REVIEW: State of Halakha
Aviad Tabory, State of Halakha: Israel’s History in Jewish Law (Maggid, 2023), 284 pages.
Thinking of halakha in a governmental context can evoke reflexive unease for the modern Jew. For millennia, halakha functioned in the local milieu, operating in personal spheres of self, family, and community. Though communal infrastructures practically ensured members adhered to halakhic norms through threats like excommunication, Jews essentially maintained the right to live as they pleased — facing social consequences, not legal ones. With the establishment of the State of Israel, that was subject to change.
The Jewish State introduced previously unimaginable questions for halakha and Jewish religious life — most relevantly in terms of statehood and governance: How, if at all, would halakha operate in the Jewish State? How could a modern army, airline, healthcare system, judicial system, to name but a few, align themselves with Jewish ethics and halakhic norms? Could, and should, religious obedience be compelled by the government?
Answers to such questions are explored in recent contemporary English books like Asaf Yedidya’s Halakha and the Challenge of Israeli Sovereignty (Lexington, 2019) and Alexander Kaye’s The Invention of Jewish Theocracy (Oxford, 2020) [read Chaim Saiman’s review of these books in TRADITION (Fall 2021)]. R. Aviad Tabory’s latest work, State of Halakha: Israel’s History in Jewish Law, however, pursues a very different goal.
I ventured into State of Halakha expecting another theoretical and ideological commentary on the State of Israel’s religious character, namely to what extent it does, or should, operate by halakha. That was not the case (though its back cover blurb may indicate otherwise). Instead, the scope of this work is best understood through its subtitle: Israel’s history in Jewish law.
Across 34 chapters, Tabory journeys through 71 years of Israeli history (1948-2019) and visits relevant halakhic questions that emerged around landmark events: Israel’s establishment on May 15, 1948 (Iyyar 5) raises questions of Yom HaAtzmaut’s religious significance and the possibility of celebrating the day earlier (as we often do); the 1904 passing of Zionism’s father, Theodore Herzl elicits a conversation about religious views on secular Zionism; the 1976 Entebbe Raid explores the moral dilemma of prisoner-terrorist exchanges; and Israel’s 2005 disengagement from the Gaza Strip becomes a stage for whether synagogues may be destroyed.
Early in my reading, I felt like I was examining Israeli history through the lens of Rabbi Soloveitchik’s Halakhic Man — a worldview masterfully formed by halakha’s meticulous hands. After each chapter’s brief but well-rounded historical introduction, Tabory ventures into the central topic, usually beginning with Biblical and Talmudic passages, touching upon Rishonim, and surveying relevant rabbinic responsa. Though the halakhic questions raised are not exhaustively discussed — the topics in many chapters could be expanded to book-length works — State of Halakha succeeds in providing thorough and concise snapshots that prompt readers’ further study and deepen their relationship to Israeli history.
There are several sound examples.
Israel’s 1961 capture of Nazi war criminal Adolf Eichmann established Israel as the defender and avenger of world Jewry. Tabory uses it to undertake a broader discussion of bringing murderers to justice. The entire chapter, like its others, smoothly surveys diverse sources of classical and contemporary rabbinic works. He begins with the case of go’el ha-dam (“the blood redeemer”) — the relative of a manslaughter victim who seeks to “redeem” the accidental killing — and whether he is compelled or permitted to chase down the killer, a question of practical significance in a unique case after the 17th-century Khmelnitsky massacres. Tabory pivots to establish Eichmann’s responsibility by debunking the infamous Nazi defense — by halakhic standards — of “just following orders” and concludes the chapter addressing the death penalty. He ends, having surveyed various rabbinic opinions at the time of the Eichmann trial, saying “ based on Jewish law, the Israeli government has the right and obligation to bring murderers of the Jewish people to justice and, if need be, to put them to death” (50).
In that chapter, Israel was not seeking to act based on halakhic input, so Tabory’s discussion operates more as a thought experiment than a halakhic policy prescription. 12 years after the Eichmann Trials, however, the 1973 Yom Kippur War struck Israel — and here, halakha appears to inform Israel’s military protocol given the role of its military. Tabory’s focus concerns whether warfare and burying a dead body (are permitted on Shabbat and Yom Tov, assuming pikuach nefesh is not at play. Related decisions by R. Shlomo Goren — who appears frequently in the book — more substantively engage the reader since the question’s conclusion is grounded in reality.
Other chapters deepen the readers’ relationship to Israeli history by covering events dominated by halakhic discourse at the time. In one chapter, Tabory tends to the 1994 massacre of 29 Muslim worshippers by Jewish terrorist Baruch Goldstein and the response by Israel’s diverse rabbinic leaders. While featuring words from Israeli chief rabbis and notable roshei yeshiva, Tabory spotlights the outrage expressed by R. Aharon Lichtenstein at other rabbis’ silence over Goldstein’s carnage and R. Dov Leor’s defense of Goldstein’s character. The latter half of the chapter loosely discusses rabbinical responses to Jews killing Arabs in the 1930s after the Hebron Massacre and contemporary works relevant to Israel today. (I must note that this chapter’s title — “May One Take the Law into One’s Own Hand?” — and its occasional usage of the word “vigilantism” were inappropriate choices in the context of Goldstein. Both imply that the law was enforced in these cases without proper authority; in fact, these are indefensible acts of murder — no justice or law was carried out.)
Readers can expect a broad palate of halakhic words, sources, and ideas, leaving the inquisitive mind filled with avenues to independently explore further. A second strong advantage is Tabory’s willingness to confront difficult realities in Israel’s history, such as the Goldstein massacre, trading land for peace, and even Israel’s 1982 siege of Beirut.
With all the book’s contributions, however, I was disappointed that it did not take on the most important and interesting question facing many readers: What is the halakhic status of the State of Israel itself? The closest Tabory comes to this is in chapter 24 concerning the assassination of Prime Minister Yitzhak Rabin and “the status of a head of state.” Important discussions remain around halakha’s relationship to democracy, its ideal for governance, stance on the government’s religious makeup, and so on. One could even extend the question further to ask at what point is “conquering” the Land of Israel completed, and what, in fact, makes a state “Jewish”? A Jewish majority? Self-identifying as Jewish? Those questions remain unanswered and could be answered following Tabory’s current formula.
Other areas that could have been explored include Israel’s arms dealing in general and with the country’s abusing human rights; international norms and dina di-malkhutcha dina; and the question of Sabbath observance in the public sphere (public transportation, business and entertainment venues), another recurrently relevant question.
Four years past Tabory’s 2019 frame of reference, new considerations emerge that beg halakha’s perspective. Would halakha allow, as in the case of Naftali Bennett’s governing coalition, a non-Jewish party’s inclusion? How do public health crises — as with COVID-19 — inform governing power into citizens’ religious lives? Should Tabory continue this creative undertaking, perhaps he might explore those, too.
The most fascinating lesson gleaned from Tabory’s State of Halakha is that halakha always has something to say. And in Israel’s case, we have the ability to listen.
Sruli Fruchter is a rabbinical student at the Rabbi Isaac Elchanan Theological Seminary and an editor and project manager for 18Forty.