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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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The areas of Jewish law that were challenged in the new reality were more conspicuous in light of the simple fact that halakhah continued to develop and function as a living normative system only in those areas of life that the Jewish community conducted autonomously.9 It did not deal with or develop those areas in which Jews were prevented from participating, such as the laws of state. Even in times and places where individual Jews were involved in government, it was clear that the law of the land would be the determining factor in government issues, and that the norms of Jewish law were irrelevant.

Thus, the area of Jewish law relating to public issues was almost totally inactive for centuries and ceased its development.10 Jewish law was intended to be a normative system capable of addressing all areas of life. The anticipated messianic ideal would be differentiated by, among other characteristics, the fact that the Jews would be able to return to a life governed by their own normative system. One would think that the establishment of the State of Israel included that possibility. Yet, we must remember that the Jewish legal 7 See, e.g., RABBI SHLOMO GOREN, TORAT HA-REFUAH [JEWISH MEDICAL LAW] 79-83 (2001). Rabbi Goren claims that the Jewish legal prohibition to establish an organ bank is untenable in the State of Israel. He claims that this prohibition does not have force because it was applied to a minority society that did not have responsibility for the general public. Therefore, it does not have force in the State of Israel.

8 1 MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES 13 (Bernard Auerbach & Melvin J. Sykes trans., Jewish Publ’n Soc’y 1994) (1988).

9 After the emancipation, the halakhah retreated significantly as a living system even in judgments on private matters. See 4 id. at 1582, 1586.

10 Although public Jewish law was vibrant with regard to governance of the internal Jewish society, it is clear that most public law dealt with matters that were outside of the areas of autonomy such as foreign affairs, security, status of foreigners, etc. See 1 id. at 45, 55.

192 CARDOZO LAW REVIEW [Vol. 28:1 system functions without legislative bodies. Rather, interpretation is its primary instrument of legislation. Halakhic literature throughout the ages has been built on strands of interpretation, in which each strand represents an interpretation of the strand that preceded it.11 The resulting problem is clear: How is it possible to revive Jewish law in those areas in which it did not express itself for centuries? The vibrancy of a law flows from its ongoing interpretation. Is it possible to revive a law that was not applicable in practice, and not even discussed in the study hall, for hundreds of years? To the degree that it is possible, it requires great exegetical creativity with regard both to the normative texts and with regard to the reality.

B. Reviving the Jewish Laws of War: A Case Study

Clearly, the establishment of an army, including the use of arms and force, is one of the far-reaching changes in Jewish life resulting from the success of Zionism.12 The image of the degraded Jew who is incapable of defending himself was central to the Jewish selfperception, as well as the Jewish reality, throughout the Middle Ages until the height of World War II. The new self-image of the Jew after the establishment of the State of Israel became the Jew who bears arms and is capable of defending himself.

One who wishes to reconstruct Jewish laws of war will quickly discover that, as in other areas, it was not addressed by the halakhah during the period of exile. Thus, the laws of war almost completely disappeared from the corpus and were certainly not part of the active Jewish tradition. There are no relevant rules or traditions of what is permissible and forbidden in times of war, or the legitimate methods and limitations of the use of force.

Furthermore, the fact that for generations, Jewish society never had the option of using force understandably made its mark on the ideological and psychological relationship of Jewish tradition to the use of force. Yeshayahu Leibowitz, one of the prominent religious intellectuals in Israel in the second-half of the twentieth century, described the problem in the introduction to his famous article, “After

Kibiyah,” as follows:



12 See ANITA SHAPIRA, LAND AND POWER: THE ZIONIST RESORT TO FORCE 1881-1948 (William Templer trans., 1992); LUZ, supra note 2. Even though it is obvious that Jews did fight in foreign armies, they fought as individuals bound to a military system that the halakhah did not feign to influence, unlike the State of Israel where an army of Jews was established in the Jewish State. See The Bearing of Arms and Military Service of Jews from Ancient Rome to the Enlightenment—A Collection of Articles, 41 JEWISH STUD. 51 (2002).

