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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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200 CARDOZO LAW REVIEW [Vol. 28:1 related to Jewish acts of revenge against the Arabs. To the question of how Jewish youth had fallen to such a degree, he answered: “[It began] from the day that negation of the Torah and rebellion against religion became extolled, and from the day that the attempt was made to give our people nationalist values....”30 The conversion from religion to nationalism liberated the Zionist Jews from responsibility to the Jewish values that prohibit military activity.

Rabbi Yoel Teitelbaum (1888-1979), the Satmar Rebbe, the leader and spokesman of radical Haredi Orthodoxy after the Holocaust, wrote

as follows in his anti-Zionist manifesto, Va-Yoel Moshe:

Their hands are also stained with bloodshed, and they are the reason for the great tragedy in which six million Jews were killed. From then until now, tens of thousands of Jews have been killed because of this impure idea of establishing a state by means of the sword and strength.... Also, the occupation of the Sinai [in 1956] that was extolled as a miracle only resulted in the deaths of many Jews who went against Torah opinion.... Anyone who brings about a war that endangers life against the opinion of the Torah is a murderer.31 In his book, Al Ha-Geulah Ve-Al Ha-Temurah, that was published after the Six-Day War, Rabbi Teitelbaum reiterated this theme in

stronger terms:

And behold it is clear that the very entry into this war was forbidden.

It is against our holy Torah to force the community of Israel to go out to war with the nations of the world, and to thus endanger the Jewish people. Anyone who transgresses this prohibition, and forces them to go to war, wantonly placing thousands and tens of thousands of Jews in danger of death and bloodshed in opposition to the opinion of the Torah, is a murder in the full sense of the word. The responsibility for Jewish blood is on his head.32 Thus, a Jew who goes out to war in contemporary times is a murderer. The argument against war came to expression conspicuously and eloquently in the speeches and writings of Rabbi Menachem Shach (c. 1898-2001), the head of the Ponivitz Yeshiva and the uncontested leader of Lithuanian Haredi orthodoxy for several decades. His 30 See MOSHE BLAU, AL HOMOTAYIKH YERUSHALIYIM—PIRKE HAYAI 162 (1946). The name of the book also indicates the ideology of the author. As he points out, the title is taken from Isaiah 62:6 (“I have set watchmen upon thy walls, O Jerusalem.”). It is as if to say, the true watchmen are the Jews who carry the torch of tradition, and not the newcomers who utilize physical strength.

31 YOEL TEITELBAUM, VA-YOEL MOSHE 212 (1960) (Heb.).

32 YOEL TEITELBAUM, KUNTRES AL HA-GEULAH VE-AL HA-TEMURAH [BOOKLET ABOUT

THE REDEMPTION AND REWARD] (1967) (Heb.). This idea repeats itself often in the book. For example, Teitelbaum writes, “Who could imagine or think that our holy Torah would agree to spilling Jewish blood for the impure idea of their state.” Id. at 81. Rabbi Yaacov Weiss, the leader of the haredi community in Jerusalem in 1970-1989, quoted and agreed with these statements. See 10 RABBI YAACOV YITZCHAK WEISS, RESPONSUM MINHAT YITZHAK § 10 (1996) (Heb.).

2006] LAW, INTERPRETATION, AND IDEOLOGY 201 statements on this issue, primarily in the speeches and public deliberations that he presented in the yeshiva, were collected by his students in a book entitled Be-Zot Ani Bote’ach (“In this I am Confident”).33 Rabbi Shach does not deal with question of how to conduct oneself in war, but whether it is required or permissible to wage war at all. In his opinion, the very establishment of an army and the conduct of war is a very negative situation and unnatural for Jews. He holds that there is no difference between the exile and the redemption other than the reign of the messiah. Therefore, since the messiah has not come, we are still in a state of exile. In exile, it is forbidden for Jews to make use of force. Zionism and the establishment of the state were, in his opinion, a dangerous delusion, a delusion of our ability to survive by the sword.34 At a gathering of educators immediately after

the Six-Day War, Rabbi Shach said the following words:

In these actions that took place, the Jews deviated completely from the behavior and the path that we followed all the days of our exile.

