Culture, Israel, Politics, Religion

When halakhah and politics collide

This post is more of a conversation and discussion starter than a report or opinion.
I recently attended a lecture delivered by the Masorti Movement in Israel’s most respected and authoritative halakhic authority where he explained why it was forbidden according to Jewish law to redeem captured soldiers by releasing prisoners. I was a bit taken aback, considering the lecture was on practical halakhah. Sure, for Israelis this is sadly a practical matter, but I wondered if Israelis at large cared to mix their politics with Jewish law.
I asked the rabbi if he thought making a public halakhic decision such as this would effect morale in the army. His response was simply it is forbidden to endanger “the entire Jewish people by saving one Jewish person.” I found this answer unsatisfactory and inaccurate to the situation at hand. I told him I cannot argue with his halakhah, since he knows worlds more than I, but wondered if his position was politically savvy or ethically sound. I’m curious what peoples’ thoughts are regarding the specific case of Gilad Shalit, who finds himself entering his third year of captivity in Gaza, and in the general mixing of Jewish law and politics. Is such a Jewish legal position positive in a politically democratic society? Should Israeli politicians consider Jewish law in their legislating and decision making? If soldiers are not redeemed by releasing prisoners, should they be redeemed with money? force? other means? Anyone have thoughts?

22 thoughts on “When halakhah and politics collide

  1. You have to have some starting point in law, some legal precedent. In the case of Israel, the common law is built on combination British and Ottoman law with a healthy dose of halachah. Whether we like it or not (and I do like it), halachah is a part of Israeli law.
    But let’s not forget that halachah isn’t all religious law. Some of it is just Jewish law. That is, civil laws that have nothing to do with God.

  2. a) there’s Jewish law that doesn’t have to do with God? b) there’s Jewish law that’s not halakhah?

  3. Whether or not halakha *should* be taken into account in Israeli politics, it certainly *is* by a significant number of people in Israel. This is, for example, why a number of religious zionists moved to settlements in the West Bank and Gaza: to attempt to ensure that Israel never left those territories because, in their view, halakha prohibited the Jewish people from giving away parts of the ancestral land of Israel once it came into possession of them.
    This particular rabbi’s decision, though, is incredibly irresponsible exactly for that reason. If his argument is as you describe it, there is nothing about halakha itself that says that one cannot exchange prisoners in exchange for captured soldiers. Halakha may say that one should not endanger the Jewish people to save one, but so do many secular people’s moral intuitions. The rabbi still had to determine whether releasing prisoners would in fact endanger Israel, which (as far as I can tell) is a point on which people disagree. By saying “halakha prohibits exchanging prisoners for Shalit,” he obscured the fact that halakha says almost nothing about one of the biggest parts of this issue that are under any serious debate. Which means such arguments are likely to needlessly rile up the religious in Israel and give a lot of people a sense of moral certainty that’s completely unfounded.

  4. Also, response to Justin’s comment: I am pretty sure that the parts in Numbers about what to do if your ox falls into your neighbor’s pit have little to do with God, except insofar as all law at the time was seen as divine in origin. The Torah is full of similar laws that seem to be generally attempts at creating a predictable system of property, contract, and tort law for the purposes of maintaining an orderly society.
    Of course this is exactly why Israel’s civil law system *shouldn’t* be based on halakha. Because the Knesset can’t vote to change the Torah, and a modern country can’t function if it can’t democratically alter its civil laws and instead is tied to a civil legal code designed for a bunch of people living thousands of years ago. Even if you decide to only base the law on general halakhic “principles,” I would be way too afraid that somehow this would end in the kind of craziness we’re now seeing in Israel’s religious family courts.

