Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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7 - Can the story of Shimon and Levis massacre of the inhabitants of a whole town in Bereshit 34 justify carpet bombing by Israel in Lebanon?

In our last column, we cited the views of Rambam and Ramban to explain why all the men of Shechem deserved the death penalty at the hand of Shimon and Levi (Bereshit 34:25). According to Ramban, each of the men of Shechem were worthy of death for his own sins and wickedness: worshipping idols, committing adultery etc. Shimon and Levi were therefore justified in their judgment, even if their timing - in Yaakov’s view - was off. According to Rambam, all of the townsfolk were willing collaborators in their leaders’ crime, inasmuch as they did not stand up against them to protest their actions.

So if the brothers’ indiscriminate killing of all the male citizens of Shechem, in response to their sister’s kidnap and rape, was proportionate, should Israel have hesitated in Lebanon?

Extrapolation: The Wars of Bnei Yisrael - The Wars of Medinat Yisrael?

According to Ramban, the townsfolk of Shechem’s c.v. boasts their success as “idol worshippers, adulterers and performers of every abomination.” The question is whether this same litany of offenses can be stated in our own days in connection with ‘civilized’ Moslems and Christians. Certainly, stringent clarification would need to be made in each individual case. Moreover, if we are not dealing with all-out war, but only with punishment, the rule is that so long as Israel’s hand is not strong over the nations and in the absence of a Sanhedrin we are estopped from executing physical punishments - and all the more so the death penalty.

The problem with applying the Rambam’s approach is that we first need to reach the conclusion that the ability of the Lebanese civilian population to protest the acts of their ‘leaders’ was no less than the ability of the townsfolk of Shechem, as “the Torah imposes no obligation in case of duress” (ones rachmana patrei). Rambam certainly held that the citizens of Shechem had the ability to rise up in protest against their leaders’ blatant disregard for others’ person or property. But who can establish whether this is accurate, e.g. in the case of innocent civilian bystanders in Lebanon who are routinely suppressed into submission by Hizbullah? And in capital cases, the executioner bears the burden of proof…

Since the Rambam’s position remains problematic, the practical ramifications of the final halacha in his argument with the Ramban remain undecided, rendering it exceedingly difficult to rely on his position.

Rav Shlomo Goren: Halachic Justice v. Going Beyond the Letter of the Law

The modern-day Poskim have similarly encountered difficulty with making a blanket statement, based on the Shimon and Levi story, for imposing collective punishment, on those who have not personally sinned.

Rav Shlomo Goren, for example, tried to reconcile the positions of Ramban and Rambam, similarly to how he harmonized between the various Jewish legal sources regarding the use of force, in his magnum opus Maishiv Milchamah. Under his approach, Rambam was speaking from a legal perspective, whereas Ramban was taking an ethical stand, an extra-legal perspective beyond the letter of the law. Moreover, Rav Goren claimed, war must not be conducted only according to the letter of the law. Rather, there is an obligation to conduct war according to the highest standards of morality. So while Shimon and Levi could not have been put on trial for what they did, they should not have acted in this manner. Indeed, Rav Goren sought to impart this ideology to the Israel Defense Forces.

Rav Shaul Yisraeli: “We have no control over the terrorists”

In his important work Amud Ha’Yemini, Rav Shaul Yisraeli stresses the community’s obligation to prevent the occurrence of offenses and to institutionalize justice. He sees a two-way dispute between Rambam and Ramban: (a) a Noachide who worships idolatry is subject to the death penalty (per Ramban); (b) the law in a situation where justice is not meted out to the guilty (per Rambam, he is subject to the death penalty, per Ramban not). Rav Yisraeli concludes that careful examination needs to be made in the case of a population which turns a blind eye and even encourages the perpetrators: if the popular support is given due to their fear of death if they fail to cooperate with the perpetrators - then the population is exempt; if their support is given for a less severe threat, then according to Rambam (though not Ramban), the population is subject to the death penalty.

It follows that, “in practice, there is not sufficient basis to permit the conduct of an operation against a people which fails to fulfill its obligation and to uproot from its midst the murderers, so long as they can claim that their hands are tied on account of fear or pressure etc.” Stronger still, it follows from Rav Yisraeli’s words that the ‘incident of Shechem’ cannot provide any halachic basis, either for a license to kill innocent civilians or even for a license to kill a population which encourages and supports the offenders.

The Maharal of Prague: Could the people of Shechem realistically have brought their leaders to justice?

The Maharal of Prague, one of the most important Jewish thinkers at the end of the medieval period, has a very different approach from the above two thinkers. In his Gur Aryeh commentary to Bereshit 34:13, he expresses wonderment: “But it is difficult to understand. If Shechem sinned, why should the whole city deserve death?” He also queries the Rambam’s position: “How could they possibly have brought to justice the ruler of the land, whom they feared, notwithstanding the fact that they have been commanded to set up a comprehensive judicial system - that only applies when they are capable of judging a perpetrator; but in case of duress the Torah exempts them - as how they could possibly judge them?”

The Maharal prefers, therefore, to go down a different route, one which we will analyse in our next column. In a nutshell, he reaches the revolutionary conclusion that in the case of a war between nations, killing is justified by collective, rather than individual responsibility:

“It seems to me that there is no difficulty, because two nations, such as Bnei Yisrael and the Canaanites have a different status… They were therefore permitted to fight against them, like the law of one nation which comes to fight against another nation, which the Torah permitted. And even though the Torah stated: “When you draw near to a city to wage war against it, you shall call out to it for peace” - that only applies when they have not caused any harm to Israel; but where they have caused harm to Israel, such as where they [the leaders of the city] overstepped their natural barriers to perform their dastardly deed [against Dinah], even though only one of them acted in this manner, since he is a part of the people, and since they made the first belligerent move, they are permitted to take revenge against them…”

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Ethical Dilemmas of the Jewish State at War

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moshe, 3/13/2008
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