I. The Jewish Idea
R. Meir Kahane was a powerful speaker and charismatic leader but was he right? Setting aside the politics and rhetoric, were his ideas the only legitimate Torah views, as he often claimed? While he wrote prolifically during his lifetime, his magnum opus, Or Ha-Ra’ayon, was published posthumously in Hebrew (English translation). I would like, in a series of posts, to review specific themes in this book and compare with traditional sources and the writings of other twentieth century rabbinic thinkers.
R. Kahane’s book is laced with his harsh rhetoric. He tolerated no dissent and viciously attacked opposing views. I hope to set all that aside and discuss the merit of his ideas, with one exception as we will see below. The first topic is Democracy, and I will be specifically comparing R. Kahane’s analysis with those of R. Eliezer Yehudah Waldenburg (in his Responsa Tzitz Eliezer and Hilkhos Medinah), R. Shaul Yisraeli (in his Amud Ha-Yemini) and R. Shlomo Goren (in his Toras Ha-Medinah).
II. Democracy Isn’t Kosher
R. Kahane strongly opposed democracy as contrary to the Torah. If the public determines the law, it can easily establish rules that deviate from the Torah (Or Ha-Ra’ayon, p. 291). While this may please the public, it does not fit God’s plan for the Jewish nation. Rather, democracy is a foreign import, a gentile concept improperly grafted onto Judaism.
R. Kahane argued (p. 288) that the idea that people give the government the right to rule in their name leads to the concept that people may not reject a government decision. In this secular-national concept of a government, the people are supreme. However, the Jewish nation is governed by the Torah, not themselves.
Additionally, the Israeli government currently consists largely of non-religious Jews. However, R. Kahane notes (p. 294), the Rambam (Mishneh Torah, Hilkhos Melakhim 1:7) rules that only someone who fears God may be appointed to a public position. Additionally, the Gemara (Sanhedrin 26a) rejects decisions made together with wicked people as the product of a “kesher resha’aim,” a wicked union (pp. 57, 291-292). Therefore, a democratically elected non-religious government is inherently invalid and its decisions against the Torah are null and void.
Rather, R. Kahane insisted, the proper Jewish government is as the Torah commands, a monarchy: “You shall surely appoint a king on you” (Deut. 17:15). Described throughout the Bible and codified as law by Maimonides, this divinely ordained form of government is the only proper way to govern a Jewish country. Since we currently lack a prophet to appoint a king, R. Kahane suggests we instead appoint a nasi (regent) to rule like a king.
III. Theoretical Challenges
R. Kahane’s view and presentation runs into problems on the theoretical, biblical, commentarial, talmudic and historical planes. Let’s take them one at a time. R. Kahane rejects democracy because it allows the government to pass laws contrary to the Torah. However, this objection is insufficient to reject democracy entirely because there is a democratic alternative which resolves this problem: a constitutional democracy in which the democratically elected government is unable to pass laws contrary to its Torah-based constitution. Indeed, the Torah scholars who support a democracy generally do not support the laws passed contrary to the Torah. You can support democracy and still object to those laws.
Additionally, this same objection can be raised equally against the institution of monarchy. As we see from the times of the Bible and the Second Commonwealth, Jewish kings often established rules contrary to the Torah. Monarchy is certainly no safeguard against government misconduct.
IV. Biblical Trouble
One of R. Kahane’s frequent rhetorical devices is to label views with which he disagrees as gentile attitudes. Because of his rhetorical style, I would not point it out in our context if not for the irony. The only government system that the Bible explicitly calls gentile is monarchy: “And you will say, I will appoint on me a king like all the nations around me” (Deut. 17:14). Calling democracy a gentile form of government when the Torah applies that label to monarchy, and failing to address that issue, is in my opinion a serious lacuna.
However, even more significant is the failure to address the prophet Shmuel’s criticism of the Jews when they asked for a king (1 Sam. 8). If monarchy is the ideal form of government and divinely mandated, why did the prophet object when the people wished to appoint a king? This is not an obscure question. The literature surrounding it runs deep in our commentarial tradition. Yet R. Kahane fails to address it. This is particularly grave because R. Kahane leans toward citation of primary texts–Bible and Talmud–and quotes commentaries and codes sparingly. This magnifies the absence of this key biblical passage on monarchy.
V. Commenting on the Bible
R. Eliezer Waldenburg (Hilkhos Medinah, vol. 1, 3:1) surveys the commentarial approaches to Shmuel’s apparent objection to appointing a king. Quoting from a wide spectrum of sources, he shows the varying attitudes to this subject. In particular, R. Waldenburg cites the important views of Rabbenu Nissim (Ran) and R. Yitzchak Abarbanel.
Ran (Derashos Ha-Ran, no. 11) argues for a separation of powers between the courts and the king. The courts legislate based on Torah law while the king leads wars and exercises extra-judicial power in unusual circumstances that require special attention. In the absence of a king, the courts perform both functions but the king can never fulfill the courts’ mandate. According to Ran, the Jews erred in asking from Shmuel a king who will serve in the courts’ role.
Abarbanel (commentary to Deut. and 1 Sam.) sees the appointment of a king as a concession to frail human nature, a sub-optimal arrangement the Torah allows but does not require. Absolute power is subject to easy abuse. While the Torah establishes a few safeguards to prevent a king from deviating from propriety, it cannot guarantee a king’s goodness and indeed history has proven the probability of a wayward king. The Jews should never have asked for a king and Shmuel was correct in his objection to their request.