2006] LAW, INTERPRETATION, AND IDEOLOGY 193 The great test to which we as a nation are put as a result of national liberation, political independence, and our military power—a society and culture that for many generations, derived certain spiritual benefits from conditions of exile, foreign rule, and political impotence. Our morality and conscience were conditioned by an unnatural, insulated existence in which we could cultivate values and a heritage that did not have to be tested in the crucible of reality. We viewed ourselves, and to a certain degree we were viewed by others, as a people who had controlled one of the most awful inclinations that ensnare the soul of man, and as those disgusted by the display of dreadful behavior found in every human society: the inclination to internecine murder.13 The reality of the lack of power not only led to a lack of norms but also created an ethos of opposition to the use of force, an idealization of the reality of powerlessness and a world of values in which the use of force was not an option in both a normative and an ethical sense. Thus, anyone wishing to establish Jewish laws governing the use of force would have to overcome both the psychological block against the use of force as well as the idealized perspective that was internalized in Jewish culture and tradition.14 An initial look at classical Jewish sources reflects a clear duality with regard to the fundamental relationship to the use of force. This duality begins with the tension that exists in the Bible regarding the use of force. On the one hand, force is viewed as a legitimate instrument.

On the other hand, the use of force is restricted, and there are clear warnings about the dangers inherent in its use. Thus, the Bible discusses desirable wars, but in parallel expresses the prophetic vision that attacks belief in force and extols the ideal of world peace.

Therefore, Joshua’s conquest of the land of Canaan and King David’s 13 Yeshayahu Leibowitz, Aharei Kibiyah, in YAHADUT AM YEHUDI U-MEDINAT YISRAEL 229-30 (Yeshayahu Leibowitz trans., 1976). For an English translation, see Yeshayahu Leibowitz, After Kibiyeh, in JUDAISM, HUMAN VALUES AND THE JEWISH STATE 185 (Eliezer Goldman ed., Eliezer Goldman et al. trans., 1992). The article first appeared in 1954. This article will be discussed in detail infra.

14 The discussion of the parameters and limitations of the use of force in the wake of the Zionist enterprise and the establishment of the State of Israel was obviously not limited to religious thinkers and rabbis. This issue generated a vibrant debate among Zionist leaders and occupied a central position in public deliberations for many years. There were two reasons for the centrality of this issue: the lack of Jewish sources relating to the use of force, as discussed here, and the confidence of the early Zionists that their program would be well received without the necessity to use force. See Berl Katznelson, Yehi Nishkeha Tahor [Your Weapons shall be Pure] (Geneva 1939), in 9 KOL KITVEI BERL KATZNELSON [THE COMPLETE WORKS OF BERL KATZNELSON] 65 (1948) (addressing the 21st World Zionist Congress); LUZ, supra note 2;


ANITA SHAPIRA, BERL: THE BIOGRAPHY OF A SOCIALIST ZIONIST BERL KATZNELSON 1887at 277 (Haya Galai trans., Cambridge University Press 1984); SHAPIRA, supra note 12; J.L.

Talmon, The Six Day War in Historical Perspective, in ISRAEL AMONG THE NATIONS 130 (1970).

194 CARDOZO LAW REVIEW [Vol. 28:1 wars for the conquest of the land were viewed in a positive light,15 yet King David himself was considered unsuitable to build the Temple because his hands were defiled with the blood of his enemies.16 A study of the various layers of the Bible reveals an approach that legitimates the use of force in specific circumstances but warns against the danger of the use of force, primarily a belief in reliance on force. Thus, the

Torah warns in Deuteronomy:

Beware lest you forget the Lord thy God... and you say in your heart: “My power and the might of my hand have gotten me this wealth.” But you shall remember the Lord your God, for it is He that gives you power to get wealth, that He may establish His covenant which He swore unto your fathers, as it is this day.17 The complexity of the Biblical position allows for the establishment of political sovereignty that includes an army, while calling for a large degree of discretion in utilizing the military and requiring that it not occupy a primary position in the society.

