Halacha and

Democracy:
Are the Two
Completely
Compatible?
Part I
By Rabbi Joshua Flug

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I. Introduction- As believers in the Torah and believers in the concept of democracy, we
would like to think that the two concepts co-exist and that in an ideal world where
everything followed Halacha, it would not be a problem to implement democracy. The
first place to start would be the Land of Israel and since the establishment of the
Medinah, a vast amount of literature has been written on the topic.
a. In this shiur outline (Part I) we will discuss, in general terms, some of the different
models that can be used to support the concept of a halachic democracy. We will also
present some of the challenges that arise in a halachic democracy, both in the ideal
state and practically, in the current State of Israel, where majority of its citizens have
no interest in following Halacha.
b. Here are some useful links on the topic:
i. Otzar HaMishpat is collection of thousands of articles written on topics
relating the State of Israel and Halacha (they don't have full text, just the
references).
ii. Michlelet Herzog has a section on their website dedicated to this topic that
contains full text of many articles.
iii. The Israel Democracy Institute has a series of position papers on these topics.
We will mention some of the ideas highlighted by Yedidya Stern in his three
part series on "State, Law and Halakha," specifically, part III.
iv. The Gavison Medan covenant was written by R. Yaacov Medan and Prof.
Ruth Gavison to address issues of religious conflicts in the State of Israel.
Whether one agrees with the covenant or not, it does highlight the contentious
issues.
c. The term "Democracy" can mean many different things, depending on where a person
resides. The one commonality is that the people choose its leaders, but beyond that,
there are certain concepts that are not necessarily common in every democracy. For
example:
i. Separation of church and state does not apply in every democratic country.
Most notable is the United Kingdom, where the Church of England does play
a role in the government. [The United Kingdom is also a monarchy, though it
is only symbolic.]
ii. Freedom of expression has some limitations in every democracy. Some limit
expression that harms others. Some limit expression that offends others.
iii. In the wake of the Egyptian Revolution, the debate about whether freedom of
religion must be a part of a democratic government has resurfaced. [See here
and here for examples.]
II. Is a Davidic Monarchy the ideal form of government?
a. The Torah states that when you come to the Land of Israel and the people want a king
"just like all of the other nations," you should appoint a king. {}
b. When the Jewish people went to Shmuel asking for a king, Shmuel felt it was
inappropriate and G-d concurred. {}
c. The Rishonim discuss whether appointing a king is ideal and how to understand
Shmuel's reaction to the request:
i. Rambam (1138-1204) writes that there is a mitzvah to appoint a king. The
reason why G-d frowned on the people's request for a king from Shmuel was
that their request was not sincere. They didn't ask for a king in order to fulfill
a mitzvah, but to replace Shmuel. {}
ii. Rabbeinu Nissim (1320-1380) writes that there are two branches relating to
Jewish justice: {}
1. The beis din's function is to uphold the law as delineated in the Torah.
They are bound by the rules of evidence, warning, etc.
2. The king's function is to ensure that society runs in an orderly fashion.
The king has the right to punish those who evade the legal system,
either by committing crimes without witness or by finding loopholes in
the law. The king's function is a necessary part of governance.
3. The reason why the people's request for a king from Shmuel was
inappropriate was that they wanted a system where the king has
control of the entire system. They didn't want a separation of powers.
iii. R. Yitzchak Abarbanel (1437-1508) writes that the ideal is not to have a king.
The Torah only allowed for a king if the people really want it, but it is better if
they don't have one. This is why the request of Shmuel was inappropriate.
Abarbanel explains that a king has three functions, all of which were being
fulfilled by G-d and the Torah at the time. Their request for a king was an
affront to G-d and the Torah. {} The three functions are:
1. To defend the people from attack and to fight the country's wars.
2. To establish a system of law.
3. To punish those who find loopholes in the law. Abarbanel contends
that a king is not necessary for this because beis din can carry out
those punishments.
iv. R. Naftali Z.Y. Berlin (The Netziv 1816-1893) writes that there is no
obligation to appoint a king. Rather it depends on the time. There are times
when the people are better off with a democratic government and there are
