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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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218 CARDOZO LAW REVIEW [Vol. 28:1 aspired to write a codex of the laws of war according to Jewish law that would fill in one of the gaps in the existing codes of Jewish law such as the Shulhan Arukh.74 In the introduction to his book Meshiv Milhamah, which deals with military law, Rabbi Goren declares his objective clearly: “This book is intended to be a Shulhan Arukh for the military.”75 Rabbi Goren rejected the idea of halakhic indifference to any area of life, just as he rejected Rabbi Yisraeli’s proposal that Jewish law adopt the laws and values of other nations. Rather, as a normative system, halakhah is able and required to relate to all areas of life. In essence, Rabbi Goren responded to the challenge voiced by Yeshayahu Leibowitz decades before and expressed by many Religious Zionist leaders—the need for laws of state. Naturally, Rabbi Goren focused on the issue that was closest to his heart, the laws of the army and of war.

The source of his pretension to create new laws was his religious Zionist ideology. According to that ideology, he believed that the significance of the Jewish State is directly related to the degree to which it reflects halakhah. In a public debate in 1966 that dealt with spiritual perspectives on the Jewish people and the State of Israel,76 Rabbi Goren

stated:

Rav Saadia Gaon... said: “Our Nation cannot be called a nation, but by its law,” meaning that the Jewish People can be considered a nation only in as much as it is loyal to the Torah.... The Jewish People did not create the Torah of Israel. The People exist as a result of their keeping the Torah. It was born out of the metaphysical need to implement the values which are represented by the message of the Torah, the ethics of the Prophets and the vision of mankind....77 For me, Jewish education is education for practice, for Judaism is manifested in the fulfillment of commandments. There is no Judaism that is just embedded in the heart. I don’t believe in Judaism that is felt in the heart. There is a Christianity that is embedded in the heart....78 Unlike other nations, Jewish nationalism is defined by its law rather than by territory or other sociological categories. Jewish law and its commandments are the essence of the Jewish experience. As such, 74 The Shulhan Arukh, written by Rabbi Josef Caro in the 16th century, is considered to be the authoritative code of Jewish Law.

75 1 GOREN, MESHIV MILHAMAH, supra note 73, at 10-12.

76 Symposium: Jewry and Judaism in the Modern World, in FORUM FOR JEWISH THOUGHT, Sept. 5, 1966. The speakers were former Prime Minister David Ben Gurion (the head of the World Zionist Congress), Dr. Nahum Goldman, and Rabbi Shlomo Goren. The subject of the debate was “Jewry and Judaism in the Modern World—the Jewish People, the Jewish State, the Jewish Law... and their Inter-Relationship.” A complete discussion of this important debate and the positions of Rabbi Goren are found in my article on Rabbi Goren. See Edrei, supra note 73.

77 See FORUM FOR JEWISH THOUGHT, supra note 76, at 17 (author’s translation).

78 Id. at 23.

2006] LAW, INTERPRETATION, AND IDEOLOGY 219 there is only ethical and practical significance to the State of Israel as a Jewish state to the degree that it functions according to the Torah. It is for this reason that Rabbi Goren was drawn to create a corpus of laws relating to the army and issues of security. He saw this as his mission and destiny that was timely at this turning point in the history of the people. Yet, how can a corpus be written in an area that was never before addressed?

B. Power and Spirit

In the introduction to his primary book on the subject, Rabbi Goren

informs us of the heart of the problem:

This book of rulings is different... than all other books of responsa.

On the topics of this book we do not have an ongoing tradition of rulings from generation to generation. There is nothing parallel in the Shulhan Arukh, or in other codes of law.79 Indeed, Rabbi Goren contends that although the Jewish law is a traditional spiral system in which each layer is built upon the previous one, it has the ability to deal with situations that have no precedent and require a high degree of creativity. Jewish law includes mechanisms that allow for flexibility and the ability to relate to unprecedented

situations:

