The Middle Eastern Dilemma
Prime Minister Netanyahu’s intention to extend Israeli sovereignty to the Jordan Valley and the settlements of Judea and Samaria has caused intense controversy in Israeli society.
The right sees in this decision the de facto recognition of a Palestinian state on 90% of Judea and Samaria (without the Jordan Valley), the left – the political Scylla and Charybdis: the threat of the state of apartheid – on the one hand – and the binational state – on the other.
At the same time, the general argument of all opponents of annexation boils down to security and national rights. All polemists have in fact overlooked the main component of the permanent Middle East crisis – the religious one.
“No, not this one!” – must wince with these words a prudent reader. “Only religious component was lacking in this conflict!”
But it all depends on how to deal with this issue. In fact, the omission of religious and legal subjects from the sphere of public discourse torpedoes and complicates it a lot.
First, no issue can be solved without looking at its root, and secondly, just in the religious dimension, a solution to the Middle East political puzzle may be in the understanding of its legal status.
Political Zionism, as provided by the national idea, i.e. the defense of the national-historical rights of the Jewish people, by the end of the twentieth century began to lose its moral ground. In the so-called postmodern, post-Zionist society, everything that does not support the rights of an individual has become a threat to these rights.
The rights of Jews as a people and as a religious community are increasingly confronted (especially after the usurpation of executive power by the Supreme Court) with “democratic values” and “human rights”. The “Biblical (Torah) Laws” are invariably mentioned as being opposed to international law and as something that is clearly incompatible with it.
This assessment cannot be called groundless, if only because some representatives of the Jewish tradition also insist on such juxtaposition.
But, maybe, instead of habitually presenting Judaism and democracy as mortal enemies, it is more correct to put Jewish religious claims on Eretz Israel in legal terms?
The right of Jews to settle Judea and Samaria should be presented not only as a matter of “security”, not only as a matter of national-historical justice, but primarily as a matter of religious freedom.
Article 18 of the Universal Declaration of Human Rights states:
“Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change one’s religion or beliefs and the freedom to practice one’s religion or convictions, both alone and the company of others, in public or in private manner in the teaching, worship and performance of religious and ritual rites.”
Meanwhile, the main feature of Judaism is not just the performance of “religious and ritual rites” but the performance of them on the territory of the Land of Israel!
“Here are the statutes and laws that you must carefully enforce in the land that the Lord has given, God to your fathers” (Dvarim 12:1).
Moreover, the very residence of a Jew in Eretz Israel is such a rite, such a commandment.
“May there be a man in the Land of Israel, even in a city where most of the pagans, not outside it, even in the city, where all the inhabitants are the sons of Israel. This teaches that living in the Land of Israel is equivalent to all the commandments of the Torah” (Tosefta, Avoda Zara, 5.3).
Rabbi Simlay, who ascended to the Land of Israel from Babylon, put the following words in the mouth of the Almighty:
“When you are in the country of Canaan, I am God to you. When you are not in the country of Canaan, I am not as God to you… When they are on it (on this Land), they seem to have taken root before Me truly. When they are not on it, they seem to have been not before Me” (Bereshit Raba, 28.23).
And Rabbi Shimon ben Elazar said:
“Sons of Israel outside the Land are idol worshippers” (Tosefta, Avoda Zara, 4.6).
Performing Jewish rituals outside the Land of Israel is conditional. According to some rabbis, the commandments that are fulfilled in a foreign land are primarily fulfilled only to be forgotten by the time of return from exile.
Thus, the necessary condition for the “fulfillment of the rites” of the Jewish religion is their execution within the Land of Israel. Living in any part of the territory that is exactly specified in the Torah (Bemidbar 34.1-12) and occupying only 0.02% of the dry land of Earth is as natural and inalienable right of the Jew, as for a Christian is the reading the Bible, and for a Muslim to do namaz.
In other words, according to the spirit and letter of Article 18 of the Declaration of Human Rights, Jews have the right to return, have the right to settle not only in Judea and Samaria, not only in the territories liberated by the Israeli army during the Six-Day War, but also in the territories of those countries where no Israeli soldier has ever set foot, but which are defined by the Torah as Land of Israel.
Thus, according to international law, Jews have every right to settle not only in Judea and Samaria, but also to obtain citizenship of those countries that are located in the territory of Land of Israel, and, of course, democratically influence their further development.
But when it comes to the demands of religion, to what extent can we expect that these commandments will be reckoned with democracy at all stages, and ensure that if they grab a finger, the “faithful” will not take the whole hand?
Indeed, since the Torah commandment is not only to live in the Land of Israel, but also to “master it”, the matter seems to lead to the deprivation of “minorities” civil rights.
