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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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It is an innovation in the very conception of religion. In Religious Zionism, religion takes on a different meaning that was not accepted by our fathers and Rabbis.... According to our approach, religion extends to areas and problems that were not recognized or felt to be within the domain of Torah. We are not adding anything to religion, but have given religiosity a different form and the laws of the Torah a different significance.41 The effort to achieve a “Torah state” requires preparation and work on the part of the halakhic authorities who are compelled to present the Jewish legal position on public issues. Leibowitz saw in this proposition the essence of the importance of the establishment of the Jewish state for Jewish religion. This ideal could only be realized through a concerted, systematic, and on-going effort on the part of the Jewish legal authorities. Years earlier, Leibowitz had written the following: “We should not seek the blame for this situation in the Torah, but in our historical situation, which does not enable us to activate the tremendous forces hidden in the Torah. In this situation we must redeem the Torah by our own efforts.”42 Leibowitz’s approach is characterized by viewing the Zionist enterprise from a religious-spiritual perspective. He tried to cast the Zionist enterprise in a context that related not only to the Jewish people “breaking into” the process of history, but to a “breaking out” of Judaism itself to all of the normative areas that it was careful not to address during the years of exile.

republished in 1975 in his book, Yahadut, am Yehudi, u-Medinat Yisrael. See Sagi, supra note

26. The primary change in Leibowitz’s ideology related to the relationship between religion and state. At first he held, like Rabbi Yitzchak Breuer, that Israel must be a Torah state with all of its implications. He understood that there would be no alternative to making changes to the halakhah in order to make it functional for a sovereign Jewish State. Subsequently, Leibowitz understood that the connection in practice became destructive because of the deep bond that it established between holiness and the state, the army, and most importantly, the land. At that point, he began to argue for the complete separation of religion and state in all areas of life.

Although we have defined this change as a change in ideology, it could be viewed as a recognition of the reality and not necessarily a change in ideology.

40 LEIBOWITZ, supra note 39, at 59.

41 Id. at 62.

42 ARYEI FISHMAN, JUDAISM AND MODERNIZATION ON THE RELIGIOUS KIBBUTZ 75 (1992) (citing Liebowitz).

2006] LAW, INTERPRETATION, AND IDEOLOGY 205

B. Cultural Zionism and Religious Zionism

Before returning to the way in which Leibowitz specifically dealt with the issue of war, I will examine some of the opinions that influenced him from secular Zionism and from Orthodox anti-Zionism in Germany.

Asher Ginsberg (Ahad Ha’am, 1857-1927), one of the sharpest opponents of Herzl and Political Zionism, was the founder of the movement called “Spiritual Zionism.” In contrast to the “Political Zionism” of Herzl and Nordau, which had as its primary goal the establishment of a political entity to ensure the existence of the Jewish people, Ahad Ha’am’s opinion was that the essence of Zionism should be spiritual, with the goal of fostering the blossoming and rebirth of Jewish culture. In the article, which he wrote after the First Zionist Congress, entitled “The Jewish State and the Jewish Problem,” Ahad Ha’am wrote: “The secret of the survival of our people, as I tried to demonstrate elsewhere, is what the prophets of old taught—to value only the power of the spirit and not to worship physical strength.”43 The secret of the survival of the Jewish people during the years of exile, lacking a political context, is embedded in the spirit of the people.

There is, therefore, great danger in the political Zionist approach that seeks to change the very heart of the Jewish people to something that is foreign, to change the state from a means to an end. In the aforementioned article, Ahad Ha’am presents a fundamental and harsh attack against the influential speech that was given by Max Nordau at the opening of the congress. This debate is an excellent source for clarifying and sharpening the differences between the two movements regarding the essence of their Zionist approaches. Nordau argued that the entire Jewish world is in trouble, and that the problem of the Jews of Eastern Europe is physical, the constant struggle for basic physical needs. The problem of the Jews of Western Europe, however, is moral.

