The latest battle in Israel’s Shabbat wars is more than the usual case of political infighting, though it is certainly that. Israel Railways wants to schedule repair work to its lines on Shabbat, when the trains don’t run, in order to avoid painful disruptions of service during the week. The prime minister, dependent on the support of ultra-Orthodox parties for his Knesset majority, bowed to their demand that the repair work be banned on Shabbat. To be fair, the ḥaredim do have tradition (and not only halakhah) on their side. For the railroad to undertake this work would violate Israel’s religious status quo, an informal yet historic arrangement (it has its own poorly-footnoted Wikipedia article) that determines just which public institutions are allowed to function on Shabbat. So you could say that it’s the railroad and not the ultra-Orthodox parties that touched off this particular fracas.  On the other hand, while the status quo may have served well in the past as a good ceasefire agreement in the Shabbat wars, there’s nothing necessarily sacred about it; it’s been broken frequently, and by both sides. The railroad controversy might therefore be a good opportunity for Israelis, as well as for all who care about the nature and place of Jewish religion in the Jewish state, to come up with a better solution.

Enter Rabbi Haim Amsalem, a Sefardi political leader, formerly the head of his own party  and now associated with the nationalist-Orthodox Bayit Yehudi. Rabbi Amsalem advocates an approach to halakhic Judaism that is rooted firmly in the Sefardic tradition, which he sees as more moderate than that represented by Ashkenazic ḥaredim and their contemporary Sefardic imitators. In our eyes, that instantly makes him more likeable! In this particular instance, Rabbi Amsalem condemns ḥaredi politicians for starting the crisis and turning Shabbat, a holy day that ought to unite the Jewish people, into a focus of maḥloket and social  discord. We should be looking instead for solutions that emphasize k’vod hashabbat (the honor and public reputation of the Sabbath day) no less than sh’mirat shabbat (the observance of the Sabbath. Sounds good to us. But how does Rabbi Ansalem propose to safeguard the honor of Shabbat in this case? Here it is (in Hebrew): the Shabbes goy. That’s right: to make everybody happy, let the railroad employ non-Jewish labor to do its repair work on Shabbat. Rabbi Amsalem touts this idea as a rare win-win-win for the three population groups involved. The public will be spared the inconvenience of having the repair work done during the week; the non-Jewish workers would be paid overtime wages for working on Shabbat; and the nonobservant Jewish workers who would otherwise do much of this work would be saved from the transgression of חילול שבת בפרהסיא, the public desecration of the Sabbath day.

What should we progressives make of this proposal? Most of us, we’d wager, have a  viscerally negative reaction to the Shabbes goy, an institution that strikes us as an utterly transparent and insincere (to say nothing of embarrassing) legal fiction. But the fact is that the law concerning the goy shel Shabbat has a long and substantive intellectual history in the literature of the halakhah.[1] Not everybody, in other words, has always found it hypocritical or distasteful to utilize Gentile labor to perform those activities prohibited to Jews on Shabbat. Even so, this case raises a  sensitive ideological difficulty: while it’s one thing for Jews to employ non-Jews to perform various tasks in their homes and synagogues, it’s quite another thing for the entire country to rely upon the Shabbes goy for its prosperity and survival. In a modern sovereign state, vital public services and utilities must function 24/7, at all times, even when the state in question is the Jewish state and even if the services and utilities in question involve labors that violate the traditional Shabbat prohibitions. And the whole point of the Zionist project was to establish a state in which the Jews themselves would be responsible for building and maintaining – often with their own hands – the institutions of national life.  To insist that these activities cease on Shabbat means that, according to Jewish law, the Jewish citizens of Israel are forbidden to engage in these essential tasks one day out of each week, to say nothing of the festivals and Yom Kippur.[2] It means that the Jewish state cannot provide vital services to its people except by means of non-Jewish labor. That’s a depressing conclusion for those of us who would like to believe that the creation and functioning of a modern, secular Jewish state is fully in keeping with the principles of Jewish law. Here on the blog we’ve had occasion to ask whether the halakhah is capable of recognizing the existence of that state. Rabbi Amsalem’s proposal for using the Shabbes goy, well-meaning as it may be, raises this question anew.

