MARCH/APRIL 1978 VOL. 45, NO. 3 CONGRESS A Journal of Opinion and Jewish Affairs MONTHLY

The Rights of the Individual Under American, Israeli, and Halakhic Law

The JQth

American- Israel Dialogue

Zalman Abramov / Paul Berger / Leona Chanin / Haim Cohen / Irwin Cotler / Yitzhak Englard Zeev Falk / Ruth Gavison / Ruth Bader Ginsburg / Daniel Goldfarb / Simon Greenberg Gideon Hausner / Arthur Hertzberg / Lionel Kestenbaum / Pnina Lahav / Nathan Lewin Aharon Lichtenstein / Harriet Pilpel / Louis Rabinowitz / Emanuel Rackman / Amnon Rafael Amos Shapira / Howard Squadron / Richard Stone Edward Weinfeld / Jack Weinstein / Yitzhak Zamir s .?r:׳ ן• / ;:re - י,: t:CiM יש, .י• e in L i b r a r y י! י; u יי י B VOL. 45, NO. 3 MARCH/APRIL 1978

Opening Session Of Jewish Identity and Unity The 13th American-Israel Dialogue Arthur Hertzberg 3 The Halakhic Perspective Aharon Lichenstein 4 Second Session PARTICIPANTS Discussion 8 ZALMAN ABRAMO V, former member of Israel' s Knesset, is an attorney and the author of Third Session Perpetual Dilemma: Jewish Religion in the Jewish State. Israeli Law and the PAULBERGER, Washington, D.C. attorney, is co-chairman of AJCongress' National Rights of the Individual Governing Council. Haim Cohen 14 LEONA CHAN1N is president, National Women's Division, AJCongress. 17 Discussion HAIM COHEN is an Israeli Supreme Court Justice. Fourth Session IRWIN COTLER teaches law at McGill University, Montreal. American Law & Halakhah: YITZHAK ENGLARD is professor of law, Hebrew University, Jerusalem. Of Change and Permanence ZEEV FALK is professor of law, Hebrew University. Richard Stone 21 RUTH GAVISON is with the research department, Israel Ministry of Justice. Discussion 24 Fifth Session RUTH BADER GINSBURG is professor of law, Columbia University, and general counsel, American Civil Liberties Union. Discussion 28 DANIEL GOLDFARB is with the research department, Israel Ministry of Justice. Sixth Session The Women's Movement SIMON GREENBERG, rabbi, is vice-chancellor and vice president of the faculties, Jewish Leona Chanin 32 Theological Seminary, New York. Discussion 34 GIDEON HAUSNER, attorney, is a member of the Knesset.

ARTHUR HERTZBERG, rabbi and adjunct professor of history, Columbia University, is Copies of this issue are available for president, AJCongress. purchase. Individual copies, $1; 11-25 copies, 850 each; over 26 copies, 700 LIONEL KESTENBAUM is a Washington, D.C. attorney. each. Order from CONGRESS MONTHLY, 15 E. 84th St., New York, PNINA LAHAV is professor of law, Hebrew University. N.Y. 10028. NATHAN LEWIN is a Washington D.C. attorney. AHARON LICHTENSTEIN, rabbi, is head of Yeshivat Har Etzion.

HARRIET PILPEL is a New York attorney. LOUIS RABINOWITZ, rabbi and chairman, research department, Encyclopedia Judaica, CONGRESS is Deputy Mayor of Jerusalem. A Journal of Opinion and Jewish Affairs EMANUEL RACKMAN, rabbi, is president, Bar Ilan University. AMNON RAFAEL, Ph.D., is a Tel Aviv attorney. AMOS SHAPIRA is associate professor, Faculty of Law, Tel Aviv University. MONTHLY HOWARD SQUADRON, New York attorney, is senior vice president, AJCongress. Editor Associate Editor Herbert Poster Eva Zucker RICHARD STONE is professor of law, Columbia University. EDWARD WEINFELD is U.S. District Court Judge, Southern District of N.Y. CONGRESS MONTHLY is published monthly September through June by the JACK WEINSTEIN is U.S. District Court Judge, Eastern District of N.Y. American Jewish Congress, 15 East 84th YITZHAK ZAMIR is Dean, Faculty of Law, Hebrew University. Street, New York, N.Y. 10028. Entered as second class matter at the Post Office in New York, N.Y. Indexed in Index to In this special issue of CONGRESS MONTHLY we publish the proceedings of the Jewish Periodicals. 13th American-Israel Dialogue, sponsored by American Jewish Congress and held at Subscriptions: $5.00 one year; $9.00 two the Van Leer Institute in Jerusalem, July 5-8, 1977• The coordinator of the Dialogue years; $ 13.00 three years. Add $ 1.00 per was Phil Baum, associate executive director, AJCongress. Richard Cohen, associate year outside North America. Single copy executive director, AJCongress, served as press officer for the Dialogue. 600. ofgjgjfcba 412

2 CONGRESS MONTHLY Tuesday Morning Opening Session July 5, 1977

The opening session of the Thirteenth American-Israel Dialogue began with the less. He has all the rights in the world and session s chairman, Rabbi Arthur Hertzberg, introducing Joel Sussman, Chief Justice may, in this conception, choose his own of Israel, for greetings and opening remarks. Judge Sussman, after warmly welcoming values. But then he finds himself won- the participants, took notice of the pluralistic Jewish society and voiced the hope that dering who on God's earth he really is. the Dialogue would be conducted in a spirit of understanding and harmony. Abstract conceptions of the individual and his purported freedom—the laissez faire ideology—has led to some bizarre arguments. I recall Stephen Wise, my great predecessor and the founder of the Of Jewish Identity and Unity American Jewish Congress, once had to argue, after the turn of the century, that the freedom of a 14-year-old child or a A Presentation ARTHUR HERTZBERG 12-year-old child to make a contract with an employer was not perfect freedom on both parts. Let me say, as an unreconstructed e're supposed to be talking about In short, by the time the relativism of New Dealer, that the freedom of the poor W the individual in several legal sys- the 19th and the 20th centuries is to starve in dignity, or to make contracts tems, and it would be an act of arrogance, reached, with the Nietzschean proposi- as they will, is precisely the kind of free- in the presence of distinguished lawyers, tion that God is dead and therefore all dom that can be guaranteed by this kind for me to try to talk about law. What I can things are permitted, the natural law, of conception of the individual within do is talk from a historical perspective which in the 18th century had still pro- modernity. Thankfully, something has and note what has happened to our con- vided some kind of restraint on the indi- remained of social conscience, due, not ception of the individual and, particu- vidual, is pretty well gone. And so, the least, to some great jurists who owed larly, the Jewish individual, in recent individual who began, let us say in 1450 something to their Jewishness— centuries. or 1500, with concrete obligations and Brandeis and Cardozo. If we begin with the end of the Middle responsibilities derived from his birth, is It has been a painful struggle to en- Ages, there was, of course, no such thing an individual who, by the 20th century, is force the notion that we owe something as an individual. Not in Jewish, not in part of an atomized society and has ac- to the poor and dispossessed. That notion Western, and in no one else's social or quired total freedom, total facelessness, is not yet dead in the United States legal system. The individual was born and total loneliness. where, for all of our quarrels about into a class, a religion, and thus received I, for one, continue to marvel at why Bakke and merit systems, we recognize a specific legal status which came with those who speak of Jewish modernity that it is a social responsibility to deal his identity. invoke, so very often, the triad of with individuals, and even with groups What happened in Europe, through a Spinoza, Marx and Freud. Spinoza's and communities, in the concreteness of variety of quite dramatic events, is that contribution to man's understanding of their needs and not as integers of some the individual was, bit by bit, freed of the himself—if one reads him with any abstract conception of freedom. specifics of his identity. Regicide, not care—is that what the individual substan- The sense of the concreteness of the via assassination of kings, but regicide as tially inherits of his history is illusory, or individual is increasingly accepted in the a great ritual act freed the individual of irrelevant. Marx's contribution is that United States, and in decent society all his allegiance to the king and from the there is no history, there are no ideals, over the world, in reaction to laissez notion of the divine right of kings. there is no shared memory. There is only faire, in reaction to the abstract, faceless By the time of the American Revolu- the abstraction of economic interest and individual, because the individual, tion and the American Constitution, the of class conflict. And Freud's contribu- wherever he may be, is a moral charge individual is freed of his allegiances to a tion is that the "cured" individual is one upon all of us. church. And somewhere in the 19th cen- who is freed, ultimately, of his family And so, there are some signs that the tury, under the impact, in particular, of past in the name of a set of abstractions. individual who was totally relativized in Marxism, some individuals are freed of The reordering of the individual's past order to be made free is now, in order to their relationships to the nation. And cer- washes out any reference to the historical be saved, showing some signs of recon- tainly by the 20th century, being free of past. The past is mere illusion, a retreat cretization in his need for values. your nation becomes, in various jurisdic- from the "reality principle." We Jews have been going through a tions, for reasons bad and sometimes So the individual, at the end of the comparable process. We were emanci- good, an act that is morally acceptable. process of modernity, is free—and face- pated and we accepted the voluntary na-

MARCH/APRIL 1978 3 ture of our Judaism and our Jewishness. We are neither obedient nor disobedient. launched on can do is to still the warfari We asked to be just like everyone else. We are neither within nor totally outside. between various opinions. I hope tha Napoleon's Sanhedrin accepted this That "not-quiteness" is the truth of the those who know what God wants of then proposition: the absolute separation of situation of Western man. It is the truth of will at least understand the travail o one's Jewish identity from public law the Jewish situation, and I suspect that those who hear other drummers an( and public definition. how that works itself out within our situa- march—or stumble—to their beat. I hop( tion will have something paradigmatic to that those whose lives are determined bj et, two things happened to us on our say to all of mankind. other values will at least listen to th« Y way to the 20th century. One is that The most important thing that a certainties of those with whom they dis we discovered that this identity, which Dialogue such as the one we are now agree. we wanted to be completely voluntary, was made, negatively, an identity which we could not escape. This aspect of anti-Semitism was, of course, recog- nized by Pinsker and Herzl. It was the The Halakhic Perspective failure of the Emancipation which left us, in very large part, in the peculiar position of being not quite in the modern world A Presentation AHARON LICHTENSTEIN and not quite out of it—and that was one of the grounds of Zionism. We recognized, rather earlier than any other community within the Western dis- e have gathered here to discuss the no less than at the collective level, the pensation, that the total concreteness of W rights of the individual under dominant note is normative rather than one's past was simply ineradicable. We Halakhic, American, and Israeli law. I permissive. recognized it, unavoidably, because of have been asked to describe the Halakhic To anyone familiar with Halakhic the reality of anti-Semitism. And there- approach. I trust no one expects to hear a thought and Halakhic values, the point is fore, in the 19th century, we created in summary of the relevant halakhot, much self-evident. Nevertheless, two exam- very modern ways this peculiar move- less their comparison with American or pies, both drawn from areas in which ment called Zionism. We also recog- Israeli counterparts. While I shall have legal rights otherwise figure promi- nized and we quarreled about it—the occasion to allude to them, it is the nently, may help to sharpen it. The nor- Kulturkampf is not a new invention— perspective rather than the substance of mative thrust of Halakhah is reflected in that we were at one and the same time Halakhah which is my primary theme. its approach to reciprocal relationships, plural, in part outside our inherited tradi- With reference to perspective, let me in whose formulation mutual respon- tion and yet not completely free of it. begin by noting that the very formulation sibilities loom large. Thus, the Rambam We are sitting in this room together as of our topic is non- perhaps even anti- concludesHilkhot Sekhirut ("the laws of one people—Israelis and Americans, and Halakhic in character. One can devote a hire") with the following precept: "Just Jews of all kinds of persuasions. What a conference to the analysis of the as the employer is enjoined from em- joy it is that we're all in the room to- Halakhic rights of the individual as one bezzling the poor laborer's wages or de- gether, because somehow or other we can dissect any legal minutiae. But to taining them, so is the poor laborer en- know together that we are different from place them at the center of a Dialogue joined from cheating [on] the employer's our ancestors and yet related to them. intended to deal with the legal aspects of work and malingering a bit here and a bit The notion that we are a people of Jewish the individual's place in society—this is there and spending the whole day disin- descent, totally value-free, making up its non-Halakhic. "Rights," natural or genuously. Rather, he is obligated to be values in the contemporary age, and the other, are the current coin of Roman very strict with himself with respect to contrary notion, that we are a totally legists. They are the legacy of Locke and time and to work with all his might." guilty people before the bar of our ances- Montesquieu, of John Stuart Mill and The normative thrust of Halakhic law tors who were the good Jews, are equally Martin Luther King. They are not the and ethics is not, of course, accidental. It pernicious. lingua franca of the Torah or the Tal- is rooted in a metaphysical and theologi- The truth of our situation is that mud, of Rabbi Akiba or the Rambam. the cal base. Halakhah regards the Zionism is that aspect of ourselves which corresponding Hebrew term zekhut (or, individual—man in general but the Jew is neither totally guilty before the past, in the plural, zekhuyot) appears in the in particular—as God's servant. The nor totally free of it. Indeed, Western Talmud; but in comparision with analo- Torah is clear and emphatic on this point: culture as a whole, which has tried so gous concepts, it is clearly peripheral. "For unto me the children of Israel are very hard to be totally free of everything, The central Halakhic categories, in this servants; they are my servants whom I is beginning to come back to a sense of area as elsewhere, are mitzvah and brought forth out of the land of Egypt: I moral responsibility to human concrete- hiyuv—commandment and obligation, am the Lord your God." ness and values. the individual's duties rather than his pre- While Christian theology has often rogatives. Whether duties are defined as In sum, I do not think that our prob- sought to oppose sonship to servitude, a function of rights or vice-versa—an lems are really abstractly soluble. Not in regarding the former dispensation as hav- important question in other respects is, law, not in life. Our situation, if I may jng superseded the latter, Judaism has for our purposes, immaterial. What is put it this way, is a "not-quiteness": not always insisted upon a concurrent and important is the fact that, at the personal quite Halakhah, not quite anti-Halakhah. dialectical approach. On Rosh

4 CONGRESS MONTHLY Hashanah, the community of Israel pre- man as intrinsically limited—not only by his existence and that which is his legal sents itself before God, im k'vavim im his natural finitude (this is altogether too and moral privilege as a measure of self- ka'avadim—"be it as sons, be it as obvious) but by his metaphysical rela- determination; that which is provided by servants"—with no attempt whatsoever tionship to God. Broadly speaking, of the welfare state and that which is recog- to blur or denigrate the latter. Halakhah is course, this distinction is not confined to nized by the permissive society. The a form of bondage. It is more than that; Halakhah in particular but relates to the right to life is qualitatively different from indeed, the Rabbis insisted it was also a difference between religious and secular the right to abort. The former can relate form of freedom. But it is not less. perspectives in general. Nevertheless, to man qua object; it can, indeed, apply This bondage is grounded in two prin- the point is significantly accentuated by to an animal as well. The latter can only ciples. It derives, in part, from the sheer the scope and detail of the Halakhah's refer to man as a moral agent. Liberty metaphysical and existential chasm be- demands. straddles both realms, being both a di- tween man and God, from the fact that, The restrictive character of the mension of existence and a prerogative of given their respective natures, one ought Halakhic approach is sharply underlined action. There is a sense in which, to use to be servant and the other master. It by a seemingly contrasting fact. While the Grand Inquisitor's terms, freedom is derives, equally, not only from what God Halakhah rejects the concept of radical also bread. But it has different import in is but from what He does and/or has freedom as a metaphysical right, it places each. done, from His role as creator, sustainer, overriding emphasis upon it as a With respect to the first kind of right, it and provider and from man's correspond- metaphysical fact. The whole of can be fairly stated that the general ing position of dependence. "They are Halakhah, its legislation as well as its Halakhic approach is quite liberal. On my servants whom I brought forth out of penology, is grounded in profound faith the one hand, Halakhah places great Whatever the basis, in man's capacity to choose freely and to stress upon the worth of the individual as ' י.the land of Egypt however, the reality should be clear. chart his own course; and it is precisely "a world unto himself," and a social Halakhah speaks of human bondage. this faith which makes the stress upon world at that. On the other hand, it lays All of this may sound Calvinistic, duty, the incessant call to respond to great store by caritas, both as an element perhaps even Kafkaesque, but it is as commands, possible. However, this faith in the molding of personal and communal thoroughly and as purely Jewish as any also reinforces the sense of Halakhic re- character and as a mode of imitatio dei. article of our faith. And it has, of course, strictiveness. In effect, it tells the indi- The conjunction of the humanistic and practical implications. Conventional vidual: "The world is all before you and religious elements results in an overbear- morality—articulated by Mill a century the exercise of a wide range of options is ing emphasis upon hesed, as both policy ago but by now the patrimony of school- well within your grasp. The Torah, how- and virtue; Its realization entails provi- children—holds that anyone and ever, limits your choices; or, if you will, sion of a reasonable standard of living everyone is entitled to do as he pleases demands that you limit them." and not just bare necessities. It relates to provided that he steps on no one else's The contrast with much secular theory the quality of life no less than to its toes; that as master of his self, he is free is again instructive. Many of those who amenities and it requires empathetic to mold his own destiny. argue for maximal if not absolute free- sustenance as well as material support. Halakhah is radically opposed to this dom as a natural and moral right con- The Halakhic approach is not purely attitude. It holds that, even with respect comitantly contend there is little if any- egalitarian inasmuch as it does not be- to his own personality, man is more trus- thing the individual can do with it as he is grudge the existence of an affluent class. tee than master, and that whoever vio- largely and perhaps wholly determined; But its insistence upon a "fair deal" has lates its sanctity and dignity transgresses and, following Beccaria, they tailor their an egalitarian thrust and it reflects a con- a divine commandment. Halakhically, penal theory accordingly. Halakhah cern for the individual's rights in one the same laws which prohibit a person grants man less but believes in him more. sense. from maiming or cursing others, enjoin Given our collective legal orientation, him from maiming or cursing himself. have concentrated upon one cardinal however, it is with rights in the second The point of departure for a Halakhic I sense, as license rather than due, that we discussion of the individual's rights is point: the Halakhic perspective upon are primarily concerned; and, in turning thus fundamentally different from the man as a being invested with rights and to this, I should like to survey the indi- secularist's. Philosophically—the con- responsibilities. However, the position I vidual's rights vis-a-vis a) other indi- crete anthropological and sociological have outlined allows for considerable viduals, b) the community as a whole, aspects are another matter—secularism latitude with respect to specific alloca- and, finally, c) the corpus of Halakhah. regards the individual as primordially tions of rights and duties; and it is to this With respect to the first, we need to and inherently invested with unlimited question that I now turn. What personal differentiate between the great mass of rights. It is only at a secondary plane that rights and what degree of those rights individuals to whom a person has no par- these are somewhat circumscribed in or- relative to contemporary American and ticular ties and those with whom one has der, as in social contract theory, to assure Israeli law does Halakhah recognize? a special social relationship. Concerning a modus vivendi with others and thus What are the implications of its the former, the distribution of reciprocal guarantee the rights of each; or else, as in metaphysical position with respect to the rights and duties will tend to be uniform. more organic theories, in order to pro- practical, and especially the sociopoliti- This is, however, more a question of mote the development and stability of a cal, order? equality than of liberty. If we turn to the corporate entity whose enhancement In dealing with this question, we broader area of general relationships, we constitutes a common interest. should distinguish between two kinds of are confronted by the problem of license Halakhah, on the other hand, regards rights: that which constitutes a person's proper. The central issue here is that of social and economic due as a condition of MARCH/APRIL 1978 5 "rugged individualism"—the extent to [potential] damages," make it clear that The distinction is not, in realil which the individual is allowed free play confronted by the choice between en- paradoxical at all. In the first case, t in aggressively pursuing his own in- vironmental protection and industrial conflict is over clear right and wrong a terests. On this issue, Halakhah may be growth, Halakhah is inclined—and with its context monistic; hence, the right regarded as occupying a middle ground. respect to such an issue one cannot speak act in accordance with one's own vie It rejects the Christian call for turning the of much more than relative inclination— The right may be limited to personal t other cheek or giving away the last cloak. to opt for the former. havior; i.e., it exists in God's eyes an( It hold that, given a reasonable parity of With respect to the individual's rights court, from its perspective, can possib interests, "your life takes precedence vis-a-vis the community as polls, we are be empowered to judge the person on t over that of your fellow." confronted by it not as the object of his basis of its own position. But it exists, On the other hand, Halakhah radically actions but as their potential the latter case, however, the issue is o opposes the classical liberal position that controller—and this brings us back to the of honest differences of opinion, wi the individual is endowed with the in- Jew's metaphysical servitude. Only here both sides agreeing that rational and fill alienable right to the most free-wheeling it cuts both ways. Commenting on the informed scholars could conceivably 1 pursuit of his interests and that such a Torah's phrase, "They are my serv- rive at either conclusion. In this plurali course ultimately redounds to the greater ants," the Rabbis added: "And not the tic context, the question is not of error b benefit of society as a whole. It is ques- servants of servants." Depending on the of interpretation, and the Torah has de tionable whether such benefit indeed ac- extent to which, if at all, one identifies ignated one as definitive: "Thou sha crues; but it is reasonably certain that a the state's general will with the will of not turn aside from the sentence whic Halakhic approach would regard the at- God, one's commitment to it and his rec- they shall declare unto thee, to the rig] tendant moral corrosion as an excessive ognition of its right to help regulate his hand, nor to the left." price. If the divorce of ethics from life will be either greater or lesser than The right to renounce Halakhah ei economics, at least at the legal plane, lies the secularist's. tirely, or even to reject its acknowledge at the heart of laissez-faire theory, their In the absence of such iden- dictates within a given area, is, of cours! integration is the cornerstone of the tification—and various criteria may be another matter. As a general principle, Halakhah's position. Prohibitions used to judge it—the force and scope of does not exist. Halakhah is, in this r! against profiteering, usury, or cornering Halakhah will necessarily diminish the spect, unreservedly and unabashed] essential markets illustrate the point; but position of other sources of authority. theocratic. It is rooted in the doctrine < the relevant halakhot extend well beyond Thus, many early authorities severely avaday hem-' they are my servants." statutes regarding just prices. circumscribed the Talmudic formula, does not hold that the Creator has ei The Halakhic position is reflected in "the law of the government is law," dowed the Jew with the inalienable rigl its treatment of one of the most funda- limiting it to areas directly affecting gov- to countermand His orders. The capa< mental rights: property. Halakhah does ernmental interests. Others held local ity, yes; the right, no. At its inceptior not, of course, reject private property. councils could only impose fines for the "the covenantal community" (to use On the contrary, the concept is very violation of ordinances which had been term favored by Rabbi Soloveitchil prominent, with reference to many areas enacted with the violator's consent. This came into being as the result of freel of ritual, no less than socioeconomic, view is indeed quite startling—so much given commitment. Once created as a law. And yet, the Mishnah states that so that some have questioned its organic entity, however, its existence ha adherence to the notion that "mine is authenticity—but the reservations it re- decisive implications for its members mine and yours is yours" is "a trait of fleets are not atypical. For the Jew who falls within its jurisdic Sodom"; and many authorities hold that tion, the Halakhic regime becomes if a person owns a field or house which is he situation is quite different when challenging demand. Moreover, th lying fallow, being neither used by him T Halakhic institutions and/or values blend of particularism and universalisr nor up for rent, someone else can compel are involved; and this brings us to the which is so endemic to Judaism pre the owner to let him use it free of charge. heart of our problem: the individual's eludes emigration. "Whither shall I g< Moreover, a person's control over his rights vis-a-vis Halakhah itself. This from Thy spirit? If I ascend up int< property is limited per se. He cannot, for question, in turn, resolves itself into two: Heaven, Thou art there; if I make my be( instance, destroy it wantonly. He is, after the right of rejection and the right of in the netherworld, behold, Thou ar all, God's trustee-servant. interpretation. With respect to the latter, there." Turning to consideration of the rights we encounter a seemingly paradoxical This exposition may sound—an< of the individual vis-a-vis the commu- situation. When one's rejection of ju- perhaps is—very severe; but I have con nity, we are confronted by two questions. rist authority is sharpest, his right to re- sciously set forth the Halakhic position ii We can treat the latter as either a social or ject it is strongest. If a person regards a all its rigor so that the problematic relate( a political entity. Regarded as a social given decision as being totally in to it may be perceived with utmost sharp unit, society at large can, for our pur- error—say, because the Sanhedrin has ness. For there is a problematic. At ) poses, simply be seen as a greater indi- wholly ignored a salient text or lacks primary metaphysical level, the Jew i! vidual, with respect to whom much of proper information—he is empowered total servant. At a secondary level, how what I set forth previously can apply. The and indeed obligated to act in accordance ever, he has been invested by God with < Halakhic tendency is to circumscribe with his own convictions. If, however, measure of freedom—his as a gift 01 self-assertion when it can have a delete- he challenges its members on a fine point grace rather than as inherent natura rious impact upon the public domain. of analysis or interpretation, he is bound right, but his nonetheless. His task at z The halakhot concerning ' 'restriction of to accept their view. tertiary level, then, is kabalat ol malkhui

