How Jewish Should the Jewish State Be?

In the pantheon of great rabbinic debates, the controversy between the Ridbaz and Rav Kook on the issue of the heter mechirah may not rank in the top ten or even twenty. The year was 1910, and the players were the Ridbaz, the Lithuanian scholar Rabbi Ya’akov David Wilovsky, and Rabbi Avraham Isaac Kook – the man who would go on to become the first Ashkenazic Chief Rabbi of pre-State Palestine. At the time, Wilovsky, an immigrant to Israel from Chicago, of all places, served as head of a Yeshiva in the northern town of Tsefat, and Kook as the chief Rabbi of the coastal city of Jaffa.

The background to their debate was rooted in this week’s Torah reading. “Six years you may sow your field and six years you may prune your vineyard and gather in the yield. But in the seventh year the land shall have a Sabbath of complete rest, a Sabbath of the Lord: you shall not sow your field or prune your vineyard. (Leviticus 25:3-4) These are the laws of the sabbatical year – shmittah – a required rest for the land in ancient Israel’s agrarian society. The laws serve as a reminder that the land belongs not to humanity but to God, that we must extend the earth an opportunity to lie fallow, and that the ancient farmer be afforded the chance to set aside economic competition in order to focus on those things in life that truly matter.

Compelling and poetic as the sabbatical laws may be, there is one very important caveat. For nearly two thousand years, while the Jewish people were exiled throughout the Diaspora, the shmittah laws were entirely theoretical – totally abstract in nature. There was no Jewish settlement in Palestine to speak of, no Jewish land to let lie fallow.

Until … one day … there was. With the first and then second waves of aliyah (immigration), at the turn of the twentieth century, Jews began to return to Palestine to establish the Yishuv, the pre-state community. When the shmittah year of 1910 approached, it was the first time, in a very, very long time that Jewish farmers asked themselves whether the laws of shmittah were to be kept. On the one hand, what is the promise of settling in our people’s homeland if not an opportunity to observe the laws of our people as instituted by our Torah? On the other hand, the economic consequences of actually observing such a sabbatical year could be devastating to an already struggling and vulnerable community, potentially spelling disaster and collapse of the entire Yishuv.

To make a long story short, Rav Kook penned a 120-page treatise in which he deployed the legal fiction of a heter mechirah, a permissible and temporary sale of the land to non-Jews thereby enabling the land to be worked. No different than Jews selling hametz on Passover and other convenient loopholes of Jewish law, Kook’s solution provided an elegant way out of the conundrum. If the land were no longer “owned” by a Jew, the obligations of shmittah no longer applied. In Rav Kook’s opinion, not only was such a “sale” possible and permissible, but if it served to save the fledgling community from financial ruin, it was necessary.

As for the Ridbaz, he believed otherwise. Not only did he disagree with Rav Kook’s legal reasoning, but he posited that Kook’s proposed solution undermined the very goals it was designed to support. If it is sold, even as a legal fiction, the land is no longer Jewish and is thus deprived of its unique status and sanctity. Why settle the land at all, if we aren’t going to embrace the totality of Torah law? That is the whole point. In the years to come, the Ridbaz, along with a number of other rabbis, denounced Kook for his lenient position that appeared willing to forgo the Jewishness of the land for another competing value. Ultimately, Rav Kook won the day. From 1910 right up to sabbatical year arriving this fall, the legal fiction of selling the land has been deployed every seven years, a concession made in order that the land of the Jewish people be made more livable for the Jewish people. (Morrison, Sapphire From the Land of Israel: A New Light on the Weekly Torah Portion, from the Writings of Rabbi Abraham Isaac HaKohen Kook)

Remote and picayune as the debate between Rav Kook and the Ridbaz may seem, at its core lies the issue upon which Israel continues to squirm right up to this day, namely: Just how Jewish should the Jewish State be? I know, at first blush, it seems like an awkward and even unseemly question to utter aloud. The whole point of Israel is to be a Jewish state. For two thousand years we longed for, prayed for, and died for our people’s right to self determination. Lihiyot am hofshi b'artzeinu, to be a free people in our land. What do you mean? How can the Jewish state possibly be too Jewish?

The most important thing for Americans to understand about Israel is that the Israel is not America. Americans take the separation of Church and State as an article of faith. The first amendment’s establishment clause was, in the words of Thomas Jefferson, “a wall of separation” between religious institutions and the federal government. It is by no means airtight. We need not look far to see misplaced Christmas wreaths, school prayers and invocations of faith in the public square, to know that America is not entirely neutral when it comes to religion. But for the most part, or at least in principle, the democratic polity of America professes no religion of its own.

