Simon Jackson
Legal Advisor to Torah Mitzion

 

“I am not suggesting for one moment that all bounds should be let loose and a blanket permit should be granted to all activity. In my opinion, what should be forbidden should be only those activities which… violate any notion of the idea of Shabbat as a rest day… first and foremost, the performance of business. It is here that my willingness to honor the rights of others to celebrate the Shabbat in their own way comes to an end. For no one can convince me that there is any concept of rest in filling up trolleys in supermarkets, in buying clothes or household items, or by burrowing under piles of fruit and vegetables. And if someone responds and claims ‘This is my way of resting’, I will not accept the correctness of his words.”

(Avigdor Shanan, Professor at the Department of Hebrew Literature at the Hebrew University)

To explain the grounds for endorsing the Gavison-Medan covenant (detailed in our last column) concerning the proposed changes to the public face of Israel on Shabbat, the founders of the covenant, Prof. Ruth Gavison and Rabbi Yaacov Medan, give very different reasons.

Prof. Gavison, who defines herself “as a free-thinking Jewish woman living in a state that wishes to preserve its JewishHebrew public culture,” explains that her “assent to the enforcement of certain restrictions on the Sabbath does not stem from religious coercion,” but is her “own independent wish for a prominent and significant expression of the uniqueness of the Shabbat within the Israeli public domain.”

In her opinion, the arrangement confers numerous advantages from the standpoint of the secular public. The main achievement, of course, would be “that of negotiations and the creation of a consensual framework outside of the courts.” In addition, Gavison argues, the new Shabbat proposals would clarify that the debate between the observant and the secular on Sabbathrelated issues is not halakhic – but cultural in nature. They would also clarify that “Sabbath arrangements are not designed to compel Sabbath observance.”

The new proposals accept the principle that even those who do not own a private vehicle are also entitled to freedom of mobility on the Shabbat. In addition, the operation of restaurants and places of entertainment will be expressly recognized as “not forbidden.”

Gavison acknowledges that “the secular public will be obliged to organize their purchases somewhat differently and to forego shopping on the Sabbath other than at a small number of convenience stores that will be allowed to remain open.” However, she rejects the claim that the restrictions on Sabbath occupations entailed in the proposal violate Basic Laws by infringing on freedom of occupation or on general liberty. “These important constitutional rights do not imply the freedom to conduct commercial activity 7 days a week or 24 hours a day,” Gavison argues, because “the restriction for purposes of enforcing a general day of rest is for the sake of a worthy objective.”

Would it be appropriate to designate a different general / religiously ‘neutral’ day of rest “in a multicultural society”? Perhaps, Prof. Gavison argues, for strong multi-cultural societies, “but it does not seem fitting for the only country in the world with a Jewish majority and which was established in order to enable Jews to live in the only society having a Jewish-Hebrew public culture.”

Finally, Gavison states that in her view the proposal is also advantageous from the standpoint of the religiously observant, who “are not required to approve or validate the activities of others on the Sabbath, only to accept that the common legal framework is not designed to enforce religious commandments on those who do not wish to keep them.”

Rav Medan explains that, for the secular public, the Shabbat can have at least 3 values: (1) time out from the daily involvement in work and the pursuit of money and a livelihood; (2) a central mode of expression of an overall Jewish – not necessarily religious – identity; (3) mutual concessions on the issue of the Sabbath may actually serve as an opening for a renewed healing process in Israeli society.

As an observant Jew, Rav Medan accepts the fact “that the value of keeping the Sabbath in the public arena does not nullify, at least from a practical point of view, the value of respecting the individual’s freedom to act in accordance with his own beliefs on the Sabbath, or in any other disputed sphere.”

The most important principle, from Rav Medan’s point of view, which underlies the new proposals, is instilling “in the mind of the public the conviction that there is a solution to the perpetual war between observant and secular in Israel that is not brutal or domineering.” The second principle on which the proposals rest is “to refrain as much as possible from violating the prohibition against creating pitfalls for others… Nowhere does the covenant grant permission or exoneration for desecrating the Sabbath.” All it does is to “reduce state intervention in the form of imposing restrictions on the Sabbath.” It does not, therefore, pose any distinct halakhic problem, argues Rav Medan.

The third principle behind the proposal is the reality that there currently exists extensive desecration of the Shabbat, both in the street and in the courts – where contemporary judicial decisions presage a trend towards expanded Shabbat desecration.

Rav Medan is well aware of the “serious concerns regarding the future if the proposal on the Shabbat is adopted (the price is high, in terms of Shabbat observance).” Weighed against the dangers of a future “in which no effort is made to reach an agreement with the secular public and affairs are allowed to proceed at their own momentum,” however, he concludes that “the hazards of quietism are not only more palpable – they are more severe.”

Draft “Sabbath Day Law, 5765-2005”

In July 2005, two secular MKs from opposite ends of the political spectrum, Naomi Blumenthal and Amram Mitzna, tabled a draft law based on the principles contained in the GavisonMedan covenant on Shabbat. “The proposed arrangements do not coerce anything on the individual, save for equality of business opportunity between those who belong to the various streams… The draft law accepts the principle that the values of Shabbat observance in the public sphere are not able to nullify the value in honoring the individual’s freedom to conduct himself in accordance with his beliefs. At the same time, however, the draft insists on the principle of equality – in the state of the Jewish people. Jews can rest in their places without the need to worry about unfair competition.” The aim of the legislation is to reach a broad-based consensus, rather than a unilateral agreement coerced on an uninterested public: “Neither the religious are required to give legitimacy to Shabbat desecration, nor are the secular required to change their culturalrecreational activities at weekends.”

Time will tell as to whether this well-meaning covenant is accepted or rejected by the Knesset. The real question, however, is whether the public – in particular the religious sector – is willing to take a bold step in favor of a new status quo.