6 CONGRESS MONTHLY shamayim—"acceptance of the yoke of tors, the moral and religious status of its issue. Bottom lines differ, however; and the Kingdom of Heaven"—to subordi- citizens may be a matter of concern, but it I think, in summary, that the Halakhic nate his will to his Maker's, as an expres- remains a detail within the framework balance allows for less license than its sion of love and service. "God doth not without affecting its basis. Knesset Yis- American or Israeli counterparts. A need/Either man's work or his own gifts; rael, however, was conceived and sus- number of reasons may be suggested, who best/Bear his mild yoke, they serve tains itself as a spiritual community relating to different perspectives upon a) That service, as Milton would whose very people hood, even when the community, b) the role of law, c) the ' י.him best surely have agreed, is only meaningful, given geopolitical dimensions, is defined status of the individual. Comparatively, however, insofar as it is freely given. by its commitment. Rejection of that Halakhah has, first, a greater collective What He does need is the element of commitment cuts at the very heart of both spiritual stake. It has both a sharper sense freedom in man's commitment. And this the nation's substratum and a person's of its constituency's organic unity and a is, surely, what man needs. His obedi- relation to it. more ambitious view of its ultimate ence is spiritually significant only as an The Halakhic basis for a measure of spiritual destiny. Consciousness of these expression of personality; and to that personal restriction rests upon individual has been somewhat attenuated in the end, it must be grounded in personal interests as well. These relate, in part, to U.S.; and while it exists in segments of freedom. others. The maintenance of a healthy Israeli society in abundance, its focus is Coercive and enforceable restriction njoral climate is as much a right, in the often more national than moral: hence, does pose a very serious and very disturb- sense of a due, as unpolluted air. In part, possibly, the greater limits upon personal ing problem, however. Essentially, it en- however, they relate to the restricted in- rights in the name of security than in the tails the clash of conflicting Jewish val- dividual himself. To see man as com- name of morality. ues. To the extent that coercion tends to manded is to see him as living under law Secondly, Halakhah assigns a far more dehumanize—it generally treats man as and educable by it. From an Halakhic important role to law within the life of the object rather than as subject—it erodes perspective, law is not merely an auxil- individual and of society. The Jew's exis- the sanctity of the personality. That sane- iary tool for dealing with aberrations of tence is suffused with din. Some of what tity is central to our tradition; and it as- homo sapiens or homo economicus. It is is subsumed under dm is perhaps not law, signs to the individual a value greater central to human existence, and, as such, actionable and enforceable, in the gen- than any possible within a purely secular it can help mold human personality. eral sense of the term. The bulk of it does context. Moreover, coercion inhibits that Only here so much depends upon the constitute, however, an intensive and measure of socially enriching individual in question. The net educa- comprehensive legal corpus which ad- diversity—admittedly limited by current tional impact of moral or religious legis- dresses the Jew in all walks of life. Western standards—whose evident lation upon a person may be either posi- Halakhah has, therefore, greater faith in value is reflected in a Halakhic precept: tive or negative, depending upon his the educational potential of law—a faith "Whoever sees a populace says, 'Bles- basic stance. Within a context of funda- reinforced by a sense of the continuity of sed is the Sage of secrets,' for their vis- mental recognition of a law and its matrix the secular and the sacred, the spiritual ages do not resemble one another nor do of authority, a law, despite its coercive and the temporal. their intelligences (or, possibly, their aspects, may sharpen moral sensitivity Thirdly, Halakhah rests, as we have views) resemble one another." and adherence to the law's basic values. seen, on a metaphysical view of man as But there are countervailing claims as charged rather than merely endowed; and well. Judaism is profoundly committed he variable of prospective individual this has implication both for its concep- to the ideal of a sacred community, or- T response is a very important factor in tion of him and for his own self-image. ganically and historically bound by determining both the wisdom and the Halakhah is thus sensitive to the value of common commitment to the God of Is- morality of laws aimed at the "enforce- spiritual freedom but less leery of im- rael; and it aspires to the fulfillment of a ment of morals." Pressure, legal or pinging upon it within the spirit and con- metahistorical vision of human redemp- other, which simply elicits a negative text of "they are My servants." Restric- tion and divine majesty. Their realization response is not only unwise. It is morally tions of a non-Halakhic character (in the can be impeded, however, by an indi- and Halakhically dubious. Legislation in broad sense of the term) it may very well and not ' י,vidual's recalcitrance—not only because this sphere should be countenanced, oppose; v' lo avadim la' avadim of his defection per se but by its impact under such circumstances, only when the servants of servants." The enhance- upon others. Protection of the spiritual truly overriding public interests are at ment of man's role as God's servant it environment is thus a matter of prime stake. In this respect, of course, the situa- regards as positive, however. The right concern. Opinions may vary as to the tion within a pluralistic and largely secu- of privacy has an important place in degree of centrality to be accorded the lar society is very different from that Halakhah, but as a due, within the communal and the metahistorical—I my- within a Halakhic community; and this framework of social relations. The no- self, as compared to, say, Rav Kook's point has certain practical implications. tion that no law can relate to the more disciples, am inclined to assign it less However, the principle of the use of law private aspects of personal existence is importance. But it remains significant on as an educational medium, under proper wholly foreign to it. The contention that a all views. conditions, remains fundamental to woman should have the right to abort a It should be borne in mind, moreover, Halakhah. fetus simply because it is gestating within that within Jewry, religious deviation has The reconciliation of conflicting her body is thoroughly anti-Halakhic. different import from what it would have claims is not peculiar to the Halakhic In the final analysis however, the within a secular context. If a nation-state approach to personal rights. It lies at the Halakhah's rejection of moral laissez is defined by ethnic or geopolitical fac- heart of any sensitive treatment of the faire rests, in large measure, upon the

MARCH/APRIL 1978 7 certitude of its own truth. It speaks and ism and bereft of faith in revelation, he his own doubts to constitute part of the legislates within a fundamental context often finds it difficult to comprehend the Halakhic corpus proper. If one wishes to of moral and religious absolutes. To the spirit and substance of the Halakhic posi- understand Halakhah, the least he or she outsider, of course, this is precisely the tion. This is thoroughly understandable; can do is to perceive it in its own terms. stumbling block. Nurtured upon relativ- and yet surely the skeptic cannot expect [End of Session]

Wednesday Morning Session Second July 6, 1977

stand as a closed system opposed to the tions. I could cite the exceptions of the DISCUSSION ideas of human rights? Is it irrelevant to seven Noachide Laws which are given to [Chairman: Howard Squadron] modern society, or is it possible for it to the non-Jew. Harsh though it may sound, ZEEV FALK: become more flexible? there is implicit in this outlook the Kip- I was impressed by Dr. Lichtenstein's I will mention one instance where we lingesque phrase, "the lesser breed The assumption is that ' י.presentation of a closed system. Such can see the beginnings of a process of without the law insularity can have no relevance for our bending Halakhah to modern needs. The the time will come when "this lesser individualistic society. extreme expression of inequality be- breed without the law" will come within I would like to present Halakhah from tween parents and children is the rule of the law and be subject to the Halakhah. a different angle; that is, a version of ben sorer u more, the rebellious son who That attitude lies behind the remarkable Halakhah as dynamic rather than static. I is brought to justice for having defied his dichotomy between the two paragraphs would deny, initially, Dr. Lichtenstein's parents' authority. But the Rabbis have of the most common prayer of our prayer contention that this Dialogue is anti- conceded that this rule cannot be practi- book, the A ley nu. The first paragraph is Halakhic. If Halakhah is a living system, cally carried out. I think this may have the extreme expression of particularism, it must deal with everything concerning given us a glimpse of how we can deal and the second of universalism. We hope Jewish life. It cannot rule o&t questions with parts of Halakhah at odds with our that the day will come when all people even if it means reformulating certain modern conception of equality and dig- will accept the Law, but until that time answers to certain problems. nity. Halakhah provides only for the Jew. Dr. Lichtenstein referred to Halakhah Finally, I would say that one should Now, let me discuss the concept of in terms "of human bondage." He cor- not overemphasize the clash between equality as expressed in the Halakhah. rectly noted the concept of ol malkhut Halakhah and individual rights. Dr. The Bible says, if a man comes into the shdmayim, the yoke of the divine king- Lichtenstein, himself, enlarged on the vineyard of his fellow-man and takes dom. Now, I think one should not omit socially enriching function of diversity. some grapes from there, he may eat the first word in this phrase, namely, He mentioned the blessing which the them, but not take them with him. The "kabalat" ol malkhut shamayim. True, Rabbis pronounce on a person who has Halakhah tells us this law applies to the Judaism is based on bondage to the Di- relations with a great number of people, poel, to the worker. I do not think that vine, but it also stresses the free ac- that is, to a person who responds to varie- there is a better conception of the com- ceptance of this covenant and it main- ties of opinion. I would like to add that plete equality of the Jew; the relationship tains in the daily service the recital of the this hakham harazim, which is men- between employer and employee is that Shma which means kabalat ol malkhut tioned in the blessing, is a reference to of reya le reya, of friend to friend, but shamayim. It is not enough that the sys- the Matan Torah, to the revelation of the again, I observe, it refers only to the Jew. tem imposes the yoke of heaven, but you Law. The Law itself is not something It is in that context that I want to refer to have to accept it, every day, afresh. Dr. which is imposed but, as I noted earlier, Rabbi Akiba's famous statement: "Thou This is a ' י.Lichtenstein mentioned Rabbi Sol- must obtain acceptance. Now, such ac- shalt love thy friend as thyself oveitchik's term, "the covenantal com- ceptance is not uniform and this very great principle of the Law. There is a munity." Now this covenant of Israel is pluralistic element enriches not only so- comment by another rabbi who extends based on acceptance. It's not simply a ciety but the Law itself. this principle to all of mankind. But I matter of the imposition of Halakhah believe the correct interpretation of upon the people regardless of what they LOUIS RABINOWITZ: reyakha is only your fellow Jew. think. In order to get people to accept a Dr. Lichtenstein's paper discusses the I want to devote myself now to an system of belief, you have to reach out to rights of the individual according to aspect which I think Dr. Lichtenstein them—you cannot present a closed sys- Halakhah. I want to amend that. The overlooked. In his paper, he referred, tem with a take-it-or-leave-it attitude. Halakhah is a closed system that is re- rightly, to the fundamental view of The question for us is: Must Halakhah stricted to the Jew with very few excep- Halakhah: the servitude of man to God.

8 CONGRESS MONTHLY He did not dwell on the aspect of the ways conscious of the fact that there is a within societies. We must distinguish rights of man incorporated in the God above. separate questions. Are we talking about Halakhah. It is laid down: "Unto Me are It is a question of emphasis. Every Halakhah as it governs an individual's the children of Israel servants, and not time there is a duty, there exists a correla- personal code of conduct, or are we talk- servants to My servants." What does this tive right. There is no such thing as a ing about what Halakhah says with re- imply: Man must be free from his person having a duty unless someone else spect to the governance of a society? On fellow-man in order to be able to serve has a right. Rabbi Lichtenstein was cor- both these questions I found some am- God. How then is it possible for a Jew to rect. In the Halakhic system the accent is biguities in Dr. Lichtenstein's presenta- be an employee of another Jew? Is he not on duty. tion or, at least, no clear responses to thereby violating the Law, "A Jew shall The question, I repeat, is where you such questions as: Is Halakhah guilty of not be a servant to My servant"? The put the accent. And in our system, to take the allegation that it is static? If it is not Talmud gives the striking answer that the the example of abortion, we don't place static, how is it not static? How is it a difference between servitude and em- the emphasis so much on the right of the living system in terms of relevance to the ployment is the right of the worker to woman to her body as we do on her duty current state of man and his problems in a withdraw his service. A great sociologist to her body, which is not to do any de- modern society? once stated that this established the right structive act against herself. With respect to society, as I under- of a worker to withhold his labor—in I would like, at this point, to put into stood Dr. Lichtenstein, he seemed to say modern terms, to strike. focus the consideration of rights in the that if the will of the majority doesn't And so, if Halakhah demands servi- Halakhic process. The welfare of the accept the dictates of Halakhah, then it tude to God, it also underscores the free- group and the welfare of the individual shouldn't be imposed on the society. dom of the individual. within the group—all of this goes into the Thereupon Dr. Lichtenstein seemed to hopper in the Halakhic process. It is not back off a bit by asserting the utility of EMANUAL RACKMAN: enough to state that our duty to God is to law as an educational medium. It was my impression that, for the sake of fulfill His will. To fulfill His will is to Now, I don't know whether that means the discussion, both Rabbi Hertzberg and include what is best for my fellow-man, that those who accept Halakhah should Rabbi Lichtenstein gave us extreme to respect the uniqueness of my fellow- seek to impose its dictates on society or statements. Rabbi Hertzberg took the po- man, the freedom of my fellow-man, his not, or advance its views in such a man- sition that the conflict between the indi- right to express himself. ner as to gain voluntary acceptance of its vidual and the group was a product of the views. This has obvious repercussions on modern era. From my limited knowledge YITZHAK ENGLARD: such controversial issues as abortion. of Greek history, it was the collapse of I don't accept the statement that What I am asking is the extent of the the city-state that caused the Halakhah is a closed system. All systems accommodations Dr. Lichtenstein, and Failure of Nerve about which Gilbert are, in a sense, closed systems. Other- those who accept his conception of Murray wrote. The individual Athenian wise, they aren't systems. I also disagree Halakhah, are prepared to make. lost his group identity, and a welter of that Halakhah doesn't refer to non-Jews. individualist philosophies followed. I What are called the Noachide Laws in- SIMON GREENBERG: would say that the conflict between the elude detailed references to non-Jews. I'd like to say—with pain—that those individual and the group has obtained Halakhah is a system with universalistic who are defending the Halakhah are de- throughout history. There have been implications and excludes no subjects fending it in a way which undermines periods when the stress was on the indi- from its purview. respect for it—that is, by saying things vidual and other periods when it was on If I may, let me raise the question of about the Halakhah which the Halakhah the collective. In every legal system you how Halakhah is to be applied in a world doesn't say about itself. I don't imagine have this tension between the demands of nurtured on the concept of relativist val- that anybody can speak with greater au- the group and the demands of the indi- ues. There is, first, the question of Jews thority about the Halakhah than vidual. living in a gentile society. How does the Maimonides. Now, Maimonides says The teacher of many of us here, Carl Jew implement the absolutist Halakhic very specifically that ohavta lereyakha Nicholson Llewellyn, of Columbia Law values and square it with modern con- kamokha refers to the Jew and to nobody School, used to say that in every society cepts of the individual personality and else. you have the drifters, those who go along human rights? How is such a Jew to be Further, I don't know why we avoid with the stream, and at the other end you instructed in his perceptions of the state the fact that in Jewish law there is no have the resisters. The drifters are those or of current values? These are questions equality between the man and the who completely identify with the group, that require study and discussion. I might woman, that the woman has no rights in but occasionally you get that bold spirit Observe that even if we could live in a the case of divorce (get), or very few who is going to resist and give expression Halakhic society, the problem of indi- rights. Here, in Israel, we have the situa- to his uniqueness. Now, what Rabbi vidual rights would arise. There must be tion of a man sitting in prison because he Lichtenstein, I thought, was really say- some safeguards against abuse of power, refuses to give his wife a get—but she ing is that you cannot eliminate from the even in a society which basically accepts isn't getting a get, and she cannot re- Halakhic approach the fact that a legis- the principles of Halakhah. marry. lator in that system, a judge, a rabbi, and Further we shrink from recognizing an individual committed to the system, PAUL BERGER: the attitude towards the Jew who doesn't think as individuals, but that they are Professor Englard has raised some cru- observe the Halakhah. According to the always conscious of the group and al- cial questions about individual rights Halakhah, you are not only allowed but

MARCH/APRIL 1978 9 are obliged to punish a man, beat him, criticism of the Halakhah has proceeded currents and undercurrents of doubt, of until he builds a sukkah. And such com- through the ages, both from within and skepticism, of criticism. This is pulsion has a basis in the Bible. The without. suggested by the commonplace distinc- Psalmist says that "those that rise against The criticism from without is valid. tion made about the law as it is and the you I hate with an everlasting hate. I There is an anti-Halakhic position based law as it ought to be. I ask: In reality, is consider myself a friend only to those not on the fact that it is more convenient there sharp division on this score be- who fear you, but to no one else." I've to live outside the Halakhah, but that it is tween the Halakhic and secular systems? studied enough homiletics to make these morally inconceivable to live within it. I await responses as to whether it is pos- verses mean something other than what Indeed, such criticism is implicit within sible to bridge the divisions between the they mean, but we know what they mean. the Halakhah itself. How does the two systems. And that is something that we have to Halakhah solve its own immoralities? face. Let me give an example. The averagerav HAIM COHEN: Now, let us be clear about all this. in the 18th century, when he discovered a The great contribution that Spinoza made There is, in Jewish tradition, a marvelous mamzer (bastard), went to the Parnas to the history of Jewish thought is the concern for univeralism. There isn't a Hakehilla (head of the community), got proposition that the essence of Jewish greater statement anywhere about the himself 50 gold pieces and asked the of- Law is freedom of thought and con- significance of the individual than in the fender to disappear, to go to the next science. That was something revolu- fifth paragraph of the fourth chapter of town. So the Halakhah used a merciful, tionary and little wonder Spinoza was Sanhedrin, where the Rabbis interpret extra-legal modality to solve a problem. ostracized for it. I submit that the propo- the verse: Why did God create only one The Halakhah therefore, on occasion, sition remains true. man? And the answer they gave is tre- certainly in the 18th century, had ways of mendous: "In order that no one should be looking away from a problem. The diffi- LIONEL KESTENBAUM: able to say my ancestor is greater than culty with the Halakhah today is that it Haim Cohen's view is clearly at variance yours." has become more rigid. with Rabbi Lichtenstein's. We were told We are all brothers because God is our I would like to suggest that the prob- by Rabbi Lichtenstein that man had free- Father and a blood relationship exists in lem of this conference is not how exact or dom to choose, but then a page or two the whole human race. That is the basis inexact is Dr. Lichtenstein's description later, we were told there was only one for human equality, and Oscar Handlin of the Halakhah. Our essential problem is acceptable choice. We were told that has pointed out that until Linnaeus and this: Given a Jewish people that wants to Halakhah regarded highly the sanctity of his followers started taxonomy, nobody live with some sense of its own tradition, the individual and, shortly thereafter, we classified human beings by cephalic or how do you deal with a situation where heard that the rights of the individual other indices. On the basis of Genesis, all Halakhah is disregarded? were limited in order to protect the human beings were considered equal. It seems to me that we should talk spiritual environment. (This seems remi- And the Rabbis tried very hard to seek about the real problems. I suggest that a niscent of invoking national security justification for this doctrine. Why don't distinction should be made by those who when efforts are made to foreclose dis- we act in the same spirit? We don't have want to live within the Halakhah between cussion.) to pretend that everything was perfectly those actions which others do that do not If any challenge to the rules of stated in the past and that we are fore- involve them, and those actions which Halakhah undermines the Jewish people closed from new interpretations. If others do that do involve them. I regard it we must wonder what remains of indi- Halakhah is a closed system, then as scandalous that one can hire a taxi in vidual rights. Halakhah is doomed! Jerusalem on Shabbat, but the buses I am reminded of an observation of don't run. If you don't want to ride on a Judge Learned Hand. He said the spirit of ARTHUR HERTZBERG: bus, that's your business. liberty is rooted in uncertainty, of being Rabbi Rackman takes issue with my We must find our way together. Who willing to accept the possibility that my observation on the corrosive affects of is acceptable or not acceptable, who con- view may be wrong and the other view modernity. He cites the fact that tension tinues to be a Jew in communion with may be correct. But I must add that moral between the individual and society exists other Jews, are very serious issues. I absolutism may have contributed to throughout history. I agree, but my stress think that those who are defending the human rights. When you assert moral was on the fact that since the 15th century Halakhah are overdoing it, at least in absolutes you place limits upon the identities of man were being dis- several areas. They are not dealing with sovereign authority. The king is the king, solved and that we are now in the process the reality of a plural society. but he is under the law. of trying to find some way of reconstitut- We must, further, distinguish, as one ing the self. I used our Jewish situation as AMOS SHAPIRA: speaker noted, between moral goals and paradigmatic. Rabbi Rackman is quite There are, obviously, underlying con- moral absolutes—what, in effect, we right about the Hellenistic age and the ceptual and value differences between allow the state to impose on us. In any multiplication of sects. We, too, like an- the two views, the Halakhic and the secu- operative legal system, we realize we cient Greece, live in a time of dissolu- lar, on the question of civil and indi- have a range of choices, a range of de- tion, of sects, cults—but alongside there vidual rights. Rabbi Lichtenstein writes: sires, a range of goals. We are not willing are efforts to renew the community, to "Yet surely the skeptic cannot expect his to use the coercive forces of the state to heal crises of identity and commitment. own doubts to constitute part of the impose the ideas and wishes of a domi- This leads me to our discussions about Halakhic corpus proper." Well, running nant group. The essence of human rights Halakhah. Let me begin by saying that through a secular legal system are the and liberties is the limits imposed on the

