Weekly Commentary: Rabbi's Dilemma And Consistent With Jewish Tradition To
Claim "Reasonableness" Legislation Disaster When Not
Dr. Aaron Lerner 26 July, 2023

1. Downside of "fences"

According to Jewish law, one may not ride an animal on the Sabbath out of
concern that one may come to cut a branch for use as a switch.

This restriction on something permissible is a "fence" to prevent one from
engaging in something prohibited.

Such "fences" are a common feature of Jewish law.

Many of the people who have said that passage of the "reasonableness" law is
a disaster for the Jewish State know full well that the Supreme Court can
use "proportionality" to achieve the same control which they have with
"reasonableness". But they consider opposing the "reasonableness" law to be
a "fence" to prevent the ruling coalition from doing things which they
genuinely consider bad.

The downside of "fences" in Jewish Law is that laymen can mistakenly believe
that the prohibition of what is truly prohibited is equal to the prohibition
of a "fence" prohibition.

This confusion can lead to the violation of the real prohibition as the
layman, who finds the "fence" prohibition too restrictive, out of the
mistaken belief that its "all or nothing".

The same problem applies to "crying wolf" over the "reasonableness" law. If
a meaningless law is termed the end of democracy there are no superlatives
left to signal that truly bad legislation is a danger.

2. Rabbi's dilemma

Imagine you are a rabbi in a community and you know that "X" is permissible
under Jewish law but know that there is someone out there in your community
who is going to claim that "X" is prohibited.

If you go public with your conclusion you may risk your standing in the
community.

Rabbis are certainly not alone in facing this dilemma.

I suspect that this may explain why President Herzog hasn't said a word
against protestors who have illegally blocked roads (and worse) as well as
groups which have called for no negotiations and openly call for hurting
Israel as much as possible to compel the the ruling coalition to back down
from engaging in any legislation.

And I wouldn't be surprised if many academics and others also joined the
bandwagon proclaiming that passage of the "reasonableness" law is a disaster
for the same reason.

This is nothing new in Israel. Surely not every senior IDF officer thought
that withdrawing from the Golan in exchange for monitoring gizmos made
sense.

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