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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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2006] LAW, INTERPRETATION, AND IDEOLOGY 223 defense.86 He claims, however, that it does apply to obligatory wars, including wars of defense. I believe that Rabbi Goren viewed this law as a paradigm for the integration of power and spirit that he considered the essence of the halakhic approach to war. It was therefore very important to him from an ideological standpoint to apply this law to the contemporary wars of the State of Israel. He based his argument formally on the fact that Maimonides cited this law in the chapter of his

book that deals with the obligation to call for peace prior to waging war:

“One may not wage war against anyone in the world before calling on him to make peace, both a permissible war and an obligatory war, as it says: “When you approach a city to make war against it, you shall call out to it for peace....”87 Rabbi Goren argued that just as the commandment regarding the “call for peace” clearly applies to both permissible and obligatory wars, so too the commandment to leave the fourth side open applies to both.

The primary reason for the call for peace relates to the essential principle of the importance of peace (gadol hashalom),88 a principle that should apply as well to the law to leave the fourth side open. Rabbi Goren finds support for this assumption in the fact that Maimonides codified the two laws in the same chapter, and saw in both of them the obligation to seek peace and to have pity on the life of the enemy, even at times of war.89 “The power and the spirit” about which Rabbi Goren 86 NACHMANIDES, COMMENTS ON MAIMONIDES’ SEFER HAMITZVOT, Mitzvah 5 established that this law is “a commandment for the generations for all permissible wars.” This fact would have enabled Rabbi Goren to say that the law is not relevant to contemporary wars, since all of the contemporary wars of Israel are obligatory wars. As mentioned, Jewish law distinguishes between “permissible war” and “obligatory war.” One category of an obligatory war is “to save Israel from the hand of an oppressor.” See MAIMONIDES, supra note 56, at 5:1. Rabbi Goren argued in many places that the contemporary wars of Israel are wars of defense against oppressors and thus categorized as obligatory wars. Nevertheless, Rabbi Goren stubbornly held that the law of the fourth side was relevant to the wars of the Israel Defense Force, contrary to the interpretation of Nachmanides, which implies that the law is in force only for permissible wars.

The language of Maimonides in the stated law—“when you approach a city to make war against it”—can be interpreted to refer to a permissible war, as permissible wars are defined as wars “to expand the borders of Israel.” See id. Rabbi Yisraeli explained his argument against Rabbi Goren by distinguishing between a war to “to save Israel from the hand of an oppressor” and the other categories of obligatory wars. See id. In the other categories, the law of the fourth side did not apply since the essence of the commandment was to destroy the enemy. If so, it makes sense that it applies as well to the remaining category. He concludes that Maimonides established the law of the fourth side only for permissible wars.

87 MAIMONIDES, supra note 56, at 5:2; see Deuteronomy 20:6.

88 See SIFRI BA-MIDBAR, supra note 84, § 42, at 46.

89 Further on, Rabbi Goren quoted R. Meir Simcha of Dvinsk (1843-1926), the author of the Meshech Hokhmah Commentary on the Torah, who discussed this law and the question of why Maimonides did not list it as a separate commandment. His conclusion was that the reason for leaving an escape route during a siege was essentially a tactical issue, i.e., that leaving an opening to escape reduced the motivation of the enemy to engage in battle. Rabbi Goren strongly challenged this explanation, arguing that we should not even consider the possibility that the commandments of the Torah relate to military tactics rather than to military ethics. Indeed, Sefer ha-Hinukh, commandment 527, included the commandment to call for peace as a separate 224 CARDOZO LAW REVIEW [Vol. 28:1 spoke, and the clear hierarchy that he sought to establish between them, acquired relevant significance in this practical application of the law.