In the laws of the Torah it states: “And you shall live by them.” The Torah was given for life. There is room to delve into the sources in order to reveal creative ideas and derive innovative interpretations. I believe and am convinced that it is possible to solve the problems of the generations according to the Torah. For our Torah is not frozen in its context. The Written Torah and the Oral Torah are eternal, and have the strength to stand up to the difficulties of the generations.... There is a saying in the Jerusalem Talmud [Sanhedrin 4:2]: “If the Torah had been given in a clear and explicit fashion, we could not live by it. Why was it not? So that it could be interpreted either as the forty-nine aspects of impurity or the fortynine aspects of purity.” In other words, if the Torah had been given as a set code—this you can do and this you can’t do—we would not be able to live by it. But it was given in a flexible fashion.... In this generation, we need the great scholars of Torah and Jewish law to take a “state approach” to issues and to relate positively to the historical turning point for the Jewish people represented by the establishment of the state.80 79 1 GOREN, MESHIV MILHAMAH, supra note 73, at 10.





80 FORUM FOR JEWISH THOUGHT, supra note 76, at 23.

220 CARDOZO LAW REVIEW [Vol. 28:1 The individual capable of dealing with the creative rulings and interpretations required to meet this challenge would be a person who identifies ideologically both with Zionism and with the approach that sees the need to reformulate Jewish law in order to be compatible with the new reality of sovereignty, a person with a positive perspective on this historical turning point. A rabbi of this nature could rehabilitate Jewish laws in areas that it is lacking, and formulate a corpus—a “Shulhan Arukh,” in Rabbi Goren’s words—on the subject of war and the use of force.

In fact, Rabbi Goren not only wanted to create a normative system, but he also felt the need to define the ideological relationship to the use of force—i.e., to redefine the ideology and Jewish values relating to the use of force—to the military and to war. Goren wanted to revise the exegesis reflected in the talmudic allegorical interpretations of the Biblical approach to war. A significant number of his articles attempt to redefine the relationship between power and spirit in Jewish thought.

He contended that Jewish tradition should not be viewed negatively because it praised the spirit at the expense of physical power, nor should it be understood as taking a stance in opposition to the use of force. On the contrary, in his opinion, power is a necessary element of life, but it must be a means and not an end—it must be controlled and restrained by the spirit. The spirit that was used as an excuse to attack Jewish tradition as irrelevant at the time of the renewal of Jewish sovereignty became, in Rabbi Goren’s hands, a source of glory for the tradition that sought to deeply implant an ethic to guide the use of force.

Rabbi Goren was certainly aware that the legitimacy of the use of force disappeared in Rabbinic literature. Nevertheless, he claimed that this happened due to the historical conditions imposed by the exile. As mentioned supra, Biblical law is applied in the manner that it was interpreted by the Sages. In Rabbi Goren’s opinion, however, it is necessary to take into account the historical circumstances in which Rabbinic literature took shape. Therefore, he took upon himself the liberty to return to the simple meaning of the Biblical texts and to ignore some of the allegorical exegesis through which Biblical wars were reinterpreted in Rabbinic literature. Rabbi Goren turned as well to postBiblical literature from the Second Temple period, such as The Books of the Maccabees. These works were not utilized at all as normative sources and were therefore not even considered legitimate in halakhic rulings. In practice, he embarked on a process that redefined the parameters of the canon. He implies that the canon of the Rabbis was a canon from the period of the exile and suggests the need, in the period of Jewish sovereignty, to broaden the canon and return to earlier sources from historical periods in which Jews exercised political power. This process enabled Goren to return to the Biblical and Maccabean wars, 2006] LAW, INTERPRETATION, AND IDEOLOGY 221 and to view them as legitimate sources for the creation of a new Jewish legal and ethical code for the contemporary wars of Israel. In this way, he sought to revive the relevance of the traditions, negating both the haredi anti-Zionist arguments on the right and the arguments of those on the left who opposed the integration of Jewish values in issues of state. This process enabled him to say the following words that reflect

his view on the reinterpretation of traditional sources:

Even the humanitarian view of Judaism regarding the essence of heroism does not come to negate the physical heroism that is accepted as a value in our worldview, but rather to establish an order of priorities.... As we see in Avot De-Rabbi Nathan, “Who is the mightiest of the mighty?—One who controls his inclination, as it says: ‘Forbearance is better than might.’” We learn that this definition does not come to negate physical heroism, but to define the mightiest of the mighty. From here, we learn that there are two levels of heroism. The lower level is physical heroism, and the higher level is spiritual heroism.81 As mentioned supra, Leibowitz viewed the Biblical story of the rape of Dinah as a potential corner stone upon which to build ethical principles of war. It is, therefore, of interest to examine Rabbi Goren’s interpretation of the same story. There is a sharp debate among medieval commentators as to how the story should be understood.

