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«INTRODUCTION The Jewish legal system is a traditional system based on a process of ongoing interpretation and reinterpretation of classical Jewish ...»

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LAW, INTERPRETATION, AND IDEOLOGY:

THE RENEWAL OF THE JEWISH LAWS OF WAR IN

THE STATE OF ISRAEL

Arye Edrei*

INTRODUCTION

The Jewish legal system is a traditional system based on a process

of ongoing interpretation and reinterpretation of classical Jewish

sources. Although the development of Jewish law began within the context of a sovereign Jewish nation living in its own land, much of the development took place in a state of exile. As a result, for approximately two thousand years, the Jewish legal system focused on internal matters and ceased its deliberation of issues that related to the functions of state. The Zionist movement, and the subsequent rebirth of Jewish sovereignty with the establishment of the State of Israel in 1948, challenged Jewish legal authorities to deal with issues that had not been addressed for centuries. The lack of continued deliberation challenges the interpreter significantly, as he is required to overcome a lacuna of hundreds of years of relevant sources and deliberations. In response to this challenge, some jurists have relied on traditional exegetical methods while others have utilized innovative, and at times radical, methods of interpretation. In this paper, I will focus on the responses of a number of Jewish religious thinkers and rabbinic authorities who reflect several characteristic approaches to one of the particular challenges posed by the renewal of Jewish sovereignty, the conduct of war. In my analysis of their positions, I will pay attention to the impact of ideology on the legal rulings—i.e., how each personality’s attitude towards Zionism affected his rulings on the permissibility and the limitations of the use of force in Jewish law.

* Tel-Aviv University, Faculty of Law. The author wishes to thank Benjamin Brown, Hanina Ben-Menahem, and Suzanne Last Stone for their enlightening comments and insights;

Stanley Peerless for his help in the translation of this work; and the Cegla Center for Interdisciplinary Research of the Law at the Faculty of Law at Tel-Aviv University for its support of this research.

188 CARDOZO LAW REVIEW [Vol. 28:1

I. RENEWED DELIBERATION ON THE USE OF MILITARY FORCE

A. The Zionist Enterprise and Jewish Tradition:

Challenges and Tensions The Zionist movement created a significant challenge to traditional Judaism. At first the challenge appeared to be only ideologicaltheological, but as the success of the Zionist movement grew, it became clear that it had far reaching practical and normative implications.1 Traditional Jewish thought distinguished between an age of exile— contemporary times (zman hazeh)—and an anticipated age of redemption. The redemption—a return to the holy land and a renewal of its national and religious institutions—was understood as a future event that would not be the result of human initiative. In fact, it would be accurate to say that there are statements in Jewish tradition that could be interpreted as a prohibition of any action that would advance this future age. Rather, Jews were apparently required to wait patiently for the redemption that would be affected by divine intervention. The Zionist movement proposed a radical change in this way of thinking. It called on the Jews to take responsibility for their fate and sought to initiate a renewal of Jewish national sovereignty. The fundamental dilemma that arose in traditional circles was whether to support the idea of human initiative or to view it as antithetical to a divine process of redemption. In addition, even if human initiative might be viewed as appropriate, would it be fitting to participate in a process that was being led by Zionists, the majority of whom had abrogated religious practice?

If so, what significance, in terms of Jewish thought, should be given to this process? Is it feasible that such a project could be part of the process of redemption? If so, how could it possibly be conducted on a human level, and more so by non-religious Jews? If not, then how might the collective return of the Jewish people to the Land of Israel divorced from the context of redemption be interpreted? Is it possible for the Jews to remain in a state of exile while establishing sovereignty in the Holy Land?

In the final analysis, a majority of rabbis opposed participation in the Zionist enterprise. However, a significant minority wished to

1 EHUD LUZ, PARALLELS MEET: RELIGION AND NATIONALISM IN THE EARLY ZIONIST

MOVEMENT (1882-1904) (Lenn J. Schramm trans., Jewish Publ’n Soc’y 1988) (1985); AVIEZER RAVITZKY, MESSIANISM, ZIONISM, AND JEWISH RELIGIOUS RADICALISM (Michael Swirsky & Jonathan Chipman trans., Univ. of Chi. Press 1996) (1993); YOSEF SALMON, RELIGION AND ZIONISM: FIRST ENCOUNTERS (2002). Letters of the Rabbis for and against the Zionist idea were gathered in two books. Letters of support were collected in A. SLUTSKI, SHIVAT TZIYON (1891).

