Israel: Torah Law or Secular Law?

Since the establishment of the State of Israel, its leadership has been confronted with the question of whether Israel should be a “Jewish State” or a “State for Jews”. This question speaks to the essence of Israel’s identity. A Jewish State would incorporate much of Judaism’s religious tradition into its institutions and legislature. A State for Jews, on the other hand, would mainly be a secular haven for Jews, with only a minimal incorporation of Jewish values and laws.

One of the most fascinating voices to enter this debate, long before the State’s establishment, was Rabbi Yitzchak Isaac Herzog (1888–1959), Chief Rabbi under the British Mandate and later for the State of Israel. A brilliant Talmudic and legal mind and a religious Zionist, Rabbi Herzog hoped to create a halachic system compatible with the realities of a secular society.

To this end, he consulted with one of the greatest halachic authorities of his time — Rabbi Chaim Ozer Grodzinski (1863–1940), head of the Council of Torah Sages in Europe and a leading figure in the non-Zionist ultra-Orthodox world. Rabbi Herzog anticipated that Rabbi Grodzinski would offer a model in which Torah law would be supreme, while still allowing secular citizens to live as they chose. To his surprise the answer of Rabbi Grodzinski was very different.

A Dual Legal System?

Rather than insisting that Israel conform entirely to halacha, Rabbi Grodzinski proposed the creation of two parallel judicial systems: a rabbinic one which would follow the laws of the Torah, and a civil judiciary based on secular principles and the needs of the broader population. This secular track would also include laws which deviated from Jewish religious law.

For Rabbi Grodzinski, this wasn’t a concession to modernity, but something grounded in the Jewish tradition itself.

To support this approach, Rabbi Grodzinski cited Rabbi Nissim of Gerona (the Ran, 14th century Spain), who distinguished between two types of law within the Torah: Torah Law (mishpat ha-Torah) on the one hand, and the Law of the King (mishpat ha-melekh) on the other. [1]

This week’s parasha supports this idea:

Shoftim, judges, and Shotrim (Magistrates) shall you appoint in all your gates… and you shall judge the people with righteous judgement …. Justice only justice shall you pursue, that you may live and inherit this land which the Lord your God gives you…. (Devarim 16:18-20).

According to the Ran, this refers to two distinct judicial systems–One governed by halachic courts according to Torah Law and judged by the Sanhedrin, the supreme rabbinical court of ancient Israel, and a seond one governed by the King, empowered to legislate in areas not covered by Torahic law, or where the Torah’s approach proved impractical for governance.

This second judicial system is the law of the King. It is mandated by the Torah itself, which says: “When you come to the land…. You may (or must) set a king over you” (Devarim 17:14-15). To appoint a king was a practical decision, creating a framework to deal with legal issues that are not covered by Torah law. The King had the right—and the duty—to intervene when Torah law left a void, or when public safety and order required more specific measures.

The Torah Is Not a Civil Constitution

The Ran brings a penetrating insight:

If transgressors are punished only in accordance with Torah Law, the political order will be destroyed altogether as those who spill blood will multiply and not be deterred by any punishment.[2]

Torah law, he explains, is focused on creating an ideal religious society, not a political state. Its ideal is a people living in the overarching presence of God. But people do not always live up to this lofty standard. Thus, a separate legal authority — the King — is necessary to preserve order and justice in the civic realm.

Rabbi Grodzinski expands this:

According to the Ran with regards to thefts and robbery and other types of crimes, the law of the monarch was granted a special status distinct from the religious court. For truly it would be most difficult to proper functioning of society if a thief could acquit himself through double compensation alone as required by Torah law… and those who confessed to a deed bearing a fine were exempt entirely (of any other punishment and set free), in accordance with Torah law. Thus, in such matters one is forced to enact special state ordinances. [3]

The Torah, in this model, deliberately avoids prescribing every legal detail for social governance. Instead, it delegates these matters to human realm — originally the King, and in later days, in his absence, the rabbinical courts themselves.

Legislating for flexibility

The fact that the Torah did not make allowances for societal laws and institutions was not a mark of negligence, says the Ran.

The Ran’s opinion was that the Torah deliberately did not want to include these measures, according to the principle that the Torah was given into the hands of humanity and is “no longer in Heaven”.

This, according to the Ran, was the task of the King.

But even more important is the fact that circumstances in an evolving society constantly change, requiring new legislation. It would be entirely impractical and not feasible for the Torah to discuss all these eventualities.

This pragmatic flexibility is found in the Torah itself. When Moshe struggled to adjudicate all disputes alone, it was Yitro, his Midianite father-in-law, who advised him to delegate judicial authority. [4]

The Ran notes something striking:

For this reason, it is possible that in some of the laws and statutes of the nations, there are things which come closer to correcting the political system than do some of the laws of the Torah. [5]

In other words, non-Jewish legal systems may offer wisdom in areas the Torah left unresolved. This is not a denigration of Torah law, but a recognition of its Divine purpose: to elevate human existence, not to micromanage civic administration.[6]

Yet we lack nothing for all that is missing in this respect would have been supplied by the King. But we have a great advantage over them for the laws of Torah are innately just….. They are a Divine out pouring that is lavished upon us.” [7]

The Ran is making two points: First, whenever the social laws of the nations are superior to Jewish law, it is caused by the absence of the King who would have supplied these laws. Secondly, the purpose of Torah law is to provide an ideal framework for living religiously in the presence of God. It is not a socio-political institution for day-to-day life but a supreme expression of Divine love. Many of the commandments are not concerned with the social order. God left their implementation in the hands of the King.

Secular Law as Torah Law?

