Institute for Public Affairs of Montreal
The Hijacking of Legacy

Irrational Theocracy, Irresponsible Theology
Beryl P. Wajsman 5 August 2005  

“…apart from matters of family law, Jewish canon law was never incorporated into any area of Israel’s legal system. The legal principles of the State of Israel are not grounded on the principles of Jewish law nor is there any type of link between the two systems that requires recourse to Jewish law in order to fill lacunae in the existing law (of the State) for any purpose.”


~ Rabbi Dr. Menachem Elon, former Justice of the Supreme Court of Israel



On May 14, 1948, David Ben-Gurion proclaimed the birth of a new nation to be called Medinat Israel, the State of Israel. In reading out the Declaration of Independence on that awesome day he pledged that this state will be loyal to the principles of “…freedom, justice, equity and peace as illuminated by the universal visions of the prophets of Israel…” Universal visions, not parochial particularities. Great truths, not distorted prejudices. Prophetic illuminations, revered by all faiths, such as the words of Isaiah engraved on the walls of the United Nations,” And swords will be turned into plowshares and nation shall not make war against nation anymore.”


It was for this State, a sister democracy grounded in pluralism, liberty and justice; a state surrounded by a sea of tyranny and tyrants in the Middle Rim of this small planet; a State that would be a light unto the nations in a dark corner of the world; that so many freedom-loving people pledged undying friendship and engaged in unwavering struggle. And through trial and tribulation this State did not disappoint as its social democracy proved more radiant than any desert flower.


But this legacy of universal humanism first pronounced in the streets of Jerusalem millennia ago is a delicate bloom. Like all fragile creations it must be guarded against the elements. The elements of human hate can be even more destructive than those of nature’s fate. And over the past ten days we have witnessed the attempted hijacking of that legacy, at home and abroad, by an axis of irrational theocracy and irresponsible theology.


No I am not about to engage in an exercise in moral equivocation. There is no comparison between recent events in Israel and in the Jewish world abroad with the extremism in Arab lands and in Muslim communities throughout the world. But it is precisely because of the Jewish propensity for tolerance of diversity that we have an obligation to condemn and expose the vicious and deceitful charlatanism of the current manifestations of reactionary orthodoxy.




The proclamation in Israel some ten days ago of the medieval curse of pulsa denura – or “lashes of fire” in the original Aramaic – by twenty deranged rabbis and their followers against Prime Minister Sharon was not the opening salvo in this internecine kulturkampf but is the most egregious example yet. Thankfully, Israeli society is overwhelmingly secular, but lest anyone think that fringe elements like these have no effect they should think again.


It is not only in the Arab Muslim world where debased purveyors of hate masquerading as “men of God” move depraved and demented souls to terror. Yesterday’s lunacy by Eden Tzubari was an eerie reflection of events ten years ago. One month before Yigal Amir assassinated Prime Minister Yitzchak Rabin a pulsa denura had been issued against Rabin.


The reaction of one of Tzubari’s confederates in the outlawed Kahane Chai party, Yekutiel Ben-Yaakov, a founder of the extremist “Jewish Legion” and a neighbour of his in the West Bank settlement of Tipuach, was a dark portent of the degraded mindset that can be detonated with the slightest provocation. He said that he hoped that Tzubari’s death was not in vain and that it might stop the “…sadistic Gaza disengagement policy of Prime Minister Sharon…” He went on to add that, "We will be stepping up our efforts to do everything in our power to stop the disengagement, which was his will and testament. And we will demand justice for Eden."


Some ten days after the end of the Six-Day War in 1967 Moshe Dayan, Golda Meir and Yigal Allon issued a statement calling on Israelis not to fall in love with Gaza. They said, “Just because Samson was a prisoner in Gaza does not mean that Israel should become imprisoned by Gaza.” It is one thing to hold onto territory gained through defence against aggression until peace is achieved as England, and France and, yes, Israel have done. It is quite another to cede any ground in the public arena to those fanatics who would provoke the undoing of any progress on the road to peace for the sake of some demented doctrines.



