Sunday, December 19, 2010

Rabbis' Free-Speech Immunity Bill

13 of the Tenth Month 5771

My comments follow the article...
IsraelNN.com: Bill Would Grant Immunity To Rabbis Regarding Freedom Of Speech

Gil Ronen, Tevet 5771 / December 2010

MK Michael Ben-Ari
National Union Knesset Member Michael Ben-Ari is proposing a bill that would give rabbis who work for the state immunity from prosecution regarding actions and pronouncements that are part of their leadership duties, or over pronouncements of Jewish law (Halacha). The bill would grant the rabbis immunity similar to that of Knesset members, as far as their freedom of speech is concerned.
The bill is a response to the public debate around a decree signed by an estimated 300 rabbis, calling upon citizens not to sell or rent out homes to Arabs.

The bill was originally drafted by former MK Shmuel Halpert of Agudat Yisrael.

The explanatory notes to the bill note that since Israel's laws grant immunity to “negative elements” like Arab MKs Ahmed Tibi and Hanin Zouabi – who openly side with Israel's foes – it is only proper to give immunity to Israel's chief rabbis and to the rabbis of cities, towns and neighborhoods. Rabbis must not be made to refrain from publishing Halachic rulings – or to twist the true meaning of Jewish law – because they fear the Prosecution, the notes explain.

In a separate statement, MK Ben Ari added that “the Left in Israel must remember that freedom of speech is the heart and soul of democracy and we must ensure that a rabbi should have no fear of publishing Torah opinion in the letter and spirit of Halacha.”

I actually have mixed feelings about this proposal.

My experience among "Kahanists" has taught me that sometimes these issues are raised, in order to raise awareness, without any hope of actually changing an Israeli law. For that, and his defense of rabbis who are interested in discovering truth about how we Jews are supposed to live our lives, MK Ben-Ari gets points in my book.

However, it must be pointed out that, in actuality, democracy has very little, in anything, to do with the ultimate, Torah-based government. Likewise, there is no place for "free speech" under halacha (Jewish Law). For example, I cannot call "Levi" a nasty name just because he angered me. Even more so, I certainly cannot do so in public. The point here is that there are several contradictions within what MK Ben-Ari saying. Torah vs. democracy, free-speech vs. halacha. They just don't jive together.

I know that many of my friends with only one or two "degrees of separation" from MK Ben-Ari would prefer that he either rephrase the bill to demand that the K'nesseth equate halacha with Israeli law, and to set up a search committee to re-establish a Sanhedrin to make such determinations,...or for him to dissociate himself with the K'nesseth, and speak on these issues from the outside (which I do not believe he would ever do).

Nonetheless, MK Ben-Ari gets more points in my bood, every time he points out the increasing number of contradictions between Jewish Law and Israeli law.

17 comments:

Mikewind Dale said...

"Likewise, there is no place for "free speech" under halacha (Jewish Law). For example, I cannot call "Levi" a nasty name just because he angered me. Even more so, I certainly cannot do so in public."

I disagree.

In halakhah, lashon ha-ra is prohibited, but as far as I know, it's not legally actionable. Unless your lashon ha-ra demonstrably caused some actual financial loss to him which he did not deserve, I don't know of any punishment under halakhah for lashon ha-ra. It's prohibited, but the beit din cannot do anything about it.

Freedom of speech does not mean that the speech in question is considered morally legitimate. It means only that the government has no jurisdiction or authority over it. If a man shouts racist remarks against blacks in America, for example, people will be disgusted by him, but there's no legal recourse.

So in the end, halakhah and democracy agree here: the given speech is disgusting and wrong, but the government is forbidden to do anything about it.

Remember: just because something is wrong, does not mean the government has to do anything about it, and in fact, the government might even be prohibited to do anything about it, even though it most certainly is morally wrong.

Mikewind Dale said...

Let me add to my previous comment:

Perhaps I am wrong, and if I am, you can correct me, but I have never heard of anyone bringing someone else to beit din for speaking lashon ha-ra.