times when a king is appropriate (specifically when all the surrounding
nations are run by kings). If it is appropriate to have a monarchy, it is a
 mitzvah to appoint a king and if it is not appropriate, then there should be a
democracy. {}
1. See also the comments of R. Chaim D. HaLevi at the end of the shiur
outline.
d. Does a democratically elected government have the status of a melech?
i. The Gemara states that the legacy of Yehuda's claim to malchus exists in the
Reish Galusa in Bavel. {}
ii. Rav Avraham I. Kook (1865-1935) writes that any ruling body that was
appointed appropriately has the status of melech. This is why the
Chashmonaim were able to rule. {}
iii. R. Ben-Tzion M.C. Uziel (1880-1953) notes the opinion of Ramban (1194-
1270) that the king can only come from the Shevet Yehuda and this is why the
Chashmonaim were punished. {} R. Uziel writes that based on the opinion of
Ramban, there is no possibility for a malchus until mashiach comes. The
government in the State of Israel does not represent a malchus, but rather a
means of maintaining order. {}
1. We find this idea in the writings of R. Moshe Sofer (1762-1839). In
commenting on Rabbeinu Nissim's opinion that dina d'malchusa
doesn't apply in Eretz Yisrael, {} Chasam Sofer notes that Rabbeinu
Nissim is only dealing with laws meant to boost the king's wealth.
Laws meant to uphold society are universal and don't relate to the
special status granted to a king (and according to Ran, not granted to a
king of Israel). {}
III. Applying the Kehillah System on a National Level
a. During Medieval Times and until the 19th century, there were many Jewish
communities who had autonomy under the rule of the king. The Jews had their own
system of governance, taxation, and sometimes even the power to punish and
imprison. It was a fully functional local government that followed Halacha. Many
contemporary writers point to this system as the model for Halachic Democracy.
b. The Talmud Yerushalmi quotes a Beraisa that seven members of the city can
represent the entire city. The Yerushalmi asks: If everyone accepts these people, why
is there a need for seven? Shouldn't less than seven suffice? If these people are not
accepted, what authority do they have? The Yerushalmi answers that these seven
people are accepted "‫בסתם‬." {}
i. Rashba (1235-1310) explains that if they were accepted without conditions,
they have the authority to make decisions regarding matters that were not
previously addressed by the general community. However, this only applies if
there are seven members. If there are less than seven, the leadership must
consult with the general community on new issues that arise. {}
 c. Maharam MiRutenberg (1215-1293) writes that the decisions of the kehillah are
determined by tax-paying citizens. The majority determines who should be appointed
as leaders of the kehillah and the minority are forced to accept the decision, whether it
relates to religious matters or matters of society. {}
d. Rabbeinu Asher (c. 1250-1327) affirms the idea of majority rule by noting that if we
required unanimous decisions on every matter, it would be impossible to make any
decisions. {}
e. Radvaz (d. 1573) writes that this model allows for the appointment of an executive
who has special powers. He would be appointed by the seven representatives of the
city. {}
f. R. Eliezer Waldenberg (1915-2006) notes that the kehillah model is a good model for
the State of Israel. As per Rashba, it provides members of the Knesset with the
authority to make decisions without consulting the general population over every
decision. He does note that the decisions cannot contradict Torah law. {}
IV. From the Ideal to the Practical
a. This section transitions from the ideal to the practical. Given that it is theoretically
possible to establish a Jewish democratic government, what are the practical
challenges of having a halachic democracy when majority of the citizens are not
interested in halacha and a significant portion of the population is not Jewish?
b. Prof. Yedidya Stern (Part III pages 22-23) highlights some of the issues:
i. Assuming Halacha accepts a democratic State of Israel, does it accept the
current form of democracy in Israel as the ideal form or is it a compromise,
given the situation?
ii. If a prime minister, cabinet member or MK wanted to follow Halacha for
every decision he makes, can the melech model or the kehillah model help in
determining issues such as state welfare policy, social security, capitalism vs.
socialism, monetary policy, foreign policy, etc.?
c. R. Yitzchak HaLevi Herzog (1888-1959), writes that Rabbeinu Nissim's model of a
two branch system seems very appealing. Matters of governance that relate to issues
such as foreign policy, defense, monetary policy can be relegated to the din hamelech,
whereas the justice system can function within halachic parameters. He notes that R.