One of the commandments of the Torah reads:
“You can’t put a foreigner over yourself who is not your brother” (Dvarim 17:15).
Rambam (Maimonid) explains:
“Not only the king, but the ban applies to any authority in Israel. Not a boss in the army… not even a public official to oversee the distribution of water in the fields… Any power you appoint must only come from your people” (Hilhot Mlahim 1:4).
So, it all begins with an innocent “legal” residence requirement and ends with an illegal “State of Halacha” that discriminates against the non-Jewish population, and that is plunging the Jews themselves into the Middle Ages.
What can alleviate these fears?
We should begin with the fact that the “State of the Halacha” technically quite naturally gets along with secular legal norms and, in fact, assumes them.
According to the halachic decision of Hazon Ish – Rabbi Abraham-Jesayu Karelitz (1878-1953), a decision recognized by all branches of orthodox Judaism, modern secular Jews are not categorized as outlawed “epicoros” but as legitimate “stolen babies” for whom the law is not expected to be enforced and whose beliefs are to be respected. In this way, the Halacha recognizes the democratic “rules of the game” and relies in public life on agreements reached between different national groups.
The empirical State of Israel, based on such an agreement, based on the “status quo” established by Ben-Gurion and Karelitz, is as democratic as it is Halachic. The essence of the “status quo” percept boils down to a simple rule: in the public sphere (as long as the subject of the Sinai Revelation is the people, not the individual) the requirements of the Torah are strictly observed, in the private sphere – every citizen behaves at his or her own discretion. Thus, for example, if private cars are allowed to drive on Shabbat without any restrictions, public transportation is practically paralyzed.
The question of how the Jewish state within the “status quo” is preferred to be classified – as secular or as religious – is not a political but rather a didactic one. Today, it is fashionable for a state to be considered a democracy, and thus Israel calls itself “Jewish and democratic”. If the political climate changes, then (remaining the same) Israel will rightly be able to call itself “Jewish and theocratic”.
One thing is certain, the generally democratic character of the Jewish state will not change even if the believers will become the majority and the norms of public life will move in their desired direction: not only secular law, but also the Halacha itself does not provide sanctions against those violators of the Torah laws who do not believe in them.
Relations with non-Jews, with “minorities”, are essentially subject to the same principle, the principle of political agreements.
The real problem is exactly the opposite. The problem is that a democratic society is in no hurry to recognize the rights of the Jewish religion, does not want to know its requirements and to reckon with its specifics.
To understand this specificity, consider the main holiday of Judaism, Yom-Kippur. This day is notable not only for the fact that it is associated with redemption and the definition of human destinies in the coming year, but also with the fact that on this day the High Priest was entering the Holy of Holies. One particular place within the Temple was visited by one single person on one particular day of the year, the 10th of Tishrei.
Under the fear of death, the same High Priest could not have entered there at any another time:
“And Lord said to Moshe, tell Aaron, your brother, that he would not enter the sanctuary at all times behind the veil before the lid of the Ark, that he would not die, for in the cloud I will appear above the lid” (Vaikra 16:2).
According to the treatise of Yuma (54.a), during the three holidays – Passover, Shavuot and Sukkot, when pilgrims from all over Israel gathered in Jerusalem, the veil of the Holy of Holies was opened for public viewing, but even in these days the high priest was not allowed to go inside.
Of course, no one else could cross the threshold of the Holy of Holies, as it is said:
“I give you the gift of the priesthood service, and the outsider who comes closer will be put to death” (Bemidbar 18:6-7).
Thus, the son of Israel, who would enter the part of the Temple reserved for priesthood (which began in front of the copper altar), was threatened with the death penalty. As for non-Jews, under the fear of death they were even forbidden to enter the courtyard while Israelis were allowed to do so.
According to Josephus Flavius, the Roman warlord Titus, who destroyed the Temple of Jerusalem, rebuked the rebels for the resistance that went on within the Temple, using the following words:
“Aren’t you erecting the pillars on which the prohibition is carved in Hellenic and our languages, that no one should cross it? Have we given you the right to punish the death of the violator of this prohibition, even if he were a Roman? And what now you, the wicked, are trampling on the bodies of the dead in the same places, staining the Temple with the blood of foreigners and their own!” (Kn 6 Gl 2. 4).
Meanwhile, it is not only the Temple, not only Jerusalem, the Holy was the whole Eretz Israel. Indeed, everything firstborn in the Land was dedicated to the Temple, as it is said:
“And when you come to the land that the Lord, your God, gives you, and master it, and settle in it, then take from all the first fruits of the land that you will receive from your land, which the Lord, your God, gives you, and put in the basket, and go to the place that the Lord, your God, will choose, to be there for His name.” (Dvarim 26:1-2)
Thus, the Land of Israel, together with the Temple, is making a single sacred complex: in order for His name to be in the Temple, the Temple must receive firstborn fruit from all over the country.
