the Judaism of Yiddish speaking, modernity rejecting Eastern European culture tradition. Its Hebrew name, Moetset Gedolei ha-Torah, is strikingly reminiscent of the Communist word four council, soviet . The Israeli Supreme Court does include Orthodox voices, but these voices are always in a minority and serve to Judaize an ideology and institution that is closer to the secular European Enlightenment, which , believed that the enlightened elite ought to rule with the consent of the masses.

The Judaism of the Dual [Written and Oral]Torah anticipates American Federalism in several ways. There is a division of power in the Torah, with Priests, the first teachers of Torah, the Prophets, who were ordained by the Torah Giver to remind Israel that they have a contract with God, and the King, who is God's servant and CEO, and who is accountable to the Law and not above the Law. The Mishna Eduyot 2:2 and R. Caro [Bet Yosef 1] teach that unless the law is explicit, there is no law at all. The Divinely revealed law is perfect and in no need of emendation, change, or update. Whoever claims the right to change the law not only de-authorize the Covenant, they supersede God by claiming the right to divine Divine intention. Only the Torah authorized Sanhedrin, Israel's only post-Torah norm creating body, may enact Torah law through interpretation. [Isaiah 2:3] God gave the Torah to all Israel, with no private Traditions, no self-selected elites, and no Daas Torah, or Torah opinion, outside of the sacred canon of the Dual Torah. The Enlightenment Rights of Man conveniently excluded Jews and Blacks for their unenlightened view of what it means to be human. The Torah doctrine of the "image of God" invests the human individual with divinely ordained rights, or trumps, which the majority culture or religious elite must, to remain legitimate, respect. The claim that one can intuit God's will with intuition, and reasoned recourse to Torah documents on the part of some one not recognized as a "great sage" is, for canonical Judaism, illegitimate. With priests came to share the teaching responsibility with the Sages. Authority resided not with intuition, charisma, intimidation, or armies, but with the ability to persuade. Torah power resided in their piety and example. Intimidation, coercion, and demand of unconditional obedience was not present in the religion of the priests and sages. They read the Torah as a constitution, to which every Jew had access, rights, and claim.

Rabbi Judah the Prince formulated the Mishnah in order that Torah not be forgotten. Maimonides took the Talmud as a binding code on which he based his legal compendium and as the working constitution of the Jewish people. His code was based on his best reading of the binding Talmudic canon, which recorded legislated norms. Of course one has a right to disagree with Maimonides, if one can demonstrate a better reading of the canon than Maimonides offers. But one cannot claim "I have an alterative tradition," because one must demonstrate the existence of that alternative view in the canon if that opinion is to be entertained. One cannot say that Maimonides reflects a Sefardic bias, and as such is not binding on Ashkenazim. The Sinai Compact makes no provision for Sefardic or Ashkenazi cultures. Values consistent with Torah are valid, whether they be Sefardic or Ashkenazi, and values that contradict Torah are invalid, regardless of the community that in error thinks otherwise. In point of fact, Maimonides reveals a legal rather than an ethnic bias. Maimonides rules in his Code's Introduction that one follows not the authority person, but the opinion that is most reasonable. There are not really Ashkenazi and Sefardic "traditions" in the Oral Law sense of Tradition. Religiously binding tradition is recorded in the canon, accessible to and reviewable by all.

Those who oppose Maimonides also oppose the Israeli constitution. They want law to be an esoteric means of control, from which the layperson and most rabbis are denied access. They do not want to recognize individual rights or a law that commands, forbids, and when silent carves out the legally sanctioned humanity defining autonomy. For this view, rabbis are policemen, not poseqim, or decisors. While the elite is licensed to rule arbitrarily from intuition, if one is not a member of this elite, one does not have a right to an opinion, however reasoned, sourced, or irrefutable. God's Torah, however, requires demonstration, not remonstration; intimidation is an inadmissible means of discourse. Dissent is addressed and not mocked. According to the oral Torah, The intimidator's illegitimacy is expressed by the fact that such a person has no portion in the world to come.