Letters of opposition were collected in S.Z. LANDA & YOSEF RABINOVICH, OR LA-YESHARIM [LIGHT TO THE HONEST] (1900).

2006] LAW, INTERPRETATION, AND IDEOLOGY 189 participate in the process. In order to deal with the aforementioned dilemmas, they were forced to reinterpret some of the traditional Jewish concepts.2 The religious leaders who wished to join the Zionist enterprise were prepared for theoretical changes, but they did not imagine at the beginning of the process the degree of change that would also be required on the halakhic (Jewish legal) level. In fact, the new social framework in the Land of Israel as compared to that of the Diaspora— changing from a minority group to the majority—as well as the acquisition of sovereignty and the resulting political character acquired by Jewish society for the first time in centuries, placed the normative Jewish legal system (halakhah) in a reality for which it was not equipped.





Throughout the ages, the Jewish community was forced by its host society to live separately, but also wished to be separated in order to maintain its Jewish identity.3 The Jewish legal system was one of the 2 Reality was also reinterpreted, sometimes radically, in the theological works that were written in the wake of Zionism. Within religious Zionism, there are two different interpretations that define the religious significance of the Zionist enterprise. One tries to integrate Zionism into traditional concepts of redemption as an essential component of the messianic process. The innovation in this approach is its readiness to attribute religious significance to a human endeavor in which man becomes a partner in advancing the process of redemption, a rebellion against the traditional passive approach to redemption. This approach represents a radical change in the perception of redemption: from an event to a process, from a deterministic occurrence to a human process initiated by mankind in quest of redemption, and from a yearning to active promotion.

The other stream of religious Zionism viewed the Zionist enterprise from a pragmatic perspective, as a necessary process for the preservation of the Jewish people in current times without a connection to redemption. This approach was also very innovative in its readiness to discuss and examine reality in terms other than the traditional categories of exile and redemption. See DOV SCHWARTZ, RELIGIOUS ZIONISM BETWEEN LOGIC AND MESSIANISM (1999) (Heb.) [sources not translated into English referred to hereinafter by “(Heb.)”]; RAVITZKY, supra note 1, at 79-144;

SALMON, supra note 1, at xix-xxiii; JOSEPH WANEFSKY, RABBI ISAAC JACOB REINES: HIS LIFE AND THOUGHT (1970). The relationship between the Zionist idea in general and the messianic tendency in Judaism engaged many of the ideological and political leaders of secular Zionism as well as scholars of Zionism. See GIDEON SHIMONI, ZIONIST IDEOLOGY 145-51 (1995); EHUD LUZ, WRESTLING WITH AN ANGEL 103-04 (Michael Swirsky trans., 1998); see also S. Almog, ha-Meshihiyut ke-etgar la-Tsiyonut [Messianism as a Challenge to Zionism], in MESSIANISM AND ESCHATOLOGY: A COLLECTION OF ESSAYS 433 (Zvi Baras ed., 1983) (Heb.); SALMON, supra note 1, at xix-xxiii. On the connection between secular Political Messianic Zionism and other modern secular Utopian Movements, see ANITA SHAPIRA, VISIONS IN CONFLICT 7-22 (1989) (Heb.).

3 One of the conspicuous characteristics of the Jewish legal system is that it does not try to impose itself on the general society but only on those who are within its own community. The halakhah refrained from any pretense to expand its influence beyond its constituency, nor did it place any value or benefit in the adoption of its norms by those outside of the Jewish community.

This fact reflected both a theological perspective and a social reality. Unlike Christianity or Islam, Judaism is not considered a missionary religion. Since modern times, gentiles who wanted to become Jewish had to go through a long process and embrace all of the commandments and rules that constitute Judaism. Not only does Judaism not try to force itself on those who are not Jewish, it is even considered to have a negative attitude to proselytism and demonstrates no desire to encourage it in any way. See 13 ENCYCLOPAEDIA JUDAICA 1182 (1972); Avi Sagi & Zvi 190 CARDOZO LAW REVIEW [Vol. 28:1 primary instruments through which the community maintained its isolation. The transition to becoming a sovereign majority that defined itself as a Jewish society created a new and challenging reality for the Jewish legal system, as I will discuss.