The laws of the Land followed the laws of Mount Moriah: just as not everything and not everyone is allowed in the Temple, so not everything and not everyone is allowed in Eretz Israel. At 99.98% of the territory of the planet Earth, the rights of Jews and non-Jews (in accordance with the principle of “dina malhuta dina” – “laws of the land are laws”) are completely identical everywhere except on 0.02% between the Jordan River and the Mediterranean Sea.
On the same basis that the High Priest cannot cross the threshold of the Holy of Holies, even in Sukkot or Passover, and a simple Israeli cannot approach the altar, on the same basis the non-Jew does not have to own the land that bears fruits intended for the Temple and to establish his own customs while having any administrative position. There are areas (education, health, etc.) in which the Jews and sons of Noah have the same rights in Eretz Israel, and there are areas in which they differ, namely, the sacred matters.
Thus, according to the “mandate of the Torah,” non-Jews living in the Holy Land are restricted in a number of rights. However, this restriction contains no more “racism” and no more “apartheid” than a ban on visits to the Holy of Holies.
We do not know what will happen when “the land is filled with the Lord’s presence, as sea full of waters” (Isaiah 11:9), but as long as the metaphysical knowledge of people remains unreliable, religion has no right to act contrary to democratic laws, nor has it the right to impose itself on those who do not recognize it. However, when the basic requirements of this religion remain unsatisfied, it is no longer a religion that is bad but rather the democracy that fails to protect it.
Juxtaposition of the “Torah mandate” to international law, as well as the “Halakha State” to Western democracy, is false and harmful, as it is said:
“And here, very well” is the Kingdom of Heaven (Kingdom of Israel). “And here, very well” is the Kingdom of Rome. For the Kingdom of Rome is very good, because it defends the rights of creations” (Bereshit Raba (9:13).
It is inconceivable that religious institutions dictate the norms of behavior to adults and establish who of them is allowed to participate in civilian life and who is not. However, the religious community has the right to freely worship and (under a social contract) to establish zones with special legal status.
Even in the most liberal country, the infiltration of an outsider into the altar part of the church will be regarded as hooliganism, not as a legitimate exercise of the right to freedom of movement.
Greece does not cease to be a democracy due to the fact that it puts up with the monastic regime of the Mount Athos (60 km long and 20 miles wide), where no woman can set foot, and whose chic beaches are closed even to men who unlike women are allowed visit the island.
The Vatican, located in the heart of Europe, is not only politically sovereign, but also ennobled by international community and international law.
In modern atheistic China (at the request of Hindus and Buddhists), it is forbidden to climb Mount Kailas (6638 m), so much to the regret of the International Mountaineering Federation, it remains unconquered to this day.
Martin Luther King writes in his book “This I Believe”:
“Anyone who criticizes Zionism, criticizes Jews. We all rejoice in the realization of the Divine Promise, seeing that the people of God are finally returning to their homeland, which was stolen from them. To be an anti-Zionist is to deny Jews a fundamental right, a right that we consider unshakable for every African tribe.”
The idea of this eminent human rights defender would have been clearer if he had mentioned not only African but also tribes of American Indians.
Indeed, tribal reservations in the United States have the status of independent states. On the reservations, which number about 300, and the largest of which – Navajo – by area equal to Latvia, there are courts and laws rooted more in local archaic customs than in the natural light of reason which shone in Europe. Not always the laws adopted by any tribe resonate with the federal authorities, and vice versa. Therefore, most laws governing the life of reservations are based on political agreements.
Thus, hunting for eagles is prohibited throughout the United States, but Indians who need eagle feathers for their religious ceremonies hunt them completely freely (with the sale of feathers to pale-faced fellow citizens punishable by law of the land).
But most notably, as a rule, the reservations have “racial laws” – pale-faced people are denied the right to hold administrative positions in Indian territories.
Let’s do a thought experiment. Let’s imagine that the United States accepted Israel as the 51st state, and the majority of Israelis have expressed a desire to significantly shift the status quo towards religion. In this situation, Israel could take advantage of all legal developments related to the national rights of Indians. In particular, non-Jewish U.S. citizens living on the “Jewish reservation” would be prevented from interfering in its internal affairs.
It is clear that what is conceivable within the framework of U.S. law is also conceivable at the international level. There is nothing reprehensible in the fact that a religion with forty centuries of experience, a religion that pretends to represent all mankind in front of the Creator, would declare its rights without looking sideways and blushing.