In civil secular Israel, the Constitution, or Basic Laws, should reflect the secular consensus of what it means to be an Israeli, respecting the rights or trumps of individuals to be different while safeguarding the ethos of public discourse. In Torah, the rule of a public and rational law, which in its canonical, Dual Torah version, recognizes no political elites or hierarchy, which empowers the little person with the knowledge that is needed to protect hers or his rights, and which distinguishes between loyalty gestures and sanctifying commandments.

The Jewish people do have a constitution, and it is the Torah. In this Torah we are ruled by a rule of law and principles, not by a rule of people, the mob, or partisan parties, be they of the Right or Left. A rule of law is a rule of the canon, not judges and not even rabbis, unless they are stting as a plenum in the Sanhedrin. Rabbis are ordained to offer their most convincing reading of the rules, but may not misstate, misrepresent, or confuse partisan policy with covenantal law. If Israel is ever to accept the Torah as its constitution, Torah leaders must demonstrate that their commitment is to God and Torah, not to community, convention, accepted and expected opinion, or the positions that must be taken in order to preserve one's status in the community. Reasoned demonstration, grounded in a convincing reading of the canon, is religiously binding. Appeals to their intuitions, spirituality, private and "tradition" that is not cited in the canon is not. The Daas Torah, or Torah opinion that is echoed in the text of the holy book obliges. The Daas of the person who claims to be a Torah person, without recourse to the canon itself, does not oblige.

If the Israeli Supreme Court really wishes to assert its legitimacy, it would do well to subject itself to democratic review. It must interpret the law as it stands, and not invent the law that it would prefer. It must reify the values of the society over which it presides rather that mold, as an intellectual minority, that society into an alien image. One cannot respect the rights of human beings by ignoring their politics, biases, legislated laws, and historically conditioned mores.

As a first move to sanctify the Israeli polity, the rights of all individuals must be protected, including dissidents, including the Orthodox. For this end, a Constitution is needed. But just as we protect the rights of all, eschewing coercion, the polity must protect the rights of all minorities, including dissidents, including those for whom the Secular Enlightenment and the Sinai Compact are not convincing. Constitutions must be acceptable in order to be accepted. Only in a culture of reasoned discourse will a Jewishly authentic Israeli consensus and constitution emerge. Orthodoxy in Israel would be strengthened by allowing dissidents the right to be wrong. Orthodoxy has no monopoly on conscience. The best way to protect the Orthodox conscience is to allow freedom of conscience to all, as long as a person's freedom of conscience does not impinge on the freedom of another.

The American Constitution and Torah law share a critical quality. They both enshrine rights in their legal orders. A right is, in the American system, a trump of the individual against the consensus of the majority. Many Orthodox spokespeople claim that Judaism is a religion of obligations and not rights. This claim is factually wrong. Where the law is silent, the individual has the autonomous right to make a choice. In modern Hebrew, this concept is called zechut, while in classical rabbinic Hebrew, it is called rashut. Following Bet Yosef Yoreh Deah 1:1, if an act is not forbidden it is permitted. While it is true that some argue that an act "must" be forbidden if has not been seen in practice, this position contradicts the canon itself, in mEduyot 2:2. By denying the sanctity of rashut, of authorized choice, these Orthodox spokespeople deny in practice the integrity of the system to which they appeal for their authority.

The Kotsker Rabbi Menachem Morgenstern suggested that when we do our Judaism to impress people, we are idol worshippers, and when we do our Judaism to become sanctified by conforming to the divine recipe, we are serving God. We can only serve God because we carry the image of God, which is the ability to make correct moral choices. The rejects the rule of people who are fickle in favor the rule of an unchanging divine law, written at first in stone. Whoever tampers with Israel's authentic, right granting constitution, does not speak for Torah, the Jewish people, or Jewish destiny.

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