It is no coincidence that the slow procession of hundreds of young men celebrating the release of Rabbi Dov Lior from a brief session of police questioning made its way from below the capital’s String Bridge to the nearby Mercaz Harav Yeshiva late last Monday.
In an address that stressed, among other issues, the importance of learning faith and that “the whole essence of rabbis is against violence,” Lior noted that Rabbi Zvi Yehuda – who headed Mercaz Harav – had said that “the true Torah must stand out.”
Earlier that day, Lior was pulled over by police after months of refusing a summons for questioning over his endorsement of the book Torat Hamelech
The Kiryat Arba chief rabbi, who heads the hesder yeshiva there and is one of the most senior figures in the national religious community, had insisted that it was his right and duty as a rabbi to express his opinions freely on matters of Judaism, including those addressed in the book, and that the authorities shouldn’t meddle in this internal Torah discourse.Torat Hamelech
deals with the halachic traditions surrounding the
prohibition of killing non- Jews, and states that during warfare,
gentiles – including babies – may be preemptively killed.
Police hauled in the book’s authors for questioning over alleged
incitement to racism and violence, and summoned the three rabbis who
endorsed the book. One of them, Rabbi Yitzhak Ginsburgh, who is a
spiritual mentor to the authors and provided guidance on the book,
showed up for the questioning, viewing it as an opportunity to explain
why the book neither incited to violence nor promoted racism. The other
two, Lior and Rabbi Ya’acov Yosef – Shas mentor Rabbi Ovadia Yosef’s
son, who is more affiliated with the religious Right than the haredi
Sephardi public – refused the police’s repeated appeals.
Yosef was picked up this Sunday for half an hour of questioning, following which he was released.
At the spontaneous rally in his support below his home later that day,
his only words to the hundreds of youth attending were to the effect of
“Thank you, but now it’s time to go back to study.”
A massive rally across from the Supreme Court planned for earlier this
week, in support of the two rabbis and the independence of the Torah and
its scholars, didn’t draw anything near the 100 buses organizers had
predicted. The theme of the small demonstration was that Torah should
retain its independence, and that the legal system was discriminating
against the Right and therefore had lost its legitimacy. Following that
rationale, rabbis summoned by that system shouldn’t feel obliged to heed
“This was not a demonstration against the court,” stressed Rabbi Yehuda
Amar, one of the demonstration’s organizers. “Rabbis, and anyone else,
are not above the law in Israel.”
However, he said, “you must understand that Jews learn Torah, and that
cannot be limited in any way. The second point is that there is law
here, but it’s not equally applied to all. And when that’s the
situation, it loses its legitimacy. How would you feel if in all of
Israel, the only place there were traffic policemen was on your street,
next to your house?” The 34-year-old rabbi, who teaches at the Ra’anana
hesder yeshiva, asserted that “the national-religious love the country;
we see in it ‘the beginning of our redemption.’” But, he said, “there is
a continuous misrepresentation of Lior’s approach, which is very
Amar acknowledged that in the past, Lior had spoken out against Arabs on various occasions.
“He is a Holocaust survivor, and really sees Israel as an entity that saves Jews.”
Why, then, did Lior refuse the police summons? Here, Amar returned to
the content of the book, proposing a differentiation between two
processes – scholastic debate, and adjudication.
“This book is not issuing rulings,” he insisted, noting the young ages –
34 and 40, respectively – of authors Rabbi Yosef Elitzur and Rabbi
“Do you think a 40-year-old decrees on such matters?” he asked. “When
such issues are ruled upon, it is only after very serious debate by
senior rabbis, and can reach the Chief Rabbinical Council.
Certainly what rabbis Lior and Yosef were encouraging was the scholastic
process, not the implementation of the halachic conclusions in the
Amar didn’t say whether this misunderstanding within the law enforcement
system was intentional or not, but he was clear about the result of the
crackdown on the book: “The people making the decisions created a
situation in which the public had to choose between the law enforcement
system, or the Torah.”
BAR-ILAN UNIVERSITY law professor Yedidia Stern, who is vice president
of the Israel Democracy Institute and one of the country’s foremost
experts on the tensions between state and religion, firmly rejects the
notion that a rabbi – or anyone, for that matter – can independently
decide that he should not be subject to an investigation.
“A person cannot be exempt from the rule of law, just because he has a
subjective feeling that the law is being applied in a non-egalitarian
manner,” said Stern. “Allowing every person to decide when they think
they should be investigated and when not is a formula for chaos. Imagine
a Muslim sheikh – a religious leader like Lior, only from a different
religion – being summoned for investigation on incitement. Would we
think that he is allowed to say, I don’t want to be investigated because
my sector is discriminated [against]?” The place to raise charges of
discriminatory implementation of the law is in court, he added.
Most of the speakers in the recent rallies for Lior and Yosef have
evoked instances of intellectuals from the Left speaking out in a way
that seemingly incites violence against the Right or settlers, as
evidence that the legal system is biased and hence unworthy of
But the reason academics from the Left are not summoned for questioning
might be their lack of influence over people who would act out their
violent words, Stern posited.
“Freedom of speech is the ‘queen’ of rights, certainly political freedom
of speech,” he said. “It’s at the top of the ‘pyramid’ of rights. The
instances in which it is limited, when a person is investigated over
[remarks or writings], are rare.
