The High Court's Decision Regarding Heter Mechira

The Israeli High Court's recent landmark decision to override the Chief Rabbinate's ruling to allow local Chief Rabbis to set their own kashrut standards for shemittah has caused quite a stir in Israel, and would be getting even more press were it not overshadowed by the Annapolis Summit.

The Ashkenazi Haredi public has lambasted the decision, calling it consistent with what they perceive to be the court's anti-religious attitude that they have been protesting for years. The secular public takes it for granted that the Supreme Court should be just that - the country's final arbiter- and that ultimately the Rabbinical Courts are answerable to it. The Religious Zionist public seems torn between agreement with the decision on one hand, and, on the other hand, concern that the court has entered into area of halakhic decision-making.

I remain sympathetic to criticisms of the court, namely, that it is a self-perpetuating oligarchy that ignores democracy in favor of self-defined 'democratic values', that it fancies itself to be an island of liberal, Western correct thinking in the heart of the souk. Nevertheless, in this particular case, I both agree with the court's decision and believe that this type of decision should be within the court's purview.

The idea that the Rabbanut should not be answerable or accountable to the Israeli public is absurd. Every rabbi in history was accountable to his constituency, and for good reason. The role of the Rabbi is not to be a psak machine, but to address the concerns of the people. The rabbi is entitled to take his own position on a matter, but, by the same token, the congregation then has the right to select a rabbi who is more in tune with their sensibilities. Either extreme - the rabbi being unaccountable or the congregation exercising total control - is unacceptable. Rather, the relationship should be one of constant dynamic engagement between rabbi and community to try to arrive at a place which is good in the eyes of both God and man.

Looking at this relationship on the national scale, the question becomes who is empowered, as the representatives of the people, to decide when the rabbis are not doing their job and need to be replaced. The most intuitive answer is the High Court. Absent any special committees or laws that give the Rabbanut its 'job description', it is up to some judicial body - ultimately the highest judicial body - to define the role of the Rabbanut. They based their definition on much history and precedent with regard to this issue. A national body like the Rabbinate cannot start changing major positions, still deemed viable by many, depending on which way the wind blows. The 'heter mechira' has a checkered history, but it is a venerable history nonetheless. The court need not pasken that the heter is valid. It merely must clarify to the Rabbanut what its role is and what its mandate is - and that includes not reversing the positions of a lifetime, especially when so much is riding on it.

It must be emphasized that the court did not require anyone to rule against his conscience. Rather, it mandated that when the local Chief Rabbi is unwilling to certify 'heter mechira' produce as kosher, another willing rabbi should be brought in to do so. This solution should be obvious, based on the communal model. Everybody knows that the 'heter' exists and that the Rabbanut affects it. If a particular local rabbi does not like it, fine. That's his prerogative. The problem was that he could take such a position without risk, without having to answer to the people who work in the food industry whose lives and livelihood they affect. Fortunately, these people had recourse to a constituted body who could remind these rabbis, on behalf of the citizens of Israel, that they must take responsibility for their choices. This is a great step forward in the creation of an accountable Chief Rabbinate.

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