The Jews have now become players and deciders in the controversies among the nations. Until now, we were a sheep among seventy wolves, but we did not decide the quarrels between the wolves. And now the sheep has become a player and a decider among the wolves.

Was not the uniqueness of the community of Israel from the time that it became a people the fact that “they are a nation that dwells in isolation, and is not considered among the nations” (Numbers 23:9),.... This is not the behavior of the community of Israel....

Since we are still in exile and have not been redeemed, we certainly must behave as the community of Israel is required to behave in exile....35 33 The book was published in several editions. The quotes below are from ELIAZAR

MENAHEM MAN SHAKH, BA-ZOT ANI BOTEAH: IGROT U-MA’AMARIM AL TEKUFAT HA-YAMIM

U-ME’OROTEHA [IN THIS I AM CONFIDENT] (2d ed. 1998) (Heb.). Again, the title of the book hints at the writer’s ideology. The title is taken from Psalms 27:1-3 (“the Lord is the strength of my life; of whom shall I be afraid... though war should rise up against me, even then will I be confident”). On Rabbi Shakh, see Benjamin Brown, Ha-Rav Shakh: Ha’arazat Ha-ru’ah [Rabbi Shakh: Admiration of the Spirit], in RELIGION AND NATIONALISM IN ISRAEL AND THE MIDDLE EAST 278 (Neri Horowitz ed., 2002) (Heb.); see also AVISHAY BEN-HAIM, THE MAN OF VISIONTHE ULTRA ORTHODOX IDEOLOGY OF RABBI SHACH (2004) (Heb.). For an earlier non-haredi thinker who held a pacifist ideology that was anchored in traditional Jewish sources, see AARON SAMUEL TAMARES, PACIFISM AND TORAH (Ehud Luz ed., 1992) (Heb.).





34 Referring to the talmudic statement in TRACTATE PESAHIM, 113b (“There are four that are intolerable: those with shallow pride.”), Rabbi Shach stated, Is this pride not shallow, why is he so self-confident? For if America will end its support, his soul will already be like the dust. And how does he know that we will never again be led to slaughter? Are we not still in a terrible exile, surrounded by millions of enemies?

MENAHEM MAN SHAKH, supra note 33, at 38.

35 MENAHEM MAN SHAKH, supra note 33, at 11. Given the atmosphere after the glorious victory of the Israeli army, it would apparently have taken great courage to speak in this manner even to the Haredi community.

202 CARDOZO LAW REVIEW [Vol. 28:1 According to Rabbi Shach, the use of force constitutes the creation of evil in the world, an act for which Jews will be punished. The very existence of war itself, the fact the enemies of the Jews rise up against them, must be understood as a punishment for their trust in power. In a speech that he delivered in the throes of the Yom Kippur War, Rabbi Shach claimed that the war was not a natural political conflict, but rather, as in the wars of the Bible, it was a punishment for the fact that the Jews had done evil in the eyes of God. This was the evil that the

Jews did in this generation that brought about the Yom Kippur War:

The worst of all is the idolatrous belief in “my power and the strength of my hand” (Deuteronomy 8:17). The people have become used to trusting in the Israel Defense Force with the help of the United States, and in the power of ammunition.... This war [the Yom Kippur War] came without a doubt to shatter the idolatry of “my power and the strength of my hand.” This is measure for measure.36 The only act capable of neutralizing the damage caused by war is the study of Torah. Through his study, the Torah scholar expresses contempt for belief in power. Thus, overall, Torah scholars balance the damage caused by the negative effects of the belief in strength that gained credence among part of the Jewish people.

This reflects a consolidated worldview that Jews do not engage in war. The role of the Jews is to survive in the world in any way possible except by means of war. They must take their Torah with them everywhere and be sustained by it. Rabbi Shach believed that the ongoing cycle must be broken—i.e., the intoxicated faith in power that leads to war, the war that leads to acts of bloodshed and that subsequently causes the spiritual and moral destruction and impurity of mankind.37 36 Id. at 19.