I'm not sure, but I think lashon ha-ra would be a lav she'ein bo ta'aseh, for which you cannot receive makkot.

I'm not sure, but perhaps you might be punished for lashon ha-ra or motzei shem ra if your speech caused a demonstrable financial loss, a loss that was demonstrably undeserved. But maybe not. Maybe its being a lav she'ein bo ta'aseh means you're entirely exempt. I don't know.

But as far as I know (which might be wrong), you cannot ordinarily be punished in a beit din for lashon ha-ra. That means the more or less, the halakhah squares with freedom of speech.

Mikewind Dale said...

I think the confusion arises here: we have two kinds of halakhot, those whose violation is actionable in court, and those whose fulfillment is answerable to God alone. Not all violations of halakha can be brought to court, and we have many halakhot that are meant for the person himself to watch, for his own good.

For example, it's hard to imagine anyone having two witnesses to testify that he had relations with a woman in niddah. That law is not meant for a beit din to ever deal with. It's between you and God.

By contrast, secular law deals only with what can be brought to court, and it does not attempt to do more than that.

So you cannot just compare a given halakhah to the secular law, and draw a comparison. You might be comparing apples and oranges. You might be comparing a law in the Torah meant for individuals to watch themselves, with a secular law meant for the courts.

For example: never in Jewish history do we find, as far as I know, the beit din having any authority over qidushin and gittin and giyur. You need to have two witnesses, and you need to follow halakhah, but the beit din has no authority over and beyond that. If I want to marry a woman, I can get two witnesses and marry her myself, and the beit din cannot do anything about it. If I want to divorce her, I can give her a get, and the beit din cannot do anything about it. If I want to do a giyur, I can get two witnesses and a mikvah and a knife, and the beit din cannot do anything about it. This phenomenon today, of the Israeli Rabbinate having special authority over these matters, is non-Jewish, because according to the Torah, only halakhah alone is to govern these matters, but the Rabbinate is taking it upon himself to violate bal tosif and add new requirements to these things, that your marriage and divorce and conversion must meet with the approval of not only God and the halakhah, but also the Rabbinate.

Ben-Yehudah said...

B"H

Um,...Micha'el,

Thanks you for writing. But, I'm not sure if you actually read my post, or just projected what you wanted onto it.

I was very careful with my choice of words.

I said that the K'nesseth could equal Israeli law with halacha, NOT secular law with halacha.

IOW, halacha is supposed to be a part of all aspects of Jewish life, including how to run a government, how to fight a war, how we relate to fellow Jews, and how we relate to non-Jews. These are only a few examples.

Furthermore, a [truly] Jewish government's courts (ie. Sanhedrin & batei din) would deal with all aspects of Jewish life.

Even those officials hired by the King or Rabbanim to run various agencies would operate under halacha, even if they did not have any authority to give the average Jew on the street orders.

No, Democracy doesn't agree here. Just because something is not to be adjudicated at a bet din, does not mean that it is mutar under halacha. Look back at what you wrote.

Furthermore, I have heard of several times when someone has been dragged for saying lashon hara, when it has done the recipient serious harm. He may also be awarded damages, and the perpetrator can, and has received orders to stop, which can lead to ostracization, if not worse, if he does not comply.

Our towns are supposed to be monitored, if not governed by batei din, not secular or non-Jewish representatives answerable to the people.

Mikewind Dale said...

I absolutely did read your post.

The problem I saw with your post is that you confused something's being forbidden by halakhah, with its being liable under a beit din. You confused hayav and patur aval assur. That's what I was answering.

Most of the areas where democracy and halakhah disagree, are merely in those things which halakhah considers patur aval assur. So really, there's very little contradiction, because either way you go, secular or religious, the government won't do anything either which way. For example, most violation of Shabbat nowadays is done b'shogeg, so a halakhic state would not do anything to punish them, and their violation is patur aval assur, not hayav, so it's the same as if the state were secular.