Surprisingly, the Ran concludes that the appointment of a King was not merely tolerated, but mandated by the Torah — specifically to create a framework for secular law when necessary. This secular law is not outside Torah; it is a component of it.

In the absence of a king, the Ran says, these powers devolve to the judiciary or governing authority. This empowers rabbinic courts or legislative bodies to create laws for the public good — even if those laws go beyond what the Torah prescribes.

But what if the King sees the need to contradict Torah law? It seems that the tradition makes a distinction: If the law is a temporary measure, addressing an emergency or unique circumstance, it falls under the category of hora’at sha’ah (temporary necessity), and could be permitted.

If the law is a permanent override of a Torah prohibition, it is not permitted although there seem to be cases which will for a long period of time be considered hora’at sha’ah.

The example of David and Bat Sheva

A famous example is the case of David and Bat Sheva. When Nathan the prophet asked King David what should be done in the case of a rich man who stole a poor man’s only lamb. David, incensed, declares that the rich man should be liable to the death penalty. Nathan then accuses David and tells him: “You are that man”.[8]

Interestingly enough, Nathan frames this case as one of theft, not of adultery.[9] The Torah does not prescribe the death penalty for theft, but only monetary compensation. So how could David decide that the man was deserving of the death penalty? The answer is that David, as the King, was allowed to enact the death penalty because the thief had done much more than steal; this was an outrageous crime—a rich man stealing from a poor man!

Later Jewish courts used similar measures. After the monarchy ended, rabbinic courts began exercising powers that exceeded Torah law — including corporal or capital punishment in cases where the Torah would not mandate it. [10]

This flexibility came with one major condition: even the King is not above the law. The Torah commands that a Jewish King must write his own Sefer Torah and carry it with him at all times — in court, in battle, in private. His personal humility and submission to Divine law were non-negotiable.[11]

In this manner, the Jewish model of kingship sharply diverged from the autocratic models of the surrounding nations. The King is not a sovereign above the law, but a servant of it.

Rabbi Herzog’s Objection

Despite Rabbi Grodzinski’s halachic precedent, Rabbi Herzog ultimately rejected his proposal. He offered two reasons: First, he was deeply familiar with the British legal system with its distinction between common law and equity laws, and foresaw immense complications in operating two distinct legal systems under one authority. [12]

Second, Rabbi Herzog disagreed with the Ran’s premise that Torah law is unconcerned with social welfare. For him, it was unthinkable that the Torah would establish a legal framework requiring “secular” supplementation. He preferred the Rambam’s model, which envisioned a unified halachic system incorporating both religious and civic laws under one roof.[13]

Pragmatism and Messianic idealism

But beneath this halachic disagreement was a deeper ideological divide.

Rabbi Herzog was a religious Zionist, who saw the establishment of the State of Israel as a Divinely ordained step toward the messianic redemption. The State was sacred; therefore, its laws must be rooted in uncompromised Torah.

Rabbi Grodzinski, by contrast, was not a Zionist. He did not ascribe redemptive significance to the State of Israel. For him, it was simply a State for Jews — not a Jewish State. And so, he had no problem allowing it to operate under secular law when needed as long it would follow the model of the Ran.

And so, a paradox emerged: The more modern, Zionist rabbis like Rabbi Herzog were stricter about preserving untainted halacha in the public sphere. The ultra-Orthodox, who were generally more resistant to Zionism, were often more flexible — willing to accept secular legislation for the sake of practicality.

To this day, this divide persists. While ultra-orthodoxy will not waver on principles of religious life, they are in some ways more accommodating in relationship to secular Israeli society because they are not burdened by messianic overtones. [14]

What began as a halachic conversation between two rabbis before the founding of Israel has become a defining tension in Israeli society. And beneath it lies the question Parashat Shoftim forces us to ask again and again: Can a State be both Jewish and democratic? Or are we still learning how to balance the law of God with the realities of the kingdom?

Notes:

[1] See in particular Drashot HaRan, D’rashah 8.

[2] Ibid.

[3] See: Yitzchak Isaac Herzog: Techukah le Yisrael al pi HaTorah, (Hebrew) Mossad Ha-Rav Kook, 1989. p 75.

[4] See Shemot chapter 12.

[5] D’rashot haRan. D’rashah 8.

[6] Tekuchah le Yisrael. See also the Ohr Hachayim ad loc

[7] D’rashot haRan, D’rashah 8.

[8] 1 Shmuel, 11, 12.

[9] Some of the sages of the Talmud suggest that David had actually not committed adultery with Bath Sheva since she was already divorced from her husband before David took her. See Shabbat 55a,b.

[10] See Rambam, Mishne Torah, Hilchot Sanhedrin 24:4.

[11] See Devarim 17.

[12] Rabbi Herzog wrote a two-volume classic: The main Institutions of Jewish Law (Soncino 1939), in which he compared Jewish Law to Roman and British Law. Regretfully he died before he could complete this work.

[13] See Guide for the Perplexed, part 2 chapter 40; part 3 chapter 27 and Mishne Torah, Hilchot Melachim, 1,3,10,11,12, Hilchot Geneva 5, Hilchot Sanhedrin 2.

[14] The famous and controversial orthodox thinker Professor Yeshayahu Leibovitz (1903-1994) stated on many occasions that he did not believe that the State of Israel had any religious meaning. He warned that the Zionist religious parties were entirely wrong to give it any religious status, and on that basis to decide their political views. See his Judaism, Human values and the Jewish State, (Harvard University Press, 1992). I believe that the chances are great that one day an ultra-orthodox prime minister in Israel will, based on the Ran, find a way for a proper relationship between the orthodox and the secular Israeli community which will remove much of the animosity between the communities.