Chaim Ozer Grodzenski (1863-1940) implied this approach after the Peel Commision
released its recommendations. However, R. Herzog finds great difficulty in
implementing such a separation. {}
d. R. Chaim David HaLevi (1924-1998) takes the approach that the Torah intentionally
kept the Parshas HaMelech vague because there are numerous forms of government
that are valid and the Torah didn't want to limit Torah observance to those living
under a specific type of rule. There are many secular matters relating to government
 and the Torah doesn't have a preference on these matters. They can remain a secular
matter. {}
V. Does Halacha recognize all of the articles of the Universal Declaration of Human Rights?
a. When the U.N. was established, one of it first documents was the Universal
Declaration of Human Rights. In this section, we will discuss some of the articles
that one can question as to whether they are compatible with Halacha
b. Article 18- "Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and freedom, either alone
or in community with others and in public or private, to manifest his religion or belief
in teaching, practice, worship and observance."
i. Halacha has a concept of min or apikorus. Does that contradict freedom of
belief?
ii. Rambam writes that there is a distinction between someone who was raised
with certain beliefs, who is considered a ‫ תינוק שנשבה‬and someone who came
up with these ideas on his own. {} Yet, even this idea is not 100% compatible
with the Universal Declaration because it doesn't allow someone to freely
become an apikorus.
iii. Perhaps the answer is based on the comments of R. Avraham Yeshaya
Karelitz (Chazon Ish 1878-1953) who notes that Rambam's ruling only
applies in a time when G-d's providence is clear to all and someone who
rejects the values of Torah is someone who has very warped thoughts.
Nowadays, we don't punish the apikorus, but try to bring him back to the fold.
{}
iv. A similar idea is presented by R. Shimshon Refael Hirsch (1808-1888). He
writes that if the government tries to regulate beliefs, it can actually lead to
people rebelling against the system and create a Sodom-like society. The way
to achieve justice is through education. {}
v. Netziv notes that freedom of belief is an important value. The problem with
the Dor Haflagah was that they wanted everyone to believe the same thing and
they wanted to set up a system that destroyed anyone who believed otherwise.
{}
c. Article 19- "Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers."
i. The Torah has many limitations on speech such as lashon harah, cursing
others, swearing in vain, etc. Nevertheless, as noted earlier, every democracy
has limitations on speech that is harmful and some on speech that is offensive.
The Torah's limitations on speech can be classified in one of the two
categories.
 d. Article 4- "No one shall be held in slavery or servitude; slavery and the slave trade
shall be prohibited in all their forms."
i. Rambam writes that even though there are certain legal entitlements to treat a
slave in a cruel manner, the proper way is to treat slaves like one would treat
oneself. {}
ii. R. Kook has an essay on slavery where he notes that there were generations
when slavery was in the best interest of certain people. Instead of being taken
advantage of by employers who would have treated them terribly and paid
them next to nothing, slavery allowed these people to live a life where it was
in the best interest of the slave owner to ensure that his "property" thrived and
lived well. R. Kook notes that during Medeival times, it was no longer in
everyone's best interest and therefore, slavery was and is no longer a valid
halachic option. {}
VI. Are There Elements of Democracy in the Halachic Process?
a. The Gemara notes that the rabbis cannot enact a gezeirah that majority of the
constituents cannot follow. {}
i. Rashbam (c. 1085-1158) writes that a gezeirah requires active acceptance of
the majority of the population. {}
b. Maharik (c. 1420-1480) writes that a minhag can only be established if it is accepted
by a majority of people in the locale. {}
c. R. Moshe Feinstein (1895-1986) writes that when dealing with minhagim that
establish rules of society, the majority is not determined strictly by Torah observant
Jews or even Jews. Rather, one looks at the local practice of all people to determine
what the minhag is. {}
d. The Talmud Yerushalmi states that if there is a question regarding Halacha, look and
see what the people are doing. {}
i. While this may seem like a statement that the people determine psak halacha,
Rabbeinu Asher seems to say that it is a function of the influence of the local
rabbis. I.e., when there is a question of which opinion to follow, we can
determine based on what most people do that the local rabbis have decided to
follow one opinion over the other. {}
‫‪ .4‬דרשות הר"ן דרוש יא‬ ‫‪ .1‬דברים יז‪:‬יד‪-‬טו‬

