«INTRODUCTION The Jewish legal system is a traditional system based on a process of ongoing interpretation and reinterpretation of classical Jewish ...»
21 MISHNAH AVOT 4:1; see Aviezer Ravitzky, Peace, in CONTEMPORARY JEWISH RELIGIOUS THOUGHT: ORIGINAL ESSAYS ON CRITICAL CONCEPTS, MOVEMENTS, AND BELIEFS 685 (Arthur A. Cohen & Paul Mendes-Flor eds., 1987); see also 3 CONTROVERSY AND DIALOGUE IN THE HALAKHIC SOURCES 28-33 (Hanina Ben-Menahem et al. eds., 1991) (Heb.); LUZ, supra note 2, at 215-17; Zevin, supra note 17. Important within this context are the articles of Ahad Ha’am that extol this worldview and denigrate the Zionist tendency to, on the contrary, view force as an ends rather than a means. See, e.g., Ahad Ha’am, Flesh and Spirit, in NATIONALISM AND THE JEWISH ETHIC: BASIC WRITINGS OF AHAD HA’AM 188 (Hans Kohn ed., Leon Simon trans., 1962).
22 Similarly, the Sages who disagreed with Rabbi Akiva with regard to the Bar Kokhba rebellion were in the end justified by Rabbinic literature. There is much literature on this issue and on the revival of the myths of heroism in the Zionist era. See LUZ, supra note 2, at 52; YAEL
ZERUBAVEL, RECORDED ROOTS: COLLECTIVE MEMORY AND THE MAKING OF ISRAELINATIONAL TRADITION (1995). Perhaps this anti-military attitude might explain the Zionist policy of restraint in light of Arab attacks during the British mandate period. See SHAPIRA, supra note 12, at 235.
196 CARDOZO LAW REVIEW [Vol. 28:1 regard to whether it is necessary and possible to establish laws governing the use of force in contemporary times. I will not relate to the specific content of the laws of war except when it is important for clarifying the discussion of the primary question: Do we need to fill this void in Jewish law, and, if so, how can it be done?
C. A Theoretical Model
From a theoretical perspective, there are a number of ways that one might deal with this lack in the normative system. One approach, which I will demonstrate infra was adopted by some of the legal authorities, is to see the lack of norms on the topic as an explicit legal position—i.e., that Jewish law did not develop a normative system dealing with the use of force because it is opposed to the use of force.
Another approach is to accept the gap and to argue that the law is indifferent to this issue. This “indifference” can be explained in two ways: One way would claim explicitly that the laws of war are beyond the bounds of Jewish law, and that it is not the place of rabbinic authorities or religious thinkers to deal with political and state issues which are not addressed by the halakhah.23 Another way—adopted, as I will discuss infra, by Rabbi Yisraeli, one of the prominent Religious Zionist rabbis—is to turn outward, and to incorporate an external legal approach into Jewish law. A well-known precedent of this method is the halakhic principle “the law of the land is the law” (dina demalkhuta dina),24 which I will explain infra. This principle has been part of the Jewish legal system since the third century. It does not involve the complete detachment of Jewish law, but rather a lack of pretension to create its own normative system.
23 ASHER COHEN, THE TALIT AND THE FLAG: RELIGIOUS ZIONIST AND THE CONCEPT OF ATORAH STATE 1947-1953, at 97 (1998) (Heb.); Benjamin Brown, Polmus ‘da-at Torah’ baZionut ha-datit be-Israel [The Polemic About Torah Iinsight in Religious Zionism], in THE
RELIGIOUS ZIONISM: AN ERA OF CHANGES, STUDIES IN MEMORY OF ZVULUN HAMMER 422(Asher Cohen ed., 2004). A.E. Simon, a religious personality and a leading intellectual in the early years of the state, in his article, Ha-im od Yehudim Anahnu [Are We Still Jews], raised this
as a suggestion for changing direction in the current situation, not as an interpretation of Judaism:
Judaism is in reality a catholic religion from an objective standpoint, but the current crisis calls for a subjective protestant approach.... This individualist approach is not a goal unto itself, i.e., it is not an interpretation of the essence of Judaism, but rather a troubling means that must be implemented because of the need.
See AKIBAH ERNST SIMON, HA-IM OD YEHUDIM ANAHNU [ARE WE STILL JEWS] 1 (1983) (Heb.). The original article was published in 1952. For a broader look at this issue in Jewish thought, see AVIEZER RAVITZKY, RELIGION AND STATE IN JEWISH PHILOSOPHY: MODELS OF UNITY, DIVISION, COLLISION AND SUBORDINATION (Uri Dromi ed., Rachel Yarden trans., 2002).