The criterion for when freedom of speech is challenged is when it poses a clear and immediate danger to others.”
He continued, “Whose remarks could be more harmful – the outrageous ones
of Professor Ze’ev Sternhell” – who said it would be wise of the
Palestinians to concentrate their terror solely against the settlements –
“and his ilk? Do their words lead to action, or do those of rabbis?”
According to the law professor, “if somebody from the Left were arrested
for investigation, I don’t think that within two hours their supporters
would stop traffic and storm a court. The practical force of professors
is smaller than that of rabbis.”
The question of whether Torat Hamelech
could lead people to violence was not one Stern could clearly answer.
“Unfortunately the book doesn’t state that it’s solely a study,
theoretical, not to be acted upon, like many other books from this genre
are and declare to be,” he said. “Could this book help create another
Baruch Goldstein? I don’t know. But when important rabbis write
endorsements, there is a type of empowerment to the dangers that could
emanate from the book.”
To Stern, it is clear that the rabbis should have heeded the police
summons. He was also adamant that rabbis should not be exempt from legal
responsibility for their teachings just because of their religious
leadership positions – as members of the Right proposed in a recent
bill, which the government shot down.
“The desire to create a legal extraterritoriality for religious leaders
will surely give Muslim religious factors, who are enemies of Israel,
the opportunity to preach against the state, without the possibility to
act against them,” he argued.
“Whoever feels that Islamic leaders should not be allowed to express
themselves in ways that endanger us, whoever thinks that the legal
system has to be able to be involved – must agree that rabbis should
also” be within the parameters of the legal system, said Stern. “Whoever
wants equality must give it, too.”
The law professor, who wears a crocheted kippa, also took to task the claim that the Torah is above the law.
“To say so means the end of the rule of the law, since Torah applies to
all of reality – it has a say on everything. And since that is the case,
rabbis would be exempted from everything, there would be people to whom
the law doesn’t apply,” he contended. “But what is Torah? And who would
define it? The body that would have to set those rules would be the
court. Do Lior and his supporters want the court to determine what is
Torah and what is not?” The responsibility to heed to the authorities
should be a religious obligation, said Stern, conjuring the verse from
the Mishna that without the fear of the regime, there would be anarchy.
“Doesn’t the fact that you are a rabbi in Israel force you to act under
the paradigm of the rule of law, out of a religious perception?” THE
QUESTION then remains why a traditionally loyal public increasingly
seems to be veering to the right and away from the state in recent
years, at a time in history that more and more members of the national
religious public are taking senior positions in the country’s “secular”
“I fear that certain people from the national-religious public seek to
sharpen the tension between Jewish law and the law of the land. They
also benefit from it politically; it makes them stronger,” said Stern.
“My feeling is that the Zionist religious public is moving toward the
national leadership table. More national religious people than ever
before are taking leading positions in the executive authority. The
Knesset also has more people with skullcaps, [including] in secular
parties. Over a third of the officers in the elite IDF units are
religious, which is the true indication of future leadership; the legal
system and media are also growing in numbers of religious members.
Religious people are ‘taking over,’ which is a positive development for
the state,” he asserted.
“Instead of understanding that the entire nation expects reasonable,
moderate leaders who can see the interests of the general populace, the
Zionist religious leadership is pulling the more militant parts of that
public to a fringe position of irrelevance and a lack of understanding
of the historic role of the religious leadership,” he said, adding,
“There seems to be a desire to ideologically oppose the state.”
Of Lior, Stern cautiously noted that “alongside his loyalty to the
state, he also has a record of ongoing dispute with the state, on the
issue of the attitude toward the Arab minority, among others.”
The fact that more moderate rabbis like Haim Druckman attended the rally
in support of Lior reflects the distortion in the debate over Torat
“Druckman does not agree with the content of the book,” said Stern. “The
battle became not over what the book actually says, but rather an
attempt to decree on issues of principle. In the State of Israel, can a
rabbi – in his capacity of a rabbi – say ‘no’ when the law tells him to
show up for an investigation? I can’t imagine such a reality; we can’t
let that happen. At the same time, a rabbi’s freedom of speech cannot be
It was over 10 years ago that Stern published his seminal article
“Halacha and Public Policy” on the potential clash between the two
directives, and the issues raised there are more relevant than ever.
“At the end of the day, we are witnessing an almost inevitable process,”
he said. “Once rabbis decide that they want to express their opinion
not only from a spiritual point of view, but also from a halachic one,
on issues like foreign and security policy; not only on issues like
Shabbat and kashrut, but also on the borders of the land, peace and the
attitude to Arabs – there will be a harsh collision.”
He pointed out that the concept of rabbis decreeing on all topics,
civilian included, is not a classic product of modern Orthodox Jewish
thought, even from the national religious circles, but a development of
Rabbi Zvi Yehuda Kook, who headed the Mercaz Harav Yeshiva.
“This attitude is not illegitimate, but one must understand that this
line of thought will inevitably lead to clashes between state and
religion,” the law professor said. “Every question becomes halachic.
Whoever does endorse that directive will have to find an inner halachic
mechanism to allow accepting the majority’s decisions, even if it stands
in contrast to what Torah would say. Otherwise, we are doomed to a
civil war on the basis of Jewish law.”