They cannot benefit from their complete rights. In other words, they are disappointed with the emancipation and the failure of the Jews to truly become integrated in the higher Western European society.44 Ahad Ha’am criticized, one might even say mocked, the position of Nordau on two counts. He claimed that Nordau’s argument was for the Jewish State to be a vehicle for the assimilation of the Jews of Western Europe as a group and thus to achieve what they had failed to achieve—to

assimilate as individuals:

43 Ahad Ha’am, Medinat ha-Yehudim ve-Tsarat ha-Yehudim [The Jewish State and the Jewish Problem], in KOL KITVEI AHAD HA’AM [THE COMPLETE WORKS OF AHAD HA’AM] (1947) (Heb.) (author’s translation). The article was first published in 1898.





44 See Max Nordau, Speech to the First Zionist Congress (1897), in THE ZIONIST IDEA: A HISTORICAL ANALYSIS AND READER 235, 235-41 (Arthur Hertzberg ed., 1997).

206 CARDOZO LAW REVIEW [Vol. 28:1 The Western Jew, after leaving the Ghetto and seeking to attach himself to the people of the country in which he lives, is unhappy because his hope of an open-armed welcome has been disappointed.

He returns reluctantly to his own people, and tries to find within the Jewish community that life for which he yearns.... So in his trouble he turns to the land of his ancestors, and pictures to himself how good it would be if a Jewish State were established there, a state arranged and organized after the pattern of other states. Then he could live fully among his own people and find at home all that he now sees outside, dangled before his eyes, but out of reach.45 The idea of Political Zionism was to establish a state that would be devoid of signs of Jewish culture and would adopt all of the conventions and the way of life of the nations: “a state arranged and organized after the pattern of other states.” In short, the state would fulfill the dream of assimilation of the Western European Jews.

In contrast are the Jews of Eastern Europe, whom Ahad Ha’am describes with great empathy. In truth, their problem is also a moral one, not physical as Nordau had thought. Yet, their moral problem is

based on a different goal:

Not only did the Jews leave the ghetto, but Judaism exited as well.

The Jews achieved this only in specific countries as a kindness from the nations. But Judaism exited, or is in the process of exiting, of its own accord in any place that it comes into contact with modern culture. This contact with modern culture overturns the defenses of Judaism from within, so that Judaism can no longer remain isolated and live a life of separatism. The spirit of our people strives for development; it wants to absorb those elements of general culture that reach it from the outside, to digest them and make them a part of it, as it has done before at different periods of its history. But the conditions of its life in exile are not suitable.46 The encounter between Judaism and the modern world requires Jewish culture to respond, to confront the challenge, and to develop as it had done in similar situations in its history. Toward that end, Judaism is in need of a homeland. The principle desire of Zionism, according to this approach, is the establishment of a home for Jewish culture, which strives to develop but is unable to do so in exile. A Jewish state that is not connected to this idea, and simply constitutes a state for the Jews,

lacks hope, meaning, and potential:

But a political conception that is not based on any national culture is capable of turning the heart of the people from its spiritual strength, and creating within it a tendency to seek “honor” through physical strength and political control. In this manner, the thread that connects it to its past will be broken, and its historical foundation

45 Ha’am, supra note 43, at 137. 46 Id.2006] LAW, INTERPRETATION, AND IDEOLOGY 207

will be undermined.47 The core of Ahad Ha’am’s approach is reminiscent of that of Rabbi Shach on the one hand and Leibowitz on the other. According to all three, physical strength and political existence cannot serve as the basis of Jewish existence. The practical conclusions of all three, however, are very different. According to Ahad Ha’am, it is imperative to create an elite in Israel that will strive to revitalize, advance, and develop Jewish culture in the modern world. In contrast, Rabbi Schach concludes that Judaism is not in need of revitalization or development. On the contrary, it is in need of isolation from the modern world so that it may continue to exist as it has existed until now. At the same time, Leibowitz also concludes that the Jewish people are in need of a sovereign state so that Jewish law can be revitalized and applied to all areas of life. He, however, does not accept Ahad Ha’am’s concept of “Jewish culture,” because in his opinion halakhah is the essence of

Jewish culture:

