The Roots of Democracy in Jewish Law

Reference: Oz VeShalom - Netivot Shalom

Originally published as ‘Judaism and Democracy: Incompatible or Complementary?’

By Lucien Lazar

“At each point that democracy contradicts Judaism, I choose Judaism.” When I heard that the first time, I treated it as an irresponsible political statement. However, after it began to appear with increasing frequency, also on the lips of leaders who identify themselves as religious, and even spiritual, I felt that the foundations of my beliefs and opinions were crumbling. I asked myself if the values I was raised on at home and at my yeshiva, which I have studied and follow in my own way, are somehow mistaken? Could it be that they stand in contradiction to the sources of Jewish tradition?

I was born and raised in France, and I lived throughout the critical time of political struggle around fascism and totalitarianism in the 1930’s. I was also there during the dark years of Nazi occupation. My conclusion from the sum of life’s experiences is crystal clear: the rights and duties of the Jewish citizen in a democratic society exert a dear cost in Jewish identity. But Jews have near total control and responsibility over that cost. Assimilation is possible, but not inevitable. We have the final say. On the other hand, denial of those rights and responsibilities means denial of Jewish existence. As a Jew I have no existence in an undemocratic society. Therefore my choice is between the risks of living in a democracy, and destruction. Of course the destruction is forced upon me, and I have no control over it. The risks however, are up to me, thanks to the rights accorded me under democracy.

My world view was based on Judaism and democracy. Not only is it impossible for there to be a contradiction between them, it is rather true to say that Judaism and an undemocratic regime are absolutely incompatible.

During these days we hear more and more voices, from the camp with a claim to religious authenticity and authority, pointing at supposed conflicts between Judaism and democracy. Public servants from religious parties express resistance to suggestions for basic laws on equality before the law. And no voice is heard from any rabbinical authority denouncing or contradicting those who seek to torpedo legislation aimed at equality. How can this be?

Jews living abroad continue to struggle for the principle and practice of equality by the state. They understand that they will be among the victims of any regime that takes away equality under the law, that anti-democratic movements tend to be anti-Semitic as well. Can it be that what is good in general for the countries of the world is somehow not good for us, in the State of Israel? Did we establish a Jewish state in order to have an undemocratic regime, one that discriminates between its citizens, a regime that if it were to exist anywhere else in the world would be accused of anti-Semitism?!?

In my confusion I turned to Hebrew Jurisprudence, a book by the former Supreme Court justice and Orthodox rabbi Menachem Elon, to the chapter on “Public Regulations.” (p. 558). It seems that there is no question of Judaism and democracy that includes a contradiction in values, even if certain decisions taken by democratic institutions seem to contradict Jewish values.

Before looking at the “public regulations,” it is worth noting that democratic regimes were not in existence in biblical times, or during the time of the Mishna and Gemara. Reference to democracy does not exist in halakha, rabbinic canon law, until the 10th Century. It is true that some aspects of democracies do exist, such as equality before the law. That principle was formulated in earliest times: “And therefore man was created alone…” But the form of government in which authority resided with the people did not exist. And so writes Justice Elon:

A deep and crucial change took place towards the end of the 10th Century, with the rise in power of the Jewish community. This community was a social unit, and it encompassed in its authority and supervision all areas of its members activities, and it was within the Kehilla [the organized Jewish community] that the social and spiritual fabric of life was woven. It has a great deal of autonomy: internal leadership institutions that were made up of appointed and elected officials; it supplied the educational and social needs of its members; there was a court with judicial authority in civil law and to a limited degree even criminal law.

The Kehilla also imposed and collected taxes for the state and for the needs of the community services. The regulation of these diverse functions and positions came through regulations decided upon by the Kehilla. These tremendous changes in the scope of legislation presented halakhic sages with many fundamental legal difficulties, that could not be explained within the framework of existing halakha. We can’t, for example, find any reference in Talmudic halakha to a discussion on the source of legitimacy for the public to enact regulations.

From that point onwards, over hundreds of years, Jewish law developed to include the legitimacy of the public to enact regulations that acquire the authority of toranic law (Din Torah), when and if they were enacted by majority opinion and require the opposing minority to follow them as well. The public is represented by representatives, whose composition and manner of selection vary from place to place. “It was permissible for those regulations to include orders opposed to existing halakha.” (ibid. p. 595) “But it was forbidden to pass regulations that were opposed to basic principles at the foundation of the entire Jewish judicial system, such as the principle of equality before the law, the principle of defending the rights the weak and minorities, and so on.” (Ibid. p. 615)

Based on the arguments above, it seems that democracy has deep roots in halakha. Its principles and implementation were formulated hundreds of years before Locke and Montesquieu developed their version of modern Western democracy. In sum, the democratic form of government is most explicitly the choice and invention of Jewish sages and scholars versed in all aspects of Jewish law. If it was thus for the autonomous Jewish kehillot, then it is even more true for the Jewish State. A halakhic state is a state where, in accordance with halakha, authority resides in the elected representatives of the people. Anyone trying to impose an alternate form of government, or to give the responsibility of governing and legislating to an external source, removes himself from Jewish law and rebels against Torah opinion.

Here, in Israel the authority to legislate laws is in the hands of elected parliamentarians, and the authority to rule is in the hands of the legal government. That is what halakha says. Whosoever rises and preaches a doctrine of disobedience of a legitimate authority, on the grounds that such and such an order is in violation of halakha, is destroying with his own hands the basis of halakha and the sources of legitimate authority, and turning his back on Jewish tradition. Instead of acting as the authentic representative of the Torah, he is actually representing a version that distorts our true heritage, or on the other hand hiding a political motivation behind the supposed learned opinion of scholars. Because, there is no alternative to respecting the law as implemented by the government and its representatives. Only they have the legitimacy of Jewish law and the authority to rule in the name of the Torah.

Beyond this preliminary conclusion, which states that there cannot be any contradiction between Judaism and democracy, there is yet another conclusion arising from a perusal of “public regulations.” The revolutionary innovations undertaken by Torah scholars starting from the 10th Century show that the face of Judaism underwent a comprehensive change. The world of yesterday became blurred; the growing separation dividing the Muslim world from the Christian world, the collapse of central authority, the rise of feudalism, the hegemony of the Church in Christian lands, the spread of violence concurrent with the Crusades, all led to a need to revolutionize the practices of the Jewish people. Sages then met the challenge successfully. Will we do the same?

Dr. Lucien Lazar, born in France in 1924, is a Jerusalem-based educator, author and historian.

Oz VeShalom – Netivot Shalom (Strength and Peace – Paths to Peace), “The Movement for Judaism, Zionism and Peace,” is an Orthodox Zionist peace organization in Israel, founded in 1975, rooted in the Religious Zionist movement but integrally involved in the broader Israeli peace movement.