10 CONGRESS MONTHLY scope of state authority. It is easy to think suggestions from the outside are not war- extend its meaning. I believe Halakhah, of civil liberties as flowing from natural ranted. up until the 17th century and much more rights, but the American Constitution, in slowly since, used the interpretive mode fact, puts such liberties within a negative HARRIET PILPEL: for remaining a living system. frame. Those liberties are adduced as Since I come from a relativistic society, it Now, of course, Halakhah has lagged. limitations upon Congress and other is not surprising that I find all absolutes Halakhah's treatment of women was areas of government. objectionable. I don't believe there is al- comparatively liberal in early times. But Whether Halakhah can become open ways one right answer. There are, how- Halakhah has not, in recent years, come and dynamic is open to question—and ever, what I would call neutral principles to terms with new phenomena, e.g., the hope—but that system, as any reasonable which, in a way, provide a system of abortion problem or the rights of women. legal system must do, must provide ways relativistic absolutes. By that I mean that of limiting sovereign authority and must it seems to me there are some absolutes GIDEON HAUSNER: not countenance abuses of individual that should be common to all democratic I would like to bring the discussion freedom. societies and which are absolutes in the somewhat closer to practical affairs. Is- sense that I cannot imagine anyone ques- rael is a secular state that has solemnly AMNON RAFAEL: tioning them. One neutral principle is promised in its declaration of indepen- I want to thank Dr. Lichtenstein for his freedom of thought and conscience. dence to secure civil liberties. But its honesty. In Israel, we have become ac- Another neutral principle would be other aspiration is to preserve the charac- customed to hearing that, properly un- equality. Still another relativistic abso- teristics of Israel as a Jewish State. Now, derstood, there are no incompatibilities lute that occurs to me is diversity. Orthodox circles consider Israel as an between Halakhic and secular attitudes. opportunity to revive a society organized We learn from Dr. Lichtenstein that there DANIEL GOLDFARB: by religious precepts. This aspiration is are distinct incompatibilities. I have a feeling that Halakhah is on the often implemented through political The dilemma for me, as an Israeli, is defensive here for several reasons, some pressures by granting or withdrawing that the Halakhic approach is not one of of which I agree with, some of which I support to the government of the day. pick-and-choose, and yet as a Jew, I do reject. This is most disturbing to me. Instead not see how I can define my Judaism if I I agree with Rabbi Lichtenstein that of an open discussion on those principles reject Halakhah. If we are honest we the concept of fundamental rights is not of Halakhah which we should integrate must admit the system is a closed one. really Halakhic. On the other hand, there into our legal system and our daily life, But all rational legal systems are closed. are the concepts of good and evil and Orthodox circles enforce on the non- You can't, in any system, say that you justice upon which rights are interpreted religious, and even on those who define will abide by one law but not another that are basic to Judaism. So I don't think themselves as traditional Jews, norms because it has been drawn without your the conflict with democratic values is as which it is sometimes impossible to live approval or consent. inevitable as it may appear on the sur- up to. Halakhah in Israel is not fighting a face. I believe Halakhah is entitled to try Now, what can we practically do? In battle simply within a moral context but to put forth a value system in which it the Knesset, whenever we consider new also within the political arena. To be firmly believes. I believe that one of the legislation we listen to what the sure, Halakhah contributed greatly to the reasons that certain aberrant behavior is Hakakhah has to say on the subject. Pro- unity of the Jewish people, but it took a countenanced in the United States and fessor Falk will recall the days when he political movement to bring the Jews accorded legal protection is the preva- was advising us, and especially the law here and to establish a State. It is interest- lence of unchecked ethical relativism. committee of the Knesset, on the ing to note that in the struggle to establish American society, on the whole, has lost Halakhic aspects of every issue which the State, religious circles did not common convictions and values, and ac- came up for decision by the Knesset in play—at least in the beginning—a major cordingly, it permits, if it does not drafting legislation. Anyone who is role. But now, to achieve the goals of legitimize, damaging conduct. I believe familiar with the pronouncements of the Halakhah, they work within the Halakhah has something to contribute in courts will know that the Halakhic view framework of the political process in Is- that it does have standards which strike, is carefully considered. This is all to the rael and outside Israel. I don't know at times, an appropriate balance of rights good if political pressure is not exerted. whether the proponents of Halakhah and obligations. But I agree it has failed This Dialogue about the Halakhah in- have been wise in charting this political to confront some very serious situations side Israel is valuable, but I agree with course. which have come up in the last few Dr. Lichtenstein that before one gets to I should mention that in recent years hundred years. disputing about the Halakhah, one the Halakhic forces have found ways to I don't think the question is whether it should at least know what it is. It would overlook or bypass certain problems is an open or closed system. The key be best if such Dialogues could go on in underpressure from the Israeli public and point is the one Professor Falk raised, Israel free from the political pressures in order to avert political crises. whether it can be dynamic. And by exerted to obtain certain religious prohi- Nevertheless, the problem continues of dynamic I mean a living system, a system bitions. For me, the impossibility of a how Halakhah can manage to live with which can confront new situations and man of a Kohenic descent to marry a the modern notions of the State of Israel changing conditions. divorced woman today is not under- and of Judaism today. It is up to the There are two ways in which a system standable. To me, the old position on Halakhic leaders to devise solutions is living: either it can legislate anew or it mamzerim, under Jewish law, is com- since they contend that criticism or can be interpreted in such a way as to pletely unacceptable and I don't think it

MARCH/APRIL 1978 11 can survive in a modern society like Is- public transportation or public business- simply as an option, in the same manner rael. The reasons are obvious. The es of any kind close. that one can go shopping in a store. Halakhah developed in different cir- As far as the more general problems cumstances and I think we should try to EDWARD WEINFELD: that have come up, the responses to what emulate the famous example of one of the The discussion has led me to feel that I said were twofold. Some questioned the great sages, Rabbi Meir. It was said of we're discussing a subject that perhaps applicability of Halakhah to contempo- him: "Rabbi Meir is like a man who not all of us are fully familiar with. One rary life in general, or to Israeli life in found a pomegranate. He ate its contents of the rabbis suggested that Halakhah particular. Others argued that Halakhah and he rejected the inedible part." was a closed system, applicable only to could be applied but that somehow it was Jews. Another rabbi took the position a question of interpreting it properly and NATHAN LEWIN: that extreme views were expressed in Dr. bringing it up to date. Jews are well known for being most Lichtenstein's paper, and a professor We deal here first with a hard core kind self-critical. This session proves that. To took issue as to whether or not it was a of question—either one does or does not the outside world, to the legal commu- closed system or code. accept Halakhah. In this respect, a nity in the U.S., Halakhah is a well- I happen to be a daily worker in the number of people spoke of my presenta- spring, a source of rights which have judicial system, and before I undertake tion as extreme, rigid, doctrinaire. I do belatedly become recognized. When the any decision I always try to come to a not back away from these adjectives, al- U.S. Supreme Court can cite Jewish law definition of terms. What do we mean by though I prefer the one Dr. Rafael in support of decisions that uphold the Halakhah? Is it a system of laws, is it a applied, namely, that it was candid. privilege against self-incrimination in body of moral adjurations? Are the de- There is, of course, a certain severity criminal cases, when it cites it in other terminations made by the rabbis? Or is with reference to Halakhah, a system landmark decisions, we should recognize this an individual matter? grounded on specific assumptions con- that Halakhah has been centuries ahead I come to my final question. It was cerning a Divine revelation which is sub- of what is coming tQ be known in the stated here that if a person regards a given sequently developed by interpretation. civilized world as proper procedure and decision as being totally in error—say This is a point we cannot ignore and it civilized standards. because the Sanhedrin has wholly ig- does present a kind of barrier between It seems to me that, in many ways, the nored a salient text or lacks proper observant, Halakhically-committed Jews American legal system is far more rigid information—he is empowered and in- and nonobservant Jews. and doctrinaire than the Halakhic sys- deed obligated to act in accordance with Does this mean that, so far as a non- tem. One need only look, under the his own convictions. When I heard that, committed person is concerned, American system, to the authority of this came to mind: I'm sure that all of you Halakhah is of no relevance, that one can ?it basis־law, the obligation to follow what courts are aware that there are many people in regard it on a take-it-or-leave order. There is a doctrine under Ameri- the U.S. South who bitterly resented the Here we should be aware of a distinction can law that a court order, even if issued decision of the Supreme Court in the between the theoretical construct of without jurisdiction, even if unconstitu- Brown desegregation case. They re- Halakhah and its applicability within a tional, has to be obeyed. And the violator garded the Supreme Court decision as non-Halakhic context. If I wanted to be of this goes to jail even if the court ulti- absolutely wrong for upsetting their tra- very rigorous, I could come to a Jew who mately holds there was no jurisdiction, ditions and their way of life. Would Dr. regards himself as being a secular Jew that the basis for the action was uncon- Lichtenstein say that southern people and say to him, "Listen, you are very stitutional. The obligation to obey the who had this very strong conviction had a inconsistent. If you were consistent you law is absolute, inflexible and subject to right to disregard the opinion of the Su- would do one of two things. Either you criminal sanctions. preme Court? would accept Judaism fully or else you If one views Halakhah as a system of would say, I have no commitment to rules which has to be obeyed and then AHARON LICHTENSTEIN: Judaism as any kind of transcendental one views, as a subcategory of that, what I want to focus upon several questions system and therefore I have no vehicle rights one has—the rights one has against which have come up. Professor Falk in- for defining my Jewishness except in the the community, against the police, dicated that I said that discussion of indi- sense in which a Frenchman defines his against the government—then there is vidual rights was simply out of court being French." much more in the way of options for within a Halakhic framework. I have not But this remonstrance is one which I individual liberties and rights against the said that. I said, quite the contrary, that would certainly not want to apply be- government than there is in the U.S. the questions could be raised within a cause its results would be very negative. Rabbi Hertzberg said it was scandal- Halakhic framework, only that its es- Those who would opt for clearing out ous that buses do not run here in Israel on sence was non-Halakhic. Secondly, he altogether would obviously outnumber Shabbat. The United States, to this very said that we ought not to speak simply of those who would opt for total commit- day, has sustained the applicability of ol malkhut shamayim, the yoke of the ment. Secondly, I would regard such Sunday laws, which prohibit private kingdom of heaven, and cited the phrase thinking as being un-Jewish. owners from opening businesses on Sun- in full, thekabalat ol malkhut shamayim, While some regard Halakhah as a day. the acceptance of that yoke. That goes closed or almost closed system, I don't feel it is remotely scandalous to without saying. However, in conceding nevertheless, for the purpose of drawing accept within a particular community, that, I still think we are not speaking of upon it and identifying with it, I think it given its own set of religious values, that voluntary acceptance in the ordinary need not constitute a monolith. How- there is a particular day when official sense of the term where the matter is left ever, given the kind of perspective I de-

12 CONGRESS MONTHLY veloped with respect to man's relation- confused responses. As to the possibility to tell him to violate his moral con- ship to God, th,e supermarket approach of greater change, flexibility, diversity science. that Mr. Hausner suggested is out of within Halakhah, I think that a measure But to ask a person not to violate his court. To say that one should regard of flexibility, beyond that to which we moral conscience is not quite the same as Halakhah as the pomegranate, the shell are currently accustomed, is feasible. It not to ask him to inconvenience himself. to be discarded and the contents to be is difficult, though, to develop that The issue of transportation on Shabbat is consumed, is, in effect, to place man in within a kind of fish bowl, within a con- only, in a secondary sense, a moral ques- the position of sitting in judgment upon text of unremitting pressure by those who tion. I know the claim that the option of God. Where God commands, the re- envision not merely the kind of flexibility public transportation exists for people sponse cannot be, this I like and this I possible within Halakhic limits, but a who are affluent and but not for people don't like. kind of flexibility which is unacceptably who are poor. This is a moral question of Selective acceptance runs counter to radical. It was much easier, historically sorts, but the same applies to many areas the fiber of Halakhah, but it does not run speaking, for a degree of flexibility to of law, where people who are more counter to the interests of Halakhah. Cer- exist when the Halakhic community felt affluent can afford things that other tainly, to the Jew who cannot accept 613 itself to be more secure than it is today people cannot allow themselves. But if commandments but feels he can only ac- when it feels itself under constant attack. we are dealing with the basic issue, hav- cept 600, I say fine. So start with 600. I don't want to hold out any illusory ing no transportation on Shabbat is not, The Jew who says only 100, I say fine. prospect of the possibility of the total in its immediate sense, a moral question. The Jew who says only one, I say fine. rapprochement whereby we will tailor It imposes certain hardships but does not Certain comments were made here the Halakhah a bit and you will become a impinge upon conscience. Here I would about the fact that we have a situation in bit more observant and the whole prob- add that if Rabbi Hertzberg says that he Israel where pressures are exerted for the lem will be solved. This is a pleasant would draw the line between areas where passage of a particular law within a prospect, but not a realistic one. the Halakhic community is concerned community that is unwilling to make a with defending its own interests, and With reference to the question of di- total commitment. The implication was areas in which it is somehow trying to versity, I value diversity but within the made that if you had a society which is impose its views upon the community at monistic structure of Halakhah. There willing to commit itself totally, fine. If large, then I would have to say that this are major Halakhic and Aggadic texts the majority is unwilling to make the total might, at a tactical level, be a valid dis- supporting pluralism, but again, a commitment, then the minority should tinction. However, the line is not quite so pluralism within a monistic structure. raise no particular issues and make no easily drawn as he imagines. particular demands whatsoever. Professor Falk said that revelation If we're going to speak of an instance This is an unfair demand on the speaks a certain language, but it is, after such as public transportation on Shabbat, Halakhic segment of the community. I do all, absorbed within a human receptacle it cannot really be said that this is just a not draw the conclusion that since Is- and, therefore, opinions can be diverse. matter of what goes on within the private rael's society does not wholly accept the There is a measure of truth to that, but sector. The buses run through public Halakhic position, therefore we should again, there are limits to what one can streets, through a Jerusalem inhabited by simply withdraw and let that society pur- say. people to whom the environment and the sue its non-Halakhic course to whatever As to the questions of tensions be- climate of Shabbat is of value, to the non-Halakhic extremes it might desire. tween morality and Halakhah, I must re- same degree as getting to the beach is a Whether political pressures should be turn to the basic stand which Halakhah value to people who want to use the bus. brought to bear in dealing with issues of presupposes of man in the eyes of God. The claims of the Halakhic community in this kind is a question of political and This question of tension was faced at the this area are at least as tenable as claims moral wisdom. My own feeling is that very dawn of Jewish history. When which can be made by the non-Halakhic there are segments of the community to Abraham was asked to offer up Isaac as a community. whom any shred of Halakhah is rep- sacrifice, he was asked to do something There is a good deal which might be rehensible. In the areas where the collec- which revolts the moral conscience of added of how I would envision a kind of tive Halakhic stake is great, the justifica- every man and woman sitting in this modus vivendi between the Halakhic tion for exerting pressure upon the non- room and something which was not less !minority and the non-Halakhic majority. Halakhic community is greater. In other revolting to Abraham's moral con- I am inclined to try to take a somewhat areas, where either a consensus is lack- science. Do you think he was less mor- more educational approach and press less ing, or the collective Halakhic stake is ally sensitive than myself or Rabbi than perhaps other people in the Or- less, I would be in favor of holding off. Hertzberg? But when he heard this thodox community are inclined to do. It I believe that just as other special in- command—and Kierkegaard understood is difficult to get into the details of this. terest groups have the right to press their this question to its depth—he knew that Likewise, I must leave for some other claims, the religious community, to at that point he was sacrificing not only occasion the pertinent question which whom the spiritual character of the his son but his conscience. Now, that, of Judge Weinfeld raised, whether people of Israel is a primary priority, has course, is not a demand which can be Halakhah represents rules of conduct or a the right to press its claim. made to someone who doesn't hear the system of moral adjurations. I would say, As far as the issue of what can be done command. To someone who doesn't hear being of the tradition, that there are two by those who identify themselves as it and tells me that, as Rabbi Hertzberg aspects to most things, and the answer is: spokesmen of Halakhah, in terms of put it, I hear other voices and march to It is both. making certain changes, I found some other drummers, I certainly am not going [End of Session]

MARCH/APRIL 1978 13 Wednesday Afternoon

Third Session July 6, 1977

severely restricted; kashrut is officially Israeli Law and the well-nigh obligatory, and the growing of pigs and the marketing of pork is prohib- ited by law; religious courts exercise ex- Rights of the Individual elusive jurisdiction in matters of mar- riage and divorce, and religious law ex- A Presentation HAIM COHEN clusively applies to Israeli marriages and divorces—with all the discrimination that entails. The Chief Rabbinate of Is- rael enjoys an almost absolute monopoly t has been suggested to me that while on holding foreign exchange amounts to and hegemony in Jewish religious mat- I American law gives priority to and a denial of the right of the individual to ters, and non-Orthodox Jewish religious places major emphasis on the rights and hold, and dispose of, his property in any authorities are not recognized. concerns of the individual person, Israeli way or at any place he chooses. Or, the While all these are concessions made law, because of requirements of national licensing requirements for all imports to political parties for political purposes, security and like considerations, gives and exports may well be said to amount they are sometimes apologetically relative priority to the rights of the State. to a restriction of the freedom of trade— rationalized as concessions made by the This seems to me to be a wholly mislead- as the heavy taxes imposed on all travel non-Orthodox (and nonreligious) major- ing generalization and oversimplifica- abroad may well be said to amount to a ity to the Orthodox minority, so as to tion: notwithstanding the total national restriction of the freedom of movement. enable the latter to live their lives in an emergency in which we have perma- But then, all taxation and all licensing atmosphere of religious tranquility. It has nently and without respite found our- laws constitute an interference with, and been said, for instance, that while the selves in these 29 years, emergency a curtailment of, individual rights of conscience of a nonbeliever could not be legislation is rather insignificant in com- property and trade, and any proliferation offended by having to eat kosher food, parison with legislative activity in or particular hardship of such laws might the conscience of the believer would be peacetime areas of the law—civil, crimi- distinguish them in degree only, but not offended even by the sight of nonkosher nal, labor and administrative. in kind, from taxation and licensing laws food; and, a fortiori, while it could not One of the unavoidable but most re- which have by now become the common matter to a nonbeliever whether he was grettable consequences of our situation is law of mankind. Rationalized and married by a rabbi or a registrar, the that abroad you hear mostly of our legitimized, as they are, as the necessary abolition of religious jurisdiction in mat- emergency measures and little of our contribution of the individual to the sur- ters of marriage and divorce would result peaceful daily work. There is nothing vival and welfare of the general commu- in the believer being unable to marry at less accurate than the widespread im- nity, it stands to reason that the respec- all. It is, I submit, this kind of ex post pression abroad that life in this country is tive measures of the contributions will facto rationalization which renders the overshadowed or characterized by the have to be conditioned by the respective average non-Orthodox Israeli capable of emergencies facing us. And what is true necessities to be met: the greater the accepting the inherent curtailments of his of life in this country, generally, is all the needs, the heavier the burden. freedoms with good grace and making a more true of intellectual and cultural life, More difficult to put up with and jus- virtue of political exigencies. including the life of the law. In contrast tify are restrictions on individual liberties Apart from these politically con- to all other. ancient or modern states brought about by political exigencies. I ditioned restrictions on individual liber- (without any exception that I know of) do not speak of foreign or international, ties in the area of religion, there have also where inter arma silent leges and the war but solely of internal politics. The con- occurred instances of such restrictions effort presuppose suspension of some in- stellation of Israeli democracy has at all for truly religious motivations. All ef- dividual freedoms, here in Israel we times been such that no government forts to have the criminal code amended have, inter arma, started and carried on could be constituted otherwise than by a by eliminating or at least mitigating the steadfastly the peaceful work of laying coalition of several political parties, and felony of homosexuality, have so far the foundations of, and implementing, the Orthodox religious parties, or one of failed—the objections of the Orthodox the rule of law and human rights. them, have traditionally been coalition parties, based on Biblical tradition, hav- It is true, nevertheless, that political partners. In order to accommodate them, ing carried the day. Efforts to amend the and economical exigencies did make for concessions had—and will have—to be abortion laws, which had been made con- curtailments of individual liberties. To made to them in the area of religious tinuously for twenty years and more, take the economical measures first, it observance. Thus, the freedom of were finally successful over the vehe- may be said that the restrictions imposed movement on Saturdays and holidays is ment objection of the religious parties—

14 CONGRESS MONTHLY and now we hear that the progress so many such allegations have come before confession was found to have been made painstakingly made is going to be annihi- our courts but could not be substantiated. freely and voluntarily and would, on the lated again, as a concession to one of the Still, I have no doubt that police brutality face of it, cover the whole indictment, new coalition parties. is in fact on the rise, in Israel no less (and the accused may not be convicted on the In addition to political and economical no more) than anywhere else, and in strength of his out-of-court confession ;xigencies, there are, of course, re- municipal Israel no less than in the oc- alone: the judicial rule has evolved that quirements of national security which cupied areas. This is not the place to go there must be some additional evidence unavoidably account for a good many into the sociological reasons for this dis- to show that the confession may, in the curtailments of individual rights. To de- quieting general phenomenon. Suffice it circumstances, be relied upon. prive a man of his liberty by administra- to say that no exigencies whatsoever, of The main difference between the tive, as distinguished from judicial, pro- national security or public peace or law American and Israeli systems of criminal cess is, indeed, a violation of his funda- enforcement, can justify unlawful ex- justice lies in the absence in Israel of a mental right not to be so deprived except cesses. Israeli law and courts regard jury. But so far from thinking that the by the order of a competent and inde- police officers and security agents who absence of a jury deprives the accused pendent judicial tribunal; but in a state at assault persons under detention or inves- person of any substantial right, we con- war and beleaguered by enemies you tigation as common criminals who ought sider it a fundamental right of every ac- cannot endanger the community at large to be brought to swift and stern justice. cused to be tried, both on law and on the by letting suspected terrorists or guerillas facts, by professional and independent (or whatever description they may ow this brings me to the protection of judges only. We believe that only profes- choose for themselves) go free to pursue N the individual vis-a-vis the sional and independent judges can be their murderous designs. And while police—an appropriate turning point trusted to render themselves insuscepti- every man has the fundamental right not from curtailments and restrictions to the ble to outside influences and, more par- to be deprived of his liberty or to be promotion and safeguarding of the rights ticularly, to the impact of modern mass punished because of suspicions only, of the individual. We in Israel have not media and so-called public opinion; only however well-founded they may be, no partaken of the far-reaching reforms in- they can be trusted to immunize them- state can afford such well-founded suspi- troduced in the United States by such selves against popular or other prejudices cions to be proved true at the cost of the decisions as Miranda and its followers: and political or other interests. In order to loss of human lives, only in order to we still adhere in practice to the English ensure the highest possible professional ensure that that individual right is not Judges' Rules as elaborated in our own standards, we have evolved our particu- violated. jurisprudence. But we are very wide lar system of judicial appointments; and What the authorities are confronted awake to the problem in issue: the una- in order to ensure the independence of with in these matters is a choice between voidable collision between the rights of judges, they are appointed for life (sub- the greater and the lesser evil. It is only the individual and the war against crime. ject to retirement) and are well-nigh ir- fair to say that the military authorities are With the unprecedented and ever increas- removable and not answerable to any- exercising their emergency powers with ing prevalence of organized, sophisti- body but their own conscience and the great restraint: there are at present very cated and violent crime, greater vigilance law. But there is something more to it. few administrative detainees in our pris- is required on the part of the courts to We would also regard it the right of the ons, and the compulsory deportation of guard against overzealous law enforce- accused person to be advised in detail of suspected terrorists/has (after the courts ment officers; but, on the other hand, the reasons for his conviction: to have a interfered in sorjle cases) practically courts cannot shut their eyes to their own jury pronounce him guilty, like a Greek ceased. Although the Defense responsibility for the maintenance of law oracle, without any indication of its (Emergency) Regulations of 1945, and order. This is why bail is being re- reasons and any possibility of probing which are still in force, provide for capi- fused nowadays in many more instances into them, would in our eyes amount to a tal punishment for serious security of- than it used to be: recidivists are usually denial of justice. fenses, no terrorist, not even the mass held in custody to prevent their further What is sometimes regarded as an in- murderer of Lydda, has ever been exe- criminal activity pending trial. But where fringement of the rights of the accused, is cuted, and the death penalty has become bail is allowed—as it usually is to first the right of the prosecution to appeal both a dead letter. Of particular interest in this offenders, where no interference with against acquittal and against sentence. I respect is the mode in which the censor- and intimidation of witnesses is would submit, however, that the mutual ship is operated by an agreement entered apprehended—it is set on terms easily rights of appeal, of accused and prosecu- into with the editors of all newspapers attainable, and never on such impracti- tion alike, are reflecting the equality of and under the supervision of an editorial cable terms as render it fictitious. The both before the law. Where rights of ap- committee, without any recourse ever to question whether a statement made by a peal exist, no litigant, even in criminal military or other courts. person in custody has been made freely cases, can acquire any vested and ir- Military service, as such, naturally in- and voluntarily is a question of fact, and revocable right under a judgment unless volves drastic and manifold deprivations the burden of proving it lies on the prose- and until such judgment has become fi- of individual rights; needless to say, cution whenever such a statement is ad- nal. duced in evidence: an enormous amount these are unavoidable. Before leaving the area of criminal jus- of judicial time is devoted to, and much There has lately been much adverse tice, I should like to mention a right of the of the delay of justice is caused by, the publicity of alleged brutality against sus- individual which I believe is unique in thorough investigation into police behav- pected terrorists in the occupied areas at Israel—namely, the right of a prisoner to ior in every such case. Even where a the hands of the security agents. A good petition the High Court of Justice. In its

