Rabbi Hayyim Hirschensohn: Early Advocate of Jewish Law Coexisting with Modern Society

The Religious Zionist community has struggled with the proper balance between modernity and tradition. In their attempt to identify models of dedication to Torah with openness to modernity, Religious Zionist scholars have recently turned to R. Hayyim Hirschensohn (1857-1953) as offering a pattern for the possible integration of Torah learning and modern values. R. Hirschensohn had little following and held meager positions of responsibility during his lifetime. But he grappled innovatively with subjects that concern religious Zionism (as well as Israeli society as a whole) to this day, such as the relationship between Jewish Law (Halakhah) and democracy, women’s issues and attitudes toward secular Jews.

Due to this renewed interest, the Schechter Institute of Jewish Studies, Hartman Institute and Bar-Ilan University have joined forces in an effort to re-publish many of Hirschensohn’s works that are out of print, as well as to publish, for the first time, a collection of his responsa, Halikhot Olam . The intention of the project is to make these works available to a larger audience beyond academics and rabbinic scholars.

The first fruit of this collaborative effort is the recent publication of the first volume of Malki Bakodesh , six volumes of responsa and letters published between 1909 and 1928 that concerns “questions concerning the administration of government from an halakhic perspective.”  Hirschensohn believed that rabbinic scholars should not wait until the actual establishment of the Jewish State to address the thorny halakhic issues that would accompany the renewal of Jewish sovereignty in the modern world. Rather, they must display foresight and prepare the halakhic infrastructure that would allow for the development of a Jewish and democratic state.

In the first volume, Hirschensohn addresses five questions:

1) Must the Jewish state be a monarchy (seemingly in accordance with the commandment to appoint a king)? or alternately,
2) Can the Jewish State be a democracy?
3) Are we commanded to reinstate the sacrificial order?
4) Is a contemporary Jewish army legitimate?
5) Can a rabbinic appeal court be established?

The volume is edited by David Zohar who has previously written a book-length treatment of Hirschensohn’s (Jewish Commitment in a Modern World , 2003). Zohar provides notes that explain the historical references and simplify some of Hirschensohn’s intricate and complex discussions of rabbinic texts. He also translates rabbinic Hebrew and Aramic terms into modern Hebrew. In addition, he prefaces the volume with two introductory sections: a biography of Hirschensohn and a brief exposition of his halakhic philosophy. In the biographic section, Zohar admirably traces the key episodes of Hirschensohn’s life. In particular, Zohar recounts Hirschensohn’s involvement in the modernizing efforts of the Orthodox community in early twentieth century Palestine, including publishing a rabbinic journal that included historical studies; helping establish modern Orthodox educational institutions; and working with Ben-Yehudah and others in reviving the Hebrew language. These activities aroused the opposition of the ultra-Orthodox who placed him inherem (ban from the community.) He subsequently immigrated to the United States and served as an Orthodox rabbi in central New Jersey from 1903 until his death in 1953. During this period he produced an impressive body of literature, comprising over ten works on legal, theological and historical issues.

Hirschensohn on the Democratic Character of the Jewish State

Hirschensohn’s unique halakhic approach manifests itself in the first responsum, which concerns the proper form of government for the State of Israel and examines the conflict between the commandment to appoint a king and the need for a democratic regime which political philosophy and historical experience has taught us. In response, Hirschensohn argues: “There is no law in the Torah that can conflict with the ways of a true civilization and can necessitate that we ever perform something that is in conflict with reason” (p. 36). He proceeds to argue that since democracy is rational it must be allowed for and even mandated by the Torah.

But Hirschensohn was not satisfied with the meta-halakhic explanation and investigates the Talmudic debate regarding the commandment concerning appointing a king. Hirschensohn argued innovatively that the commandment of appointing a king is dependent on three conditions: first, the land must be divided between the different tribes; second, the tribe of Amalak must exist and be recognizable; and third, we must receive a prophecy regarding whom we should appoint as king. If any of these conditions are not met-and particularly, this relates to the situation today where none of the conditions exist-there is no impediment, and even an obligation to establish a democratic regime. Hirschensohn realizes that his reading of the halakhic sources is unprecedented and even begins his treatment by underscoring this point: “The great commentators, with due deference to their Torah wisdom, did not arrive at a true understanding [of this issue]” (p. 42).

Hirschensohn’s Halakhic Methodology and Philosophy

Even from this brief overview of only one of the responsum from the first volume, we can establish some of the seminal features of Hirschensohn’s unique halakhic methodology, which Zohar outlines in his introductory chapter on Hirschenson’s halakhic approach.

Above all, Hirschensohn believed that every halakhic problem could be solved, and no obstacle exists for the coexistence between Jewish Law (halakhah) and modern society. This belief derived from his view of halakhah as a legal system which incorporated and was guided by meta-halakhic principles. That is, Jewish law is not a formal system in which the posek (the adjudicator of Jewish law) has to slavishly follow inflexible principles and precedents. Rather it is a dynamic flowing Torah that is able to adapt itself to any new challenge that it encounters. In this sense, Torah and life can never at be odds and the Torah must integrate aspects of modernity such as the value of democracy, Jewish nationalism and gender equality.

In particular, the posek has to take into consideration the needs of the Jewish people and has to make certain that the law is not overly burdensome. It is for this reason that the posek has to be intimately involved in the community for which he adjudicates the law, and his knowledge must extend beyond mere knowledge of the subject matter of the formal law.

What allows the halakhah to confront the new challenges, Hirschensohn argues, is two additional principles of his halakhic philosophy. Firstly, he believes the halakhic process grants considerable autonomy to the posek who does not have to slavishly accept the precedents even if they are codified in theShulhan Aruch . Rather, he searches for the truth by looking anew at the issue and the relevant halakhic sources. The Torah can be interpreted in different manners and therefore previous interpretations do not prevent the uncovering of new layers of the text.

Secondly, according to Hirschensohn, the flexibility of halakhah is derived from the principle of “a lenient ruling is preferable.” Hirschensohn implements this principle often in his rulings and provides an extensive theological defense of its necessity. As a result, Hirschensohn ruled leniently that one can enter the area of the Temple Mount , one can use electricity on Sabbath and women can act as judges in a rabbinic court. He also argues that at a time of secularization the posek must encourage halakhic observance among those with a weak commitment by ruling leniently in a systematic manner.

In short, we are indebted to Dr. Zohar who has made more accessible R. Hayyim Hirschensohn’s innovative halakhic writings, which can contribute to a deeper understanding of the possible interactions between democracy and Jewish Law and modernity and tradition.

This article on the pioneering halakhic work undertaken by Rabbi Hayyim Hirschensohn (1857-1953) is based on a book review of Hirschensohn’s Malki Bakodesh, Volume One , ed. David Zohar. The review, which appeared in the Israeli weekly Makor Rishon, in March 2007, was written by Dr. Ari Ackerman , a lecturer in Jewish Education and Jewish Thought at the Schechter Institute of Jewish Studies.