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Equal Under The Law?

Equal Under The Law?

When it comes to non-Jews in a Jewish state, thorny questions of Jewish law and modern reality.

Nearly three years ago, a group of Israeli rabbis published a public statement forbidding the sale or rent of real estate to non-Jews, and even recommending various sanctions to be applied against anyone found transgressing their decree. Despite public controversy, the ruling was not rescinded, and one of its authors was recently a candidate for the office of chief rabbi of Israel.

The fact that such a ruling, which claimed to be based on Jewish law, was promulgated highlights the problematic interface between traditional Jewish sources and the notion of human rights in a Jewish state.

Indeed, for those who take for granted the benefits of equal citizenship enjoyed by Jewish minorities in Western countries, the extension of similar status to non-Jews in the Jewish state would seem only natural. However, traditional Jewish sources do not present such a clear picture. There are, for example, texts that would seem to support discrimination against non-Jews in various areas of interpersonal relations. One example of which would be the prohibition to give non-Jews “a foothold in the land,” which is found in the Babylonian Talmud (Tractate Avoda Zara 20a) and in the Code of Maimonides (Laws of Idolatry 10:3).

Even before the establishment of the State of Israel, halachic decisors raised the question of applying rabbinic tradition regarding non-Jews to modern reality. Some of them used interpretive strategies that circumvented problematic rulings regarding non-Jews. For instance, some invoked the statements of Meiri, a 13th-century Provencal scholar, in whose writings the discrimination in Jewish law should not be read as actually between Jews and gentiles, but between nations of law and lawless nations, between barbarism and civilization. Given the fact that non-Jews within Israel are as a rule law-abiding citizens of a democratic state, equal treatment of contemporary non-Jews would follow.

Halachic decisors who oppose discrimination against non-Jews in real estate transactions (such as the Modern Orthodox rabbinic group Beit Hillel) have raised practical considerations, such as the fact that behavior towards non-Jews in a Jewish state has to take into account the effect of such decisions on Jews elsewhere. Others justify ignoring discriminatory law by virtue of the claim that “our power is limited” to implement the full ideal of excluding non-Jews.

These justifications are useful to rationalize acquiescence with present reality, but they do not include a conception of the state and of citizenship that is in accord with basic civil rights. The Israeli Declaration of Independence commits to “foster the development of the country for the benefit of all its inhabitants” and “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”

In fact, some of the legal rulings regarding relations with non-Jews are appropriate for a society where Jews are a minority and are in need of protection and of solidarity in their relations with the majority culture. A contemporary formulation must take into account the reality of the State of Israel, established so that the Jewish people could be the majority and not require discriminatory procedures in order to acquire what they deserve.

A contemporary conception that may allow us to envision a majority state with regard for its non-Jewish minority may be found in statements of two prominent rabbis of Religious Zionism, Yitzhak Herzog, chief rabbi in the early days of the State, and Shaul Yisraeli. In their deliberations regarding the possibility of non-Jews serving in positions of authority, they suggested that Jewish law view the state not as a re-enactment of the Jewish kingdom of yore, but rather as a partnership of its citizens in which all are empowered to serve the common good. Neither rabbi elaborated on the extent to which this position can be utilized, but it may be our responsibility to use their framework to formulate a more comprehensive understanding of a modern Jewish state and the role of all of its citizens, Jews and non-Jews alike.

It is true that there are competing understandings of what it means to be a Jewish state, both in regard to relations with non-Jewish Israelis as well as concerning the place of Jewish religion and tradition in the legal system and in the public sphere. It is also impossible to ignore the fact that the discussion of the status of non-Jews in Israel takes place in the context of a longstanding conflict, in which the very legitimacy of the state is challenged. These should not be reasons for ignoring the need to create a common language between Jewish tradition and human rights. Even Jews who are wary of innovations in Jewish law must understand the challenge to Jewish tradition of a modern state based on democratic principles, and formulate an appropriate Jewish response. 

Dr. Kalman Neuman, a rabbi, is a researcher in the Israel Democracy Institute’s Religion and State Project, and a lecturer at Herzog College in Gush Etzion. Judaism And/Vs. Democracy is a regular column by researchers from IDI’s Human Rights and Judaism project on the dialogue between the Jewish and democratic traditions.

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