MARCH/APRIL 1978 15 capacity as High Court, the Supreme with the inviolable, immaculate, primor- the courts for the enforcement of th Court issues the so-called prerogative dial right to strike. This is an instance in criminal law against obscen writs to executive and administrative or- which Israeli law has so far failed to publications—but courts have been gen gans and agencies, first and foremost make some equitable adjustment be- erally very diffident in holding a publica among them the writ of mandamus com- tween the right of individuals (or indi- tion to be obscene, and very lenien manding them to do something that they vidual groups) to strike and the require- where the obscenity was beyond dispute are by law obliged to do, or to abstain ments of public order and general welfare As distinguished from criminal law from doing anything that they are by law and of maintaining the rule of law; the however, the High Court did not nor not allowed to do. The prison authorities right of the individual has become and mally interfere with the discretion of the are, of course, amenable to this jurisdic- remained well-nigh absolute. competent administration agency whicl tion; and Israeli prisoners being particu- I should like to mention some other had barred obscene films from public larly conscious of their rights and alert to individual rights in the area of labor law display. That cinematographic and stage any infraction thereof, have become used which may appear to some of our Ameri- performances still require, under 2 to taking advantage of the process of the can friends rather far-reaching. It has British Mandatory ordinance, the previ- Court to an ever growing extent. Subject been held that a man has a vested pro- ous approval of a public board, is re- matters of these petitions range from de prietary right in his place of work and garded by many as an outdated and un- minimis to the vindication of substantial cannot be dismissed except for good necessary restriction on the freedom of rights, such as (in a recent case) the right cause. Any deterioration in a man's con- speech and expression. When the Minis- of every prisoner to choose his reading dition of work is by law recognized as try of Education and Culture declined to material for himself and not to be re- sufficient cause for his resignation, en- subsidize the performance of Christian stricted to such reading material as the titling him to full severance pay. A civil religious music (Bach's The St. Matthew authorities choose to provide and ap- servant may not be dismissed except by Passion), the Court was divided: the prove. The fact that each prisoner has virtue of a judgment of a disciplinary majority held that the allocation of funds free access to the High Court where his court. Wages in arrear carry exorbitant available for such subsidies was in the complaints will be considered and his interest, wholly out of proportion to the Minister's sole discretion, with which rights enforced is not only of purely legal maximum rates of interest in force for all the Court would not interfere; the significance but surely contributes to fos- other debts. minority held that in withholding funds tering consciousness of his own standing because of the contents and subject mat- and dignity. ter of the performance, the Minister un- he right of the individual to privacy lawfully exercised cultural censorship has lately been the subject of investi- T and restricted the freedom of opinion and n the field of labor law, the socialist gation of an interdepartmental committee expression. (It may be out of order, in tradition, held sacrosanct in this coun- which proposed an elaborate statute to be I this context, to mention the officious ban try since long before the establishment of enacted on the subject. Telephone tap- in Israel on performing any works of the State, still is jealously and anxiously pings, in particular, have been the sub- Wagner or Richard Strauss, who are for on the watch for any infringement of any ject of several bills tabled in the Knesset, some reason or other identified with right of the worker. While legislative due originally to a vehemently resented Nazism—a ban disquietingly reminis- measures to enforce price controls, for tapping by security agents of the tele- cent of what the Nazis did to works of instance, are matters of almost daily phones of a political party. But since then routine, no legislative measure has as yet no further complaints have been forth- Jewish authors.) been taken to enforce wage controls. The coming, and interest in the matter has right to strike, traditionally regarded here abated. Like so many other human rights by many as the most fundamental human which are not as yet expressly laid down I " right, has been allowed time and again to in any legislative enactment—freedom cated the right of the non-Orthodox paralyze public services, jeopardize vital of speech; of thought, conscience and Jewish communities to have placed at state interests, and oust any conflicting religion; of assembly and association— their disposal for their services such rights of the community-at-large or of the right to privacy is, of course, well premises as are let out by local authorities individuals affected. In the rare and ex- established and will be enforced by the for purposes of assembly, notwithstand- ceptional cases in which recourse was High Court. ing any Orthodox veto within the local had, as an act of desperation, to labor As far as freedom of speech is con- authority. On the other hand, the right of court injunctions or to work orders under cerned, the High Court has long ago the individual to marry not in accordance emergency regulations, they were more (1953) struck down on the power of the with Orthodox rites, while time and often than not disregarded and dis- Minister of Interior to close down a again asserted in court, has not been rec- obeyed, and except in one single instance newspaper at his discretion, and has held ognized, not only because of the where the military was called in, nothing that this power was exercisable only for monopoly vested by law in the Chief whatsoever happened. Not that the Is- the prevention of clear and immediate Rabbinate, but also because of the neces- raeli labor law does not provide the danger to national security. In fact, the sity of having marriages registered and worker with legal remedies for any con- freedom of the Israeli press is orgiasti- their celebration supervised by legal au- tingency: special labor courts and arbitra- cally unrestrained, and such restrictions thority. But marriages celebrated in pri- tion boards and reconciliation procedures as are provided by libel laws and con- vate and without rabbinical supervision have been established to deal with all tempt of court prohibitions are largely have ex post facto been recognized by the labor disputes. But none of those reme- theoretical and very rarely enforced. court as valid, if valid after the event dies proved effective to even compete Time and again, cases have come before under rabbinical law. The fundamental

16 CONGRESS MONTHLY individual right, laid down in Article 16 but individual parents have the right to there is no jury system. I have had ex- of the Universal Declaration of Human determine for their children whether they perience in the United States with very Rights, to marry and be married accord- should be educated in a religious or in a bad decisions by juries that were the re- ing to one's own choice, "without any nonreligious school, or whether in a State suit of illogical and prejudicial considera- limitation due to race, nationality or reli- school or a private school. Primary edu- tions, but I have also had experience with gion," does not, owing to the applicabil- cation is, by law, gratuitous and State decisions by judges that have been quite ity of religious law, subsist in Israel, nor financed, but it is also obligatory, and no as irrational and prejudicial. does the right there laid down to equal individual has the right to deprive his Justice Cohen stated that as long as we rights of both spouses to and at the dis- child of education. have judges who can be trusted to be solution of their marriage. The "society built on freedom, equal- independent and well-informed, we need The jurisdiction of the religious ity, tolerance, mutual aid and love of not worry about the protection of rights in courts, however exclusive, has been held fellow-men" is still, after almost 30 Israel. That, I suppose, is the case by the court to be subject to fundamental years of statehood, in the early stages of everywhere. But I would be unhappy to principles of natural justice, it being pre- formation. For the time being, it often see the jury system set aside. The system sumed that the legislature did not intend looks as if the assertion of individual brings to bear the perception of a group of to vest jurisdiction in any tribunal unless rights and interests, particularly in the people rather than a single individual. It it was exercised in accordance with those economic field, was the only motivation incorporates a wider, more representa- principles. The High Court will therefore to act and fight, and that the public inter- tive sense of justice. quash by certiorari any decision of a re- est and the rights of others, and even law With respect to Justice Cohen's state- ligious, military or other court of limited and order, had to give way where ment that Israel protects minority rights jurisdiction when any of the principles of the individuals asserting their rights were to an extent unequaled in ajiy other natural justice has not been observed in pressure groups of sufficient power. Tol- country—it would be difficult to square the proceedings, and also when the deci- erance and the love of fellow-men (not to this view with the constitutional protec- sion is contrary to any of the statutory speak of the love of the stranger in thy tions accorded to minorities in the U.S. laws of the land. midst) have become so-called "Zionist" While Justice Frankfurter's advice not to The right of the individual to deter- theology, that is to say, moralizing write a constitution may have worked out mine whether he is or his minor children abstractions. And divine commands of well here, it is an old lawyer's adage that are Jewish has been upheld by a majority love have long been superseded by more if you are saying something and you of the court at least for registration human urges of intoleration and egotism mean it, you might just as well write it purposes—but this ruling appears to have and selfishness. The psychological dan- down. I believe that a written constitu- been set at naught by subsequent legisla- gers inherent in an overemphasis on indi- tion that sets forth the rights that judges tion. vidual rights, especially in a state still are expected to enforce is a useful device The right, also laid down in the Uni- fighting for its very survival, should not for making sure that those rights are pro- versal Declaration (Article 18), to man- be underrated; and maybe we were all too tected. ifest one's religion or belief "in teach- optimistic when we assumed, as a matter Mr. Lewin seemed to me to confuse ing, practice, worship and observance," of course, that promoting and safeguard- the question of the nature of rights with has repeatedly been restricted in practice ing individual rights was a sine qua non the nature of the coercive power used to to prevent missionary activities. In a case in upbuilding the State. However that enforce the rights. To use as an example that has come before the court, it was may be, both the legislature and the of a doctrinaire legal system the power to held that such restrictions were lawful judiciary in Israel have (as I have tried to punish for contempt for refusing to ob- only where missionary practices were di- show) a fine record in restating and en- serve a court order is to distort reality. rected to conversion of minor children or forcing individual rights. I can only hope The fact is that in every legal system in other persons incapable of forming and and pray that we may in future, with or the world an order by government author- changing their own opinions and beliefs, without a written constitution, be al- ity may be enforced by penalties, by jail but that the court would vindicate the lowed to continue steadfastly and unerr- if necessary. That, of course, has nothing right of any person to teach and propa- ingly in the ways of freedom and justice to do with the nature of the rights which gate his religion with a view to persuad- as envisaged by the Prophets of Israel. are being enforced by the court order. ing rational adults of its truth. The doctrinaire nature of the system of Halakhic laws seems to me related to the he law states the purpose of State edu- fact that the area for change is very lim- T cation to be "the foundation of pri- DISCUSSION ited. Dr. Lichtenstein stressed that there mary education on Jewish civilization [Chairman: Zalman Abramov] is a limit on what can be expected to be and the achievements of science, on love done. The American system does not for the fatherland and loyalty to the State HOWARD SQUADRON: fyave that limit. and to the Jewish people, on training for I would like to comment on some aspects agriculture and handicraft, on pioneering of American law that occurred to me as I IRWIN COTLER: spirit and on the aspiration for a society read Justice Cohen's paper, and then I am reminded of something else that built on freedom, equality, tolerance, comment on remarks that Mr. Lewin Justice Frankfurter said, namely, that mutual aid and love of fellow-men." made earlier with respect to the doc- how one comes out on an issue depends This statement of purpose is common to trinaire nature of American law in com- very much on how one goes into it. The all schools, religious and nonreligious, parison to Halakhic law. discussions between Halakhists and established and maintained by the State, I was struck by the fact that in Israel non-Halakhists seem to support Justice

MARCH/APRIL 1978 17 Frankfurter's dictum. prives you of your individual rights? You complete freedom of thought and opin If I may take notice of the Halakhic said that it is not for you to decide the ion; the Halakhah distills it into a way 01 and non-Halakhic exchanges, with their question. Can someone make the deci- life and action. preconceptions, I'd like to enter the fol- sion for you by bringing it to your court? lowing comments. I would agree that to It seems to me that it is impossible to RUTH BADER GINSBURG: dispute Halakhah one has to know what reconcile the minority imposition of re- I have a simple question for Justice Co Halakhah is. But I sometimes sense from ligious law on the majority of the country hen. He said that it is a lesser evil t( discussions with Halakhists that to know with the belief that either religion or soci- require everyone to go to a rabbi than tc Halakhah is not to dispute it. ety would profit. But there is a role for require the Orthodox to go to a civil regis The other side of the coin is that the the Halakhist in filling the moral vacuum trar. But why can't there be two offices non-Halakhist or anti-Halakhist has not that exists by educating Jews to the val- so that there would be a civil registrar foi only often not bothered to learn about ues of tradition. the nonbeliever and a rabbi for the be- Halakhah but believes that Halakhah has liever? nothing to tell him, notwithstanding the LOUIS RABINOWITZ: fact that, as Mr. Lewin pointed out, secu- I must take issue with some of Justice SIMON GREENBERG: lar judges and jurisprudence have often Cohen's sentiments. Justice Cohen ends Some of the things that I said have been drawn on Halakhic sources. his paper with these words: "to continue misunderstood. I said that I yield to no The result of all these preconceptions steadfastly and unerringly in the ways of one in my concern for the preservation of is that dialogues between Halakhists and freedom and justice as envisaged by the the Halakhah and for maintaining respect non-Halakhists often founder. It is be- Prophets of Israel." May I say that the for it. The challenge that Justice Cohen coming increasingly difficult, I would Prophets of Israel did not envisage that addressed to the rabbinical courts is the say, for Halakhah to insulate itself from freedom which is the essence of Justice challenge that, if accepted, will give life the non-Halakhic, if only because it has Cohen's paper. They, for example, to the Halakhah and, if not, will permit to respond to criticism. Similarly, it is would not have agreed with what he said the Supreme Court of the State to take becoming impossible for Jews, whether about the laws on obscenity nor mitigated over all legislation. in America or Israel, if they take their the crime of homosexuality. The There is a positive way of treating the Jewishness seriously, to be insulated Prophets' purpose was to enforce ritual Halakhah, and that is to recognize that it from Halakhah. and to infuse ritual and ceremonial law has within it principles that can be de- May I, at this point, refer to Justice with spirituality. veloped. I might note that the Rabbis Cohen's remark that there can be no in- Justice Cohen avers that in Israel free- debated for centuries, until the Middle troduction of religious law in a state dom of movement on the Sabbath is seri- Ages, the question as to whether the without some curtailment of certain liber- ously restricted and kashrut is well-nigh Rabbis have the right to uproot a specific ties. It seems to me incumbent upon obligatory. I do not think that anyone statement of the Torah. And they said Halakhists to show that there is a greater walking the streets in Israel during the yes. They said they had the power and public interest to be served by having Sabbath will agree that freedom of they exercised it. I could give you any religious law prevail over secular law, movement is severely restricted. number of illustrations of that. even if this involves discrimination, or, if About the obligatory nature of ka- The past however does have a veto. this cannot be done, to show that reli- shrut, may I draw Justice Cohen's atten- There are limits within the Halakhah that gious law can be introduced without tion to advertisements in the Jerusalem we cannot go beyond. There is a great creating discrimination. Conversely, I Post about nonkosher restaurants. In- deal of misunderstanding about what the would say to the non-Halakhists that they deed, a bitter complaint has been made to word "civilization" implies. Jewish have to demonstrate not only that there is me by an Orthodox Jew that he cannot civilization ceases to be Jewish civiliza- less discrimination under secular law, find a kosher restaurant in Tel Aviv. tion when it gets beyond a certain point. but that the greater public interest is Justice Cohen referred to Spinoza's For example, the past has exercised a served in having secular law prevail over observation that Judaism permits veto on the subject of language and on the religious law in a state inspired by Jewish maximum freedom of thought. I agree. subject of country. Why did the Zionists law. There is no faith in the world which per- turn away the territorialists? Why didn't Finally, if Halakhists want to make it mits such freedom of thought and expres- they say, a Jewish home anywhere? desirable for Jews to live within sion as Judaism does. May I call your There was a veto by the past. A Jewish Halakhah, they must not regard any ques- attention to the incredible fact that it was home can be only in Eretz Yisrael; it tions as being anti-Halakhic, as outside the Rabbis who admitted the Book of can't be in Uganda. Why did the Zionists the bounds of legitimate debate. It is my Ecclesiastes to the Bible despite their say that the language must be Hebrew at a hope that Halakhists will try and show doubts, since it finally proclaimed, "fear time when the majority of the Jewish non-Halakhists that they can live morally God and keep His commandments." people spoke Yiddish? Hebrew is the within Halakhah. And this is my point: Our subject is languge of the Jewish people. If we had Halakhah and not Aggadah. Aggadah given up Eretz Yisrael or Hebrew there PAUL BERGER: permits the widest range of opinion. would have been no possibility of a May I ask this of Justice Cohen: Under There is no opinion which one cannot Jewish civilization. Israeli law, can you, if you are a private confirm by quoting from Aggadah. You At a certain point, then, Jewish civili- party, go into court and challenge a stat- can find statements in favor of idolatry zation ceases to be Jewish. Without the ute on the ground that although passed in and statements condoning the eating of Sabbath, without dietary laws, without the interests of security it unduly de- nonkosher food. Aggadah provides synagogues, there can be no Jewish

18 CONGRESS MONTHLY civilization. So there are limits though tem in ways which you do not exist for American system we have something we may differ about their extent. yourself. You are to be educated, to be that is its equivalent. Let me indicate brought back. You are somehow or other how. Suppose three-quarters of the states NATHAN LEWIN: to act in our play regardless of what play of the union voted to eliminate the Bill of Justice Cohen said that whenever reli- you want to act in." Rights. Would the United States still be a gious law applies, some individual rights Let me be more precise. The use of the democracy if the Bill of Rights were are negated. "Religious" is somewhat Halakhah within the structure of a state eliminated? We in the U.S. accept in this superfluous in that sense. Whenever law legal system carries with it, for the non- sense an absolute norm, a point beyond applies, some individual rights are ne- Halakhic part of a community, a pejora- which the majority cannot go, a point gated. The subjects discussed in his tive set of labels. That is at the core of the which, in effect, says: this is divine. The paper—whether they be the rights of issue. Now, the Halakhah is perfectly Halakhic system asserts a similar abso- laborers or the obligation to pay taxes— entitled to its pejoratives. The Roman lute. every single one of them affects indi- Catholic church had for centuries its If we are going to accomplish anything vidual rights. An employer, for example, pejoratives, and it had to unlearn, espe- here it will not be by introducing a hostile who may not discharge his employee is cially in America, the notion that Protes- attitude toward Halakhah but rather by being deprived of a right. The person tants were terrible people, and it started adopting a conciliatory view. Justice who pays a tax bill is being deprived of to talk about them as separated brethren. Cohen realizes that if there is to be unity some rights. Religious law simply adds The problem now before us is that we are in Israel, accommodation will be neces- the moral imperative that underlies a par- asking how are we going to keep intact a sary. What we ought to encourage is ticular statute. Jewish people which in relationship to more dialogues between Halakhists and For myself, my position in the United Israel and to a variety of other things non-Halakhists, but conducted with States has always been almost totally behaves together but which does not mutual respect and with the common de- civil libertarian. I do not like certain laws know how to behave together in concep- sire to achieve the kind of development in the United States, but I am prepared to tions of one another. within Jewish law that Jewish law can recognize that when they exist they are There are several options in front of have. not simply the products of backward re- the Halakhic mind. One is to say that the ligious demands—they are based on a Halakhah is engaged in the reconquest of AMOS SHAPIRA: moral system, on a view of life's needs the unbelievers, at which point you do At the risk of appearing eccentric, I will which grow out of a view of what life is what Rabbi Lichtenstein and Mr. Lewin not speak about Halakhah but limit my- all about. For that reason, it appears per- have been elegantly defending—you self to some cursory observations on the missible to me to impose religious law work the reconquest by whatever politi- overall performance of our Supreme once one defines it and specifies its ap- cal means are available. Another option Court in protecting human rights and in- plication to particular situations. is to take a look at the realistic situation, dividual freedoms in the absence of a In Israel, which is a Jewish State, I see which is that we are living together as a written constitution and in the face of the application of religious law as a moral people with a profound desire to have national emergency. imperative. If we are to select a set of some respect for tradition without quite Justice Cohen noted that in the absence moral principles to underlie law in Israel, being inside it. of a written constitution and, I may add, it should be Torah and Halakhah. in the face of a scarcity of legislative EMANUEL RACKMAN: measures on human rights, it has been ARTHUR HERTZBERG: I am concerned that many people will get left largely to our Supreme Court to act as I would like to respond to Mr. Lewin's the wrong impression of Halakhah, and the defender of individual freedoms in interesting challenge, which is: "Come that this Dialogue, instead of making a our country. Thus, whatever virtues or now. Count up all the impairments of contribution to mutual understanding, faults may be found in our system can be civil rights that you can charge up to the will so alienate people that it will be attributed to the performance, or nonper- account of strict Halakhic construction impossible to continue dialogues be- formance, of our Supreme Court. I and compare them to the impairments of tween the Halakhists and the non- would say that our Supreme Court, the individual rights that you can count Halakhists. though by no means a paper tiger, cannot up in other systems. Halakhah won't fare Take the talk about Halakhah as reli- be viewed as a formidable force— badly." gious law. What's religious about it is somewhere in-between. That's a brilliant lawyer's argument. that the original source of the law is God. We have had examples of judicial The trouble with it is that it doesn't work. Professor Carl Friedrich said that in creativity, even activism, in certain And it doesn't work for a very simple Judaism law is the will of God. But when areas, primarily in the freedom of the reason. The difficulties with personal we talk about law being the will of God, press area. But, at the same time, we can rights in the United States are difficulties it does not exclude the fact that there has point to occasions of exaggerated re- that are procedural. The blue laws that he been continuous legislation in which the straint or submissiveness in certain adduces are precisely the laws that have will of a people has been expressed. areas—censorship of films and theatrical by now pretty well been thrown out and What Dr. Lichtenstein was trying to performances and, of course, in in- the trend is against them. The real diffi- get through to us, and which has been stances pertaining to state security and culty for the non- or anti-Halakhic mind misunderstood, is that Halakhah presents national emergency. Therefore, I believe is that the Halakhah as a legal system us with revealed norms that we wrestle that a form of judicial review of our legis- says, in effect, to the non- or anti- with in the Kirkegaardian sense but that lation, not necessarily in the American You exist within our sys- we must accept as axiomatic. In the mold, is desirable. Our constitutional ' י:Halakhic Jew