37 Rabbi Shach certainly wanted to strengthen his students at a time of imminent war and certainly of discomfort because of the fact that they were not participating in the struggle for existence through military service. Nevertheless, it is notable that Rabbi Shach does not suffice with statements about the value of Torah learning, nor does he view Torah students as partners who contribute to the battle by means of their Torah study. His position is much stronger and more radical, viewing war as illegitimate and as a punishment for the use of physical power. As such, the Torah student is not a partner in the defense of the people. He does much more than that. He is the only one that takes steps that could prevent the war. Compare his approach to that of Rabbi Moses Feinstein. See 2 RABBI MOSES FEINSTEIN, IGROT MOSHEH 78 (1959) (Heb.).

2006] LAW, INTERPRETATION, AND IDEOLOGY 203

III. YESHAYAHU LEIBOWITZ: REDISCOVERING THE ETHICS OF WAR

–  –  –

Yeshayahu Leibowitz (1903-1994), one of the prominent thinkers in contemporary Israel, was best known for his consistent ideological opposition to Israel’s retention of lands that were captured in the SixDay War. His earlier positions, from the 1930s until the middle of the 1950s, are imprinted somewhat less in the public memory. In those years, as mentioned supra, Leibowitz was the most vociferous thinker to demand that the religious Zionist rabbis deal directly and seriously, on the normative level, with the challenge posed by Jewish sovereignty with all of its implications. In his opinion, Jewish law was capable of responding to the realities of sovereignty, and it was imperative for the rabbis to do so through drastic legislative intervention. Leibowitz raised this argument aggressively for decades until he gave up and admitted his failure. In his original approach, the religious significance of the establishment of the state was the revival of the halakhah, the fact that it was necessary to derive answers and operative procedures from Jewish texts in many areas of public life that had not been previously addressed during the period of exile. The blossoming of a normative Jewish system that would bring to realization the great potential buried within it had, in Leibowitz’s mind, a deep religious significance, and therefore placed responsibility upon the shoulders of the rabbinic leadership of the generation. Leibowitz saw in the lack of responsiveness of the rabbis to this challenge proof that they had not internalized the new reality and were still functioning as if they were in exile.38 In a speech delivered in 1943 regarding modern religious education, Leibowitz made the following remarks: “The educational crisis relates to the fact that there is no instruction, halakhic decision, or guidance from the perspective of Jewish religion on all matters which today define a person’s way of life.”39 38 Some of Leibowitz’s articles, in which he argued in favor of religious legislation, were included in his book. See YESHAYAHU LEIBOWITZ, TORAH U-MITSVOT BA-ZEMAN HA-ZEH (1954) (Heb.). Some were translated into English. See JUDAISM, HUMAN VALUES AND THE JEWISH STATE, supra note 13. The relevant articles that deal with religion and state are The Social Order as a Religious Problem, id. at 145, and the Crisis of Religion in the State of Israel.

Id. at 158. See SIMON, supra note 23 (dealing frontally with Leibowitz’s position); see also YESHAYAHU LEIBOWITZ—HIS WORLD AND PHILOSOPHY 179 (Avi Sagi ed., 1995) (Heb.); Haim Marantz, Bearing Witness: Morality and Religion in the Thought of Yeshayahu Leibowitz, JUDAISM, Winter 1997, at 35; David Biale, Homage to Yeshayahu Leibowitz, Israeli Public Intellectual, 22 RELIGIOUS STUD. REV. 309, 309-12 (1996).

39 Yeshayahu Leibowitz delivered a lecture in 1943, Education for a Torah State, that is included in his book. YESHAYAHU LEIBOWITZ, TORAH U-MITSVOT BA-ZEMAN HA-ZEH 58 (1954) (Heb.). In light of the changes in Leibowitz’s position, this article was revised and 204 CARDOZO LAW REVIEW [Vol. 28:1 Leibowitz claimed that as a result of the reality in which the Jewish people “were torn away from independent political, social, national, and economic life, halting not only the complete application of the Torah, but also the struggle to apply it within a societal context, its educational strength was undermined.”40 This led him to his understanding of the

religious-spiritual significance of Zionism:



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