Israel’s model is entirely different. Somewhat like other nations, Israel possesses an established church – a Jewish one. From the very get-go, the symbols, institutions and laws of Israel have been Jewish. The national anthem Hatikvah, the public holidays, the menorah as a state symbol, the chief rabbinate – Israel is defined as a Jewish state. But while Israel is Jewish state, it is not a theocracy. Unlike Iran, Israel lays claim to being a democracy, a state governed by elected officials. In its founding declaration and subsequent Basic Laws, Israel promises “to uphold the full social and political equality of all its citizens, without distinction of race, creed or sex.” Yes, Israel is Jewish, but Israel also stands committed to liberal, democratic and secular values.

It is a balancing act that makes life in Israel very, very interesting. To be a Jewish and democratic state is much easier said than done. Because whether it is the laws of the shmittah year, the days on which the buses run, or the rights accorded to non-Jews living in the Jewish state, Israel cannot escape the foundational Kulturkampf embedded in its DNA. The question of just how Jewish the Jewish state should be continues to shape the national debate. Just this week, the Prime Minister of Israel threw his support behind a Basic Law that would affirm Israel as a Jewish state. Such legislation, while protecting the cultural, civil and religious status of non-Jews in Israel, does not acknowledge their national aspirations. While the bill itself does not sound particularly revolutionary, it is understood both by its supporters and detractors as an attempt to tip the scales towards a heightened recognition of Israel’s Jewishness to both Israelis and the outside world. Not surprisingly, Justice Minister Tzipi Livni declared her opposition to the legislation, refusing to allow “the damaging, weakening or subjugating of [Israel’s] democratic values to its Jewish values.” The players and politics are different, but the debate is basically one and the same. Over one hundred years since the Ridbaz and Rav Kook, we are still arguing over just how Jewish the Jewish state should be.

And as with all great debates, our highest hope may be that the debate continues. The more I think about it, the more I think how disastrous it would be if either side were able to declare victory. The whole point of Zionism is to create a home for the Jewish people in the land of Israel. Now and forever, the Jewishness of the state of Israel must be affirmed and defended. Attempts to create some sort of bi-national state stripping Israel of its Jewish character would be a betrayal of thousands of years of Jewish longing. And yet those who love Israel – who truly love Israel – we must also be the most vigorous defenders of the progressive instincts expressed in Israel’s founding documents. No more problematic than a bi-national state would be a state that became so Jewish that it lost its ability to house the freedoms and rights of liberal democracy. There is a point when the Jewish state could become “so Jewish” that it loses its ability to be livable, and we must protect Israel from ever nearing that line. It is not a comfortable or clear state of affairs; it never has been. Like any uncomfortable marriage of principles, the scholar Steven Mazie explains, the Jewish and democratic nature of Israel is a status quo agreement “under which neither side is especially happy and each constantly attempts to gain a bit of ground on the other.” (Mazie, Israel’s Higher Law 984/6998) It is a somewhat strange thing to fight for – to be uncomfortable – but we who care about Israel as much as we do need to make sure that the debate is nurtured, nudged and celebrated into the future.

Perhaps most importantly, we must remember that the existence of this debate, while critical to Israel’s soul, must always be conducted with great respect for the opposing side. As Yehuda Mirsky explains in his new book on Rav Kook, well after the shmittah year of 1910, the debate between the Ridbaz and Rav Kook continued – both publicly and privately. But while they disagreed, often vehemently, it was understood that their debate served a greater good – an exchange by which the name of God and the land of Israel would be strengthened and made sacred. In fact, so devastated was Rav Kook at the passing the Ridbaz that he wrote to an associate that his “grief at [the] great loss at the departure of that tzaddik [righteous person]…makes it hard for [him] to think with peace of mind.” (Mirsky, Rav Kook, 76)

So too in our own day. Yes, we must fight for Israel as a Jewish state. We must also fight for Israel as a democratic one. Most of all we must fight for an Israel that can be both Jewish and democratic at one and the same time. And no matter on what side of the debate we find ourselves, we must carry ourselves with great respect for those with whom we differ, acknowledging their wisdom even as we disagree, knowing all the while that the debate itself serves to strengthen a greater good which we all share in common.