No Winners in the Torat Hamelech Controversy


About twenty years ago, I publicly debated a rabbi associated with the circles around Rabbi Zvi Yehuda Kook at the Orthodox Union’s Israel Center, on the topic “Vengeance – Divine or Human?” As the debate went on, I found myself increasingly shocked by his willingness to rely on quotations pulled from the aggadata sections of the Torah to reach legal conclusions, which, if implemented, would have immense implications for Jews around the world, and his confidence that we live in an era in which Jews can say and do whatever they want in the Land of Israel without fear of how those words and actions will be received by the gentile world.

I have not read Torat Hamelech, and cannot comment on its contents. But Rabbi Shalom Yosef Elyashiv, the most prominent living halachic decisor, has condemned the work on for reasons similar to those that shocked me in that long ago debate – it places Jews around the world in danger. And Rabbi Zalman Nechemiah Goldberg, the son-in-law of the late halachic giant Rabbi Shlomo Zalman Auerbach, withdrew his letter of approbation from the book because of “certain conclusions that are not halachically correct” and others that defy common sense.

At the same time, I have difficulty conceiving what could have led Deputy State Prosecutor Shai Nitzan, who runs a unit within the state prosecutor’s office exclusively focused on the settler community, and the police to take the extraordinary step of seizing printed copies of Torat Hamelech and then summoning for questioning Rabbis Dov Lior and Yaakov Yosef, who had given letters of approbation to the work.

My questions for Nitzan are both at the level of legal theory and tactics. First, the theoretical: Under what, if any, circumstances may the Torah itself be subjected to police investigation for ideas that do not conform to the current standards of political correctness. That possibility is not far-fetched. References to the Torah’s prohibition on male homosexual relations could land one afoul of university speech codes at some of America’s more prestigious universities. Does the Torah’s injunction to wipe out the memory of Amalek make it “a racist book” or “material that incites to violence,” the possession of which is forbidden? The same question applies to the classic halachic codifications of the relevant halachic material from the Talmud.

And if the Torah and Codes are not proscribed, why would a work that purports to be based upon them be proscribed? The questionable validity of conclusions drawn from classical Torah sources cannot change Torat Hamelech‘s legal status, for that would impermissibly entangle the secular legal system in religious issues and debates.

Any infringement on freedom of speech traditionally requires a clear demonstration of a high degree of danger from the speech in question – akin to shouting “Fire” in a crowded theater. And the bar is placed even higher when the infringement on freedom of speech is coupled with infringement on the free exercise of religion, especially where only the expression of opinions, not action, is involved.

Due to the murky nature of the legal theories of the prosecution, it is hard to know the precise focus of their objections to Torat Hamelech. In the eyes of the book’s authors, one of the key issues is under what circumstances should lives of Israeli soldiers be placed in greater danger in order to reduce danger to enemy civilians. That is certainly an issue of great import that should be a subject of vigorous national debate. It can be approached from a variety of perspectives, both philosophical and theological. About two months ago, Professor Asa Kasher, the principal draftsman of the IDF code of arms, argued at a BESA Center Conference on Democracies and the Right of Self-Defense, that when a state imposes compulsory military service on citizens it implicitly agrees not to subject those citizens-soldiers to greater danger in order to protect enemy civilians. On that basis, he criticized the loss of 13 reservists during Operation Defensive Shield, who were killed searching a booby-trapped house for Palestinian civilians.

Why should Kasher’s reliance on general philosophical principles to critique aspects of current IDF practice be more valid than the reliance of the authors of Torat Hamelech on traditional Jewish texts to the same end? Both critiques jive with the historical practice of all nations to place a greater value on the lives of their own citizens. The Allied carpet bombing of Dresden and Berlin, at the end of World War II, was specifically justified as a means of securing German surrender and an earlier end to the war. America dropped atom bombs on Nagasaki and Hiroshima to avoid the projected loss of a million or more troops in an invasion of Japan.

ONE OF THE ENDURING THREATS to Israeli democracy is the widespread perception that the justice system employs two sets of standards, depending on what side of the religious or right-left divide one falls. The state prosecutor’s office would be a lot less vulnerable to criticism for its handling of Torat Hamelech if it had ever attempted to enunciate a coherent theory of what constitutes incitement or forbidden racist speech. Why, for instance, did Tatanya Susskind spend two years in jail for posting an offensive cartoon of Mohammad as a pig – an act of symbolic speech – while no Muslim preacher has ever been prosecuted for commonplace references to Jews as “descendants of pigs and monkeys”?

Within the last two weeks, Judd Ne’eman, a film professor at Tel Aviv University, called for a civil war against the Right. Technion physics professor Oded Regev quickly signed on, writing, “[T]he only way to overcome the religious extremists is through organized violence, through launching a war, in the full meaning of the term.” Don’t expect to see either subjected to a police investigation any time in the near future.

Perhaps the operative theory of Shai Nitzan’s prosecutorial group is that only right-wingers or religious settlers would ever act upon their words, but left-wingers are simply waxing metaphoric. As dubious as that theory is, it clearly is has no applicability to Islamists. Yet Sheikh Raed Salah, head of the northern branch of the Islamic Movement in Israel, was never questioned for encouraging Israeli Arab students to become suicide bombers in a speech at Haifa University.

FROM A TACTICAL PERSPECTIVE as well, it is hard to figure out Nitzan’s thinking in the Torat Hamelech case, unless he merely seeks to make life miserable for the authors or wants to reinforce the popular image of West Bank settlers as blood-thirsty fanatics. If he was concerned about Israel’s world image, certainly he has done more to harm that image by all the publicity surrounding his prosecution of Torat Hamelech and the selective quotations from the work.