MARCH/APRIL 1978 19 legal system is now marching hesitantly, legacy of bad laws, and the Israel gov- vidual rights. if not reluctantly, in this direction. ernment has not done much to rectify the The newspapers, too, are sensitive As to human rights and individual situation. Our Supreme Court has done about individual rights. The police are freedoms in times of national the job. It has done more to protect civil subjected to scrutiny and the likelihood emergency, I think outsiders should be liberties than could be expected in our of abuses are minimized. But there are, reminded that Israel presents a peculiar situation. Not that I am altogether happy however, some negative factors in terms case in this regard. What is the ordinary about the present situation. There are, to of police power. The 48-hour detention modality of emergency legislation in a my mind, too many infringements of provisions permit abuses by police, who, democratic country facing a grave se- civil liberties. I think, for example, that at times, will hold suspects without curity situation? At such times the when a Reform Jew in Israel cannot get cause. The prostitute sweeps in Israel peacetime legal system shifts gears to an married or divorced by a Reform rabbi, present problems similar to those in the emergency-oriented system which many this is an infringement of freedom of re- U.S. and the problem is seemingly im- times means indulging in excesses—for ligion. And there is no real justification possible of solution. Needless to say, this example, the internment of Japanese for the censorship of plays and movies. offers opportunity for police corruption Americans in World War II. Then, after a But despite these negative aspects, I can which, as far as I can determine, has not period of time, the legal system shifts say than an Israeli feels as free as an yet occurred. gears again back to normalcy. Whatever American. I might note that the Orthodox, on the excesses have been perpetrated are un- Moreover, there are the positive rights basis of tradition, have aided in the pro- derstood as fevers in the body politic, which Justice Cohen referred to: the right tection of rights. The head of the Knesset without severe permanent trauma. to work, the right to such welfare benefits committee on law and justice relied on But our situation is different. as old age pensions, health services, free his religious training in opposing propos- Emergency for us is a way of life. It is not education, and so forth. These rights in als to ease hearsay. a short interval between a period of peace Israel compare favorably with those of May I add that it seems to me that the and war. This has produced two peculiar any other country, including the U. S. We Orthodox community in the U.S. has phenomena. On the one hand, our offi- are also as responsive as the U.S. to new been beneficial to the U.S. in terms of cials, justices of the Supreme Court in- demands: air and noise pollution, en- guarding individual rights and liberties. eluded, tend to be immensely receptive vironmental protection, etc. A minority is concerned and vigilant to the arguments of national security. The real problem is not with the laws about protecting certain minority rights. But, at the same time, most of us, par- on our books. Rather, our troubles lie It is interesting that many of the defen- ticularly our judiciary, are keenly aware with observance of the law and the lack ders of individual rights in the U.S. have of the fact that since emergency for us is a of rigor in law enforcement. These are come from the Orthodox community and way of life, indulgence in too many ex- real problems in Israel as elsewhere. have been trained in yeshivas. cesses could mean, over time, the de- struction of our constitutional fabric. We JACK WEINSTEIN: HAIM COHEN: are trying to learn how to steer in these I'd like to add some remarks on Justice Mr. Lewin has challenged me to cite vio- troubled waters. Cohen's paper and limit myself to some lations of individual rights that result notes on institutions and attitudes that from the imposition upon the population ZEEV FALK: seem important to me. of Israel religious laws in the field of The Supreme Court absorbs the function First, with respect to the court system marriage and divorce. Let me point to of a written constitution in this country. in Israel, it seems to me that, at least at patent inequalities. The first one is that The consequence is that the principles the second and highest levels, it is the husband can divorce his wife but the which guide it are vague and not open to strongly oriented towards individual wife cannot divorce her husband. There that kind of discussion which would take rights. The influence of Britain and the are ways to compel the husband to di- place during the preparation of a written U.S. is very great and shows no sign of vorce his wife, but these ways have constitution. We need such an examina- declining. This is reflected in such details proved in some instances utterly frustrat- tion of principles and norms. as the kind of schooling that the students ing. A woman who refuses to accept a In a similar vein, I don't believe in are given, the requirement of English, divorce has no legal remedy whatsoever leaving Halakhah solely to the Halakhist. the libraries which contain a large corpus because the man will be granted it; he Halakhah is our concern because it is the of American matter and the works of may marry another woman and every- law of the land. Israeli professors in comparative law. thing is fine. The woman, the wife, is left There are some problems with justice defenseless. YITZHAK ZAMIR: here. There is the problem, for example, In cases where the man is insane, the When Israeli lawyers, or for that matter of providing adequate counsel for poor woman must remain married to him until American lawyers, speak of the rights of defendants, though that situation is im- the end of his life, whereas if the wife is the individual, they refer mainly to such proving. insane he can get a divorce from the rab- freedoms as freedom of speech, press, The Ministry of Justice is so set up that bis and can take another wife. religion, assembly, and so forth. I want we could not have, in my opinion, the These are not only violations of human to say that although we have no written kind of abuses of individual rights that rights which a civilized citizen of the constitution, or a Bill of Rights, our legal have been manifest in the U.S. 20th century cannot accept, but also vio- system has coped well with basic free- Attorney-General Barak and his pred- lations of the spirit of Jewish law. And doms. ecessors are and have been independent they are, as well, violations of the moral The Mandatory government left us a and markedly oriented towards indi- concepts of our society at large. Dis-

20 CONGRESS MONTHLY crimination against women is not just a of marriage and divorce. A civil law posed legislation to have civil marriages. legal issue. It is a moral issue. The depri- would make it possible for a Jewish According to newspaper reports, he has vation of the right of men and women to couple in Israel to be divorced by a court, been promised by one of the Chief Rab- have their sexual lives conducted in pri- but the consequence would be that if the bis of Israel that ways and means would vate, as they wish, is a gross interference woman remarried after the civil divorce, be found to bring about necessary of their right to moral self-determination. her children would be mamzerim, bas- changes without legislation. From what I might note here that it hardly matters, tards. Now our mamzerim have a special modest knowledge I have of the in terms of actual enforcement, that distinction. They may not marry except Halakhah, I believe that it is possible. penalties against homosexuality is on the other mamzerim. We do not have enough You need only some courage. statute book in Israel. It is, indeed, a mamzerim for the purpose. Dr. Lichtenstein spoke of concessions felony punishable by 15 years imprison- We must, I say, prevent children from which Halakhah could make to others, to ment. The same goes for abortion. We being born as mamzerim. It has been outsiders. I do not want Halakhah to have severe laws against abortion but Jewish tradition throughout the centuries make concessions to apikorsim, to unbe- there are 40,000 abortions a year. These not to encourage mamzerim. The Rabbis lie vers. I want Halakhah to develop, to obsolete laws do not matter from a prac- have done everything in their power to progress. I want Halakhah to be a system tical point of view, but they do from the see to it that there were no mamzerim, of law that everybody can love and be moral point of view. Human dignity re- and I could dwell at length on the fictions proud of. I do not want Halakhah to re- quires that such laws should not remain they have resorted to in various in- main, as it is now in Israel, a matter often on the statute book. stances. of ridicule, of hatred. I want people to see Professor Ginsburg asked why we I might note that Gideon Hausner, who its beautiful side, its noble side. cannot have civil as well as religious laws is sitting here, has time and again pro- [End of Session ]

Tuesday Morning Fourth Session July 5, 1977

courts relied on a Supreme Court deci- American Law & Halakhah: sion to the effect that a state need not provide counsel to an indigent defendant in a criminal proceedings. That decision Of Change and Permanence was, of course, reversed. And that deci- sion has been subsequently implemented rather dramatically. Its implementation A Presentation RICHARD STONE includes, for example, a requirement that a detaining authority tell a criminal de- fendant that he has this right to counsel. If the authority fails to give the proper want to talk about the American legal the states of the United States operated warning, a subsequent conviction may I system and the American situation under a theory, endorsed by a Supreme later be reversed even if, indeed, counsel with respect to personal rights, partly in Court decision, that made it permissible was later obtained. order to list some of the substantive areas as a matter of federal constitutional law Twenty-odd years ago, states operated that, surprisingly, have not been men- for the states to maintain totally separate under the assumption that even if it was tioned thus far, but with a focus on the schools and other public facilities for illegal to obtain evidence against a crimi- concept of change and flexibility in the members of different races. That Su- nal defendant because of the Fourth legal system. preme Court decision has, of course, Amendment's protection against un- If we think about personal rights with been reversed. But it has been more than reasonable search and seizure, a con vie- any recent historical perspective, change reversed. Its reversal has been im- tion based on such evidence would stand. is at least as important and worthy of plemented so that federal courts now, in That decision was reversed. Now a con- notice as is the substance of personal some cases, require that the schools be viction may be constitutionally over- rights because there have been extraordi- racially integrated even if segregation re- turned if based in part upon illegally ob- nary changes within the last two or three suits exclusively from neighborhood tained evidence or upon the fruits of that decades in the U.S. Supreme Court's housing patterns. That is a very radical evidence, even if all the evidence to- perception of personal-rights issues. innovation. gether against the defendant is in fact Twenty-odd years ago, for example, Twenty-odd years ago, the federal overwhelming.

MARCH/APRIL 1978 21 In 1890, the young lawyer Louis easy to answer—point of view, the de- primarily to restrict personal rights. I Brandeis collaborated in an article in the segregation decisions have resulted in the cannot help believing as did, say, Justice Harvard Law Review which proposed busting up of neighborhoods and the in- Frankfurter, that there is at least some what I suppose was then a startling prop- sertion of sheltered middle-class children room for caution about the legacy of the osition, namely, that there was a right, into unpleasant situations where their Warren Court which we all feel enam- possibly even a constitutionally based educational standards are lowered and ored of. right, called the right of privacy. At the they are put in constant fear. The crimi- Ms. Pilpel said that she is "a re- time that article was published, I think nal law decisions are a causative factor in lativist," a person who believes that the that every state had on its books laws the minds of much of the public for what only absolutes are neutral principles, which prohibited the sale or use of con- is an undeniable and intolerable rise of such as, for example, equality. I accept traceptive devices; which prohibited all crime in the U.S. and a decline in the that principle but I cannot accept her sexual acts other than the most traditional quality of life in American cities. The example. I do not believe equality, per act between consenting adults, including decisions in the right of privacy cases and se, is a neutral principle, because I per- husband and wife; which prevented the to some extent in the cases of the First ceive no consensus as to what it means consumption of erotic literature; and so Amendment have unleashed in the streets with respect to many of its most basic on. some very unpleasant forms of licen- applications. Does it mean, for example, One suspects that Brandeis would tiousness. Though some of us may feel that Columbia Law School is required to have assumed that these laws, if abhor- libertarian about it, few of us can feel that accept a certain percentage of minority rent in some instances were perfectly it's an attractive addition to life. group applications? Or does it mean sim- valid exercises of the states' police But beyond this superficial reaction to ply that Columbia Law School must power. He would have been surprised the causative effect between the Warren admit minority groups according to the indeed to see that this right of privacy Court decisions and the decline in the same standards that it accepts other would eventually preclude the states quality of American life, there is some- people? from preventing the use of contraception, thing jarring, forgotten but jarring, from The difference is crucial. The answer from preventing exotic sexual practices, a jurisprudential perspective, about the either way is going to restrict someone's and from preventing the use of porno- rate of change and about the style of personal rights. Does it mean that I can- graphic erotic literature. And, I suppose change in the law of personal rights. not inherit more money from my father that he would have been astonished to see Most of these cases look at very basic than someone else can inherit from his that Justice Blackmun, writing 83 years general phrases in the Constitution, father? Not unheard of. I wonder then later, would base on that right of privacy phrases like "due process of law," and make the suggestion that neutral a constitutional ban on the state prohibi- "equal protection of the law," phrases principles might be better defined not in tion of abortion. that admittedly seem to invite a great deal terms of basic substantive rights butmore I render the subjective opinion that of judicial interpretation. The Court in terms of achieving the maximum cer- these decisions are good, that the bal- seems to say: "Our predecessors a few tainty about what the law is. In other ances of values they represent are surely years ago said this phrase does not create words, perhaps stare decisis itself is in correct. And I suspect that most of the a certain right and that it never has some sense more of a neutral principle American delegation to this Dialogue created that right; we say that it does than is either equality or, say, privacy. agrees with that proposition, some prob- create the right either because it always One reason to keep in the back of our ably more strongly than I. did so or because its meaning has evolved heads some sense of caution about the But it's interesting for Americans to or changed. We reverse." recent rapid expansion of personal rights remember, and it may be interesting for Unquestionably, it is sometimes ap- in the American legal system is the pos- Israelis to learn, that the public reaction propriate in the American system to re- sibility that some of the Warren Court to these developments in the field of per- verse, to read new meanings into broad decisions themselves will be reversed, sonal rights has been largely negative. phrases. But it ought not to be forgotten especially some of the decisions that One very upsetting side effect of the that we also pay a potential price when have generated such intense political dis- Warren Court era has been the political the highest prior authority is overturned, pute in the area of criminal rights. When focus on the judiciary to the extent that and when the law changes via juridical one court gets adventurous with its pred- candidates for legislative and executive interpretation. ecessors, its successors are likely to be office have run as much against judges as adventurous with it. And it seems to me they have against their own opponents. o the extent that the law, especially that the worst thing of all is for its succes- This kind of behavior on the part of T the legal definition of freedom and sors to retreat in the areas that we have candidates has been largely demagogic personal rights, depends on judicial con- discussed. Better that a right not ever be and basically futile. But it isn't really struction, first of one judicial generation, broadened than that it first be broadly difficult to understand why the Warren the Warren Court, and then of another defined and then quickly narrowed. Court era has generated in a large seg- judicial generation, the Burger Court, the ment of the public so negative a reaction. protection of legal rights is in some way There is, first of all, a superficial connec- less secure, in some way more poten- N.. tion between the expansion of personal tially lawless. This is, in a sense, the hours in this Dialogue: the concept of rights and some of the most unpleasant flip-side of what we call flexibility and change, flexibility, adaptability of things that are happening in American the potential for change. There are, after Jewish law. There are enormous theoret- life. all, countries, and there are periods in ical differences between the potential for From a simplistic—but not all that history, in which judicial power served change in the Jewish legal system,

22 CONGRESS MONTHLY Halakhah, and in the American legal sys- late medieval scholars reversed the early an illustration of two other devices which tem. As an enthusiastic amateur who medieval scholars only with great trepi- have contributed enormously to making came somewhat late in life but with great dation and rationalization. the Jewish legal system, within the con- love and joy to a minimal knowledge of As to the natural question that has been fines of its authority, a flexible living Jewish law, I would like to make a few asked, sometimes in ignorance, some- system. Take one seemingly simple observations from a comparative times with more knowledge and verse in the Book of Deuteronomy on perspective about flexibility in Jewish understanding—how does the Halakhah which much of family law has been law. as a legal system work as a living based. "When a man has taken a wife The basic differences between Ameri- tradition?—Mr. Lewin implied that it and married her and it comes to pass that can and Jewish law stem from premises works really quite well and with an ex- she finds no favor in his eyes because he about change. One is, as has been said traordinary amount of flexibility, given has found some uncleanness in her, then over and over, that the essential Jewish the need to preserve the basic textual let him write her a bill of divorce and give text—the Bible, the Torah—is an un- authority. I fully agree. it in her hand and send her out of his amendable text. The American Constitu- Rabbi Hertzberg mentioned one im- house." This verse is obviously quite tion, which is its analogue, is amendable, portant technique of adaptability, though favorable to the husband. To begin with, albeit by a very laborious process. One he attacked its current application, and he does the taking. The marriage is cast effect of that is that in the American legal that is the technique of the private ad hoc essentially in the form of an acquisition system it is theoretically possible to pass ruling. Sometimes this is done through by him. And in divorce the odds in favor an amendment that says that I cannot legal presumptions of validity, as, for of the husband are even greater. have an alcoholic beverage, which example, when two people go to a rabbi From the words, "then let him write means that my most fundamental right to and say that they are Jewish and ask to be her a bill of divorce and give it in her drink a schnapps for kiddush could be married. Such legal presumptions of va- hand," it emerges that there must be a drastically violated. That could not hap- lidity are used to avoid raising difficult written document which is easy enough pen in the Torah. theoretical issues that would require di- to write or have written and given to her. The Constitution is basically, in the rect confrontation with authority. There And so, now comes one crucial device field of human rights, governed by broad is also the private ruling. Anybody who for evening those odds, because those general phrases such as "equal protec- has had any contact with the Orthodox odds were going to become, in the pas- tion," "due process," "right to coun- rabbinate, who asks important questions sage of time, intolerable. That device is sel" and so on —broad general phrases about his own life of the Orthodox rab- rabbinic legislation. There are confines, that seem to invite elaborate interpreta- binate, knows that the very top au- to be sure, which rabbinic legislation tion. There is much dispute about how thorities in Orthodox life today give pri- cannot go beyond. It cannot go directly legislative history is to be used and prob- vate rulings that they will not give as contrary to Torah law. It cannot, for ably not much real use made of it in the public doctrine. Issues like birth control, example, waive the requirement that long run. The Torah is explicated with an for example, are governed primarily by there be a written divorce or permit a extraordinary amount of legislative his- decrees of that sort. woman to write one for herself. But rab- tory because the Torah was given as a binic legislation can restrict the hus- written document contemporaneously, he area of family law seems to domi- band's behavior, and a considerable according to Halakhic tradition, with an T nate the conversation when it comes move in that direction occurred when a oral tradition that was necessary to ex- to talk about changes in the Halakhic prominent medieval scholar promulgated plain it in enormous detail. That oral tra- perspective. The reason for that is that, decrees forbidding polygamy and when dition is essentially every bit as authorita- family law is the area, other than ritual he precluded the issuance of an effective tive as the Torah itself. In some sense it law, in which the Jewish courts still divorce without good cause unless the has the force of Torah itself. There is, maintain the greatest authority. It is the wife consented. consequently, a basic difference in the area affecting the day-to-day life of a I would note, parenthetically, that the apparent invitation of courts to interpret nonritual sort in which Jews in the Dias- device of rabbinic legislation is the de- or change the Jewish legal system and the pora submit themselves and in which vice that would be used to accommodate American legal system—more authorita- Jews in Israel are forced to submit them- evolving notions of criminal tive detail, less potential for change. selves because there is no civil marriage procedure—though the Torah's criminal Another point which seems to me es- or divorce in Israel. procedure is extraordinarily enlightened, pecially relevant is that there is a concept In contrast, the Jewish courts do not having perhaps the most incredible pre- in Halakhah which can be stated as the have authority in criminal law though, sumption of innocence of any legal sys- earlier the better, that is, the closer in like everything else in Jewish life when tem. But rabbinic legislation, if the time to the revelation the deeper and Jewish courts held sway, criminal law Torah came back in jurisdiction over more precise the understanding of that was governed by Jewish principles. To- criminal matters, would be the most ef- revelation itself. The result is that, bas- day, the Jewish courts do not have the fective device for increasing defendants' ically, cases are not reversed in power to enforce the Torah's criminal criminal rights. Halakhah. We do not say, "I reverse." sanctions. Consequently, we don't have To return to the inequity between men Talmudic rabbis did not reverse the contemporary examples, though there and women in the marriage and divorce Mishnaic rabbis. There were disputes are many examples from the past with system: legislation gave some protection and they might follow one school or which to illustrate flexibility or rigidity in to the wife by restricting the husband's another school, but they didn't have that the Jewish legal system. I think it might right to take more than one wife and by direct tool of saying "we reverse." The be helpful to run through one example as requiring the woman's consent to a di-

MARCH/APRIL 1978 23 vorce, at least to a divorce without good change, given the distinctions between problems. The other problems that are grounds. That still left, without a solu- their fundamental underpinnings. grouped in America under privacy, like tion, the wife who has good cause for a Nevertheless, I would accord, from the abortion, contraception, etc., are also divorce but finds her husband unwilling perspective of the judicial power to effect problems in Israel but the legal treatment to give it. Rabbinic legislation could not change in the field of personal rights, is different and I'm not going to discuss dispense with the requirement of the di- some advantages to the Jewish approach that. vorce, and so another extraordinary de- on changing authority without confronta- I would suggest again that we deal vice was used to achieve flexibility, and tion and without saying, "we reverse." with specific problems in the area of civil that was legal analysis, extremely clever rights and try to see what we can learn legal analysis. from the legal systems we are studying. Maimonides undertook, with an In doing so, we may arrive at some com- analysis that seems to me admirable, this DISCUSSION: mon understanding and mutual profit. task of finding a way for a wife to divorce [Chairman: Paul Berger] a husband unwilling to grant a divorce. PN1NA LAHAV: His solution was to attribute voluntari- RUTH GAVISON: Would Israel benefit from a written con- ness to a bill of divorce issued by a hus- stitution? Justice Cohen was skeptical band who was, in fact, coerced by the I suggest that we move to specific prob- while Professor Stone indicated several rabbinic court. He started with the Tal- lems of common interest, such as abor- problem areas with constitutional review mudic proposition that a sinner's will is tion, contraception, privacy, freedom of in the U.S. It seems to me that Professor to do right rather than wrong. It is right to expression, freedom of movement. I Stone spoke from the perspective of a heed the decree of a rabbinic court. If so, suggest we transcend our differences and very luxurious legal system where said Maimonides, a court can decree that try to see how we should go about solving Americans do have a Constitution and a husband should write a divorce for his those problems. judicial review and the luxury of a wife and then enforce that decree even In line with this perspective, I would framework of legal principles within with coercion. The court coerces him like to talk about the right-of-privacy which they can develop and improve until he says, "I want to do it," for at that issue raised by Professor Stone in the political and civil rights. The situation in point he is expressing his true will, which American context and by Justice Cohen Israel, where we don't have a constitu- is to do the right thing. in the Israeli context. tion or judicial review, is undesirable. I am not as optimistic as Justice Cohen If one looks at the progress made in the The solution turns out, incidentally, to is about the right of privacy in Israel. He be a limited one. One authority I have U.S. in the last 20 years with regard to says it is protected by the Supreme Court. political and civil rights, it seems that the come across points out that the rationale To be sure, our experience in this area of Maimonides' solution does not take Constitution and judicial review have has been limited but, I must say, the been very instrumental in this process. care of the sinner who has strayed too far. Supreme Court has not upheld the right. The next point I want to make con- It does not, for example, help the wife The Supreme Court said that we did not cerns national security in Israel. Of whose husband is not only a sinner but have a cause of action in cases alleging course, Israel is under special security also an apostate, a person who has violation of privacy. There have been conditions which necessitate a degree of stepped over the line to such an extent some attempts to regulate this field by curtailment of political and civil rights. that we can no longer attribute good will legislation, though in a more limited But curtailment of political and civil to him. It is not the will of such a person form than in the States. Such legislation rights has to be done in a way that strikes to do right and so the rationale of has not included abortion, contraception, a balance between the legitimate needs of Maimonides' solution does not work. sexual behavior in private places, etc. a state and the legitimate rights of the But other scholars have provided differ- The civil liberties situation in Israel individual, and that's not what we have ent legal analyses whose effect is broader varies. Freedom of press presents a prob- in Israel. and more liberal than that of lem because of press excesses. On the Maimonides. other hand, there are plainly violations of We have in Israel a series of Defense Obviously, this mode of legal analysis civil liberties that are deplorable. We Emergency Regulations that we inherited opens itself to the charge that it is eva- have wiretapping, completely unregu- from the British Mandatory regime that sive, that it is an indirect and contrived lated, and conducted from time to time are draconic and that give governmental way of reaching a desired result. But I by law enforcers. We have censorship of and military officials excessive discre- don't know how anyone familiar with the mail. We have censorship of some pri- tion to curtail or eliminate almost any decisions of the Warren Court could pos- vate and semiprivate telephone conversa- political right. For instance, they have sibly call those rabbinic decisions eva- tions. We have heard of wiretapping of the power to license newspapers, to cen- sive. In fact, I have been continually journalists' telephones in attempts to find sor newspapers, the power of search and amazed at the low level of analysis that criminals who were in contact with them. seizure, house arrest, deportation—all the U.S. Supreme Court has employed, We also hear of breaches of confiden- this without judicial review or judicial the extent to which it has been willing to tiality of files, like medical files, and scrutiny. stretch an interpretation in order to obtain information that is accumulated in the The responsibility for this situation a desired result—a result that I, too, de- public sector for various statutes some- lies primarily with the legislature. Our sired. how finds its way to other sectors in the Knesset for the last 30 years has made Both the American legal tradition and population. very little effort to change the situation the Jewish legal tradition have made ex- The legal protection that exists is mar- and enact proper measures that would cellent accommodations to the need for ginal, and can't really cope with these strike a more adequate balance between