It’s a question that goes back at least to 1951, when Professor Yeshayahu Leibowitz (d. 1994), the controversial Israeli scientist, philosopher, religious thinker and public intellectual, published an essay describing Shabbat as a “religious problem” for the modern Jewish state.[3] This “problem,” says Leibowitz, is rooted in the very structure of Shabbat as set forth in the Talmud and the medieval halakhic sources. The texts that define the nature of מלאכה (m’lakha), the “work” that the Torah prohibits on Shabbat, all presume a situation in which the Jews live in exile, that is, as a minority group within someone else’ country. Lacking political independence and national sovereignty, the Jews as a community bear no responsibility for the proper functioning of the institutions of state: the army, the police force, diplomatic services, public administration, and the like. The message is clear: Shabbat, as the day is structured in the traditional halakhah, is conceivable only if the Jews can rely upon the non-Jewish citizens of the countries in which they reside to perform those absolutely vital labors. What happens when that presumption is no longer valid, when the Jewish community has achieved sovereignty and has thereby taken on all the responsibilities of national citizenship? Traditional Shabbat halakhah, “which leaves no room for an individual to fulfill the duties of a soldier, a police officer, a sailor, or a government official,” cannot offer a positive answer to that question; it is thus incapable of meeting the challenges of contemporary reality.  Notably, Leibowitz rejects as a solution the employment of non-Jewish labor, proposed by some of the rabbis of his day, as inadequate and frankly shameful for a people that has just regained its political independence.[4] He calls upon the poskim, the Orthodox halakhic authorities, to confront two questions:

1) Does the fulfillment of the essential needs of the Jewish state constitute a religious obligation (חובה דתית) in the same way that an individual’s observance of the Shabbat prohibitions is a religious obligation?

2) Do the obligations imposed by the Shabbat prohibitions, which are incumbent upon individuals, fall in precisely the same way upon the Jewish people as a community in the state of Israel?

It’s clear to Leibowitz that the rabbis should answer the first question “yes” and the second question “no.” From this, it follows that the rabbis must legislate a new halakhah of Shabbat, one that fits the life and requirements of a sovereign Jewish people responsible for the operation and functioning of the state.

As you can no doubt imagine, the Orthodox rabbinical authorities rejected Leibowitz’s demand for a new halakhah of Shabbat, writing him off as a “reformer” (oy!) rather than a serious halakhic thinker. That’s essentially where the matter stands today, sixty-five years later. We are left, apparently, with Rabbi Amsalem’s proposal of the Shabbes goy as the only workable halakhic solution to permit railroad repairs and other such essential activities on Shabbat.

Is there no alternative short of an entirely  new halakhah of Shabbat? Well, in fact, there is. It’s an idea floated decades ago by an esteemed Orthodox halakhist whom nobody can accuse of “reform” tendencies. That idea, of course, also went nowhere. But the very fact that a rabbi with impeccably Orthodox credentials could put it forth as a serious proposals raises some interesting and wider implications for the nature of the halakhah. It’s the subject of our next post.

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[1] No less a scholar than Jacob Katz devoted an entire monograph to the study of the halakhic and social development of this “legal fiction” from Talmudic times until the present day. See his גוי של שבת (ירושלים: מרכז זלמן שזר, 1984) / The “Shabbes Goy” (Philadelphia: Jewish Publication Society, 1989).

[2] The prohibition against m’lakha on Shabbat is not, of course, absolute. It’s well known that the prohibition is set aside in cases of  pikuaḥ nefesh, of danger to human life. But the normal activities associated with operating these public institutions, no matter how vital, have never been defined in the halakhic literature as “matters of life and death.”

[3] The article, entitled “השבת במדינה כבעיה דתית,” was reprinted in the collection יהידות, עם יהודי, ומדינת ישראל (Jerusalem: Schocken, 1975.) Available in Hebrew here (accessed September 14, 2016).

[4] It would be just as shameful for the observant population of the state to rely upon their nonobservant fellow Jews to perform these labors. Worse, in fact, because in that case the observant Jews are aiding and abetting the commission of sin by Jews who, after all, are forbidden to desecrate Shabbat.