‫‪ .2‬שמואל א' ח‪:‬ד‪-‬ט‬

‫אל‪-‬‬ ‫באו ֶ‬ ‫אל; ו ַי ָ ֹ‬ ‫שר ָ ֵ‬ ‫ני י ְ‬ ‫ק ֵ‬ ‫כל ז ִ ְ‬ ‫בצו‪ֹ ,‬‬ ‫ק ְ‬ ‫ד ו ַי ִתְ ַ‬
‫נה‬ ‫ליו‪ ,‬הִ ֵ‬ ‫מרו אֵ ָ‬ ‫תה‪ .‬ה ו ַֹיא ְ‬ ‫מ ָ‬ ‫אל‪ ,‬הָר ָ ָ‬ ‫שמו ֵ‬ ‫ְ‬
‫ך;‬
‫כי ָ‬ ‫דר ָ ֶ‬ ‫לכו בִ ְ‬ ‫לא הָ ְ‬ ‫ך‪ֹ ,‬‬ ‫ני ָ‬ ‫ת‪ ,‬ובָ ֶ‬ ‫קנ ְ ָ‬ ‫תה ז ָ ַ‬ ‫א ָ‬
‫כל‪-‬‬ ‫טנו‪--‬כ ְ ָ‬ ‫שפ ְ ֵ‬ ‫מל ֶך ְ ל ְ ָ‬ ‫לנו ֶ‬ ‫מה‪ָ -‬‬ ‫שי ָ‬ ‫ִ‬ ‫תה‪,‬‬ ‫ע ָ‬ ‫ַ‬
‫אל‪,‬‬ ‫שמו ֵ‬ ‫ני ְ‬ ‫עי ֵ‬ ‫בר‪ ,‬בְ ֵ‬ ‫ד ָ‬ ‫רע הַ ָ‬ ‫הגוים‪ .‬ו ו ַי ֵ ַ‬ ‫ַ‬
‫טנו;‬ ‫שפ ְ ֵ‬ ‫מל ֶך ְ ל ְ ָ‬ ‫לנו ֶ‬ ‫נה‪ָ -‬‬ ‫מרו‪ ,‬תְ ָ‬ ‫שר א ְ‬ ‫כ ַאֲ ֶ‬
‫אל‪-‬‬ ‫מר ה'‪ֶ ,‬‬ ‫אל‪-‬ה'‪.‬ז ו ַֹיא ֶ‬ ‫אל‪ֶ ,‬‬ ‫שמו ֵ‬ ‫לל ְ‬ ‫ו ַי ִתְפַ ֵ‬
‫שר‪-‬‬ ‫כל אֲ ֶ‬ ‫עם‪ ,‬ל ְ ֹ‬ ‫בקול הָ ָ‬ ‫מע ְ‬ ‫ש ַ‬ ‫אל‪ְ ,‬‬ ‫שמו ֵ‬ ‫ְ‬