24 See SHMUEL SHILO, DINA DE-MALKHUTA DINA [THE LAW OF THE STATE IS THE LAW](1974) (Heb.); ELON, supra note 8, at 64.
2006] LAW, INTERPRETATION, AND IDEOLOGY 197 A third possibility is to try to fill in the gap by creating a Jewish legal corpus regarding new areas that were not addressed previously by the halakhah because they were irrelevant during the exile, issues on which there is no ongoing discussion or tradition. The argument of the rabbinic leaders of Religious Zionism, who generally follow this approach, is that the halakhah was always able to adapt itself to new situations, that it contains the mechanisms to create and develop norms for every time and situation.25 This approach raises issues regarding the appropriate sources that can be utilized to create this corpus and the suitable methods of interpretation that can be employed to establish a normative system.
From a theoretical perspective, there are two types of sources within Jewish law to address the laws of war. One possibility is to turn to halakhic sources dealing with the laws relating to the saving of life and the right of self-defense (pikuah nefesh). This approach would focus on the law of the pursuer (rodef), which deals with the right to harm a person who is pursuing another with the intent to kill him. The implication of turning to these sources is that it involves turning to criminal law in order to establish a normative system for the laws of war. As such, it reflects an assumption that war does not constitute an independent normative category. A significant number of rabbinic authorities have adopted this approach. From the standpoint of internal halakhic thought, this position is less radical and innovative because it continues an ongoing halakhic discussion that has dealt with such questions throughout the generations. The second option is to try to build a separate normative system relating to war. The discussion that follows reveals that several approaches have been suggested to identify a foundation for such a normative system. It also reveals the value of 25 On this ideology and the tensions that arose within religious Zionism during the early years of the state, see COHEN, supra note 23. See also ELIEZER GOLDMAN, EXPOSITION AND INQUIRIES—JEWISH THOUGHT IN PAST AND PRESENT 396 (Avi Sagi & Daniel Statman eds., 1996) (Heb.). With regard to the implementation of this idea in practical halakhic rulings, Chief Rabbis Isaac Herzog and Ben Zion Uziel stood out as successful rabbinic models. Rabbi Herzog’s writings on this topic have been collected in HERZOG, supra note 6. On Rabbi Herzog, see Josef Ahituv, Halakhic Vacillations of Rabbi Isaac Halevi Herzog During the Early Years of the State of Israel, in THE CHALLENGE OF INDEPENDENCE—IDEOLOGICAL AND CULTURAL ASPECTS OF ISRAEL’S FIRST DECADE 199 (Mordechai Bar-On ed., 1999) (Heb.); Eliav Schohetman, Rabbi Isaac Herzog’s Theory of Torah and State, 5 JEWISH L. ASS’N STUD. 113 (1991). See Rabbi Uziel’s collection of rulings in PISKE_UZIEL BI-SHE’ELOT HA-ZEMAN (1977) (Heb.); see also MARC D. ANGEL, LOVING TRUTH AND PEACE: THE GRAND RELIGIOUS WORLDVIEW OF RABBI BENZION UZIEL 218-27 (1999); Shalom Ratzabi, Zionism, Judaism and Eretz Israel in the Thought of the Rishon le-Zion Rabbi Ben Zion Meir Hai Uziel, 73 PE’AMIM 60, 60-83 (1997); Elimelech Westreich, The Legal Activities of the Chief Rabbi During the Period of the British Mandate: A Response to the Zionist Challenge, in A HUNDRED YEARS OF RELIGIOUS ZIONISM 83 (Avi Sagi & Dov Schwartz eds., 2003) (Heb.). Certainly other rabbis expressed opinions on religious rulings in the age of Jewish sovereignty. See, e.g., ROTH MESHULLAM, KOL MEVA’SER (1972) (Heb.); 1-3 A. WOLDENBERG, HILCHOT MEDINA (1956-1962) (Heb.);
YEHUDA GERSHONI, KOL TSOFEKHA (1980) (Heb.).
198 CARDOZO LAW REVIEW [Vol. 28:1 distinguishing between the different approaches, for at times the distinctions reflect a very significant difference of opinion regarding the essence of the Zionist enterprise and the significance of the State of Israel in religious terms. These distinctions permit analysis of the connection between ideology and interpretation.
The latter approach was advocated by both Yeshayahu Leibowitz and Rabbi Shlomo Goren, whose positions will be analyzed in detail in Part III and Part V respectively. In his earlier thought, Leibowitz wanted to create a corpus of Jewish law for the new reality, but did not view himself as authorized to do so. For decades, he cried out to the rabbis to fulfill this obligation, which he saw as their religious responsibility.26 Rabbi Goren, the founder of the Israeli military rabbinate, also contended that it was possible, even obligatory, to fill in the gap. As an expert legal authority and a military man, he took the initiative. He tried to build an actual Jewish legal corpus based on the normative halakhic system. As a military man, he objected vociferously to filling the gap in this area based on the principles of criminal law and sought to build a unique corpus of laws of war.