  5. i find this “purely” halachic decisionvery problematic. Just for example:
    Who says that releasing Palestinian prisoners endagers all Israelis more than keeping them? There is a world view hidden inside the good rabbi’s halachic stance and that is what needs to be spelled out.
    He doesn’t beleive in negotiations. He thinks Arabs will always be out to get us. He sees Gilad Shalit as a prisoner of war (and for that matter the same goes with our 10,000 Palestinian prisoners), but he doesn’t believe prisoners of war are captured for the purpose of future negotiations, but as some barbaric custom of punishment.
    On a sociological note, i find it deeply disturbing that the religious zionist community is always in the front protesting for the releasing Jews (Shalit, Polard), until someone explains to them that Palestinians will have to be released and suddenly they back down.
    On a religious note, i think the term “practical halacha” is funny and just shows what the rabbi might be thinking about most of halacha that he practices which doesnt fall into that category.

  6. Justin writes: I recently attended a lecture delivered by the Masorti Movement in Israel’s most respected and authoritative halakhic authority
    I am among those who respect the rabbi to whom Justin refers. But, let it be clear, “most respected” by whom and in what areas?
    This rabbi does NOT speak for either the Masorti Movement or for the Rabbinical Assembly.
    The rabbi’s opinion is his own. I certainly accept academic freedom of speech. I even think that this halachic opinion, while not mine at all, has a legitimate basis.
    The views held by some at the Schechter Rabbinical School, where this rabbi is a leading figure, are often quite a bit more conservative than those held by others in leadership positions within the Masorti Movement.
    Recently, the Chief Rabbinate issued a Halachic opinion barring the removal of bones in order to build a protected, missile proof, area to the hospital in Ashkelon.
    Most in Israel take this with a grain of salt.
    The Rabbinic input on issues of concern needs to be heard.
    Rabbis give all sorts of opinions. An opinion is as valuable as there are people willing to abide by it.

  7. I don’t see why morale has anything to do with it. Soldiers need to know that their life is not the highest imperative the country has (which is why they’re sent to die). If the price is too high, and I think it is, Israel is within its rights to say that they don’t negotiate with anyone over kidnapped soldiers, and they can die for all they are. It might be tragic, but then nobody will kidnap soldiers anymore.
    THat’s exactly the meaning of “the prisoners are not redeemed for more than they are worth”. Freeing Schalit equals the release of hundreds of Palestinian prisoners. I personally would like them all released anyway, but if you don’t, you should vehemently oppose any effort to negotiate over him.

  8. Also, response to Justin’s comment: I am pretty sure that the parts in Numbers about what to do if your ox falls into your neighbor’s pit have little to do with God, except insofar as all law at the time was seen as divine in origin.

  9. “This rabbi does NOT speak for either the Masorti Movement or for the Rabbinical Assembly.”
    Is this true? Isn’t this Rabbi THE leading posek for the Masorti movement both in terms number of tshuvot written and their authority within the Masorti movement? I could be wrong.
    Correct with regards to the RA.

  10. “Soldiers need to know that their life is not the highest imperative the country has (which is why they’re sent to die).”
    This became clear last summer, when Israel traded Samir Kuntar for two dead bodies. So, obviously, there isn’t much incentive to keep captured Israeli soldiers alive.

  11. ME wrote: “Rabbis give all sorts of opinions. An opinion is as valuable as there are people willing to abide by it.”
    I think this is the crux of the issue here. Is a public psak halakhah (legal ruling) regarding a largely political issue valid if most people disagree with it?
    Yael wrote: “Who says that releasing Palestinian prisoners endagers all Israelis more than keeping them?”
    The good rabbi didn’t say “all Israelis,” he went further to say ALL JEWS! So all the moreso!

  12. Amit-
    What morale has to do with it is simply this… If soldiers no longer enlist, there will be an issue of mutiny in the army. If soldiers refuse to serve in dangerous situations, there will be an issue of mutiny in the army. I wonder if you have been or are a soldier? Do you know any? It feels like your comments are a bit insensitive to the plight of those who serve the greater good of their society. OF COURSE their lives are the number one concern of a nation (or at least should be). Without willing soldiers how could Israel (or any other nation) defend themselves? And I also think that the conclusion that if Israel were to opt out of negotiating over captured soldiers, then soldiers would stop being kidnapped is really naive. POW’s are taken in war, whether they are negotiated for or not. It’s simply a reality and it has always been a part of war. period.

