From the biblical era until today, civil law has functioned largely to regulate individual and collective behavior, punish those who commit crimes, and protect its most vulnerable citizens most of the time.
The ancient Israelites – like the lawmakers of the Jewish and democratic State of Israel today – also knew that even the best attempts at lawmaking have to allow for legislative change over time. But what grounds our legal system both then and now? What is its core? Ethics. Echoing throughout the Bible like an unforgettable chorus is the insistence on ethics: “You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt. You shall not ill-treat any widow or orphan. If you do mistreat them, I will heed their outcry as soon as they cry out to Me” (Exodus 22:20ff).
The verses in Exodus 21:1-24:18 deal with everything from the “just” treatment of slaves, to the punishment of intentional and unintentional manslaughter, to rebellious children.
At the core of Jewish law is ethics. Many thinkers – both Orthodox and liberal – argue that there is a meta-ethical thrust to Jewish law allowing for and demanding self-correction. Reverberating in the midst of grand legal codes are two core principles of the whole of Jewish tradition: 1) God demands ethics; 2) if the system in place doesn’t lead to ethics, fix it.
When it comes to the development of Halacha, Jewish religious law, it, too, has certainly evolved and changed like civil law, for it, too, has to respond to new contexts.
The lived reality of a society tests the premises and legislation of a system. Only when law is enacted in the world can it be exposed to a full test, to a complete critique, which will expose its flaws and the points where it needs to be corrected.
This possibility of self-correction was precisely what David Hartman (1931-2013) thought was so religiously exciting about Israel. For Hartman (whose first yahrzeit occurs in the coming weeks), the establishment of the modern State of Israel was of religious and ethical significance because it would fully test the premises of Jewish law. In Hartman’s thought, this lived reality would not only enable the correction of Jewish law’s imperfections, but also allow for a more expansive application and development of that law.
Like the iconoclast Israeli thinker Yeshayahu Leibowitz (1903-1994), Hartman believed that Zionism and the establishment of the State of Israel must create new patterns of thought for developing Halacha.
In 1982, within the context of the Sabra and Shatila massacres in Lebanon and before the IDF was officially ascribed with negligence, Hartman had the courage to understand and speak publicly about the moral and religious importance of being totally exposed, being criticized, and being able to correct the course of a country.
In his seminal 1982 essay “Auschwitz or Sinai?” (later published in A Heart of Many Rooms), he writes: “The establishment of the modern State of Israel has removed us from the insulated world of the ghetto and has exposed Judaism and the Jewish people to the judgment of the world…. We live in total exposure.
“We must therefore define who we are by what we do and not by any obsession with the long and noble history of Jewish suffering. In coming back to our land and rebuilding our nation, we have chosen to give greater moral weight to our actions in the present than to noble dreams of the future or to the memories of our heroic past.”
The present challenges are what continue to test the capacity of our civil and religious legal system to remain true to its core values and strive even more toward the vision of a perfect society.
The civil and religious law and our ethics in the land of Israel are indeed totally and necessarily exposed. As a sovereign nation, who we are and what we do should be understood in context and critiqued when necessary. It is not a threat, it is our greatest strength. Our acts and our laws should stand naked in the eyes of the world.
If we truly believe in and are willing to insist on our moral core, this should not trouble us too much. In fact, it is because of critique, both internal and external, that we can repent when necessary and self-correct when necessary so that our future society will be closer to an ideal society. As a Jewish-democratic state, Israel allows for, needs and demands its own covenantal growth. This is the goal of Judaism, and this is the promise of Israel. The writer, a rabbi and PhD, is the president’s scholar and national director of recruitment and admissions at the Hebrew Union College-Jewish Institute of Religion, and teaches for the Shalom Hartman Institute of North America.