It would have been far wiser to allow the national religious world, which is most directly embarrassed by Torat Hamelech, to deal with the book itself. That process was already in full swing. Rabbi Ariel Finkelstein of Yeshivat Ahavat Yisrael in Netivot penned a point-by-point refutation of the work’s halachic conclusions, about which Rabbi Yaakov Ariel, head of the hesder yeshiva in Ramat Gan, wrote: “He has succeeded in refuting the main arguments of the authors . . . beginning with their outrageous, prejudiced presumption that gentile blood is cheap, and ending with their alleged proofs and supports from halachic sources, which were interpreted tendentiously and erroneously.”

By dragging respected rabbis in for questioning based on their letters of approbation, Nitzan and the police only distracted the national religious world from the task at hand and elevated those rabbis to the role of victims. One need not claim an exemption from police questioning for rabbis to ask: What could possibly have been gained from such questioning? The police were presumably not intending to engage Rabbi Dov Lior or Rabbi Yaakov Yosef in halachic pilpul, something both beyond their competence and the realm of legitimate inquiry. There were no factual issues at stake. Both the rabbi’s statements and their context were established. And they had no light to shine on the foreseeable impact of their words. In those circumstances, hauling them to the police station was nothing but a humiliation ritual.

Whether out of an absence of serious thought about either the theoretical or tactical issues involved, or from a deep-seated animus to certain population groups, deputy state prosecutor Shai Nitzan has rendered deep, and unnecessary, damage to our already frayed social fabric.

This article first appeared in the Jerusalem Post, July 15.

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Yehoshua Friedman
4 years 2 months ago

The issue is not Torat Hamelech nor is it settlements. The idea that the prosecutor and the police would have waited for the RZ community to deal with the subject themselves was never on the cards. The prosecution, who consider themselves Supreme Court candidates for the future, want to show that they are on the correct side of things by showing the religious sector who is boss. The RZ are the biggest threat to the establishment because, unlike the hareidim, in addition to having a high birthrate, they participate in all aspects of life in the country, the army, literature, media, economics etc. According to the left, they must be broken at all costs. That and not peace and security was the cause of the expulsion from Gush Katif, and that and not lomdus in some sefer was the reason for the interrogations.

4 years 2 months ago

>>>Harry Maryles, July 22, 2011 at 7:47 pm: “In any case the whole controversy could have been avoided if they would not have refused to come in voluntarily when they were asked to explain why they signed on to that book. The entire ‘interrogation’ lasted about a half hour in one case and about 2 hours in the other, IIRC. Was it really worth it for these rabbis to make an issue over it?”

Let’s think about that…..

“Rabbi….uhhhh, Maryles? Rabbi Maryles, we’ve recently received some information from a confidential informant, documenting that you’ve been publicly mulling over some pretty controversial topics on your blog lately.

“These provocative conversations were taking place where everybody can read them, and apparently included your approval of a controversial book. As you know, we here at the Chicago PD are tasked with protecting the public, and we need to intercept potential threats to public safety before they pose a manifest danger. And we don’t like to see folks giving public endorsement to books like that.

“Accordingly, you’ll need to come down to the station for questioning by our detectives. Sgt. Snyder and I have been told that this shouldn’t take more than about 2 hours. We’re confident that a civic-minded man such as yourself would agree that refusal isn’t in your best interest…”

4 years 2 months ago

The Rav with whom Mr. Rosenblum debated is a great talmid hacham and did not say anything which was not very well-based using incisive halachic analysis. The fact that his conclusions were “further to the right” politically does not disprove their validity.

L. Oberstein
4 years 2 months ago

Nowadays, no one is isolated. Words spoken in candor can be filmed without consent on a cell phone and circulated world wide in moments. The settlers have good reason to be nervous . The government of Israel is facing international isolation and has really big issues to deal with and who knows if Israel and Turkey will make up or if it will get worse, what about Iran? Will Egypt cancel the peace treaty? Those on the West Bank are viewed by most Israelis as a couse of trouble not as the vangard of the future. I don’t know what the future will bring, but , I doubt if there will be a comprehensive Peace treaty soon and the settlements may stay for a long time, but at least verbally, the government is ready to give most of the land back. i do not know if they mean it or not, but that is the game plan and those who oppose any withdrawel are viewed as a problem, not as a solution. Torat Hamelech should never have become big news and it won’t matter much what this rabbi writes. Israel is facing so many problems that no one is going to forcibly uproot anyone in the near future as there is no Palestinian partner to surrender to. Who ever heard of the victors surrendering to the losers anyway?

Avi Keslinger
4 years 2 months ago

You write: “I found myself increasingly shocked by his willingness to rely on quotations pulled from the aggadata sections of the Torah to reach legal conclusions, which, if implemented, would have immense implications for Jews around the world and his confidence that we live in an era in which Jews can say and do whatever they want in the Land of Israel without fear of how those words and actions will be received by the gentile world.
As Torat HaMelech deals with the laws of war (although, as Rav Avraham Giser pointed out, the author fails to say who has the right to give the appropriate commands), they might agree, as US actions in Iraq and Afghanistan have shown. In any case, we should stop being afraid of how the Gentile world will react when conducting halachic research. I am reminded of the joke about two Jews who were sentenced to go before a firing squad in the Soviet Union. One said “I am entitled to a last meal”. The other implored “Don’t make trouble”. You yourself point out the references in the Tora to wiping out Amalek and the prohibition against homosexual acts. Should we censor the Tora? Should we refrain from saying “asher bachar banu” out of fear of Gentile sensibilities?

As for using aggadic material to reach legal conclusions, Rav Kook himself held that this is legitimate. Indeed, there are those who say that Chazal used the medium of aggadata to convey political and social statements. One may dispute this but there is no place for shock.