Toward that end, Rabbi Goren utilized innovative methods of interpretation. He sought to reconnect the Biblical attitude toward power with the Rabbinic attitude, and to thus shape a corpus that would be relevant to modern times.
II. THE CONSERVATIVE (HAREDI) POSITION: THE ILLEGITIMACY OF WAR
A significant portion of the Orthodox rabbinate fundamentally opposed the Zionist idea from its inception. From their religious perspective, it was forbidden to engage in any initiative that might hasten the messianic end of days. This opposition began at a point when nobody even considered the possibility that the realization of the Zionist program would require the use of force. The subsequent necessity for military action created an additional anchor for Orthodox rabbinic opposition to Zionism. Some of the rabbis saw the necessity for the use of force as categorical proof that the Zionist idea was fundamentally illegitimate from the perspective of Jewish tradition.
Jewish law, according to this position, addresses all relevant areas of 26 In previous articles, he called explicitly for religious legislation. He wanted the rabbis to legislate new laws that would deal with everything related to running a state. Later on, Leibowitz changed his position to the other extreme, seeking a separation of religion and state. See Eliezer Goldman, The State of Israel in the Test of Judaism According to Yeshayahu Leibowitz, in GOLDMAN, supra note 25; Avi Sagi, ‘Are We Still Jews?,” in FIFTY TO FORTY-EIGHT: CRITICAL MOMENTS IN THE HISTORY OF THE STATE OF ISRAEL 79-87 (1999) (Heb.). The article is a response to Simon’s article with the same title. See supra note 23.
2006] LAW, INTERPRETATION, AND IDEOLOGY 199 life for the Jews. The lack of laws of war in Jewish law is thus a most convincing proof that military action is not to be undertaken. Jewish law does not deal with laws of state and of war because it opposes the establishment of an independent Jewish state and the use of force for the purpose of gathering the exiled Jews before the advent of the messiah.
Jewish tradition on these matters has been opposition to the use of force, a position that flows from the Talmud. It is therefore inappropriate for Jewish legal authorities to render decisions or participate in deliberations on these issues as it lends support to a process that is entirely in opposition to the central ethos of halakhah.27 In the 1930s, a radical group separated from Agudat Yisrael, the party that united the anti-Zionist Haredi Jews of the Yishuv HaYashan28 in Jerusalem. From their perspective, Agudat Yisrael cooperated too much with the Zionist institutions. The incident that precipitated this separation was the tax that was levied by the Jewish settlement authorities in 1938 to provide defense in light of the Arab riots that began in 1936. This radical group, who called themselves Neturei Karta (literally the watchmen of the city), first appeared at this time with a call to its followers not to pay the tax. The term “neturei karta” contains an important concealed message. It is taken from the story in the Jerusalem Talmud in which a Sage wanted to see the watchmen of the city (neturei karta), and when he was taken to the military watchmen of the city, he said: “These are the destroyers of the city, and not its watchmen. Who are the watchmen of the city? They are those who study Torah.”29 In other words, personal security can only be acquired by means of Torah study, as accepted in Jewish tradition up until the Zionist period. The wars of the State of Israel, according to this position, are transgressions heaped upon transgression.
The conduct of war and the bloodshed associated with it are added to the subversive sin inherent in the very establishment of the state. Rabbi Moshe Blau (1885-1946), one of the prominent leaders of Agudat Yisrael in Jerusalem during the decades preceding the establishment of the state, published an article in 1945 entitled “We Are Greatly Embarrassed.” The great embarrassment that gripped the author was 27 SALMON, supra note 1; RAVITZKY, supra note 1, at chs. 1-2, 4; Menachem Friedman, The State of Israel as a Theological Dilemma, in THE ISRAELI STATE AND SOCIETY BOUNDARIES AND FRONTIERS 165-215 (Baruch Kimmerling ed., 1989). In addition to this argument, there were two other fundamental issues that concerned many of the Orthodox rabbis. The first was that it is prohibited to rebel against the nations and to utilize force for settling the Land of Israel.
See RAVITZKY, supra note 1, at 211. The second was the fact that the Zionist idea was promoted by Jews who had cast off the yoke of Torah observance, whom the rabbis viewed as “evil.” 28 Literally the “old settlement,” referring to the Orthodox Jews who lived in the Old City of Jerusalem prior to the Zionist settlement activity. For more information on the founding of
Agudat Yisrael in Poland and its ideology, see GERSHON BACON, THE POLITIC OF TRADITION:
AGUDAT YISRAEL IN POLAND, 1916-1939 (1996).
29 JERUSALEM TALMUD, TRACTATE HAGIGAH 1:7.