24 CONGRESS MONTHLY national security and political and civil we can be fairly content with what the even though the Supreme Court tends to rights. Supreme Court has done for us in secur- follow election returns. I don't find this Our Supreme Court has not done ing basic liberties. unfortunate. The appointment process of enough on these matters. Whenever a Supreme Court judges is responsive to case of defense emergency regulations RUTH BADER GINSBURG: the felt needs of the community within comes before it, the Court shows extreme I want to say a word on this question of a the bounds of precedent and limit as set restraint and refuses to limit the exces- constitution as a protection in times of by previous decisions. sive discretion of governmental officials. national emergency. The U.S. legal sys- Professor Stone seemed to argue that The third point I want to make relates tem is the only one I'm well acquainted the constitutional system with judicial to the status of the Arab minority in Is- with and I'm very glad we operate under review that exists in the U. S. is somehow rael. Justice Cohen somewhat overstated a written Constitution. But no one should less effective than the Halakhic system in the situation when he said that the Arab think it infallible. It did not inhibit our terms of flexibility and response to minority is protected from discrimina- restrictions on the Japanese Americans. change. I take issue with him. When you tion. I cite one example of discrimina- Nor does the U.S. have reason to be go down, right by right, and see what the tion: Social privileges are given in Israel proud of its record in the 1950s when U.S. Supreme Court has done, it is to persons who have served in the mili- there was a Red Scare in the country. reasonable to conclude that it has dis- tary service. Consequently, Arabs, who Professor Stone made a good point played greater flexibility, greater con- are forbidden from serving, do not qual- about the importance of having a degree cern for individual rights than other sys- ify for the privileges extended to Jews. of stability in the law. However, it should tems. It seems to me that if we had a constitu- be noted that our Supreme Court does tion and judicial review we might move enjoy, and rightly so, a degree of free- DANIEL GOLDFARB: ahead on some of these problems without dom in departing from prior constitu- I have a dilemma. I've been here a little waiting for the legislature to act. tional interpretations. In every example over six months, which is more than Professor Stone cited—school desegre- adequate time to forget what I've known GIDEON HAUSNER: gation, rights of criminal defendants, about American law and hardly enough The problem of religion and state inevi- contraception and abortion—these were time to learn very much about Israeli law. tably overshadows our deliberations and issues on which the political process was Nevertheless, I'd like to discuss some particularly so when we hear the Ameri- not going to move. specific instances to the extent they point can experience. The American experi- One thing Professor Stone said I found up larger issues. ence is instructive but cannot serve too disturbing, and that was his advocacy of We have discussed thoroughly the readily because of the religious ad hoc rulings, private rulings. I feel un- domestic relations problems. We have monopoly in Israel. Let's not forget that comfortable, as a lawyer, not knowing discussed the restrictiveness of Israel's in Israel religious problems brought about a decision that has been made and laws pertaining to marriage and divorce. down three different cabinets and forced that has benefited one client while my These restrictions are historically under- elections on at least two occasions. client may be similarly situated. I feel standable, but arbitrary to a significant Justice Cohen mentioned some expec- uncomfortable about the practice of some portion of the population, no less so than tations which arose out of the election of courts in the U.S. of not publishing deci- would be a prohibition of marriage be- a new Chief Rabbi. This concerned two sions. I don't know what such courts tween a man and woman unless, let us matters, very important in our lives. One have decided that could help or hurt me in say, they were of the same height. was the mamzer issue which, surpris- the future. In America, such types of distinctions ingly, came into being in independent have been obliterated by the Supreme Israel. The issue was largely unknown HOWARD SQUADRON: Court in the appropriately entitled deci- throughout Jewish existence and the Professor Stone observed that the explo- sion of Loving vs. Virginia, where the Talmudic and rabbinical literature on the sion of the kind that has occurred in the Supreme Court held unconstitutional whole thing is meager. areas of civil rights and civil liberties in statutes which prohibited marriages be- Let's not forget that in 1953 the legis- the U.S. in the last 20 years, as a result of tween members of different races. lature of Israel bartered away civil juris- Supreme Court decisions, represents a In Israel, we don't have similar pos- diction on all matrimonial matters. It danger in terms of what might be called a sibilities, although the Supreme Court transferred jurisdiction in all these mat- backlash, even though on balance, he has used several devices to enforce the ters to the rabbinical courts. It ruled that stated, the values that were motivating registration of marriages performed the Halakhah would apply to all residents the decisions were good. It seems to me abroad, or those done privately, or those and citizens of Israel. This issue is not that he overstated his case. I believe he done by non-Orthodox rabbis abroad. just something to be discussed at sym- said that it's better that a right never be We'ye managed to erode some of the posia but something which affects our broadened than that it be broadened and discriminations, but we haven't been daily lives. I have proposed legislation then narrowed. It seems to me that what able to attack it head-on. for civil marriage to enable the marriage he is saying is that three steps forward Mr. Lewin spoke of such infringe- of Jews now precluded from getting mar- and two back is worse than none forward. ments as being relatively small in terms ried by the rabbinate because of an- I do not agree with that. of the broad scope of individual liberties tiquated prohibitions in the Knesset. My I also do not agree that the Supreme in Halakhah. But suffering isn't relative bill has twice been defeated, I am renew- Court has created the uncertainty that and we must be sensitive to the suffering ing the bill now, in the 9th Knesset. makes the law a difficult thing to deal of individuals who are the victims of laws In all, considering our circumstances, with. I think the law is reasonably stable, that conflict with certain basic rights.

MARCH/APRIL 1978 25 On women's rights: The abortion issue every state in the Union had delineated ulations of 1945 conferred powers that here has been handled by legislation after strict grounds for divorce and separation. were not subject to review by the Su- a long fight. In the States, the constitu- Today, there are at least 30 states that preme Court of Israel. Since the Six Day tional provisions have been used in an have no-fault grounds for divorce. War of 1967, when the Defense appropriately dramatic way. Here, it In addition to that, the attributes that Emergency Regulations were applied in took a long time to legislate in a way accompany divorce have been changed. the administered territories by military which doesn't really satisfy either side. For example, there is no longer, in authorities, we have had many cases of The grounds are considered too liberal by awarding custody of the child, a prefer- petitions from the local population the religious, and the process which a ence for either the mother or father. Cus- against the military authorities. In many woman has to go through to obtain an tody is presumably determined on the cases we intervened on the side of the abortion is considered too onerous by the basis of who will serve the child's best complainant. secularists. The limited grounds for abor- interests. It is also recognized that not It is also misleading to say that there is tion are under attack. I'm afraid that the only may husbands have to pay alimony discrimination against Arabs since Arabs lack of constitutional power to protect to wives, but that wives may have to pay do not serve in the military forces and abortion rights jeopardizes an important alimony to husbands. It is recognized, therefore do not enjoy certain benefits. advance in the area of human rights. too, that property accumulated by either The fact that Arabs are not required to In the area of autopsy and post- spouse during the marriage can be di- serve in the military forces, I submit, is a mortems, I think we face in Israel a prob- vided by the courts between both definite privilege in a most obvious lem, and that is the need to bring both the spouses. sense. law and the Halakhah up-to-date with Finally, there is a form of lifestyle I now respond to Mr. Squadron about medical advances. Unfortunately, it increasingly popular in the U.S., jury systems. One of the benefits of the looks like we're going to be facing some whereby people live together without jury system, I am always told, is that the attempts to retrace our steps. marriage. Recently, two books were pub- jury will tend to mitigate the rigors of the I believe some significant attempts are lished having to do with the so-called law. The jury, presumably, is not as being made in the States to deal with the "law of living together," which is bound as the judges to the letter of the law rights of patients. There is a right to live perhaps the result of the right of privacy. and therefore can temper justice with out the end of your life with some dignity In all, the changes in the field of mercy. I don't find this argument per- and I think that the States are now trying domestic relations wrought by legislation suasive. I've always thought that courts to deal with that. I think we're a little seem to me at least equal if not greater are there, as Roscoe Pound put it, to If ' י.behind here. than the changes which Dr. Stone "administer justice according to law I belong, I suppose, to the libertarian claimed as the result of court action. the law is bad, it should be changed by school but not to the permissive one. I Dr. Stone does not agree, apparently, the legislature or modified so that the don't think the constable should go with Mr. Squadron that it is better to take law's hardships can be avoided. But to breaking into people's houses to see what three steps forward and two steps back add other machinery to the administra- they do inside. On the other hand, I'm than never to have taken the first step. I tion of the law distorts or frustrates it. not in favor of permitting the promotion would say it is important to bear in mind The jury system does not represent so and advertising of unpalatable immoral that the memory of a right once had is an much a participation of laymen in the practices. important factor in reacquiring that right. lawmaking process as it does of the use of As to Dr. Stone stating that he doesn't laymen for law-evading. The entrusting HARRIET PILPEL: believe equality is a neutral principle, I of the administration of law to laymen is I sympathize with Dr. Stone's quest for was referring to the U.S. Constitution a way of evading responsibility in the certainty, but I'm afraid that neither he that, in fact, does posit equality under the administration of justice. I might add that nor I will ever find it. Life defeats closed law. Obviously, I do not believe that Amos Shapira has, in a brilliant paper, systems and, accordingly, when new people are equal in other respects. I'm recently catalogued the ways which the things happen you either torture prior rul- simply stating that it seems to be a neutral court on which I serve has found to apply ings, as you apparently do in the principle that people, as far as the law is laws so as not to work undue hardship. Halakhic system, or you change the law concerned, should be treated as equal. by legislation, or you reinterpret the Dr. Stone seems to feel that the ulti- ZEEV FALK: Constitution. mate in logic is, in a way, the ultimate in We are all agreed about individual rights As far as change is concerned, I don't life. I'm not at all sure that it isn't better versus the state. The question is what to understand why Dr. Stone is not con- to have words that have the capacity for do when there is a clash of values be- cerned by the pace of legislative change different meanings at different times. tween individual rights and such consid- in the U.S. There has been a great deal of That, it seems to me, is the genius of the erations as security or tradition. discussion about domestic relations and American Constitution. It uses words There are no hard-and-fast solutions. family law in Israel and so far no one has like "due process" and "equal protec- Under a written constitution, individual paid much attention to what has been tion" that mark a kind of norm but that rights may be curtailed or suspended at a happening to domestic and family law in are adjustable to changing needs and time of emergency, and under an unwrit- the U.S., which is indeed startling. conditions. ten constitution, as in Britain, there may When I first started to practice law, there be very strong support of individual was, as the sole ground for divorce in HAIM COHEN: rights. What really is important is the New York State, adultery; South I take exception to the statement of Dr. consensus views of the people. If the Carolina had no divorce law at all; and Lahav that the Defense Emergency Reg- people think that individual rights should

26 CONGRESS MONTHLY have priority over certain other values, system. I refer to the problem of recourse AMNON RAFAEL: this is going to influence the legislature to procedures for remedying the wrongs I wish to turn to the subject raised earlier and the courts, written constitution or done to people whose rights are invaded. about national security and individual not. In America, we are keenly aware of the rights. We, in Israel, have too readily and I agree with Professor Stone that there high cost of defending one's rights. May automatically succumbed to national se- is a danger in frequent changes of the I be autobiographical? In the McCarthy curity pleas at the expense of rights. We law, but not in the context of individual days, I, a chaplain in the air force, was tend to forget that national security rights. Nevertheless, it is true that radical given the option of resigning with honor means more than planes and arms. It in- changes do bewilder the public and cause or facing a court-martial for views that I volves the health of society. I believe our some backlash. Rapid changes do, in- had expressed both orally and in writing. Supreme Court and society as a whole deed, endanger another important value The risks were very high. To resist, to have not fully examined the concept of of the law, namely, its certainty. But I fight the charges, meant that I risked a civil liberties as a source of national must say the alternatives suggested to dishonorable discharge. My conscience strength. us—private rulings, fictions or evasions didn't let me resign; I faced the court- We should remember that Israel was whether by juries, rabbinical bodies or martial, and fortunately I won my case. I created in order to have a free and inde- even the Supreme Court of Israel—are, was my own lawyer. I was retained in the pendent people living in an independent in my view, without merit. service until retirement many years later. state. But we have a system here that A distinguished colleague of mine suf- makes the citizen almost entirely depend- EDWARD WEINFELD: fered even more and could not fight be- ent on the government. Accordingly, There has been some discussion on, to cause he was not in the army. So let's not abuses of certain personal freedoms are put it roughly, the three steps forward exaggerate the extent to which a constitu- more freely tolerated than in a system and two steps backwards issue. I don't tion, written or oral, provides guarantees where there is independence of the citi- know the full implication of what Profes- for our rights, particularly when one zen from the political system as a whole. sor Stone had in mind when he made the takes into consideration the high costs of statement that we paid a price for reversal defending one's rights. There was talk here of a written con- by the U.S. Supreme Court of its prior I want you to know that according to stitution for Israel. It may be a good thing decisions. I don't know whether he Jewish law there is concern about self- but I must call attention to the many to- thought that this meant a weakening of defense. A Jew can walk into a talitarian countries with splendid con- respect for the Supreme Court, or synagogue, stop the service, and say that stitutions. The will to protect civil rights whether it created new problems. But as I he was being maligned or impugned in and liberties is more important than a reflected upon the statement, one case in the community and obtain justice almost constitution, though it is useful to have a particular came to mind. immediately. constitution that spells out one's rights. Some of us are familiar with a rather This brings me to the question of pri- I want now to comment about the substantial change in the position of the vate rulings. There is a basic misun- status of the Supreme Court of Israel. Supreme Court on a church-state prob- derstanding. We are confusing two The Court enjoys an unusually high re- lem. It was the Flag Salute Case. Within separable aspects of the Halakhah. There gard and respect in this country for its a matter of two years only, I believe, the is the area that pertains to one's own independence and probity. This very fact Supreme Court changed its position. moral life. Whether or not one will prac- creates, paradoxically, a dangerous situ- The Supreme Court changed Its posi- tice contraception has nothing to do with ation. The Court has taken upon itself the tion and I would like to ask Professor the enforcement process of Halakhah. It right to intervene in political controversy Stone what his reaction is to that? What is a question simply of whether it is al- where its presence is dubious. To cite an damage was done? lowed or not from the point of view of example: When the Rabin Cabinet went Justice Cohen's remarks indicate a Halakhah. It is principally in this area out of office, the Supreme Court of Israel misconception of the role of jury. He said that there are private rulings—the area was called upon to decide whether one that if there is an inadequacy in the law he involving certain ethical choices. party or other was in or out. This created would not want a layman or a juror to This brings me to the subject of abor- unfortunate confusion and division. A correct it. But the function of the jury is tion. Abortion is generally prohibited by constitution which could protect the Su- not to decide the law, simply the facts. Halakhah. But neither the woman who preme Court from falling into this trap The jury system, I would say out of receives the abortion nor the doctor who might be helpful. fairly abundant experience, is valuable in performs the abortion are guilty of any I concur with Harriet Pilpel that un- many respects. I think it is important for criminal act. It is an immoral act for dergirding civil rights and liberties is the citizens to feel that they are called upon which they will have to account to their concept of equality before the law. It is to play a role in our system of justice and, Maker. lamentable when this concept is breached I would add that, in my experience, there It is well to clarify the moral elements or when favoritism to one group or have been very few cases where I've had within the abortion controversy. When another is displayed. I found it objection- occasion to sharply disagree with a jury's the question arose in New York of what able when the Begin government came to verdict. should be the position of the Jewish or- power and decided to grant an amnesty to ganizations with regard to the liberaliza- tax-evaders. Such partiality must weaken EMANUEL RACKMAN: tion of the abortion statute, I, who gener- respect for law. We should, in Israel, In our evaluation of the three systems, we ally oppose abortion, took the position look more closely at the relationships of have been overlooking a deficiency in all that it was immoral to deny poor people the rule of law to individual liberties. three, but perhaps less so in the Halakhic procedures available to the rich. [End of Session ]

MARCH/APRIL 1978 27 Thursday Afternoon Fifth Session July 7, 1977

DISCUSSION: I must say the Israeli experience dif- laws made by, so to speak, strangers. fers. Our Supreme Court, in its protec- This has fostered efforts to evade dis- [Chairman: Gideon Hausner] tion of civil liberties, has, happily, not criminatory laws. Nevertheless, I blame produced any ill effects. Nevertheless, the authorities, the leadership of Israel, AMOS SHAPIRA: the problem in Israel still is the enhance- for not educating the public to its respon- I am on record as recognizing the advan- ment of individual rights and the further- sibilities. They have spoken much about tages of having a written constitution for ing of civil rights. security, about the economy, but not Israel, including a bill of rights, plus in- Justice Cohen and others spoke about about the quality of life, not about the vesting our Supreme Court with the restrictions imposed on civil liberties in rule of law. Moreover, enforcement of power of judicial review. However, I do Israel, but this must be put in context. In law is lax. Take a simple matter like the not think that a written constitution and my visits to America I've perceived that regulation against smoking in buses, judicial review for Israel must necessar- the dominant image of Israel is a Sparta, which is totally disregarded. Take our ily follow the American model. We Is- more devoted to preserving security than planning laws, what you Americans call raeli lawyers would be wise to explore things of the spirit. Israel is also per- zoning laws. Thousands of apartment additional models. ceived as a theocracy. buildings have been unlawfully built. It seems to me that in protecting civil There are some elements of truth to Since our leaders and police have been and political rights what is most impor- this image but it is skewed unless put in unhelpful in promoting respect for the tant is the consciousness of and attitudes proper perspective. Examples have been law, it is up to voluntary civic associa- towards fundamental principles of the cited of injustice to women with regard to tions to take the lead. various governmental agencies and the divorce, but these instances are rare. This public at large, including the bar and the is not to say that discrimination against RUTH GAVISON: bench. Any meaningful comparison be- women does not exist. I, as a non- Yitzhak Zamir preempted most of what I tween our system and the American sys- Orthodox Jew, object to the Halakhic wanted to say about reliance on institu- tem must note that the role of law and of view of the inequality of women, but tions, judges, norms, written constitu- judicial institutions in our public con- must, nonetheless, caution against tions, in the protection of rights. I think sciousness is not quite the same as in the exaggerations of the situation. that we stress, unrealistically, one U.S. In the life of the American citizen, There is no doubt that Israel's Su- mechanism at the expense of another. law, legal terms and legal terminology, preme Court has done much for the pro- We see that we cannot rely on the legisla- play a much more significant role than tection of the rights of the individual. But ture so we want to rely on the courts, then they do in the life of the average Israeli there is a limit to what the Supreme we say maybe the courts are going to be citizen. Perhaps jury service has some- Court, or any court, can do with statutes. arbitrary and, if we want to check the thing to do with this though I don't think We should remember that the Supreme courts, we don't want to limit the legisla- that of itself this is a significant factor. Court had leeway for its liberal rulings ture, etc., etc. I believe that in this area of What seems to me the dominant factor under a Labor government for 29 years. civil rights there is no ideal solution. in comparing Israelis and Americans is But under the new government, depend- There is a marginal advantage for a the situation of Israel which results in a ent upon the Chief Rabbinate, how will written constitution. A court which is siege mentality, accompanied by exces- the Supreme Court react to curbs on cer- more insulated from pressure can be sive nationalism and religious, mystic tain individual liberties? I, therefore, be- somewhat more independent than the overtones disturbing to many of us. The lieve a written constitution with judicial legislature and, if there is judicial re- focus on national security and unity have review would be useful. view, the legislature cannot immediately involved demands for conformity on a counteract what the court has done. But, whole range of issues. This results in I should mention another value of a in the long run, I think that the main intolerance toward dissident and unpopu- written constitution—its educational benefit of a constitution is its educational lar views. value. This has been demonstrated in the U.S. If citizens are aware of their rights, benefit. The problem is not what are the YITZHAK ZAMIR: if officials become aware of the limits to institutions that protect civil liberties but Professor Stone was critical of the their power, this can make a great differ- what is the amount of awareness of civil American Supreme Court's tendency to ence. In this respect, public awareness in liberties among the citizens and au- act too radically and hastily in overturn- Israel lags behind that of the Americans. thorities. ing earlier principles. As I understood I now advert to a melancholy aspect of him, the increase in crime, pornography, Israeli attitudes to law. I find it sad that LIONEL KESTENBAUM: and other social evils may have been contempt for observance of the law is so Several references have been made to the furthered by the Court's decisions, which prevalent. There are, to be sure, historic importance of public consciousness of he did not necessarily disapprove. explanations. Jews have had to live under law as an important element in support-

28 CONGRESS MONTHLY ing civil liberties and that such con- this time about the benefits of wide things that are omitted from the written sciousness has not been sufficiently de- pariticipation in the democratic process constitution, and that are not specifically veloped in Israel. through the jury system. To me the jury provided for, will be viewed by justices I'm not sure that I'm correct in this but system is an absurdity, a waste of money. and lawyers as being things that are not I sense some progress on this score with covered by constitutional protection. the change of governments. The previous JACK WEINSTEIN: We've been talking about women's administration had been in office so long I challenge that view of the jury system. rights and sex discrimination. There's no that it tended to downplay the legal pro- I've seen it work splendidly and with provision in the U.S. Constitution—and cess. It has been said that one of the particular sensitivity to individual rights. the Equal Rights Amendment has not things that brought the government down I had a case about three months ago in been adopted so far—that says there is to was the violation of law by the Prime which the CIA opened the mail of people be no discrimination on the basis of sex. Minister and his family. who wrote to Russian friends or as- The equal protection clause, which was The change in governments has re- sociates. The government conceded this broadly framed, has been construed by suited, I believe, in a cleansing of the was illegal. Was it possible for the people judges as applying some constitutional administration. We all knew that there whose mail was opened to sue the gov- rights in this area but not, by any means, were laws and regulations governing ernment, and if they could sue, what all the constitutional rights that are given civil service that were evaded and that should be the damages? I called on an in the area of race discrimination. connections and deals were com- advisory jury using an old equity prac- So, on the basis of my experience with monplace. tice. That advisory jury was made up of the American constitutional system, I The change of government has also blue-collar people. would say that the dangers are great when demonstrated the stability of Israel's in- The case was well argued and much to one drafts a constitution that one will not stitutions. This must contribute to the my surprise the jury verdict went like be providing for those kinds of instances general respect for the rule of law and this: for each opened letter the minimum in the future that one might want to cover reliance upon it. amount awarded was $2,500 along with under an evolving system of law. As to whether Israel needs a written an apology from the government. I can- I would like to speak also about the constitution, I am uncertain. I was here not say enough about how impressed I question of church-state separation. I on a visiting appointment when Amos was with the understanding of the jury. was heartened to hear that the American Shapira was involved in the process of I'm not suggesting this for Israel, al- Jewish Congress is beginning to be trying to write a bill of rights. I have a though you do use an advisory jury under criticized for its position. I was particu- suspicion that it may be too late in Is- your equity practice. At any rate, I must larly heartened to hear from Rabbi rael's history to write a simple and com- side with those who have stated that the Hertzberg that the question is open. plete bill of rights. Take all the qualifica- jury system does have a decided educa- The position is that there may be no tions the American First Amendment has tional impact. assistance of any kind by the state to any been subjected to. religious facility of any kind, including The Israeli experience Justice Cohen NATHAN LEWIN: the secular education provided in has outlined has proven to be quite effec- It would be useful to summarize for this yeshivas or parochial schools, and that tive. Justice Cohen described to us the group what American constitutional his- any financial assistance that goes to the courts and the Knesset. The court lays tory, or legal history really, has shown schools, or, for that matter, to students or down challenges to the legislature. Will specifically with regard to the rights of parents, is a violation of strict separation they accept the court's views? The Knes- privacy. The interesting thing is that the of church and state. set, in effect, has ratified the judgment of development of a right-of-privacy law That is a position that the American the courts. Perhaps that process is one really developed not out of constitutional Jewish Congress adheres to rigidly. I that should be relied upon. principles but rather out of common law daresay it is as much of an article of faith acceptance in courts of various states, with the American Jewish Congress as it YITZHAK ENGLARD: and ultimately through statutes. Indeed, is an article of faith to me that only a man Americans often seem to take their ex- the recent trend in the U.S. has been to and not a woman may give a divorce perience as the norm. Take the separation undercut the right of privacy because you because it says so in the Torah. The dif- principle which, as practiced in America, get, in American constitutional de- ference between our articles of faith is is unique. Most countries don't have velopment, the beginnings of conflicts that my article of faith is 4,000 years old strict separation of church and state. between various individual rights. In the and the American Jewish Congress' is 30 On the subject of courts and legisla- privacy area, in the intrusions by the years old and goes back to the Supreme tures, I would say that the U.S. Supreme press, you have, on the one hand, the Court decision in Jefferson vs. Board of Court functions as a legislative body. right of privacy and on the other hand, Education. This may do for the U. S. but it would be a the right of the press to report. What the Let me point out the way in which this catastrophe for Israel where ideological Supreme Court has been saying in recent position of the American Jewish Con- differences are so varied and strong and cases is that when you balance those two gress is destructive. First of all, Conser- must be threshed out in a legislature. rights, the press's right to report and the vative and Reform Jews in the U.S. are On the jury system, I was surprised to right of privacy, the latter has to yield to increasingly coming to the realization hear such powerful defenses of the jury the constitutional right of the press. that the future of the American Jewish system. I've been to the United States That negative aspect of having a writ- community depends upon religious edu- and I heard very few people speak in ten constitution is something, it seems to cation of American Jews. The more pub- favor of it. Again we encounter myths, me, that we have to keep in mind. The lie facilities, and private facilities for that