  13. I’m surprised this rabbi didn’t draw at all on a considerable canon of law regarding “redeeming captives” which one would think is highly relevant here! I have Telushkin’s “A Code of Jewish Ethics” here from which I’ll share just the barebones on the chapter devoted to captives:
    A few notes on it:
    – Redeeming captives is a mitzvah rabbah, a great commandment, in Bava Bathra 8b.
    – Maimonades says “the ransoming of captives has precedence over the feeding and clothing of the poor,” Laws of Gifts to the Poor 8:10.
    – The Shulkhan Arukh says “Every moment one puts off redeeming captives…is like shedding blood” Yoreh Deah 252:3.
    Maimonades lists a number of commandments that are broken when one does not move quickly on redeeming captives:
    – “You shall not harden your heart…” Deut. 15:7.
    – “Do not stand by while your brother’s blood is shed” Lev 19:16.
    – “Love your neighbor as yourself” Lev 19:18.
    – “Save those who are taken for death” Proverbs 24:11.
    However, there are rules about overpaying for hostages:
    – “One does not ransom captives for more than their value because of tikkun olam” Gittin 4:6. (Rather vague if you ask me.)
    – “So that the kidnappers should not seize more captives” Gitten 45a.
    – “Because of the financial burden on the community” ibid.
    And most contemporary rabbis, blessed with the typical “we don’t negotiate with terrorists” myth (we’ve always negotiated with terrorists) have ruled against meeting terrorist demands.
    A big exception however is Haim David Halevy, cheif Sephardic rabbi of Tel Aviv, has ruled that the prior prohibitions against exorbidant ransoms are not relevant to the contemporary problems of terrorism. He also says rescuing all soldiers is good for morale and effectiveness, as they will fight better without fear of being captured.

  14. KFJ-
    Just to clarify, it was specifically because of the laws of redeeming captives that this was discussed at all. And he said, and I believe that, that all relevant contemporary poskim make the same psak as he does. Let’s not forget, while we may disagree with his ruling, he certainly knows halakhah exceptionally well.

  15. “OF COURSE their lives are the number one concern of a nation (or at least should be).”
    This is not the case. Insofar as people entering the army know they may be required to give up their lives, they are by definition less important than the goals for which they are (ostensibly) fighting. If their lives were the “number one concern,” they wouldn’t be asked to sacrifice them. This fact seems like a good way to broach the question of whether wars are ever a good idea, insofar as they make lives less important than other goals – but that’s a different question.
    On the broader issue, of halakhah and politics, I find myself pretty unimpressed with the rabbi in question. I have no idea what “halakhah would say” about the question of redeeming soldiers with prisoners – but then again, I’m not convinced that that’s a question that can be answered by the sources, or, if it were, that I would agree if I found the reasoning behind it problematic. In general, I think you would have to work pretty hard to convince me that your rabbi wasn’t just asserting his own, personal position on the question and making it “halakhic” – which is perhaps how some rulings have always worked, but isn’t often acknowledged.
    The real question, as people have already said, is not whether the ruling is “accurate,” whatever that means, but whether people follow it.

  16. Justin – I still am a soldier, for a month of the year at least. So I get a say. And I say that the only morale issue at stake here is that if soldiers understand their lives are the highest imperative, then they won’t enlist.
    Soldiers die for causes. That’s there job.