The fact that the halakhah developed for a long period of time in a reality in which the Jewish community constituted an isolated minority had far reaching implications for the nature of the system, both in terms of the content of its norms and in terms of the scope of the areas to which it related. With regard to content, the impact found expression in almost every branch of the halakhah. Even in ritual areas, which were always vibrant and were apparently unconnected to sovereignty, the new reality created problems. A good example is Sabbath observance, which is one of the most important areas of Jewish ritual law. In the Diaspora, Jews relied on non-Jews (“shabbes goy”)4 to conduct aspects of agriculture and business that they themselves were not allowed to perform on the Sabbath. How would it be possible to conduct agriculture and business in a majority Jewish society without the help of individuals who were not subject to Jewish law?5 Furthermore, the fact that the Diaspora Jewish community lived as a separate minority that did not wish to influence the general society allowed it to create norms that would not be suitable for a normative system designed to govern the conduct of the general public. Thus, the system could distinguish between Jews and non-Jews in terms of their respective roles in the legal structure.6 For example, in difficult medical questions that arose as a result of modern medical technology, some rabbis were able to issue the rulings that they did because they knew that the responsibility Zohar, Giyyur, Jewish Identity, and Modernization: An Analysis of Halakhic Sources, 15 MOD.

JUDAISM 49 (1995).

4 JACOB KATZ, THE “SHABBES GOY:” A STUDY IN HALAKHIC FLEXIBILITY (Yoel Lender trans., 1989).

5 See ELIEZER BERKOWITS, NOT IN HEAVEN—THE NATURE AND FUNCTION OF THE

HALAKHAH 95-100 (1983). Another challenge that the revival of Jewish communal life in Israel posed to the halakhah was the renewed relevance of agricultural laws related only to the Land of Israel. One example is the sabbatical year, which prohibited tilling the land every seventh year.

See LUZ, supra note 1, at 73-74:

The struggle between the Orthodox and the maskilim for the soul of the New Yishuv reached a crisis with the Sabbatical Year (shemittah) controversy of 1888-1889....

More than any other agriculture law pertaining to Erez Yisrael, the Sabbatical Year symbolized the sanctity of the Land and the bond between the Torah, the Jewish People and the Land.... The main argument of the maskilim who sought a rabbinical dispensation was that refraining from agricultural labor during every seventh year would destroy the New Yishuv.

The compromise that was accepted and practiced in 1882 is still practiced until this day due to the ruling of the Chief Rabbi of Israel, Rabbi Kook, to “sell” the land to a non-Jew in the sabbatical year. Ironically, this solution is very similar to solutions that were utilized in the Diaspora. For that reason, this solution was attacked by some of the Zionist leaders and rabbis.

6 See RABBI ISAAC HERZOG, CONSTITUTION AND LAW IN THE JEWISH STATE ACCORDING

TO THE HALAKHAH (Itamar Verhaftig ed., 1999) (Heb.).

2006] LAW, INTERPRETATION, AND IDEOLOGY 191 for maintaining the public health system did not fall on their shoulders, and that the civil law would issue a different ruling.7 We should also mention that as an isolated normative system that seeks to maintain its unique character and its exclusivity, the halakhah included statements that degraded the governmental legal system and even prohibited its constituents from utilizing it.8 Therefore, after the establishment of the State of Israel, an enormous question arose about how to relate to a Jewish governmental legal system that is not based on Jewish law.

Would the halakhah be prepared to adopt and legitimate the laws of the state, or some of them, or would it continue to see the governmental legal system as hostile and competitive? In addition, the autonomous legal systems of Jewish communities were based not only on the classical Jewish codes of law, but also on the legislation of the local Jewish community. Would the halakhah be prepared to exchange “the community” for the legislative bodies of the state and to give halakhic status similar to that of community legislation to at least portions of the laws of the state, such as civil law?



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