But these problems are not relegated to Israel alone. The virus spread by these falsely pious poseurs has now arrived in our own backyard.


This past week in Montreal 21 ultra-orthodox Rabbis took out a page and a half ad in a local paper denouncing the Israeli government’s disengagement policies and announcing a forthcoming public demonstration. The ad’s headline, “Saving Lives Comes Before Politics”, belied it’s decidedly political, and duplicitous, text. This ad followed the mass emailing of a vile and vicious anti-Sharon video using images reminiscent of the worst Palestinian propaganda.


There is no question that people of faith have as much right to voice their views on public matters in the same manner as anyone else. But what is disturbing, and  astoundingly arrogant, in the approach of the religious is their presumption that canon law should have precedence and preference in the decision-making of a liberal democratic society. That is beyond the pale of acceptable public discourse on matters of public policy that affect millions of people of diverse faiths and backgrounds. It is nothing less than an attempt to suborn the foundational constructs of free societies.


What made this Montreal assault as injurious as it was insulting was the unquestionably pre-meditated distortions of tenets of religious law and historical fact.


The ad started with the declaration that in good times and bad Jews look to God-given scriptures for truth and direction. That assumption may be true in theocratic tyrannies; it may be true in the communities from which these Rabbis stem; but it is not true for the vast majority of us. And it certainly does not hold true for all those of Jewish birth who have been leaders in the struggle to realize all mankind’s transcendent yearning for redemptive change. All those who from the revolutions of 1848, the birth of socialism, the creation of the trade union movement ,the fight for civil rights and the battle for the emergence of the State of Israel have sought to celebrate our common human universality and not get caught up in the low limitations of religious particularity.




But these apologists for narrow circumstance choose to deny the nobility of these purposes for they are too fearful of engaging in open debate on free ground. They only feel comfortable when sniping with their arrows of superstition laced with the threats of nullification and interposition. So let us answer them in their own terms.


If these Rabbis truly believe that “…saving lives comes before politics…” how do they justify the abrogation of the most sacred rule in Judaism that of “pikuach nefesh”, saving of life. How can they justify putting at risk the lives of the best of Israeli youth serving in the army and forced to defend outposts of settlers on territory of questionable legal standing when the government of Israel has ordered them out? Are the lives of these soldiers less valuable to these Rabbis than those of the students in the religious academies these Rabbis run and fund-raise for and may be afraid of losing as part of their livelihood? 


If these Rabbis are so faithful to religious rule and regulation then why have they so brazenly chosen to ignore another primordial principle of Jewish law that of “dina d’malchuta dina”, the law of the land is the law. They are punctilious in respecting it here, where so many are dependent on government largesse ranging from welfare to child allowance cheques. Is the civil law of Israel, and the authority of its democratically elected government, to be treated with less respect because they are not financially dependant on it?


If these Rabbis are so steeped in holy writ why do they not honour the injunction of “kovod ha-briot”, respect for the person, that is to be accorded to everyone who has sacrificed for the people of Israel. One need not agree with everything Ariel Sharon has done or said, but no one can deny his lifetime of selfless service. Perhaps these Rabbis should have another look at Tractate Sanhedrin in the Babylonian Talmud where they will find the injunction to rise when one of three types of people enter a room. “Tzaddikim”(saints), “Talmidei Chachamim” (scholars) and “Anshei Ma’asseh” (people of deeds) regardless of the latters’ level of observance. In the discussion of this third group the question arose as to why observance was unimportant. The sages answered that without this third type of person the first two could not exist in this world. These Rabbis should begin to reflect on their existence.


Finally, if these Rabbis are so pious why have they engaged in the self-abnegation that comes with the deliberate violation of the biblical injunction against “putting a stumbling block before the blind”? The commentary on this law states that part of its meaning relates to never misleading anyone through false statements and distortions of fact. This ad was full of them.