Nevertheless, we must keep in mind that in Jewish tradition, the authority of the Bible actually finds expression through the manner in which it is interpreted by the Rabbinic Sages. Rabbinic literature, known as the “Oral Law,” is the canon of post-Biblical literature that emanated from the academies of the tannaim and amoraim in the first through the fifth centuries. In Rabbinic literature, the approach to war is completely different than in the Bible.18 The tension seen in the Bible disappears, and war is regarded as an illegitimate phenomenon. While it is true that the Mishnah, the Talmud and subsequently the law codes recognize the concepts of a permissible war (milhemet reshut) and an obligatory war (milhemet mitzvah), these concepts always refer to the wars that occurred during the times of the Kingdom of Israel and are not considered relevant to contemporary times. Essentially, the positive connotation of war in the Bible takes on a completely different interpretation in Rabbinic literature. The Biblical war is now treated allegorically, relating not to military battle, but to the war of Torah 15 Joshua 4:12; 2 Samuel 6:18.

16 1 Chronicles 22:8 (“But the word of the Lord came to me, saying, Thou hast shed blood abundantly, and hast made great wars: thou shalt not build a house unto my name, because thou hast shed much blood upon the earth in my sight.”).

17 Deuteronomy 8:17-18; see also Zechariah 4:6 (“Not by might, nor by power, but by my spirit, saith the Lord of hosts.”). There were parameters and limitations also with regard to the power of the King as reflected in laws of the King. Deuteronomy 17:14-20. His obligation to keep a Torah with him at all times certainly reflects this tension. See 3:1 YEHEZKAL KAUFMAN, HISTORY OF THE RELIGION OF ISRAEL 375 (1977); Shlomo Yosef Zevin, ha-Milhamah [The War], in LE-OR HA-HALAKHAH [IN LIGHT OF THE HALAKHAH] 9 (1946).

18 The tannaitic literature included the canon known as the Mishnah, which was compiled in 220 C.E. The writings of the ammoraim are collected in the Jerusalem Talmud, which was compiled approximately at the end of the fourth century, and the Babylonian Talmud, which was compiled approximately at the end of the fifth century.

2006] LAW, INTERPRETATION, AND IDEOLOGY 195 (milhamtah shel Torah). The battle is the attempt of the scholars to convince each other of the correct interpretation of the Torah, and power is the ability of the scholars to distinguish, to refute, and to make legal determinations. Thus, for example, the description of King David as “a brave fighter and a man of war”19 is explained in the Talmud as follows: “brave fighter—that he knows what to respond; man of war— that he knows how to give and take in the war of Torah.”20 The hero of the battlefield is transformed into the hero of the study hall—the sharp scholar. Another image of the hero used by the sages is the person who controls his inclinations, who succeeds on the internal battlefield: “Who is strong? One who conquers his inclination, as it says: ‘He who is slow to anger is better than a strong man, and a master of his passions is better than the conqueror of a city.’”21 Even the military events that took place in the Second Temple period are given a spiritual interpretation by the Sages. Thus, for example, Rabban Yochanan ben Zakkai, who fled the besieged city of Jerusalem and moved to the Roman southern town of Yavneh, is considered the hero by the Rabbis, rather than the residents of Jerusalem who rebelled against Rome.22 Similarly, the military victories of the Maccabbees are not mentioned at all in the Mishnah and the Talmud. Rather, the miracle of Chanukah that is emphasized in the Talmud is the miracle of the vial of oil that enabled the preservation of the purity of the Temple.

There is thus no doubt that Leibowitz’s characterization is sharply accurate. The archives of Jewish tradition are not empty and do not contain sufficient norms for the conduct of war, but they do include an anti-military ideology. Therefore, one who wishes to characterize the

tradition as relevant to a period of Jewish sovereignty has a double task:

to overcome the ideology and to create new laws relating to war. In subsequent sections, I will try to describe the rabbinic deliberations with 19 1 Samuel 16:18 20 BABYLONIAN TALMUD, TRACTATE SANHEDRIN 93b (Rabbi Dr. I. Epstein ed., Jacob Shachter & H. Freedman trans., 1987).

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