‫תי‬‫א ִ‬ ‫כי‪ֹ -‬‬ ‫מאסו‪ִ ,‬‬ ‫אתְך ָ ָ‬ ‫לא ֹ‬ ‫כי ֹ‬ ‫ך‪ִ :‬‬ ‫לי ָ‬ ‫מרו אֵ ֶ‬ ‫ֹיא ְ‬
‫שים‬ ‫ע ִ‬ ‫מ ֲ‬ ‫כל‪-‬הַ ַ‬ ‫הם‪ .‬ח כ ְ ָ‬ ‫לי ֶ‬ ‫ע ֵ‬ ‫לך ְ ֲ‬ ‫מ ֹ‬ ‫מ ְ‬ ‫אסו ִ‬ ‫מ ֲ‬ ‫ָ‬
‫רים‬ ‫מצ ְ ַ‬ ‫מ ִ‬ ‫תם ִ‬ ‫תי או ָ‬ ‫ל ִ‬ ‫ע ֹ‬ ‫מיום הַ ֲ‬ ‫עשו‪ִ ,‬‬ ‫שר‪ָ -‬‬ ‫אֲ ֶ‬
‫הים‬ ‫ל ִ‬ ‫בדו אֱ ֹ‬ ‫ע ְ‬ ‫ני‪ ,‬ו ַי ַ ַ‬ ‫עז ְבֻ ִ‬ ‫היום הֶַזה‪ ,‬ו ַי ַ ַ‬ ‫עד‪ַ -‬‬ ‫וְ ַ‬
‫ט‬ ‫ך‪.‬‬
‫גם‪-‬ל ָ ְ‬ ‫ַ‬ ‫שים‪,‬‬ ‫ע ִ‬ ‫ֹ‬ ‫מה‬ ‫כן הֵ ָ‬ ‫רים‪ֵ --‬‬ ‫ח ִ‬ ‫אֲ ֵ‬
‫עיד‬ ‫עד תָ ִ‬ ‫כי‪-‬הָ ֵ‬ ‫ך‪ִ ,‬‬ ‫לם‪ :‬א ְ‬ ‫בקו ָ‬ ‫מע ְ‬ ‫ש ַ‬ ‫תה‪ְ ,‬‬ ‫ע ָ‬ ‫וְ ַ‬
‫שר‬ ‫מל ֶך ְ אֲ ֶ‬ ‫פט הַ ֶ‬ ‫ש ַ‬ ‫מ ְ‬ ‫הם‪ִ ,‬‬ ‫דתָ ל ָ ֶ‬ ‫הם‪ ,‬ו ְהִג ַ ְ‬ ‫בָ ֶ‬
‫הם‪.‬‬ ‫לי ֶ‬ ‫ע ֵ‬ ‫לך ְ ֲ‬ ‫מ ֹ‬ ‫י ְ‬

