Torah versus international law

Much has already been written about how the Jewish State should be run according to the Torah.[1] Here I will try to explain how we should deal with cases where the Torah view seems to clearly be at odds with what the international community accept as morals. In many cases the world’s reaction would make it very difficult for us to adopt the rules of the Torah at face value even if the government was willing to do so, but my question is when and if we should be trying to change the world view of these issues.

I believe that the way to approach this is to take a deeper look into what the Torah is telling us. There is no doubt that if in fact there is a contradiction between the Torah and man-made law, we must follow the Torah. However, it is well worth examining if the perceived difference is due to warped morals, or if the conclusions man has come to are guided by something that the Torah would agree to on closer analysis. To clarify we must bring some examples.

Slavery

According to Torah law, one can buy a non-Jewish slave who then becomes property of the buyer and cannot normally go free without consent of the owner.[2] The slave is obligated to work for his owner, and the owner is not even obligated to provide him with food (although if he has any sense he will do so, otherwise the slave won’t be much use to him).[3] Should we be taking steps to persuade the world that this is the way to go?

Here we need to ask whether the Torah meant to actively encourage slavery, in which case we should indeed be trying to teach the world the Torah way. But if the Torah just allowed slavery out of necessity, and that necessity no longer exists, there is no reason to perpetuate an anachronism. On the contrary, we should be thankful that we live in a world that is morally superior to what it used to be in this regard.

Although I have not found a clear proof either way from Tanach or Chazal, I believe that there are some indications from the Rishonim that they understood slavery as a necessary evil and not as something inherently positive. In the passage where the Torah differentiates between Jewish and non-Jewish slaves, Rashi explains that the many restrictions on the treatment of Jewish slaves would inevitably lead to the question “If so, from whom can I get service?”[4] To this question the Torah answered that one may acquire a non-Jewish slave.[5]

The Rambam explains slightly differently, that even the laws of non-Jewish slaves were given to ensure that they are treated with some degree of compassion.[6] Even a non-Jewish slave goes free if his master knocks out his tooth, even inadvertently. Also, a slave who flees his master to Eretz Yisrael is not made to return.[7] Although to us this compassion that the Torah had for slaves seems insignificant, for the time it was revolutionary.[8]

Historically it is important to understand that slavery was a norm throughout the world until relatively recently. The first country that banned the slave trade was Denmark-Norway, in 1803.[9] The Torah was millennia ahead of its time when it forbade the enslavement of Jews, and even this proved difficult to adhere to at times.[10] After many years, the model showing that one should serve none but G-d has been accepted worldwide.

Religious coercion

According to the Torah, one who refuses to carry out his responsibilities is beaten until he complies.[11] Even a private individual has the right to physically prevent another from transgression.[12] In the so-called developed world not only is this not acceptable, but even imprisonment or fines for religious negligence is considered an abuse of human rights.[13] What should we be doing about this?

This issue is a complex one. Here it doesn’t seem logical to say that the Torah just disapprovingly allowed religious coercion, and I am not aware of any source for such an idea. However, it is also clear that in an ideal world there would be no need for coercion, as everyone would happily fulfil their obligations of their own accord.

The crucial question here is not whether it is inherently right to enforce Torah law, but whether it would be productive on a global scale. There would be no point trying to enforce anything if the net result would be negative.[14]

For most of the past two thousand years we have suffered from different forms of attempted coercion, and more recently we have clearly benefited from a society that allows us to keep Torah and mitvos freely. We would need to ask ourselves whether we would want to go back to a situation where every country can compel all its citizens to one religion, now that we have our own country where we can (theoretically) make the rules.

Practically, this question would remain hypothetical even if we had a religious government. Even if we decide that we do want to return to the old system, it would not be the first priority. It would clearly be pragmatic first to work on persuading the world of the truth of the Torah, and then most if not all of the job would be done. Firstly, it would be far easier to convince people the morality of enforcing a Torah that they accept. And more importantly, it would be less necessary.[15]

Idolatry in Eretz Yisrael

According to the Torah, we may not allow idolaters to live in Eretz Yisrael.[16] Should we be looking for ways to deport those who worship physical or multiple beings?[17] This question is somewhat related to the previous one, but here I believe that there is another issue where commonly accepted thought is more clearly opposed to the Torah view.

