yom kippur woman 88.
(photo credit: Courtesy)
On March 12, 1985, the late MK Prof. Avner Shaki (National Religious Party) presented to the Knesset his private member bill, Passover Holiday (Prohibition of Hametz) Law, which is the subject of so much controversy now.
From the very beginning of his speech, Shaki explained that the purpose of the law was to protect the feelings of "the majority of the religious, nationalist and traditional public," who regard the eating of unleavened bread as a great offence.
MK Shemtov (Mapai) interjected:
"Let whoever doesn't want to buy hametz not buy it. Why should my right to buy hametz be infringed upon?"
To which Shaki responded:
"Buy whatever you want, but not when this purchase and that place hurt the feelings of so many. Nobody prohibits you from buying hametzâ€¦ But why the public nature, the openness [of the act]?"
The emphasis throughout the debate was on that aspect: not on the actual sale or consumption of hametz but on its public display, which would offend feelings of observant and traditional Jews. The bill passed 23 against 14, but as one who was present in the Knesset - where the deliberations went on in the committee as well as in the plenum - I can testify that it was this limited application of the law that enabled it to be passed. Had the law prohibited the actual sale of hametz, it would not have passed by such a wide margin. This is why the interpretation given recently by a local Jerusalem court - that the law does not proscribe the sale but only the display of unleavened bread - is a true one. It was never intended to enforce a religious rite in the Jewish public but to protect the sensibilities of the observant Jewish public.
But there is more to it than mere legalism: looming over the controversy is the issue of the Knesset legislating religious or orthodox coercion.
SOCIOLOGICALLY, ISRAELI Jews are of a double nature.
On the one hand, there is a palpable willingness on the part of secular Israeli Jews to retain a Jewish way of life, to return to Jewish roots, to coexist with different interpretations of Judaism. It is this trend which explains the voluntary cessation of all traffic by Jews - including private cars - on Yom Kippur, the universal observance of male circumcision, the insignificant demand for the newly available secular burial.
On the other hand, there is a growing resistance to rabbinical marriages and a growing number of Israeli Jewish couples dispensing with huppa and replacing it by traveling to Cyprus (or, better still, to Tuscany) to have a civil marriage (and with growing numbers of immigrants from the FSU, who are not considered Jewish by halacha, these numbers are bound to grow by leaps and bounds.
How to explain this paradox? In my opinion, the explanation lies in this very aspect of coercion that characterizes laws passed under coalition pressure by the Knesset. The great majority of Israeli Jews want to remain Jewish and would like their offspring not only to stay within the Jewish people but also know more about their heritage. This is why the great majority would opt for Jewish marriages, even if one day civil marriage is introduced. In the same way, they continue to circumcise their male babies - although this should have logically been the most difficult of rites to observe - and to be buried under rabbinical auspices. But when there is an attempt to force on them religious law through secular parliamentary exercises, many rebel.
I am not religious, but out of a mixture of sentiments - including irrational ones - I observe certain traditions. This is why I do not eat hametz on Passover and enjoy matzot throughout the holiday. But I do recognize the right of others to eat and buy whatever they like. This is the substantive meaning of democracy, and this is why, to people like me, Israel can be both Jewish and democratic, notwithstanding the post-Zionist mumbo-jumbo to the contrary.
But if the majority in the Knesset submit to pressure and pass a law which actually forbids the sale of hametz, even when the public square and therefore religious sensibilities are not involved, that law won't be kosher. It would exacerbate quiet rebellion on the part of many secular Israelis. It justly would be declared null and void by the Supreme Court as being incompatible with the Basic Law on Personal Dignity and Liberty, the very law initiated by this writer which introduced the concept of Israel as both Jewish and democratic.
The writer is a professor of law at the Interdisciplinary Center (IDC) Herzliya, a former minister of education and MK as well as the recipient of the 2006 Israel Prize in Law.