Abarbanel’s rejection of monarchy as an ideal and Ran’s preference for a limited monarchy are far cries from R. Kahane’s insistence that the Maimonidean framework of mandatory monarchy is the only legitimately Jewish approach.
R. Waldenburg ends his summary of the different commentarial views by citing the Shelah‘s contention (on Deut.) that Rabbenu Nissim’s view is most preferable. R. Shaul Yisraeli (Amud Ha-Yemini, 7:5) also adopts an element of Ran’s approach.
On the other hand, the Netziv (Ha’amek Davar, Deut. 17:14) adopts an approach somewhere between Rambam and Abarbanel. Noting the Torah’s unusual language implying that the obligation to appoint a king is contingent on the people asking for it, Netziv suggests that Jews can choose whichever type of government they prefer. Not every government is appropriate for every time and place. Therefore, Jews should look around at other nations’ governments and decide which form works best for them. If it is a monarchy, then–and only then–they are commanded to appoint a king.
VI. Talmudic Debate
R. Kahane presents the obligation to appoint a king as a straightforward verse in the Bible and commandment listed by the Rambam. However, the Talmud (Sanhedrin 20b) presents a debate over whether there is an obligation. According to R. Yehudah, there exists an obligation to appoint a king. However, according to R. Nehorai (as explained by Rashi), there is no command to appoint a king but if the people do so, the Torah limits the king’s rights in specific ways.
Additionally, R. Kahane fails to cite talmudic examples of democracy. R. Shlomo Goren (Toras Ha-Medinah, ch. 5) begins his discussion of Jewish self-government by citing the talmudic requirement for appointment as a public official–prior public consent (Berakhos 55a). This, R. Goren argues, is an example of democracy in the Talmud. The public as a whole must choose its officials.
R. Eliezer Waldenburg (Tzitz Eliezer, vol. 2 nos. 22, 23; Hilkhos Medinah, vol. 3, 3:1) quotes from the Mishnah and Gemara (Bava Basra 7a, 8b) that townspeople may force each other to pay taxes for communal needs and follow regulations regarding business conduct. Rabbenu Tam (quoted inMordekhai, Bava Basra 480) explains that this is done through the “seven high-ranking townsmen” (shivah tuvei ha-ir) who are appointed by the community. As the Talmud Yerushalmi (Megillah 3:2) makes clear, whomever the townspeople appoint as their leader may act on their behalf and for their benefit, but generally it consisted of seven officials. These elected officials are allowed to establish laws and taxes, and buy and sell public property. These are all legitimate forms of democratic self-government.
VII. Democracy in Jewish History
R. Kahane’s suggestion of appointing a nasi until we can appoint a king is clearly based on the talmudic precedents of Rabban Gamliel and others. Their political leadership under the title nasi serve as excellent historical basis for any contemporary leadership. Similarly, the institution of reish galusawas a single leader who ruled over his subjects with the power allocated to him by the secular government.
However, Jews also governed themselves in another way. The model of “seven high-ranking townsmen” served Jews well for centuries. In Poland, the Council of Four Lands (Va’ad Arba Aratzos), consisting of seventy delegates from local communities, governed Jewish communities for nearly two hundred years. In other words, the community appointed representatives to govern based on the acceptance of community members.
R. Avraham Kook (Mishpat Cohen 144:15a) proposes that any leader or form of government Jews accept on themselves functions as a monarchy, a position that R. Shaul Yisraeli (Amud Ha-Yemini, no. 7) attempts to bolster with sources and arguments. However, Maharam Schick (Responsa, Orach Chaim 34) explains that members of a community join together as partners. The government they select serves based on the community members’ consent in the partnership. Regardless of the reason why, the responsa literature is clear that the decisions of communal governments such as the “seven high-ranking townsmen” are binding on all community members (e.g. Responsa Rashba 1:769;Responsa Rosh 6:19; Responsa Rashbash 566; Rema, Choshen Mishpat 163:6).
VIII. Representative Government
R. Kahane objected to the idea that people give the government the right to rule in their name. As we saw above, this is contradicted by the example of the “seven high-ranking townsmen.” When we examine the underlying concept of monarchy, we find something even more surprising.
The Chasam Sofer (Responsa, Orach Chaim 208) argued that a king is allowed to execute those who rebel against him through consent of the governed at the time of his appointment. R. Shaul Yisraeli (Amud Ha-Yemini, no. 9) and R. Shlomo Goren (Toras Ha-Medinah, ch. 5) built on this idea and argued that any government appointed by the populace governed retains the right to punish and legislate for the same reason as a monarch. The people empower the government.
IX. Non-Religious Representatives
In response to another issue R. Kahane raised, let us look at R. Waldenberg’s response to the question of whether religious Jews may serve in the Knesset if they know the non-religious majority will outvote them. In Hilkhos Medinah (vol. 3, 3:3), R. Waldenberg reproduced precisely this question as asked him by S.Z. Shragai and a lengthy reply. R. Waldenberg rejected all possible precedents–including that of kesher resha’im–because the Knesset will pass laws with or without the participation of religious representatives.
Additionally, the religious representatives object to legislation that runs counter to Judaism. This rebuke serves to disassociate them from the kesher resha’im.
Furthermore, R. Avraham Kook (Iggeros Ra’ayah 6, 9) writes that non-religious Jews today must be considered exempt from liability for their sins. They are tinokos she-nishbu due to their lack of proper education in religious Jewish ways and cannot be considered wicked.
And finally, refusing to serve in the Knesset with non-religious Jews or to allow them to serve at all would generate immense hatred and cause a tremendous rift in the Jewish people.
(Reposted from here: link)