Maimonides (1135-1204) held that Shimon and Levi acted in accordance with the law when they killed the men of Shechem. In his opinion, the men of the city were culpable because they did not prevent the rape a priori and did not prosecute the perpetrator after the fact.

Nachmanides (1194-1270), in contrast, very harshly criticized the action. In his opinion, Jacob cursed his sons, who perpetrated the massacre, because there was no justification for the action. The act of the brothers was considered “violence” and was cursed by Jacob because they killed innocent people. Not only were they innocent, but they were righteous in that they had circumcised themselves and taken on the laws of God that were in force at the time.82 Rabbi Goren proposed an alternative interpretation of the story that sought to harmonize the approaches of Maimonides and Nachmanides. In his opinion, Maimonides is speaking about law, and Nachmanides is speaking about ethics, on the extralegal level. Indeed, Rabbi Goren concludes, it is impossible to conduct a war based solely on law. War must be conducted on the ethical level as well. In other words, while it 81 Shlomo Goren, ha-Gvura be-Mishnat ha-Yahadut [Might in Jewish Thought], 120 MAHANAYIM 7, 9 (1979) (Heb.).

82 See supra note 56. In Jewish tradition, there are other interpretations of this story, such as that of Judah Loew ben Bezalel (the Maharal of Prague, 1525-1609), who claims that during a time of war it is impossible to differentiate between the guilty and the innocent. Maimonides justifies the action of Shimon and Levi by assigning guilt to the men of the city.

222 CARDOZO LAW REVIEW [Vol. 28:1 may not be possible to prosecute Shimon and Levi for what they did, it was prohibited for them to do it. Rabbi Goren wanted this ideology to guide the Israel Defense Force. The harmony that Rabbi Goren created in the interpretations of Maimonides and Nachmanides reflects the greater harmony that he sought to create between the Biblical and Rabbinic perspectives on the use of force, a harmony between the legitimacy of the use of force and the spirit that must guide it.

The analyses of Leibowitz and Goren to this story are similar, yet there is an important difference between them. With regard to the question “what produced this generation of youth,” Leibowitz answered in the later version of his article that it was the result of attributing the concept of holiness to war. In contrast, Goren responded that it happened because they did not apply Jewish concepts of holiness to war.

C. The Siege of Beirut

In 1982, during the war known as “Peace for Galilee,” the Israel Defense Force placed the city of Beirut under siege in order to trap thousands of terrorists who had fled there from southern Lebanon.

During the siege, Rabbi Goren, who then served as the Chief Rabbi of Israel, published a newspaper article in which he claimed that the siege of Beirut was prohibited by Jewish law, which requires the army to leave one side of the city open in order to allow an escape route for any individual who wishes to flee. Rabbi Shaul Yisraeli published a very sharp response claiming that the siege was legal according to Jewish law.83 The controversy between them is based on their understandings

of the relevance of the following law that was codified by Maimonides:

When besieging a city in order to capture it, you should not surround it on all four sides, but only on three sides, allowing an escape path for anyone who wishes to save his life, as it says: “And they warred against Midian as God had commanded Moshe.”—Based on tradition, they learned that thus He had commanded him.84 As I have pointed out elsewhere,85 Rabbi Goren could have taken an exegetical approach that would have led to the conclusion that this particular law applies only to permissible wars but not to wars of 83 The articles were republished in GOREN, TORAT HA-MEDINAH, supra note 73, at 402-23 and in SHAUL ISRAELI, HAVAT BINYAMIN 111-19 (1992) (Heb.), which includes Goren’s article and Israeli’s reply.

84 MAIMONIDES, supra note 56, at 6:7. The source of Maimonides’ law is Midrash on the Biblical war with Midian in SIFRI BA-MIDBAR § 257, at 210 (Horowitz ed. 1992) (Heb.); see MICHEL WALTZER, JUST AND UNJUST WARS (1977).

85 See Edrei, supra note 73.



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