‫‪ .3‬רמב"ם הל' מלכים א‪:‬א‪-‬ב‬

 ‫‪ .8‬משפט כהן קמד‪:‬יד‬ ‫‪ .5‬אברבנאל דברים יז‪:‬יד‬

‫‪ .6‬העמק דבר דברים יז‪:‬יד‬

‫‪ .9‬רמב"ן בראשית מט‪:‬י‬
‫ולפי דעתי היו המלכים המולכים על ישראל‬
‫משאר השבטים אחרי דוד עוברים על דעת‬
‫אביהם ומעבירים נחלה‪ ,‬והם היו סומכים‬
‫על דבר אחיה השילוני הנביא שמשח‬
‫לירבעם ואמר ואענה את זרע דוד למען‬
‫זאת אך לא כל הימים )מ"א יא לט(‪.‬‬
‫וכאשר האריכו ישראל להמליך עליהם‬
‫משאר השבטים מלך אחר מלך ולא היו‬
‫חוזרים אל מלכות יהודה עברו על צוואת‬
‫הזקן ונענשו בהם‪ ,‬וכמו שאמר הושע )ח ד(‬
‫הם המליכו ולא ממני‪ :‬וזה היה עונש‬
‫החשמונאים שמלכו בבית שני‪ ,‬כי היו‬
‫חסידי עליון‪ ,‬ואלמלא הם נשתכחו התורה‬
‫והמצות מישראל‪ ,‬ואף על פי כן נענשו‬
‫עונש גדול‪ ,‬כי ארבעת בני חשמונאי הזקן‬
‫החסידים המולכים זה אחר זה עם כל‬ ‫‪ .7‬סנהדרין ה‪.‬‬
‫גבורתם והצלחתם נפלו ביד אויביהם‬
‫בחרב‪ .‬והגיע העונש בסוף למה שאמרו‬
‫רז"ל )ב"ב ג ב( כל מאן דאמר מבית‬
‫חשמונאי קאתינא עבדא הוא‪ ,‬שנכרתו כלם‬
‫בעון הזה‪ .‬ואף על פי שהיה בזרע שמעון‬
‫עונש מן הצדוקים‪ ,‬אבל כל זרע מתתיה‬
‫חשמונאי הצדיק לא עברו אלא בעבור זה‬
‫שמלכו ולא היו מזרע יהודה ומבית דוד‪,‬‬
‫והסירו השבט והמחוקק לגמרי‪ ,‬והיה‬
‫עונשם מדה כנגד מדה‪ ,‬שהמשיל הקדוש‬
‫תשובות מיימוניות ספר קנין ס' כז‬ ‫‪.15‬‬ ‫והם‬ ‫עבדיהם‬ ‫את‬ ‫עליהם‬ ‫ברוך הוא‬
‫הכריתום‪.‬‬

‫מכמני עוזיאל חלק ד' עמ' קעו‬ ‫‪.10‬‬

‫ר"ן נדרים כח‪.‬‬ ‫‪.11‬‬

‫שו"ת הרא"ש ו‪:‬ו‬ ‫‪.16‬‬

‫שו"ת הרדב"ז ג‪:‬תקט‬ ‫‪.17‬‬

‫חתם סופר חו"מ ס' מד‬ ‫‪.12‬‬

‫התורה והמדינה חלק ו' עמ' רצד‬ ‫‪.18‬‬

‫תלמוד ירושלמי מגילה ג‪:‬ב‬ ‫‪.13‬‬

‫שו"ת הרשב"א א‪:‬תריז‬ ‫‪.14‬‬

 ‫רמב"ם הל' ממרים ג‪:‬ב‪-‬ג‬ ‫‪.21‬‬ ‫התורה והמדינה ז‪-‬ח עמ' יג‬ ‫‪.19‬‬

‫עשה לך רב ד‪:‬א‬ ‫‪.20‬‬

‫חזון איש יו"ד ב‪:‬טז‬ ‫‪.22‬‬

‫פירוש רש"ר הירש לבראשית יח‪:‬יז‪-‬יט‬ ‫‪.23‬‬

‫אגרות הראי"ה חלק א' ס' פט‬ ‫‪.26‬‬ ‫העמק דבר בראשית יא‪:‬ד‬ ‫‪.24‬‬

‫רמב"ם הל' עבדים ט‪:‬ח‬ ‫‪.25‬‬

‫בבא בתרא ס‪:‬‬ ‫‪.27‬‬

‫רשב"ם בבא בתרא ס‪:‬‬ ‫‪.28‬‬

‫מהרי"ק שורש קע‬ ‫‪.29‬‬

‫אגרות משה חו"מ א‪:‬עב‬ ‫‪.30‬‬

‫ירושלמי יבמות ז‪:‬ג‬ ‫‪.31‬‬

‫שו"ת הרא"ש נה‪:‬י‬ ‫‪.32‬‬