Judaism is embodied by Torah and commandments (mitzvoth). If this criterion is nullified, the historic identity of the Jewish people is nullified, for it was never defined by any of the criteria by which modern nations are defined.... There is no reason or justification to artificially create a new nation, defined as a nation from a formal nationalistic standpoint, but lacking specific content. If we no longer feel ourselves to be Jews in the empirical historical conception, because we negated the content of this concept, then why should we try at all to be Jewish? It would be better for us to be cosmopolitan and to assimilate in various sectors of humanity.... For what purpose should we establish and sustain a state if the state does not exist within the context of specific content?48 This important distinction between the “Cultural Zionism” of Ahad Ha’am and the “Halakhic Zionism” of Leibowitz places Leibowitz in an additional dialogue with the national (haredi) thought of Dr. Yitzhak Breuer (1883-1946). Breuer, a product of the German school of Rabbi Samson Rafael Hirsch, was one of the leaders of Agudat Yisrael before World War II. He tried to advance the idea of the “Torah State.” Breuer claimed enthusiastically that he was a Jewish nationalist, and that there is only significance to a Jewish nation and to Jewish identity if it exists within the normative context of the laws of the Torah.

According to this principle, Breuer argued that in light of their rejection of the yoke of the normative Jewish system, the Zionists must be seen as a new nation, and not the historic people of Israel. Therefore, it would be inappropriate to give to them the Jewish state that is destined for the historic people of Israel. He envisioned the establishment of a 47 Id. at 138 48 YAHADUT AM YEHUDI U-MEDINAT YISRAEL, supra note 13, at 266.

208 CARDOZO LAW REVIEW [Vol. 28:1 Jewish state in Israel in the spirit of the original nation, the historic people of Israel, i.e., those faithful to the laws of the Torah, which constitutes the only fundamental component of Jewish identity.49 Leibowitz, like Ahad Ha’am, saw the purpose of the Jewish state to be the flowering of Jewish culture. However, he concurred with Yitzhak Breuer that the concepts “Jewish culture” and “Jewish identity” are manifested only in the laws of the halakhah. The concept “halakhah,” however, was different for Leibowitz than it was for Breuer, and in this regard he returned to the goal of Zionism expressed by Ahad Ha’am.

According to Leibowitz, the Torah is not only “what was,” but primarily “what will be:” The Torah must blossom, develop, and bring its potential to reality—a normative system for the management of all aspects of life, including sovereign existence.

C. Law and Morality in the Conduct of War

One of the last articles that Leibowitz wrote before changing his position was the article “After Kibiyah,” mentioned supra, which dealt with the ethics of war. 50 This article was published in the aftermath of the public debate that arose following the controversial military action by the Israeli army in October 1953 in the village of Kibiyah, located in territory that was then in the control of the Kingdom of Jordan. The action came as a response to terrorist attacks staged from Jordanian territory, resulting in the death of a mother and her two children. The action caused loss of life of innocent civilians, and as a result, there was both public outcry in Israel and piercing international criticism of Israel.

Many arguments that are so familiar in the context of the discussion of the war on terror today arose in the public debate at the time—i.e., what are the limits of the right of self defense; does the fact that terrorists kill innocent civilians and afterwards hide within supportive civilian populations permit attacking those civilians; is it possible to fight terror without harming innocent people, etc.51 Leibowitz posits that the issue 49 See ISAAC BREUER, CONCEPTS OF JUDAISM 82 (Jacob S. Levinger ed., Miriam Halevy & A.T. Shrock trans., 1974); see also ISAAC BREUER, NAHLIEL (1982) (Heb.); ISAAC BREUER, DARKI (Michael Schwartz trans., 1988). For further research about Dr. Breuer, see Eliezer Schweid, Torah State in the Thought of Isaac Breuer, in ISAAC BREUER: THE MAN AND HIS THOUGHT 125 (Rivka Horwitz ed., 1988) (Heb.). Jacob Katz refers to an oral debate where Dr.

Breuer admitted that it would not be possible to maintain a state according to the “Shulhan Arukh.” See JACOB KATZ, A TIME FOR INQUIRY—A TIME FOR REFLECTION: A HISTORICAL ESSAY ON ISRAEL THROUGH THE AGES 179 (1999) (Heb.).

50 Liebowitz, After Kibiyeh, supra note 13.

51 See SHABTAI TEVET, MOSHE DAYAN 211 (1972) (Heb.).

2006] LAW, INTERPRETATION, AND IDEOLOGY 209 is not the justification of war itself, which might be seen as a necessary



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