Every first-year law student knows that hard cases make bad law. In Israel, a particularly hard case lies in the ongoing controversy around an inflammatory Hebrew-language volume of Jewish religious law (halakhah) that offers justifications for violent treatment of non-Jews in general and of Israel's foes in particular. The debate has highlighted longstanding divisions within Israeli society; now that the courts and the police have gotten into the act, it has also highlighted the difficulties of drawing meaningful lines between free speech and incitement.
The volume in question, Torat Hamelekh ("The King's Torah"), was published last fall. Its authors, Rabbis Yitzhak Shapira and Yosef Elitzur, teach at a yeshiva in a settlement in Samaria known for its hard-line ideology and its tense relations with both local Arabs and Israeli authorities. Like all treatises of Jewish law, their book buttresses its arguments with citations of talmudic texts and the interpretations and decisions of later rabbinic authorities.
The subject is the rules governing violent conflicts—i.e., wars—with non-Jews. Some of the legal conclusions drawn by the authors are simply outrageous; others treat the grimmest choices that have to be made in wartime as matters of affirmative religious obligation. Among their conclusions are these: "In any situation where a Gentile's presence endangers Jewish life, one may kill him—even if he is a righteous Gentile and not at all responsible for the situation in question." "There is reason to attack children if it is clear that they will grow up to assail us, and in that situation they may be directly targeted." And: "Every citizen of our kingdom who opposes us and who encourages [our enemies'] fighters or expresses satisfaction with their deeds is considered an assailant and may be killed. Similarly, one who weakens our kingdom, by speech and the like, is also considered an assailant."
In other words, one need not distinguish in wartime between hostile and friendly non-combatants; one may freely kill children suspected of one day becoming enemies; and one may kill Israeli Arabs who voice sympathy with Israel's enemies, and for that matter domestic Israeli critics as well. The book does not explicitly mention Arabs or Palestinians. Rather, it uses throughout the seemingly neutral but deeply laden term "Gentiles," with all its connotations of second-class citizens and second-class souls.
Needless to say, reactions to the published volume were not long in coming. Several leading rabbis of the settlement movement were themselves vehemently critical, and in December a coalition of liberal religious and secular groups filed a request with the Supreme Court for a restraining order against the book's further distribution. A highly respected halakhist who had provided a letter of approbation retracted his endorsement, explaining that he had relied on the authors' reputations for scholarship but on closer inspection realized that their conclusions "are wrong on the law and have no place in human reason."
By contrast, the volume's other endorsers, prominent rabbis all, one of whom is the son of the former Sephardi Chief Rabbi Ovadia Yosef, have stood firm. They have been called into the police for questioning, and recently the volume's two authors were briefly taken into custody—a move protested by Israel's Association for Civil Rights, which welcomed the investigation but saw no justification for detention. Similarly, several hundred rabbis, among them well-known figures generally considered moderates, gathered last week to protest the criminalization of halakhic discussions. For their part, Religious Zionist rabbis have stepped up their denunciations of the volume and their criticism of rabbinic colleagues who refrain from condemning it.
Among the diverse elements in play here, first and foremost is the radicalization of extreme sectors of the Religious Zionist community and the settler movement in Judea and Samaria. Living in self-contained settlements, on a daily knife's edge of confrontation with Arabs, Israeli soldiers, and Israeli officialdom alike, many have developed a Manichean worldview far removed from the Religious Zionism of the past, and have become increasingly alienated from Israeli society.
Second has been the perduring inability of Orthodoxy itself to synthesize the Jewish legal tradition with the new circumstances of Jewish statehood. Embedded in that tradition are the halakhic passages that Shapira and Elitzur take out of context and regularly misread; but those harsh statements about Gentiles were penned during centuries when Jews were a persecuted minority, never remotely dreaming of a day when power and capabilities might lie in Jewish hands. A revealing hint of the radical incongruity involved lies in the book's archaic conception of a Jewish state as a "kingdom."
Third, and coming from a very different direction, is the present-day Israeli legal system, in particular its laws against incitement. For most of its history, Israel, like the U.S., restricted only those forms of speech constituting "clear and present danger." The 1995 assassination of Yitzhak Rabin, in which one contributing factor was a number of incendiary rabbinic pronouncements of the sort being made today by Shapira and Elitzur, marked a turning point. Prosecutions for incitement, until then a limited possibility, were stepped up, and in 2002 "incitement to violence" became formally a new provision of the penal law. Although a number of other Western countries prohibit incitement, Israel's strictures are among the more broadly conceived.
In reality, of course, prosecutions are invariably selective. Indeed, the one good argument in the quiver of the volume's defenders is that extreme statements on the Left advocating violence against settlers have gone unprosecuted. Moreover, the highly activist posture of Israel's judiciary has stretched that institution's own legitimacy in the eyes of much of the public. While proponents of the restraining order have argued that the writings in question, couched in terms of religious obligation, do indeed constitute a clear and present danger, there is no denying that criminalizing a book, no matter how awful, cannot but further embitter its authors' readers and supporters.
Finally, and widening the lens considerably, there is the background issue of the larger conflict with the Palestinians and the consequent inability to resolve the status of the territories and those who live in them. It is a fact that settler rabbis have been among the sharpest critics of Torat Hamelekh, keenly understanding as they do the disastrous road down which the book and its ideas can lead their enterprise. But it is no less a fact that Israel and its legal cultures—religious and secular alike—have been led to disturbing and distorting turns by this struggle with its Arab neighbors of agonizing duration.
The issue of war and peace is not going away. In the meantime, hard cases will no doubt continue to make bad law, and the task for others will remain that of adhering to first principles, thinking harder, and countering flawed or malignant speech with stronger and better speech.
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