  17. Thanks KFJ for posting some of the relevant Halachic sources.
    Perhaps one shouldn’t draw this comparison, but in my opinion, if the Israeli public sees Gilad Shalit as an “innocent” simply swept up in the country’s policies – a individual soldier as a casulty of war – then didn’t the Rambam also say something like ‘it’s better for a thousand guilty to go free than for one innocent to be killed”? I may wrong, but I think he said something like that. The context was more in courts, but perhaps one can give a broader interpretation of this to relate to the dilema over a prisoner exchange. I may be wrong though.
    Interestingly, no one quoted above gives the reason of the possible future killing of Jews as a reason not to pay ransom – the closest is quoting the fear that more people will be taken hostage. Disregarding just for one second Yael’s question (of whether holding or releasing Palestinian prisoners best protects Jews), and going of the assumption that Jews are safer with a guy like the Omar Jabar ( behind bars rather than walking the streets planning another bombing, is valuing the life of one current Jewish captive more important than *possibly* preventing the death of multiple Jews, according to Halacha? Should the acknowledgment that there is already currently a constant threat of rockets, bombings, stabbing, and bulldozer attacks, with the 1,000 or so prisoners now in prison, also play a factor in making the halachic decision?
    (I mean in the sense that the threat already exists – it’s not that there is currently peace and if the prisoners are suddenly released then there would be a renewed threat).
    There’s 2 aspects to that question – the freeing of one soldier while possibly endangering the tzibur; but also whether comtemplating future scenarios plays any role in Halacha at all.

  18. Justin-
    You are viewing this soldiers “lives are the number one concern of a nation” from a very emotional place, which isn’t necessarily a bad thing, but can, in fact put them in much more danger.
    As Amit mentioned, by lowering the “value” on a soldier’s life, essentially, stating that you won’t “do anything” do get him/her back or actually acting that way, you lessen the likelihood of his/her kidnap. No ransom will be paid, no extraordinary measures will take place, drawing both sides into a larger conflagration, so what’s the point.
    This position, which seems cold-hearted, actually saves life.
    Then, of course, there’s the whole “soldiers exist to put their lives on the line for the goals of the state” argument, which oesn’t preclude saving them when captured, but should be considered when decided to expend resources(other soldiers, captured assets) to save them.
    It’s a beautiful notion, Israel as one family caring for its captured soldier-everyone’s son and brother (I mean that genuinely and apologize if it comes of as glib), but it can be a detriment to the Nation of Israel, whatever it’s military objectives may be (separate from my view of right or wrong on those issues).
    Unfortunately, for better or worse, all this crap isn’t just about morale of the nation or the military. In any country.

  19. If the Jewish community had followed such a practical pesaq instead of making so much hay out of Shalit and other captured soldiers (remember, it’s their job to defend the country, not to be tokens), we wouldn’t be in such a dilemma of releasing even one terrorist in exchange for the soldiers’ release. Yes, the Lebanon soldiers had some practical implications (the widow was no longer aguna), but the general feeling is that we got cheated on the deal.
    Does this amount to “let him rot for all I care”? I suppose it is. The commandment of pidyon hanefesh isn’t quite fulfilled when all you’re doing is making demands but refuse to follow through with concessions.

  20. The most interesting and painful visual image of the Gilad Shalit controversy is the protest of Shalit’s parents outside the PM’s office and the counter-protest across the street of families of other victims of terror. What a place to be between.
    I love what Bernard Avishai says about deterance and morale yesterday:

    What strikes me as particularly sad about this bargaining is that, like so much else our current crop of defense intellectuals touch, the question of an exchange does not clarify how Israel’s long-term interests are served, but rather how long-term interests boil down to short-term deterrent power. If Hamas can be forced to compromise, so the argument goes, that is a sign that deterrence has been reestablished. But if Israel capitulates, giving Hamas what it wants, is that not a sign that deterrence has eroded?

    Emphasis mine. I intrepret this to mean that, once again, there are multiple ways of seeing negotiations, but no matter what is done or recommended, the right wing will always take the side that prevents progress towards negotiations. All this rhetoric about bombing Hamas until they accept preconditions, but once we get to negotiations, we shouldn’t capitualte. Hogwash.

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