We might conjecture that the historical source of the law to leave the fourth side open flowed from the deep-seated collective memory of the difficult conditions that faced the besieged residents of Jerusalem during the time of the Roman siege.90 Against this backdrop, the Midrash posits that the Jews have a different military ethic. Indeed, Waltzer in his classic work, Just and Unjust Wars, wrote about this law

as follows:

The only justifiable practice, I think, is indicated in the Talmudic law of siege, summed up by the philosopher Maimonides in the twelfth century (whose version is cited by Grotius in the seventeenth century): “When siege is laid to a city for the purpose of capture, it may not be surrounded on all four sides, but only on three, in order to give an opportunity for escape to those who would flee to save their lives....” But this seems hopelessly naive. How is it possible to “surround” a city on three sides? Such a sentence, it might be said, could only appear in the literature of a people who had neither a state nor an army of their own.91 It is clear from a tactical standpoint that there is no logic to besieging a city and leaving one side open, as the enemies that flee by means of the fourth side can return to attack. If so, what did the Sages gain through their decree. This is exactly the logic of the argument of Rabbi Yisraeli who sharply attacked Rabbi Goren for his position.





Even though Rabbi Yisraeli does not mention the principle of the “law of the nations” that he established in his article in the 1950s, he is consistent in his line of thinking that dictates that contemporary wars must be fought in accordance with military logic and ethical norms that are accepted by the enemy. Otherwise, there is no possibility to be victorious in battle.

The law that requires leaving one side open, which can be criticized for military logic and demands a very high ethical standard with regard to treatment of the enemy, epitomizes Goren’s approach.

Goren insists on maintaining this norm as it strengthens and supports his commandment from the commandment to leave the fourth side open. It is logical to conclude that Maimonides saw them as one commandment and therefore did not list them separately.

90 See Josephus Flavius, The Wars of the Jews, in THE WORKS OF JOSEPHUS bk. VI. ch XIV, 721 (Tho. Lodge trans., 1602) (“The restraint of liberty to pass out of the city took from the Jews all hope of safety, and the famine now increasing consumed whole households and families; and the houses were full of dead women and infants; and the streets filled with dead bodies of old men. And young men, swollen like dead men’s shadows, walked in the market place and fell down dead where it happened. And now the multitude of dead bodies was so great that they that were alive could not bury them; nor cared they for burying them, being now uncertain what should betide themselves.”); see also WALTZER, supra note 84, at 161. See more description in Flavius, supra, at 720, 723.

91 WALTZER, supra note 84, at 161.

2006] LAW, INTERPRETATION, AND IDEOLOGY 225 claim regarding the merger of power and spirit in Jewish tradition.

When pressed as to how it would be possible be victorious in such a war, Rabbi Goren answered: “We do not understand the secrets of God,”92 or in other words, the God who gave the law will save us.

These final words lead to the conclusion that the argument between these rabbis is not only an argument regarding the interpretation of text, but also an argument about the interpretation of reality.

CONCLUSION

Jewish law, as a traditional legal system, is naturally based on continuing development—the interpretation of sources followed by interpretation of the interpretation. A new reality that was not dealt with previously presents a challenge to such a system. The challenge that the establishment of the State of Israel presented to the world of Jewish law flowed primarily from the need to render rulings in areas that were not discussed throughout the middle ages. The laws of war are a prime example of this phenomenon. All of the positions examined dealt with the question of how to overcome the lack of clear sources that could be interpreted in order to give solutions to problems raised by the new reality. The interesting fact demonstrated in this Article is the obvious relationship between Jewish legal interpretation and ideology.

The positions of each of the religious personalities discussed were influenced by their perspectives on the Zionist enterprise. All agreed that the rabbinic approach to the use of force was a product of the exile, and that it could not suffice as a normative system for a sovereign Jewish reality.

The Haredi position, essentially conservative, saw the halakhic lacuna as the ultimate proof that the Zionist process was in opposition to Jewish law. It held that the validity of the rabbinic approach remained in force until the messianic redemption. As such, Jewish sovereignty itself is undesirable and cannot serve as a catalyst for changes in Jewish law and ethics. In contrast, the other three thinkers studied took a clear Religious Zionist approach that views the establishment of the Jewish state as a positive process that also has religious significance.

Yeshayahu Leibowitz, Rabbi Yisraeli, and Rabbi Goren all contended that the Jewish state must function according to Jewish law. Yet, their common points of departure led them to opposing viewpoints.