IOW, halacha is supposed to be a part of all aspects of Jewish life, including how to run a government, how to fight a war, how we relate to fellow Jews, and how we relate to non-Jews. These are only a few examples.

But not every aspect of halakhah falls within the jurisdiction of the government/beit din.

Furthermore, a [truly] Jewish government's courts (ie. Sanhedrin & batei din) would deal with all aspects of Jewish life.

But then it wouldn't be halakhah anymore, because it would be intruding into areas that the courts are not permitted. If I am allowed to marry a woman via qidushin, for example, only with two witnesses, etc., then if the beit din (as the government) passes further laws, it is violating bal tosif, and it is no longer halakhic.

Even those officials hired by the King or Rabbanim to run various agencies would operate under halacha

Again, then these would no longer be halakhic, because they would be violating bal tosif.

Just because something is not to be adjudicated at a bet din, does not mean that it is mutar under halacha.

I never said they are mutar. I said they are patur. There is a huge difference. Lashon ha-ra is halakhically patur, and likewise, what the First Amendment says is that immoral speech is patur aval assur.

Furthermore, I have heard of several times when someone has been dragged for saying lashon hara, when it has done the recipient serious harm.

Okay, and the First Amendment would also allow you to sue for damages. (Probably only for motzei shem ra, however, not for lashon ha-ra. But halakhah would say the same, I imagine, because halakhah says you can utter lashon ha-ra if it is for a benefit, and I doubt any beit din could ever prove there was no benefit involved. So all lashon ha-ra would remain patur aval assur, unless it were motzei shem ra.)

Mikewind Dale said...

I absolutely did read your post.

The problem I saw with your post is that you confused something's being forbidden by halakhah, with its being liable under a beit din. You confused hayav and patur aval assur. That's what I was answering.

Most of the areas where democracy and halakhah disagree, are merely in those things which halakhah considers patur aval assur. So really, there's very little contradiction, because either way you go, secular or religious, the government won't do anything either which way. For example, most violation of Shabbat nowadays is done b'shogeg, so a halakhic state would not do anything to punish them, and their violation is patur aval assur, not hayav, so it's the same as if the state were secular.

IOW, halacha is supposed to be a part of all aspects of Jewish life, including how to run a government, how to fight a war, how we relate to fellow Jews, and how we relate to non-Jews. These are only a few examples.

But not every aspect of halakhah falls within the jurisdiction of the government/beit din.

Furthermore, a [truly] Jewish government's courts (ie. Sanhedrin & batei din) would deal with all aspects of Jewish life.

But then it wouldn't be halakhah anymore, because it would be intruding into areas that the courts are not permitted. If I am allowed to marry a woman via qidushin, for example, only with two witnesses, etc., then if the beit din (as the government) passes further laws, it is violating bal tosif, and it is no longer halakhic.

Even those officials hired by the King or Rabbanim to run various agencies would operate under halacha

Again, then these would no longer be halakhic, because they would be violating bal tosif.

Just because something is not to be adjudicated at a bet din, does not mean that it is mutar under halacha.

I never said they are mutar. I said they are patur. There is a huge difference. Lashon ha-ra is halakhically patur, and likewise, what the First Amendment says is that immoral speech is patur aval assur.

Furthermore, I have heard of several times when someone has been dragged for saying lashon hara, when it has done the recipient serious harm.

Okay, and the First Amendment would also allow you to sue for damages. (Probably only for motzei shem ra, however, not for lashon ha-ra. But halakhah would say the same, I imagine, because halakhah says you can utter lashon ha-ra if it is for a benefit, and I doubt any beit din could ever prove there was no benefit involved. So all lashon ha-ra would remain patur aval assur, unless it were motzei shem ra.)

Mikewind Dale said...

"and how we relate to non-Jews"

And that's the other problem with having a halakhic state: whose halakhah?