MARCH/APRIL 1978 29 matter, are financed by public funds, the ically that discrimination on the grounds ing raise funds. Every Jewish day school more impossible it becomes to conduct of sex is unlawful that it is somehow a in Washington has benefited from bring- any operation without some form of pub- defective Constitution. It is consonant ing before the Jewish community its need lie financial assistance. What this posi- with the U.S. Constitution for statutes to for funding. At these fund-raising func- tion is doing is isolating religious institu- be passed which make discrimination on tions, stress has been put on the impor- tions, whether yeshivas, Conservative the grounds of sex unlawful. tance of schools for Jewish survival. day schools or Reform day schools, and The American Jewish Congress posi- Every day school at the elementary level separating them from the only lifeblood tion on separation of church and state is a in Washington is almost filled to capac- that they may have in the future. And, position that is consistent not only with ity. increasingly, those institutions are find- the U.S. Constitution and the provisions There's no question that the money is ing it difficult to survive. of the First Amendment, it is consistent there in the Jewish community if we with the security of the Jewish commu- spent our time and energies educating the HOWARD SQUADRON: nity in the U.S. I have heard the argu- Jewish community instead of trying to I disagree with many of Mr. Lewin's ment Mr. Lewin advanced about the get the U.S. Congress, or the states, to conclusions and I would like it put into necessity of parochial schools, both pass laws. some context. First, I must say that I am a Jewish and non-Jewish, to have govern- We must bear in mind there is an ex- lawyer who has, over the years, done a ment money in order for religion to be traordinary competition for public funds great deal of work in representing publi- able to survive. I am unimpressed by that for a host of causes. To compete for cations and I know something about the argument. funds is to risk conflicts with the poor, laws relating to libel and freedom of If the Jewish community of the U.S. the blacks and other disadvantaged press and the constitutional interpretation cannot support its own religious schools, people. Pragmatically, to hope for public by the courts relating to them. It is not I am not prepared to turn over to the monies for Jewish education is futile. true that in the conflict that has recently government the support of religious been addressed by the Supreme Court, schools. Chief Justice Burger, who is not IRWIN COTLER: between right of privacy and freedom of Jewish, is as strict a separationist as A word on the church-state debate. press, that the right of privacy has been American Jewish Congress and most of Being a Quebec Jew, I would think that the constant loser. It is true that where the Jewish and Protestant communities of the situation in Quebec would provide public figures are concerned, and matters the U.S. ammunition for both sides. Up to the of public interest are concerned, freedom present time, Jewish education in of press is given very wide latitude. It is PAUL BERGER: Quebec has been the beneficiary of not true that private persons may have I want to claim, in the name of the state-supported assistance and I declare, their private lives exposed without legal American Jewish Congress, the right to unequivocally, that this has facilitated redress. respond to Nathan Lewin because we are the growth and development of one of the With respect to freedom of the press, it talking about the future of Jewish life in most viable Jewish educational systems is true that in the U.S. that freedom is the U.S. when we talk about separation in North America. very broad. The government does not of church and state. At the same time, I think it's fair to have the right to shut down a newspaper My attitude about the First Amend- note that at the present moment there is or to censor a newspaper, and that is an ment and separation of church and state pending legislation in Quebec that, as article of faith. When Justice Black said derives from my demand, as a Jew, that part of the "Francization" process, will that the First Amendment means what the my rights as a Jew shall be respected. In condition further assistance for Jewish First Amendment says—freedom of scanning human history and how education on the "Francization" of those speech is freedom of speech, and free- majorities have treated Jews, I fear any schools. There is a disposition at this dom of the press is freedom of the infringement on the rights of Jews. The time, within the Jewish community, to press—he was not simply expressing a principle of separation guards us against perhaps forego further government- personal view. He was expressing the any such infringements. supported assistance if the price of that view that the Supreme Court of the U.S. Secondly, I have struggled with this assistance would be "Francization." But has consistently maintained. issue because I believe that there is no I should stress that this is not for reasons Mr. Lewin contends that a written greater priority in Jewish life than Jewish of church-state separation. At this par- constitution cannot provide for every- education. I am the chairman of the board ticular moment the price of receiving thing, and, therefore, it is better to pro- of a Jewish day school and I've spent the state-supported assistance might be to vide for nothing. I do not follow that last 12 years of my life working for a diminish the quality and content of argument. The Constitution that governs Jewish day school. From the pragmatic Jewish education. If such quality could in the U.S. was not intended to provide point of view, I don't believe that Jewish be maintained, the state-supported assis- for everything. It was intended to set education will be financed from the pub- tance should continue to be received. It is down certain specific protections and lie treasury. I do believe it can be fi- not of passing interest that in Quebec, certain broad principles and it has nanced by the Jewish community. I which is within the North American or- worked as a living document to be ex- would add that there is a benefit in raising bit, the church-state debate never really tended by the Supreme Court in cases funds. It has a powerful influence in began, certainly not in any constitutional where individual rights were perceived to educating the community. In Washing- sense. be under some kind of attack. ton, D.C., my city, over the last 12 years I'd like to address myself now to what Furthermore, it is not true that because we've gotten the community to support I consider a lack of certain institutional the Constitution does not provide specif- not only the school for which I was help- frameworks for the protection of civil

30 CONGRESS MONTHLY liberties in Israel. I'm speaking not only had some involvement. But here the Equal Rights Amendment is as much for of civil liberties, whether they be the promise has exceeded the performance. men as it is for women. There was a right to privacy or otherwise, but in terms Four, there does seem to be an absence considerable debate about that. In the of the rights of certain groups, be they the of—and I'm only throwing this out, the U.S., the feminists, both men and rights of women, the rights of the poor. merits can be debated—a permanent, in- women, rejected the approach that is re- Amos Shapira mentioned that we are dependent and interdisciplinary commis- fleeted in the Israeli Equality Act. We entering a period of particular civil liber- sion for the reform of public law in Israel. have no provision sparing women from tarian concern and suggested that Israel I'm using here, really as an example, the certain obligations. The American might require some assistance in this re- Commission for the Reform of Federal women refuse to have an exemption from gard from the outside. And Yitzhak Law in Canada. a draft, for example. If people have to be Zamir, too, spoke of the lack of a civil- conscripted, then women owe a respon- liberties consciousness in Israel. Like RUTH BADER GINSBURG: sibility. - Amos and Yitzhak, and I hope I can say I'd like to respond to Nathan Lewin and this without appearing to be patronizing, then go on to deal with the theme of RICHARD STONE: I am concerned about what I've sensed is equality between men and women. I have pared down the questions to which a certain lack of civil-liberties con- We must remember that the U.S. Con- I had earlier planned to respond. I do sciousness in Israel which has found ex- stitution is a late 18th century product. It want to answer a couple of substantive pression, if you will, in a lack of en- doesn't have economic and social rights questions to set the record straight. I forcement of what is already on the in it. If that Constitution had been written think there still needs to be something books. I'm mindful here of the statement 200 years later, it would have dealt with said to clear up misunderstandings that that has been made by two pioneer public them. Political and civil rights are the might result from the use of the phrase interest lawyers, that if you just enforced concerns of the Bill of Rights. "private ruling," which some of us the laws on the books right now in The genius of that Constitution, in my suggested was one conceivable device America and in Canada you could re- mind, is precisely its generality. Two of with which the Halakhah achieves flexi- dress most of the abuses of civil liberties the grandest generalities are due process bility and maintains a living legal system without requiring reforms of the law. of law and the equal protection of the short of direct confrontation with prior Protection of liberties is not simply a laws. Of course, at the end of the 18th authority. question of constitutions and courts. It's century, the framers of the Constitution Ms. Pilpel and Professor Ginsburg, in also a question of the quality of lawyers couldn't conceive of a controversy about particular, found that difficult to ap- and of public interest. And on this I want abortion. I don't believe that we even had prove. I share Rabbi Rackman's observa- to make some specific remarks. One, antiabortion laws on the books at that tion that, to start with, it ought to be there is no counterpart in Israel, for time. That didn't come up until the next understood that the matters that come example, of the American Civil Liberties century when abortions were very before rabbis in so-called private or non- Union, or of the Canadian Civil Liberties dangerous procedures. That was the publicized piskei halakhah, rulings of Association. I don't want it to be inferred reason for restricting them. Today, an Jewish law, are really not state matters from this that I lend support to everything abortion in the first trimester is far less but rather matters of conscience. What the ACLU does in the States. What I'm dangerous to a woman than is childbirth. generally happens is that the congregant talking about is the presence of a like But to say that the absence of a specific arrives and wants some persuasion that group in Israel. clause inhibited developments that we his own conscience can be salved by per- I know of the Association of Civil have seen since 1973 in the abortion forming some personal act that he wants Rights in Israel which now has, I believe, field, that, to me, is simply Alice-in- to perform and that he fears might con- 50 dues-paying members, predominantly Wonderland thinking. The Supreme ceivably be in derogation of Halakhah. in Jerusalem. This small association Court did something very dramatic, very Mr. Lewin made the observation that proves my point rather than refutes it bold. Since the legislatures wouldn't one basic problem is that the phrase because it has not, as yet, been able to move at all, the court moved as it did in "private rulings" to a secular lawyer employ one full-time professional person the case of school segregation. And the who is not knowledgeable about for its work and it has had difficulty in Constitution, with its due process clause Halakhah is a red flag. I share the nega- making itself part of the mainstream of generality, was there to be used. tive reaction with respect to private rul- lawyering in Israel. As far as sex discrimination is con- ings in secular proceedings. But it does Two, there does not appear to be a cerned, we have the equal protection seem to me important to make the obser- public interest bar in Israel. clause. It is not just a question of states vation that this kind of private ruling is Three, there does not appear to be any passing legislation outlawing discrimina- uniquely suited to the rabbinical format developed system of neighborhood legal tion, but the Supreme Court, with some and to the intensely personal relationship services in Israel. I'm mindful of the sys- fits and starts, now has a considerable between rabbi and congregant." tem of legal aid which operates both line of precedent to the effect that state With respect to Ms. Pilpel's question: within and without the Departments of laws cannot discriminate on the grounds Why is it that while I ask for some cau- Justice and Welfare, and even some work of sex. So, I'm very grateful that we have tion with respect to changes in the field of that the law schools are involved in, but those broad clauses which make it possi- human rights effected by judicial deci- I'm talking about a kind of outreach ble for an 18th century Constitution and a sion, I do not register the same objection program of neighborhood legal services 19th century equal protection clause to with respect to change that is effected of the kind that was contemplated in the live in the 20th century. through the legislative process? Al- early 1970s, and in which at that time I I think it should be made clear that an though I believe that excessive fluctua-

MARCH/APRIL 1978 31 tion and rapid change by any legal source from a jurisprudential perspective. I said If you consider the realities of life in are detrimental to society, I would have that with respect to reluctance to reverse Israel over the last 30 years, the fact that thought it axiomatic that the legislature is prior authority and adherence to text we actually groped our way to democ- ordinarily the first resort that we look to there is some added protection in racy is extraordinary. Most of us who in a democratic society for creating sub- Halakhah that a system more oriented founded the State came from countries stantive change. The courts are the last toward judicial change lacks. That is not which knew no democratic systems at resort. In our discussion, those who don't a conclusion about how much the all. We came from Eastern Europe, from share my views argue that the courts Halakhah protects rights compared to the Asia and from Africa. Our State was born stepped in because the legislature didn't American legal system. I wouldn't at- in the middle of a war when there was a act and/or the Constitution wasn't tempt such a conclusion. strong tendency to provide the govern- changed. Nevertheless, I am less fearful ment with summary powers. And, yet, of change and find more trust and stabil- GIDEON HAUSNER: we built a democracy in the face of all ity when the legislature acts rather than Permit me to take a few minutes in an odds. We obeyed our courts. We deVel- the courts. attempt to wind up the day. We tried to oped a system of laws which need I would respond last to Mr. Squadron, live up to the commandment of reasoning amending but, on the whole, if you con- who, I think, has misrepresented my po- together. We haven't done badly. sider the circumstances, I think that we sition rather seriously. He attributes to I have advocated for the past 30 years have reason to be proud of our demo- me the view that (a) the Halakhah is more the adoption of a written constitution. I cratic institutions and practices. flexible than the American constitutional don't believe that a constitution of itself I believe that these Dialogues do serve legal system, which I surely did not say; defends encroachments on individual a purpose. The exchanges of views, and (b) that I have concluded that the liberties. I share the notion advanced suggestions, the interest displayed in the Halakhah is a superior system with re- here of a constitution as an educational welfare of the Jewish State, the efforts of spect to the issue of protection of per- force, as an instrument fortifying the Americans to give us the best of their sonal rights. I did not say that either. spirit of respect and love for a democratic experience, are very heartening. What I did do was make a limited point system. [End of Session]

Friday Morning

Sixth Session July 8, 1977

reaching social revolution of our times. It The Women's Movement is a revolution in the way women act, the way they are perceived, and, perhaps most importantly, the way they perceive A Presentation LEONA CHANIN themselves. It is a great and growing movement in which men play an impor- tant role, as well. But like every move- ment of auto-emancipation, it can only n amazing number of allusions to of the Women's Movement in Israel, be successful if women themselves de- A women were made during the only one or two names come up. I'm sure termine their agenda, their priorities and eloquent discussions about the three sys- that there are more, but we, as women in their strategies. tems of the law. What I have to say will the American Women's Movement, do American Jewish Congress' involve- focus on women. I am most grateful to not perceive that there is a real Women's ment in the Women's Movement is a Professor Falk who made the observation Movement in Israel. To be sure, Ameri- natural outgrowth of our dedication to the that one of the greatest problems Israeli can Jewish women—many of us—have principles of equality and nondiscrimina- women have is that they are not doing the time and the economic ability and are tion. Ours was the first Jewish organiza- enough about their problems. able to combine those advantages with tion to support the Equal Rights Amend- All of you know that Israeli women are the strong conviction that voluntarism ment after it was passed by Congress in not yet as able, as we in the U.S. are, to has deep and strong roots in both the 1972. It is a bitter reminder, indeed, that muster a large volunteer force. There are Jewish and American traditions. this Amendment was first introduced in obvious reasons for this: the perpetual As Jewish women in the U.S. who Congress in 1923, just three years after state of emergency which exists in Israel, have been part of every movement for women were granted the right to vote. the economic and time factors, etc. social change, we naturally regard our- Now, in 1977, over 50 years later, When we in the U.S. try to think in terms selves as prime activists in the most far- three more states are still needed to ratify

32 CONGRESS MONTHLY this simple Amendment which would ported by over 90 nationally-based worn- zational life, they certainly are no longer remove the bias in English Common Law en's organizations, has this consensus of content to be in charge of hospitality and on which our own Constitution is based, priorities: Equal access to economic so-called "housekeeping" activities, but and substitute an affirmative statement of power; fair representation and participa- now seek to participate fully in setting equality for women and men. The tion in the political process; equal educa- and implementing policy and programs, American Jewish Congress is working in tion and training; meaningful work and and I might add that they do so—to a concert with organizations, both Jewish adequate compensation; quality child degree. and non-Jewish, to help achieve ratifica- care for all children; quality health care Question: Can the Women's Move- tion. services; adequate housing; fair treat- ment act as a catalyst in channeling posi- Ruth Bader Ginsburg summed up tfie" ment by and equal access to the media tively the talents of women within the crying need for the adoption of this and the arts; fair and human treatment in organized Jewish community, and will Amendment in an article entitled "Let's the criminal system; physical safety; and women be able to take their rightful place Have the ERA as a Signal." She wrote, respect for the individual, encompassing alongside men so that all our strengths, in part: "It would serve as a forthright full rights to make the choices affecting all our skills, can be used to meet the statement of our moral and legal com- one's life. great tasks of Jewish life? mitment to a system in which neither The last item brings me to a subject There are American Jewish women sons nor daughters are pigeonholed by that has been under discussion a great who are disturbed by what they perceive government because of their sex. Rather, deal for the last two days: the issue of to be sexist distinctions in religious ob- so far as laws and officialdom are con- abortion. The U.S. Supreme Court has servances, and who are demanding full cerned, males and females will be free to ruled that the government may not con- participation in prayer services and other grow, develop and aspire in accordance stitutionally forbid women from under- mitzvot traditionally performed by men. with their individual talents, preferences going abortion, at least during the first Religious congregations, including the and capacities." six months of their pregnancy. However, Orthodox, are becoming conscious of In the U.S., the Women's Movement in its most recent decisions—and here I this growing demand. The Orthodox had its legitimate birth in the passage of join the three steps forward and two steps Rabbinical Council of America, at a re- the Equal Pay Act of 1963 and Title VII backward dance—the Court held that cent convention, addressed this issue. of the Civil Rights Act of 1964. How neither the federal government nor the The chairman said: "We must be sensi- ironic that the provision barring dis- states are constitutionally required to fi- tive to the changes in current patterns of crimination based on sex in the 1964 nance abortions or to open public hospi- thought and lifestyles affecting the role Civil Rights Act was included for all the tals for abortions that are not required in of women in our society. Today, women wrong reasons. This clause was inserted the interests of the woman's health or are actively seeking their own identity by a southern Congressman, the chair- safety. And it appears that the U.S. Con- and wish to be treated as complete equals man of the House Rules Committee, to gress is taking its direction from this last with men. Women's involvement should encourage the northern states to join the Supreme Court decision. be in primary roles, not merely as auxil- South in opposing the entire Civil Rights I want to interject an organizational iaries." Act. The irony is compounded because comment now to preclude certain ques- A spokesman for Orthodox Judaism, certain northern liberals, thinking the tions as to the advisability of an organiza- Rabbi Moshe Gorelik, added the follow- Amendment could not pass with this ad- tion like the American Jewish Congress ing: "The solution is not to ask the dition, opposed its inclusion. There was taking a stand on abortion. I hasten to say woman to imitate the man but rather to support—women, of course, rallied to its that the American Jewish Congress sup- ascribe dignity to her as a unique being support—and finally it did pass. ports the Supreme Court decision on and copartner with man in the creation of With Title VII becoming law, protec- abortion as a civil right. This in no way an authentic Jewish life." tive labor laws that apply to women be- means that it has taken a stand on ad- Question: How can we work toward a came moot, a fact deliberately bypassed vocating abortions for women. meaningful synthesis of Judaism and by the opponents of ERA. They failed to Despite the relevancy of each item on feminism within the boundaries of our point out that these so-called protective the Women's Agenda, it is difficult to tradition? This is a question we have been laws were often invoked to ensure certain deny the overriding importance of the grappling with in this Dialogue. I merely jobs for men only. These and other economic factor. Women must be edu- wanted to inform both the Halakhists and specious anti-ERA arguments, unfortu- cated to their actual and potential the non-Halakhists that women in nately, have been all too successful in economic responsibilities. Despite gains America are also seeking answers. many of the states. made through the passage of certain basic We must recognize that societal It is important to note that the Equal laws, surveys show that discrimination changes have affected family life, and Rights Amendment, when it is passed, still exists against women in employment the Jewish family is no exception. The will still not end social discrimination and wages. rising divorce rate, single parent homes, against women. Only a strong Women's prolonged life span, greater educational Movement can do this. ince the Women's Movement has and job opportunities for women and Half a century ago, Sigmund Freud S necessarily increased the self- heightened emphasis on self-fulfillment asked: "What do women want?" Well, awareness and sharpened the sense of are presenting challenges to the Jewish the National Women's Agenda now has partnership and identity of all women, community, both religious and secular. an answer. Our consciousness has been Jewish women have been questioning Question: What can Jewish institu- raised, to use an overworked phrase, and their traditional roles in communal and tions do to meet the threat to Jewish fam- the National Women's Agenda, sup- religious life and in the family. In organi- ily life today?

MARCH/APRIL 1978 33 These are all complex questions and sent is not required, that a husband's con- Movement has coincided with what there are no simple answers. Perhaps the sent is not required, and so forth. The many people regard as being a decline in only answer is the traditional Jewish recent cases had to do primarily with the the structure of the family in the U.S. It's answer, and that is, to answer a question utilization of public funds, namely, entirely possible that this is not a coinci- with another question. So here are my whether there was an obligation on the dence. closing questions: Will the Women's part of the government to support abor- As far as the question of abortion is Movement serve to strengthen organized tions. concerned, my views on this I have al- Jewish life? Will it find a way to recon- The reason I believe that the Court ready made known. I just want to em- cile Jewish tradition and the modern answered that question in the negative, phasize one point. From my perspective, temper? Will it help protect the Jewish which I regret, did not have anything to this is not a problem of women's rights family? do with abortion, but had to do with the per se. I know that, practically speaking, I believe it will. fact that we are operating under a late this affects women more than men, con- 18th century document that recognized sidering the sacrifices involved. But, cer- political and civil rights but has not yet tainly from a Halakhic perspective, this been interpreted to include social and is not a question of women's rights. economic rights. The notion that the very I must say that I have serious doubts DISCUSSION organization of the economy makes about the tactical wisdom of the Worn- people dependent upon public funds has en's Movement in making abortion its [Chairman: Arthur Hertzberg] not yet penetrated the Supreme Court. It central issue. is the concept of entitlement to economic ZEEV FALK: benefits that was rejected by the Supreme HARRIET PILPEL: I'd like to put to Ms. Chanin a number of Court, not the concept of abortion. Rabbi Lichtenstein is speaking from an dangers which lie, in my view, in the way As to Mr. Lewin's statement that Israeli perspective. It's important to of the Women's Movement and its legis- things not included in a written constitu- point out that the whole development on lative projects. I believe that very often tion tend to be excluded, I think the the abortion issue in the U.S. has been the demand for women's equality has examples used by Mr. Lewin are wrong. established under the rights of privacy been linked with permissiveness in gen- He referred to the fact that the Court and autonomy. The Equal Rights eral. The impression has been created rejected the right of privacy for many Amendment doesn't speak to abortion. that the traditional family structure, years. But nobody presented an argu- It's not a focus of the equal rights battle. based on the patriarchal structure, may ment that there was a constitutional right be endangered by equality. Moreover, it of privacy until about 1942, and it's true LEONA CHANIN: has not been made clear whether equal that it took about 23 years to get the U.S. Before I respond to Professor Falk's and rights do not imply an abdication of re- Supreme Court to accept this concept, Dr. Lichtenstein's questions, I would sponsibility with regard to children. Ap- but it did accept it within the contours of like to thank Harriet Pilpel for her clarifi- prehension has also been expressed about our Constitution. And that has nothing to cation of the latest Supreme Court deci- the blind application of equality princi- do with the fact that it was not a specifi- sion to the effect that neither the federal pies. cally enumerated right. government nor the states are constitu- I put this question to the Jewish worn- Actually, our Constitution has not tionally required to finance abortions, or en's movement: How can the Jewish only not prevented the evolution of new to open public hospitals for abortions women's movement help in preserving rights but it has made possible the de- which are not required in the interests of Jewish tradition, since the tradition is, to velopment of such rights. I would like to the woman's health or safety. When I a large extent, male-centered and devel- believe with Dr. Stone that the legisla- said this was two steps backward after oped by males? tures reflect the popular will. As far as three steps forward, I was referring to HARRIET PILPEL: the U.S. is concerned, most of the free- what appears to be a less liberal stance I'd like to point out to Dr. Falk that any doms won in the past 20 years were first taken by the Court, but Ms. Pilpel is quite institution, including the family, which fashioned in the courts. The legislatures right in saying that the decision did not in is built on the inferior status of one-half were not interested. After the courts had any way diminish the abortion aspects of of the group to the other half, is not asserted fundamental, constitutional previous rulings. healthy in an egalitarian century. The rights, the legislatures took them up and Professor Falk suggested that there is a perpetuation of that inequality would passed some enabling legislation to sup- link between what he regards as a per- only defeat the ends which he has in port them. missive atmosphere and the development mind. I think that it can be said that in of the Women's Movement in the U.S. But what I really want to talk about is the U.S. the Constitution has been a The only link that I would acknowledge the recent U.S. Supreme Court cases, liberty-making instrument. is the concurrence in the 1970s of a because they raise an issue that we search by women for their identity and haven't really discussed but that both Mr. AHARON LICHTENSTEIN: the effort of other groups to achieve Kestenbaum and Professor Ginsburg re- On the whole, I am sympathetic to the list consciousness-raising. At any rate, it is ferred to. which Leona Chanin cited from the only fair that the Women's Movement be Recent Supreme Court decisions have Women's Agenda, but, at the same time, judged on its merits, just as the fight by in no way derogated from its prior deci- I believe it is a fact—if I'm wrong I'm blacks for equality in the U.S. remains a sions that women have a right to abortion willing to be corrected—that to some ex- justifiable struggle for civil rights. I must in the first six months, that parental con- tent the development of the Women's also remind Professor Falk and Dr.