For Rabbi Yisraeli, the establishment and preservation of Jewish sovereignty was a primary value that led him to a militant position. The 92 GOREN, TORAT HA-MEDINAH, supra note 73, at 419. The source of the expression is in the JERUSALEM TALMUD, TRACTATE BERAKHOT 10:1.

226 CARDOZO LAW REVIEW [Vol. 28:1 priority that he gave to the preservation of the state and the protection of its soldiers and citizens forced him to view the anti-militaristic Rabbininc ethos as irrelevant. As such, he did not try to reinterpret these Rabbinic sources, but rather deemed them invalid for the new reality of sovereignty. Yet, he fascinatingly justified his approach by means of a new interpretation of a well established law from the middle ages—“the law of the land is the law.” While in the period of exile this law applied to Jews as individuals in their relations with non-Jews, in the period of Jewish sovereignty, Rabbi Yisraeli reinterpreted the law to apply to relations between the Jewish State and other nations. In this inspired process of interpretation, he limited the purview of Jewish law to exclude foreign relations of the State of Israel, based on the internal exegetical process of the halakhah itself.

Yeshayahu Leibowitz and Rabbi Goren, in contrast, advocated filling the halakhic lacuna by creating a normative codex of laws of war for the new era of Jewish sovereignty. Not only were they not prepared to deem the Rabbinic standards for war irrelevant, but they believed that their incorporation in the new codex was essential to the creation of a particularly Jewish military ethic for the Israel Defense Force. Their common ideology dictated that the unique essence of the State of Israel is as a “Torah state”—that it must conduct itself in all areas according to Jewish law and ethics. Therefore, Leibowitz and Goren sought to utilize the instruments inherent within the Jewish legal process to revise the halakhah in order to address the military issues previously not addressed.

In spite of the aforementioned similarities between Leibowitz and Goren, their ultimate parting of the ways reflected a deep division in their Religious Zionist ideologies. Rabbi Goren undoubtedly saw the establishment of the State of Israel as a Divine messianic redemptive process. Therefore, he attributed categories of holiness to the state and its institutions. For example, in 1953, he labeled the army “a divine force to realize the vision of the prophets.”93 He therefore strove with all of his energy to apply utopian laws that were designed for the messianic period to the contemporary reality, laws that at times defied rationality. For this reason, he was unable to accept Rabbi Yisraeli’s approach that adopted gentile standards for the Jewish army. Rather, Rabbi Goren reinterpreted Jewish sources relating to war in an attempt to harmonize the legal and ethical standards that, in his opinion, represented the uniqueness of the Jewish approach. This enabled him to create an innovative approach that integrated the legitimacy of warfare with the prophetic vision of peace.

93 S. Goren, Heshbono Shel Olam, 15 MAHANAYIM 4 (1953) (Heb.).

2006] LAW, INTERPRETATION, AND IDEOLOGY 227 The holiness that Rabbi Goren attributed to the Israeli military was viewed by Leibowitz as extremely dangerous. He did not share Goren’s messianic understanding of Zionism. Rather, the religious significance that Leibowitz attributed to the Zionist enterprise was the opportunity for Jewish law to develop and flourish in areas that it had ceased to address centuries earlier. He hoped that the Jews would take responsibility for the creation of a society based on a renewed Jewish law that reflected the freedom inherent in Jewish sovereignty.

Leibowitz was frustrated by the results of this effort in practice. His interpretation of this reality led him to the conclusion that the messianism inherent in many of the Zionist approaches prevented the fulfillment of his dream. By attributing holiness to the state institutions and sanctifying their actions, Jewish values were subordinated to the institutions. This conclusion ultimately led Leibowitz to advocate the complete separation of religion and state.

I have noted the relationship between the ideologies and rulings of the personalities whose positions I have analyzed. It might appear, as such, that their rulings are contrived—that they flow from their ideological perspectives and are superimposed on the classical sources.

This, however, is not the case. As a sacred text, the Torah was designed to be viewed from different perspectives, to be interpreted in a manner that makes it relevant to different situations and different generations. It follows that the Jewish legal authority is required to interpret both the text and the reality that it is called upon to address. Such interpretation is legitimate, and even obligatory. Through serious attention to both aspects, Jewish scholars throughout the generations have ensured the

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