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Shabbat Shalom: Parshat Vayikra Leviticus: 1:1-5:26
By Shlomo Riskin
Efrat, Israel - To what extent if at all, does our Rabbinic tradition
believe in democracy – the rule of the people? Most religionists would
assume that Judaism must believe in theocracy, the rule of the Divine. But
how can we possibly arrive at the Divine Will if G-d is no longer clearly
enunciating the decisions regarding the political – and military questions
at hand, neither in the form of a commanding voice heard by all as in the
Revelation at Sinai nor even in the emergence of prophets who preach in His
name? We don’t even have an operating body of religio–legal leadership
– such as a Sanhedrin (Jewish Court of 71 Rabbinic Judges) – which could
lay claim to the right of governance under the banner of monocracy or
halakhacincy – the rule of the law rooted in revelation and tradition.
Where must serious and well-meaning Israeli Jews go for authoritative
decisions, given the wide range and sharp divergence of opinions among both
rabbinic leaders as well as military spokes people!?
I believe that a careful study of our foremost theologian – jurist -
philosopher Maimonides will prove conclusively that we do look to the will
of the majority of our citizenry for guidance, and that the source for
Maimonides’ belief in democracy is a verse in this week’s Biblical
reading.
Maimonides, unlike most other Talmudic commentaries and codifiers, deals
with many critical matters of governance, especially but not exclusively in
his “Laws of Kings.” (chapters 11,12) The very first Mishnah in the
Tractate Sanhedrin (the Great Jewish Court) ordains that the bestowal of
Rabbinic Ordination (semikhah) is effectuated by three Sages; this semikhah
(literally, the laying of the hands of the elder sage upon the shoulders of
the younger scholar as symbol of passing over the tradition) harks back to
G-d’s emanation of a portion of His Divine spirit upon Moses, who then
ordained the elders. This chain of Jewish leadership came to a tragic end in
the third century under the Roman rule, when the decree was made that anyone
who bestowed ordination and anyone who received ordination would be killed (B.T.
Sanhedrin 13b, 14a).
Maimonides, in his Interpretation to the Mishnah, writes as follows: “It
seems to me that when there will be agreement from all the Sages of
Jerusalem and their disciples (on the Midrash in B. T. Bekhorot 29b,
Maimonides writes: agreement by all the residents of the Land of Israel) to
raise up someone to precede them (in greatness) and make him their head, and
on the condition that this is in the Land of Israel, this agreed upon person
shall be the central pillar of the Academy and shall become ordained;
afterwards, he will ordain whomever he deems worthy” In accordance with
accepted rules of Talmudic law, the agreement need not be unanimous; a
majority is always considered as though it were a unanimous decision (“rubo’
kekulo”).
In effect, therefore, Maimonides has ruled that the Biblical – and
Divinely originated – ordination, which empowered our Judges to innovate
decrees and boldly interpret Jewish law, could be resuscitated by a majority
vote of the population in Israel.
The rationale for Maimonides’ position is clearly exposited in his
commentary: “If you do not take such a stand (for such a democratic vote),
a Great Sanhedrin will never again exist, since the members of such a court
must be ordained. And the Holy one Blessed be He testifies that the
Sanhedrin will be restored, as it is written: “And I shall restore your
Judges as they were originally and your Legal Advisers as they were in the
beginning; only afterwards can (Jerusalem) be called the City of
Righteousness” (Isaiah 1:26). The necessity for such a democratic
procedure is clear to Maimonides, because he insisted that the Messianic
ere-replete with a re-instated and fully improvised Sanhedrin and a City of
Jerusalem featuring the Third Holy Temple – must come about through
natural, and not supernatural, means. And indeed, such a democratic
procedure was instituted in 16the Century Safed, when Rav Yaakov ben Rav was
“elected” Head of the Academy, and he ordained a number of outstanding
scholarly pietists, foremost among whom being Rav Yosef Karo. (Unfortunately
the nascent Sanhedrin was short-lived due to the opposition of Jerusalem
scholars who felt overlooked by their Safed brethren, the leader of the
Jerusalem group being Rav Levi Ibn Haviv).
I believe that the textual basis for Maimonides’ far-reaching decision is
a verse in our Biblical portion. It must be remembered that Judaism has
never entertained any kind of “papal” infallibility; our Bible records
that even Moses himself sinned by striking the rock, and our High Priest
began the movingly dramatic Yom Kippur Holy Temple service by publicly
requesting from G-d forgiveness for his personal transgressions. The Book of
Leviticus teaches: “If the entire congregation of Israel shall err, and a
matter (of proper conduct) become obscured from the eyes of the assembly…
and they become guilty… the assembly shall offer a young bull as a sin
offereing…” (Lev 4: 13,14).
Our Sages query as to how the entire nation can commit an unwitting
transgression, and conclude that it must be the result of a mistaken ruling
of permitting the prohibited which emerged from the Sanhedrin; this
conclusion demands that the Biblical phrase “Entire congregation of Israel”
(adat Yisrael) must mean the Sanhedrin (Torat Kohanim 4, 241, B.T. Horayot
6b). If, then, the Great Sanhedrin is Biblically equated with the
congregation of Israel, the way of re-instituting the ordination which is
necessary in the formation of the Sanhedrin must be by agreement of a
majority of the nation; the congregation of Israel is also defined by the
Sages of the Talmud as referring to the Congregation of Jews living in
Israel (B.T. Horayot 3b).
On this basis, it becomes almost obvious that Maimonides further rules that
in the absence of Sanhedrin or prophet, it is the people who must elect the
King or Prime Minister of Israel (Interpretation of the Mishnah, Kritut,
chapter 1, Mishnah 1). The 16th Century authority Rabbenu David b. Zimra
agrees with this position (Commentary to Maimonides, Laws of Kings, 3, 8),
and so did the first Chief Rabbi of Israel, Rav A.Y. HaKohen Kook, who
declares such an elected Prime Minister as having all the laws ascribed to a
King of Israel (Mishpat Kohen, Responsum 144, 15, 1). Indeed, our Biblical
source which equates the Sanhedrin with the congregation of Israel would
seem to confirm that in the absence of a Sanhedrin, the national opinion –
by referendum or election – should be considered authoritative.
Hence, it is no wonder that throughout the Middle Ages, the Jewish
communities – both in Europe and the Orient – were run in a purely
democratic fashion in accordance with the decisions of the Seven Good
Councilmen chosen by popular election. Such a procedure was ordained by the
Hoshen Mishpat – as long as the decisions of the Council were not in
opposition to absolute Torah law. This fundamental acceptance of government
for and by the majority of the people – as well as the Jewish principle of
human freedom which emanates from the Biblical doctrine of all human beings
having been created by G-d in His image and underscored by our
Divinely-aided freedom from Egyptian bondage – made Judaism the model for
the democratic governance established by the founding fathers of the United
States of America.
Shabbat Shalom
Shlomo Riskin
Chancellor Ohr Torah Stone
Chief Rabbi - Efrat Israel
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