Long after its publication, the book Torat Hamelech continues to generate tremendous controversy. The book asserts that under certain circumstances Halacha (Jewish law) permits the killing of non-Jews, including civilians and young children, who might become killers of Jews at some future time.

It’s not only the book’s content that is controversial, however. The motivations of its author and the well-known Torah authorities who endorsed it have been debated by many, and their refusal to be questioned by police regarding the matter has also drawn criticism.

Those who supported them in this refusal contend that no one has the right to question rabbis’ halachic decisions and pronouncements.

Are halachic rulings, no matter what their content, to be above the law? No democracy can countenance that. What would these same people say about Muslim preachers ruling it permissible to kill Jews? Fortunately the validity of these rulings has been called into question by prominent rabbinic authorities, so we are on solid ground in asserting that this is not what Halacha permits. But even if such rulings could be found in Jewish writings, must one endorse them? There is certainly enough precedent in Jewish law to say that not everything that is permissible is also desirable.

A striking example of this can be found in the writings of Maimonides on the rules of slavery. He wrote that from the Torah’s statement, “You shall not rule over him ruthlessly” (Leviticus 25:43), which specifically refers to a Hebrew slave, it can be inferred that it is permitted to be ruthless with the non-Hebrew slave. Thus Maimonides ruled that “It is permitted to make a Canaanite slave work ruthlessly.” However, he continues, “Even though this is the law, the quality of mercy and the ways of wisdom teach that one should be merciful and pursue righteousness and not act unjustly toward his [non-Hebrew] slave or work hardship on him. Rather he should give him all kinds of food and drink.... Nor should one scream at or be angry overmuch with his slave, but speak with him kindly and listen to his complaints.... Cruelty and harshness are the ways of idolaters, while the seed of our father Abraham, Israel, who were taught by the Holy One through the beneficence of the Torah laws and statutes of righteousness, are merciful toward all” (Mishne Torah, Hilchot Avadim 9:8).

Maimonides realized that over and above the legal rulings that can be derived from the Torah there are also the overriding principles of mercy, righteousness and justice upon which the Torah is based and which sometimes supersede the strict letter of the law. In general, in Judaism this concept is called middat hassidut – the quality of piety. The idea is that to be truly righteous, one must seek to transcend the letter of the law. After all, we say of the Torah, “its ways are ways of pleasantness and all its paths are peace.”

By Jewish law, only men can grant a divorce. In cases where husbands are unwilling to do so, their wives become agunot, “chained women” who are unable to remarry. With regard to this issue, the modern sage Rabbi Louis Jacobs wrote: “On any reading justice is a basic imperative of Jewish life. How, then, can one countenance Jewish laws which themselves promote injustice?... The main instance of this kind of injustice is the case of the aguna....” Torah and injustice are incompatible.

The midrash comments upon the way in which God saves Ishmael from death in the desert. It depicts the angels questioning God and saying, “Is it not known to You that his descendents will harm the descendants of Isaac?” To which God replies, “What is he now – innocent or guilty?” “Innocent,” they reply.

“Then he must live,” says the Lord.

Those who presume to issue halachic rulings today would do well to be guided by this ancient rabbinic insight and to remember that the Torah teaches mercy and righteousness, and not cruelty and harshness.

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