Making sense of the sedra: Shoftim
Is there a Jewish way to rule?
The first two words in this week’s reading, Shoftim, are unequivocal: “Set for yourselves judges and police in all your gates…”. But is traditional – if ancient – law really practical in a modern setting, more than 1650 years after the last meeting of the last Sanhedrin took place?
Two thousand years of exile, followed by a 75-year interlude of part-secular, part-religious legal jurisdictions in a secular state created for a religious Jewish identity can leave one a little confused on the matter when it comes to the State of Israel.
What is Israel? A secular state infused by Hebrew law, with modern expressions of an ancient regulations? Or a state committed to its Jewish character which, unless restrained, will take us towards a halachic state unliveable to some or even most of its citizens?
Modern Israeli law has evolved as a pot pourri of legal content and ongoing input ranging from hardcore Shulhan Arukh to British era emergency laws, and peppered with remnants of Ottoman land regulations. Is this still a viable way forward? Is there any way forward for a diwan, the Arabic Middle Eastern term for jurisdictional management, in purely Jewish terms, particularly in a Jewish state?
Recently I spent an hour in the Jerusalem home of leading Israeli legal authority and scholar Dr Michael Wigoda. I asked him whether Israel could become a state run on the precepts and practices of halacha (traditional Jewish law). Dr Wigoda responded in a very Jewish manner, with another question: “What do you mean by a halachic state? If it means that rabbis are prepared to confront the problems of the times in which we live and address them, then perhaps yes. But as long as rabbis such as those in Israeli rabbinical courts avoid making decisions by referring matters requiring creating rabbinic solutions to the secular courts, then there is no point in trying to determine what makes a halachic state.”
As an example, Dr Wigoda cited inheritance law. Whereas rabbis in Morroco settled the matter of females inheriting by passing a decree that they should inherit in equal manner to males, this not been followed by the Israeli rabbinate, who have the authority to issue such decrees but from which they have consistently refrained.
Dr Wigoda proposed that rabbinic establishments such as the convening Bet Din exercise the authority to make decrees. In over 75 years, he revealed, the rabbinate in Israel had only made two. The underused instruments of law-making result not from jurisdictional impotence, but from a characteristic unwillingness to decide.
I am now on a journey in Wigodean territory fumbling to find my own bearings to these big questions. The next stage is for me, in the company of lawyers from other traditions, religious or not, to visit and spend time at the courts in Israel, to check out the modus operandi of these institutions, and see what role ancient religious law and ethics play in a modern state. Until then, the words to Torah echo persistently: that judges and justice must be equally accessible in all gates, no matter where or for whom.
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