34 CONGRESS MONTHLY Lichtenstein that the Women's Move- ity in the relationship, the Women's ment goes back over 60 years to the suf- Movement will enhance rather than de- fragettes. stroy the family structure. As for ERA's failure in certain states, I feel that, in part, this is due to the efforts EMANUEL RACKMAN: of the one-issue groups formed specifi- I don't think that any of one of us objects cally to fight ERA. For other organiza- to efforts on the part of women to im- tions, ERA is simply one item on their prove their status in many areas. Profes- agenda. Another reason for this failure is sor Falk said that he felt that women in the resort to scare propaganda by the Israel are not doing enough for them- anti-ERA forces. They never tell the selves. I would add that Orthodox .If women in the U.S. are not doing enough ' י.women that the key word is "choice many of the women who voted against If the pressure for change in rabbinic law ERA realized that they would still be would come not from those who oppose able, after its passage, to remain house- rabbinic law but from those who are wives if they were so inclined, they committed to it and want improvement JEWISH might have voted differently. there, I think advances would be made. As for the father's right to be heard in While we agree that something must IDEAS AND cases of abortion—I assume Professor be done to improve the status of Jewish Falk was talking about a married women, I cannot subscribe wholly to the CONCEPTS father—I would answer that in two ways. generalizations made by the Women's Steven T Katz If a marriage is entered into as really an Movement. It is good to have general The Building Blocks equal relationship, there is no reason why principles but then one has to see how of the Jewish husband and wife could not resolve that they are applied to particular situations. problem. If they should reach an im- Jewish law has been very progressive Intellectual Tradition Here is a book that offers an passe, which I suppose could happen, I and has actually dealt with situations we accurate, informative, rich picture would have to answer that the decision regard as novel. Reference was made to of Judaism. It will serve as should ultimately be up to the wife—it is the living-together arrangement. It has its the basis for a proper understanding of Judiasm. It presents the main her body and her individual right. counterpart in Halakhah. It was know in elements of those Jewish concepts I wish to refer to a marvelous article in Jewish law as concubinage—a man and that form the building blocks of the Judaism a few years ago by Blu Green- woman lived together without any obli- Jewish intellectual tradition. Most importantly, these concepts are berg, the wife of an Orthodox rabbi, a gation to each other, no ketubbah (mar- presented in terms of their uniquely graduate of Yeshiva University now riage contract), no need for divorce, no Jewish significance. teaching in one of the colleges in New legal obligation, no financial obligation In this book fundamental con- and so on. It's as old as the hills. cepts are explored in terms of their York, and the mother of five children. specific use in the classical Jewish The article is entitled "Abortion, A Chal- In my personal counseling I have had sources, the Bible and the rabbinic lenge to Halakhah'' and I quote from it: problems with regard to living together materials, as well as in medieval ". . . in new situations which are not arrangements—LTA, as it is known. Jewish philosophy, Kabbalah and modern Jewish thought. covered by a broad interpretation of the What happens to a woman who in that Jewish Ideas and Concepts is a existing Halakhic position, Halakhists situation has children? There comes a basic guide to the history of Jewish should not be fearful of extending the time when he or she may want to leave thought and an excellent intro- duction to the fundamentals of Halakhah to create a better meshing of and break the arrangement. No matter Judaism. It will prove to be a life- personal needs with traditional dictates. what will be said, if she gives up custody time reference source. This does not mean that Halakhah must or opts for 50 percent custody, with pre- Jewish Ideas and Concepts is legitimate itself by simply saying yes. It vailing attitudes she will be branded as a divided into three main sections: God, Man, and God and the Jew. does mean that in moving towards a more person unfit to have children. Within this framework, the major realistic position, saying yes under a What I am saying is that society re- concepts of Judaism are presented: wider variety of circumstances, its value gards the woman as the one who should the names of God, the attributes of God, the manifestations of God, judgments will also be taken seriously." be involved with the children, whether the nature and purpose of man As for the conflict between preserving she wills it or not. Laws are designated in and of woman, sin, repentance and religious traditions with their sexist dis- accordance with this concept. I can un- forgiveness, death, the Covenant, the Chosen People, revelation, tinctions and the demands made by derstand the woman's desire for inde- Torah, mitzvot, and "Sanctification women for full participation in prayer pendence, "I don't want to be shel- of the Name." services and other mitzvot, we are hap- tered." I have three daughters-in-law From the Biblical era to the who feel that way. I have two grand- Holocaust and the present day, pily seeing some changes. My hope is Jewish Ideas and Concepts is a that these changes will be extended. daughters who feel that way, but I as a reliable guide to Jewish thought To Dr. Lichtenstein, I would respect- grandfather do worry about sheltering and philosophy and to a clear fully say that the Women's Movement my granddaughters. understanding of Judaism. can be blamed for the decline in the fam- Professor Ostow, who teaches pastoral $12.50 at all bookstores ily structure only if we proceed from the psychology at the Jewish Theological premise that a woman is the property of a Seminary, is one of a group—I don't man. If we accept the principle of equal- know if he's right or wrong—that is wor- 200 Madison Avenue, New York 10016

MARCH/APRIL 1978 35 ried about what the Women's Movement a difficult decision to make. ments because in a short time the woman is doing in emasculating men. I think this I thank Rabbi Rackman for giving us a will be out of the period during which an was what Professor Falk and Dr. new term—LTA. I have never heard it. abortion is safe. Lichtenstein were getting at: the male There are arrangements in which people I also feel there has been a singular image in the home is being destroyed. can make contracts. In California, the lack of attention to the fact that abortion This is something that has to be looked court, in effect, said these people had an involves moral considerations on both into. implied understanding that if they broke sides. So far, we have heard only of the up there would be a sharing of the assets. moral disadvantages of abortion, but i ZEEV FALK: Many legal systems are responding to venture to say there are important moral In Judaism we have to combine particu- this view. It's hardly a problem peculiar considerations on the pro-abortion side. larity with universality. This applies to to the U.S. or Israel. In some systems the Many people are too old to have healthy women's rights. My appeal was to place view is, we'll let two people do what they children, many are too young to become specific rights in context. You cannot want as long as no children are involved, parents, many have too many children claim a right without spelling out its con- but once children are involved, the law and are not giving their children the care sequences. I thank Ms. Chanin for hav- will treat this unit as though they were to which they are entitled. And there are ing mentioned my good friend Blu married with regard to their rights and many more considerations. Greenberg with whom I see eye to eye on responsibilities concerning their chil- Now a word about the fear of emascu- many subjects, including the article cited dren. I look forward to a society in which lation. I guess I first heard about the fear by Ms. Chanin. I would like to say that men will realize, as many do today, or of castration when I read Freud. Freud Blu Greenberg and her husband are are beginning to, that they really depend was quite voluble about the castration prime examples of how women's rights upon their wives as much as their wives complex, so apparently it was a problem can go together with a good Jewish depend on them. before the Women's Movement. I have home. It is important, I repeat, for the never heard any evidence to suggest that Jewish women's movement to demon- HARRIET PILPEL: equality of women would in any way lead strate how a Jewish home can coexist I too was happy to learn of the new term, to the castration complex. with the notion of women's rights. LTA. I am not so happy about Professor And finally I would like to offer thanks My remarks to Ms. Chanin were not Falk's and Rabbi Rackman's observa- for the opportunity to participate in what, made to counter new claims but to show tions. I failed to understand the remark for me, has been a very exciting experi- that it is necessary to evolve a total con- that LTAs were accepted thousands of ence. ception of Jewish life. However, I must years ago under the name of concubi- take exception to the notion that an im- nage. I apparently misunderstood that LOUIS RABINOWITZ: passe between husband and wife is fi- word all along. I never understood that It was only when I came to the U.S. that I nally resolved with the argument that, this meant two people coming together encountered head-on this phenomenon, "it's still her body." There are more and sharing equally. the Women's Movement. It doesn't seem considerations than this simplistic The problem of LTAs in many com- to have made much of a dent here. In formula—the interests of the husband, munities today is: (a) that they are in bad America, I could see how the Women's the family, the Jewish people. repute and induce shame, and (b) that Movement could affect Halakhah. The there are attributes of marriage that rabbi I was staying with in America gave RUTH BADER GINSBURG: should attach to them but that don't, such permission for a bat mitzvah celebration On one point, Rabbi Rackman and I are as a serviceman's allotment. to be held in his synagogue. He asked the in full agreement: generalizations are I have suggested, without any reli- woman in charge to draw up an order of dangerous. I would like to correct some gious or secular backing, that we should service to be submitted to him, and she of his generalizations. In most situations recognize two types of marriage, what I had in the prayer:' 'Our Parent who art in where there is a good relationship be- would call Marriage I and Marriage II. heaven ..." The rabbi said he was sorry tween a man and a woman, it's a situation Marriage I would be a living-together but he couldn't allow that and she re- of interdependence. One can cherish arrangement where the partners who torted: "Rabbi, you are not suggesting independence in an interdependent rela- chose it could do so without social scorn that the Almighty has a sex, are you?" tionship between two people who think or ostracism. Marriage II would be the The rabbi answered: "Until we change of each other as equals. This is the direc- same as today's marriage but would au- our prayers I will not permit it." tion in which the law is going. There is a tomatically come into being if there was a Before I deal with one aspect of the model marriage and divorce law that, to child in a Marriage I situation. women's position in Halakhah, I'd like some extent, is already the prevailing As to the question of abortion, I gather to bring up the question of preferential pattern in the U.S. in 33 states. The law that Professor Falk agrees that a woman's treatment of minorities. I know this is a doesn't mention the words husband and body is her own but he thinks that the matter of considerable controversy in wife but there are mutual obligations— husband has a right to be heard. I think America, but it has its ramifications in support from the one who is able to pay, counseling is always a good idea in any Israel. In the Jerusalem Post you can support to the one who needs it. As far as situation of stress and I would support the read that the Association of Sephardim is a child is concerned, the dominant con- practice of asking fathers or husbands to demanding that Sephardim qua Sephar- sideration is what is in the best interests cooperate in the discussion. But we dim shall be given certain positions of the child. There are fathers who are should bear in mind that this is a situation whether most qualified or not. I want to able to nurture their children better than where time is of the essence, where you ask Ms. Chanin if she is demanding such mothers. In those instances, the court has cannot impose administrative require- preferential treatment for women.

36 CONGRESS MONTHLY There is no point in blinking at certain and understanding of both parents rather NATHAN LEWIN: facts about Halakhah. The Halakhah is than only a mother-child relationship. I am in agreement with virtually all of the completely male-oriented but a case can Finally, I want to echo Harriet Pilpel. aims of the Women's Rights Movement be made for essential equality. There is This has been an extraordinary experi- in the U.S. However, I am mystified by room for discussion on why women do ence for me. No conference I have at- the translation of the Movement's de- not participate in mitzvot, that is, women tended has been so marked by the under- mands into the field of ritual and are exempted from duties which depend standing and tolerance of widely diver- Halakhah because to me the place that upon a fixed time for their performance. gent views. ritual assigns to status, position, role- One can dispute whether exemption means that they need not perform the duties or that they are forbidden to do so. With regard to sitting in the sukkah, it is accepted they are permitted to do so; with regard to putting on tefillin, hands are raised in horror, although it is said that MANISCHEWITZ Michal bat Shaul (King Saul's daughter) put on tefillin and the rabbis did not ob- ject. WINES It does weigh upon me, as an Halakhic KOSHER FOR PASSOVER Jew, that there are disturbing statements about the role of women, particularly & THROUGHOUT with respect to two important things, the THE YEAR. study of Torah and a place in the public services. I believe there is room for ad- justments.

AMOS SHAPIRA: Regarding the women's rights question I'm afraid that I'm not terribly knowl- edgeable in this area, a defense mechanism perhaps. But a concept which Ruth Bader Ginsburg alluded to—the best interests of the child— triggered a question in my mind. How do we tie in the legal concepts with the new demands which are emerging from the Women's Rights Movement? I refer not only to acute situations such as custody, guardianship and adoption, but to needs of everyday life. How can we protect the rights of children? How can we protect them from neglect? To Whom It May Concern: We, the undersigned Rabbis, certify RUTH BADER GINSBURG: that wines and champagne bearing the (boiled) יין מבושל Louis Rabinowitz asked about preferen- Manischewitz Label are tial treatment for women. He should and are produced in accordance with strict make distinctions. Blacks have suffered Orthodox Rabbinical requirements under the deprivations of a kind and degree that constant supervision of reliable and learned women have not. Accordingly, the de- Mashgichim, from the crushing of the grapes mand of the blacks is for some compen- through the bottling—all under our personal satory treatment to rectify wrongs. guidance. The wines and champagne are Women simply demand equality of without any doubt Kosher for Passo\/er and opportunity—not preference. What the year round. women need are doors opened wide to them, not resistance or grudging ac- ceptance in schools, professions or jobs. Amos Shapira seemed to imply that concern for children will diminish be- Rabbi Dr. Joseph I. Singer Rabbi Solomon B. Shapiro cause of the Women's Movement. I don't believe so. On the contrary, I see in the Women's Movement something posi- MANISCHEWITZ WINE CO., NEW YORK, N.Y. 11232 tive to contribute to children—the love

MARCH/APRIL 1978 37 playing is traditionally one that has been naturally, reaching agreement. How- ings of superiority. I was struck by what accepted for ages, not merely by women ever, we did receive illumination and may have been overlooked in this but by men. Rabbi Lichtenstein pointed clarification of approaches to the subject. Dialogue, a rather basic agreement out that Halakhah assigns certain roles to Clearly, in terms of giving to the woman among us all on certain fundamental rav (teacher) and talmid (student), and to a right to make a choice for herself, the items. For example, each of the three others in an economic relation. It assigns U.S. Supreme Court has carried the systems we talked about is permeated by roles in ritual, based entirely on birth, to American law well beyond what the a concern for what Justice Cohen referred those who are Kohens, Levites, ordinary other systems have so far permitted. That to as the fundamental rights in the hearts people of Israel. I may be offended by the is stated without assessment of merits. of people. notion that I may not receive an aliyah in In discussing women's rights, another I was also struck by the fact that if from the synagogue as frequently as the next significant point was made, namely, that each of the three systems we were to fellow who happened to be born a Ko- the women are not doing enough, in an make a list of individual rights, these lists hen, but I've never heard of a movement organized fashion, to assert rights for would not vary greatly. And finally, I to overcome that particular status. themselves in Israel, and ultimately that have been struck by what seems to me to the rights that women claim for them- be an assumed agreement on the impor- ARTHUR HERTZBERG: selves can only be achieved by their tance of who decides and how we select We now mpve to the last stage of this self-assertion, by women working and who decides. Indeed, some of the criti- Dialogue. I call on Howard Squadron organizing to achieve those rights. cism of the Halakhic system was phrased and Zeev Falk to summarize the proceed- We discussed the relative openness in that sense. ings. and ability to change in each of the three Ultimately, then, all of us, from the legal systems and we heard criticism of United States and from Israel, who are HOWARD SQUADRON: what was regarded as hasty changes that observant, totally or less so, should ad- I do not think it is possible to summarize occur within the American constitutional dress ourselves to how we choose our several days of intense discussion. system. In contrast, we heard examples judges, what the agenda for those judges We started on Tuesday night with of the judicious and deliberate interpreta- in the field of individual rights will be. being informed that the discussion in tion by rabbis to alter Halakhic attitudes. How the decisions on that agenda will itself was to some extent anti-Halakhic. We heard about the difference between come out may ultimately come back to Yet, I am pleased to say to Dr. Lichten- moral strictures and legal commands in the very mundane question of who is stein that we have conducted the discus- Halakhah. selected and how. sion in the very best possible spirit. In- We argued about the values of a writ- deed, we have probably spent more time ten constitution and jury system and had ZEEV FALK: on Halakhah and the role it plays in the some rather heated exchanges on the Howard Squadron's summary is a fair life of Israel than on any other subject. I concept of separation of church and state. presentation of this Dialogue's proceed- suppose that was inevitable because in We were informed of the extraordinary ings. I'd like to make two points. First, any discussion of Jewish individual protection extended to individual rights the subject—The Rights of the Individual rights as defined and protected by legal by the Supreme Court of Israel, and this under American, Israeli and Halakhic systems, Halakhah has, itself, been the in a society where national security con- Law—could have been treated in differ- source of so many brilliant insights con- siderations, lack of a written constitution ent ways. We could have systematically cerning protection of individual rights. or even a statutory statement of indi- approached the different rights. Its influence, in a Jewish state, and vidual rights, and the sometimes conflict- We chose to conceptualize the under- among Jews in any Jewish community ing demands of religious tradition and lying problems rather than deal at length anywhere in the world, whether or not civil liberties have made the process un- with specific issues. We lingered on the the Jews involved are observant, is usually difficult. I must say that I was values of Halakhah vis-a-vis the secular bound to have significance. Con- most impressed by the accomplishments system. This was important for those sequently, we dealt exhaustively, pro of the Supreme Court of Israel. who do not live within Halakhah. I think and con, with the effect of Halakhah on In passing, we brushed a number of a consensus was expressed about the the rights of Israelis. other individual specific rights. We need for a dynamic approach within We touched on such questions as the touched on the freedom of press, the right Halakhah. The question was a question fight over TV on Shabbat, on public to strike; we mentioned the rights of of degree. transportation on Shabbat, on family homosexuals and the rights of privacy The discussions centering about writ- situations in Israel. We necessarily dis- generally. We touched, too briefly, on ten or unwritten constitutions or the jury cussed the issue of the Halakhic view on the subject of affirmative action. We system helped us to understand our re- women's rights after Leona Chanin made heard appeals to the American Jewish spective systems. We may have come to a thorough presentation from the Ameri- community to assist those in Israel con- understand that it's not the systems or the can perspective. Women have tradition- cerned with the expansion of individual laws which provide liberty but people. ally had a special role in Halakhah; it has rights. The best laws can be misused and laws been called inferior, it has been called One final item: Harriet Pilpel com- which are not thorough can be converted protected, it has been called secondary. plimented the tone of the discussion, of to good use by sensitive judges and a One describes the status depending on disagreement being expressed in a public concerned about its liberties. one's orientation. civilized way. I have been struck by the The presentation by Professor Stone We discussed, in particular, the right desire on the part of all of us to reach out about progress and change in the U.S. to abortion in the three systems, without, and understand each other, without feel- Supreme Court was provocative. It ena-

38 CONGRESS MONTHLY bled us to weigh the relative claims of ץ change and continuity. r CEJWIN CAMPS .PORT JERVIS, N.Y . ״ . Women's rights and the Jewish worn- Pioneer in Creative Boys and Girls 6-16 en's movement were treated in depth and Jewish Cultural Camping Co-Educational sympathetically questioned. It was Sports, tennis, swimming, boating, Individualized programs for each canoe trips, overnights, eiec- age group advancing to CIT, agreed that women's rights, or any indi- tronics, photography, nature, Leadership Camp and Israel trip. arts & crafts, drama, music, vidual rights, go along with respon- Brochure: Cejwin, 71 W. 23rd St., sibilities. dance, day trips, etc. Jewish Culture, Sabbath, dietary laws. 60th Year N.Y., N.Y. 10010; (212) 691-5860 We generally agreed that it would take Mature staff, resident Doctors (Non-Commercial) July $550 •Aug. $510 action by women to secure their rights, and Nurses. 8 weeks $1035 particularly in the areas of study and Dr. A. P. Schoolman, Founder and President. Rabbi Jerome Abrams, Director prayer. Jewish women, in my view, should not wait for the rabbis, or for men, to set the framework for what they think is the adequate form of expression of their Jewish identity. You'll never guess Finally, I found these sessions not only provocative but instructive in how prob- lems can be viewed from varied points of where Lufthansa vantage. I found it an exhilarating ex- perience to participate in exchanges with individuals of an extraordinary range of German Airlines opinions. flies to. ARTHUR HERTZBERG: And now I owe it to this conference, as it concludes, to explain what was on our minds in the American Jewish Congress when we framed this particular Germany you say? Naturally. But guess Dialogue. To what issues, not the im- again. And again. About 100 times. mediate issues, were we addressing our- selves? I, for one, am fearful of an ongo- Because that's how many different places ing Jewish polarization. I am troubled you can reach all around the world on that Jewish people within various sectors simply talk to one another and don't talk Lufthansa. 72 countries. On six continents. to anyone else. I am not suggesting a Just about anywhere people want to go! dismaying solipsism but rather the kind of limited discourse that does not venture From Australia to Zaire. And wherever outside of self-protective precincts. Lufthansa flies, you have our famous I am encouraged that a number of us, service and efficiency going for you. at least from the American delegation, have spent more time talking about Halakhah in three days than they have And most certainly, we can fly you to spent in their entire lives. They have dis- Tel Aviv. And we serve delicious kosher covered, even as they have disagreed with some of the premises or the conclu- meals on your way to Israel or wherever sions to which Halakhah leads, that the you go. But please be sure to tell us people who deal in Halakhah are not total obscurantists, or people from another in advance. planet. In short, we have stepped out of our respective frames, so to speak, and Ask your travel agent about us. have seriously confronted one another to our mutual enrichment. This effort could be paradigmatic for the Jewish commu- nity. One thing that seems to have come out of our discussions is our common aware- 0 Lufthansa German Airlines ness that unless we stay together the dan- gers from without are not the only threatening ones: the dangers from within are perhaps far graver. 680 Fifth Avenue, One World Trade Center (Lobby) [End of Session ] New York, N.Y. 10019. Tel. (212) 357-8400

MARCH/APRIL 1978 39 Fortunately, some things never change.

The ancient traditions remain, generation after This year, once again, Manischewitz matzo, gefilte generation. And today, we observe Passover as our fish, soup and other (!electables will grace any forefathers did thousands of years ago. traditional table. For almost a century, the old-fashioned good- Treat your family and friends to a taste of tra- ness of Manischewitz has ushered in festive holi- dition, too. day dinners in Jewish homes all over America. And have a good Passover!

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