The Torah, as well as the entire Tanach, is full of generalisations about the character of certain nations. And even within the Jewish People there is discrimination. While anyone can achieve greatness irrespective of lineage,[18] there are innumerable halachic differences between kohanim, levi’im, regular Jews, mamzerim, and many other categorisations.

The chasm between this and the world view couldn’t be much wider. Virtually any kind of differential treatment based on race, religion, gender or age is usually illegal or at least frowned upon. Is this enlightenment or deterioration?

To me it is clear that it is a bit of both. The numerous genocides and pogroms that have occurred over the last few hundred years before the modern system was in place were certainly not positive things, and even the repercussions of lesser evils like apartheid South Africa are still felt today. The world eventually realised that a revolution was necessary, and in my view the net result is definitely an improvement.

However, I think it is fair to say that there has also been some overkill. The freedom of movement that exists most notably in the European Union has led to a loss of feeling of national identity, which in turn causes resentment and the opposite of the intention of discrimination laws.

The Torah provides not just for national identity, but also for tribal identity within the Jewish Nation. Each tribe had its own territory, flag, and unique role within the Jewish People. Hashem knew that strengthening this identity would only increase the unity of ‘Yachad Shivtei Yisrael’.

Accordingly, I conclude that where possible we should stand up for our right to say that those who are not willing to accept the basic tenets of our religion are not welcome in Eretz Yisrael. This is no contradiction to our expectation of acceptance in other countries where religion is not a defining characteristic. If, for example the United States made acceptance of Christianity a condition for granting residency I would also have no complaint.[19]

The problem comes with those who have already been granted citizenship or residency. Once they have been accepted it would not be correct to renege on the rights they have been given, in the same way we would expect other countries who have taken in Jews to keep to their word. However, I see no moral problem with giving financial incentives to encourage people to find a more appropriate place to live, if this is practical.

Conclusion

I have no doubt that some will dispute the conclusions I have drawn about the three issues discussed. My main aim here is to encourage thought about how we are supposed to deal with these issues and more according to the Torah, and that they can be discussed and debated seriously. May we fulfil the prophecy of being a light unto nations to the best of our ability.

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[1] Eg Amud Hayemini by R’ Shaul Yisraeli, Hilchos Medina by the Tzitz Eliezer

[2] Furthermore, see Gittin 38 that releasing a non-Jewish slave for non-mitzva purposes is a transgression.

[3] See Shulchan Aruch Y.D. 267:2.

[4] Vayikra 25:44

[5] See Sefer Hachinuch Mitzva 347 who also says this reason. Although he first says that it is befitting for Jews to have people to serve them, he does not say that it is an ideal for non-Jews to be slaves. I therefore believe that my conclusion here is not contradicted by the Chinuch.

[6] Moreh Nevuchim 3:39

[7] See Rambam, Avadim 8:10

[8] This explanation of the Rambam seems insufficient to explain the obligation to retain ones non-Jewish slave, and presumably he would agree to Rashi’s reason. Certainly this obligation is not for any more fundamental reason, as we can see from Rabban Gamliel’s joy in Bava Kama 74b when he thought that his slave would go free.

[9] https://en.wikipedia.org/wiki/History_of_slavery#Modern_Europe. One should also bear in mind that only relatively recently were laws made ensuring fair treatment of regular workers, and it is possible that some slaves were in a better position due to the owners’ interests to maintain their market value.

[10] See Yirmiyahu 34

[11] See Kesuvos 86, Rosh Hashana 6a.

[12] See Bava Kama 28a. To what extent an individual may do so is not completely clear (see Meshovev Nesivos 3:1), but all agree to the principle.

[13] Although certain transgressions such as trade on shabbos and sale of chametz on pesach are sanctioned by Israeli law, they are limited to the public domain.

[14] This should be obvious, and see also Chazon Ish Yoreh Deah 2:16.

[15] Another thing that should be worked on first is persuading the Jews of the Diaspora to make aliya, as then among countless other benefits there would be less concern about freedom to practice Judaism worldwide.

[16] In fact, the straightforward understanding of halacha indicates that only a ‘ger toshav’ who formally accepts upon himself the seven Noachide laws may be allowed to stay. See Arachin 29a that until we have the laws of Yovel we cannot even accept a ger toshav. But even if we could get round this technical problem, we would still be left with a significant number who would not readily accept.

[17] Without getting into a discussion of what is considered avoda zara, it definitely exists on some scale even today.

[18] See Horayos 13a, Sanhedrin 59a

[19] Although I would continue to argue about the falsehood of Christianity.