The Rabbis contort a section in the “Shulkhan Aruch”, the Code of Jewish Law, that permits violating the Sabbath and going out to fight if one lives in a border town that is besieged as justification for opposing the Gaza disengagement plan. The settlements in Gaza are not being besieged nor are any towns in Israel. The settlements were started as a matter of Israeli government policy and are now being closed as a matter of Israeli government policy. Dina d’malchuta dina.


The Rabbis claimed that Israel Defence Forces leadership are of the majority opinion that giving up the settlements will only lead to further bloodshed. The truth is that there is not one member of the General Staff who has ever said this. On the contrary, it is the near unanimous opinion of the military and intelligence communities in Israel that disengagement will actually lead to a more secure Israel because it will shorten supply lines; eliminate the need for companies of troops to guard hilltop settlements of several dozen; and allow for the standing army to be reduced from its currently draining mobilization levels that are nearly three times normal giving the Israeli economy some much-needed relief from an over-inflated military budget.


The ad claimed that Lt. Gen. Moshe Ya’alon, the former Chief of Staff of the IDF, was dismissed for his opposition to disengagement. This too is a lie. Ya’alon had his differences with Sharon but, as our Jerusalem correspondent Noga Tarnopolsky has reported, they had to do with General Staff rivalries – not policy differences. Ya’alon was never fired. He served his full three year term but did not receive the usual one-year courtesy extension that has been afforded to most Chiefs of Staff.


The ad goes on the claim that Avi Dichter, the former Head of Shin Bet, Israel’s internal security service, was “summarily dismissed” for his stance on disengagement. This also never happened and Dichter remains a respected advisor and commentator on Israeli security issues.





Former Israeli Supreme Court Justice Rabbi Dr. Menachem Elon is arguably the pre-eminent authority on the place of Jewish canon law in the affairs of the modern State of Israel. His 3,000 page magnum opus “Ha-Mishpat Ha-Ivri”, completed in 1994, is the seminal authority on this subject.  In it he states that, “…apart from matters of family law, Jewish law was never incorporated into any area of Israel’s legal system. The legal principles of the State of Israel are not grounded on the principles of Jewish law nor is there any type of link between the two systems that requires recourse to Jewish law in order to fill lacunae in the existing law (of the State) for any purpose.”


He goes on to declare that the words of David Ben-Gurion, with which we started this paper, that Israel is founded on the principles of freedom, justice, equity and peace are the guiding policies of the public law of the State since the passage of the Foundations of Law Act in 1980. He quotes the Naiman Decision on this Act as affirming that “…the principles of the Declaration of Independence, which had been only guidelines without the full force of positive law, until the passage of  the Law Act, have been transformed by this Act into fully operative principles of positive law and serve as the foundation of the entire legal system of the State.”


The Montreal Rabbis and their fellow travellers who placed the ad and circulated the video need to understand that the world has changed. Over a century ago there was a great dispute concerning the permissibility of extraditing a Jew to non-Jewish authorities in what came to be known as the Nakash Process. Two of the greatest legal decisors of the period, Rabbi Yehiel Michal Epstein author of the Arukh ha-Shulkhan and Rabbi Meir Dan Plotzki author of the Keli Hemdah, stated that such extradition was permitted because circumstances had changed with the advent of emancipation and the adoption of more liberal policies by European countries.


If these leading rabbinic legal authorities took such lenient views regarding the changes in European civil law in the 19th century, and demonstrated such confidence in European regimes, how much more so must we demand of today’s rabbis that they respect the momentous and decisive changes in Jewish history in the past sixty years that have resulted in the re-establishment of Israel’s national independence and sovereignty. That independence and sovereignty, forged from the crucible of fire and moulded on the anvil of liberty and justice, makes a call on the allegiance of all people of goodwill and demands a fidelity to truth undiluted by the expediencies of petty narcissism.