On the issue of gentiles, for example, we have two camps: the Meiri-ites and the non-Meiri-ites. No matter how the Sanhedrin rules, the opposing party will invoke the Yerushalmi that one must disobey the Sanhedrin when it says left is right and right is left. They will invoke ein shaliah b'davar averah.

We cannot have a Sanhedrin today, because we lack a consensus that one single, solitary school of halakhah is the authoritative one.

Ben-Yehudah said...

1. No, I did not confuse those aforementioned concepts,...not in the least.

2. Are you still harping on the Meiri? We've been over this. His rulings were based on the galuth he was living in. gimme a break.

3. Please cite the exact reference of the Yerushalmi so that I may scrutinize it.

Thank you.

Mikewind Dale said...

Fine, you think the Meiri is wrong, but I don't. So according to the Yerushalmi, I have to disobey any rabbi who pasqens against the Meiri. I cannot find an exact reference to the Yerushalmi. I've seen it cited as Horayot "45b" or "45d" (but not which edition!) or Horayot "near the beginning," but nothing better than that. It's somewhere in Horayot, I can tell you that. The Yerushalmi is very much disagreeing with the Sifre that says to follow the Sanhedrin even when it says left is right and right is left.

Mikewind Dale said...

And let's face it: a Rabbi Bar Haim-nik would also find most of the Sanhedrin's rulings to be non-halakhic. Think about who the rabbis today are, and what their rulings would be. You'd scream that their halakhic rulings are as halakhic as those of Aharon Barak and Beinish.

Ben-Yehudah said...

Micha'el,

1. If you are referring to the current body of Jews calling itself the Sanhedrin, then you are correct. We do not hold by them. Rav Ariel's Beth Din has certainly come out with some important rulings, though, and has backed them up nicely with sources, or course, further demonstrating that the contradictions between halacha and Israeli law are increasing all the time.

2. Additional responses sent privately,...in keeping with halakah.

Devash said...

Mikewind Dale should change his name to Longwind(ed) Dale. Ha!

re: "halakhah and democracy agree here"

You can't just say "free speech" or even "free speech for rabbis" because the reform 'rabbis' who are persecuting Rabbi Eliyahu have no right halachically to advocate an anti-Torah position. And second, the imams are not allowed to advocate the killing of Jews just so rabbis may uphold the Torah publicly in the Land of Israel.

Ben-Yehudah said...

P. S. How are they 'oveir b'al tosif?

You did not provide a halakhic argument.

Mikewind Dale said...

Devash: LOL!!

Ya'aqov: If, in the name of the Torah, you make halakhic rulings that are not provided for in the Torah, such as government-run giyur that has requirements not specified in the Shulhan Arukh, then you are `over bal tosif.

Now, you can always make these rulings in the form of minhag or taqana or gezera. But then, you'd have the requirement that a Rabbinic law is binding only if the people accept it, which brings us right back to democracy, which you've already rejected.

By rejecting democracy, you reject the possibility of making Rabbinic law, which means that all halakhic rulings must be based on d'oraita only, or else only those m'd'rabanans already in the Yad, Shulhan Arukh, etc. Ergo, any new halakhic rulings that are neither m'd'oraita, nor m'd'rabanans in the Yad/SA, are `over bal tosif.

Mikewind Dale said...

"have no right halachically to advocate an anti-Torah position"

As far as I know, the only prohibition is for a zaqen mamre to advocate disobeying the Sanhedrin. I know of no (legally punishable) prohibition for an ordinary Jew to contradict the Torah. He might lose his Olam ha-Ba, but that's not the beit din's concern.

Ben-Yehudah said...

We were not discussing a government run giyur program.

Where do you come up with these things,...out of left field?

We were talking about a government agency.

You think it would be b'al tosif? Why? You did not support your argument,...yet again.

As for those "rabbis," they may not be considered zaqen mamre, of course, but if not tinoq she'nishba, they could be hayav to various punishments. See Ramba"m Hil. Avodah Zarah 10, and Hil. Teshuvah 3:14.

Ben-Yehudah said...

Thanks, as always to Devash for your support!

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