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"Rabbis Above the Law"

By Tamar Yonah
7/3/2011, 7:06 PM
I am taking a few days off because my daughter is getting married and I still have many things to attend to before this wonderful day.  In the meantime, this came to me from a listener, and I am posting it as a blog for you all to read and comment on.  The author wishes to remain anonymous.  


"Rabbis Above the Law"

The other day, the Israeli police detained Rabbi Dov Lior for questioning.
Rabbi Lior's "crime"?  He endorsed a controversial book called "Torat ha-Melech" ("The King's Torah) about the laws of warfare.

The book is about the laws of war in complex situations such as Israel faces, where terrorists hide themselves within a civilian population and use their neighbors as human shields.

The author of the book, Rabbi Shapira, did not intend for people to "try this at home" and have "Texas necktie parties" for terrorists, but is obviously attempting to influence the public discourse in Israel. 
The media has been presenting  "Torat ha-Melech" as a book about killing non-Jews.
While it is true that terrorists in Hamas and Islamic Jihad are in fact not Jewish,  this is a very misleading description of the book's contents.

The non-Jews referred to in the book do not live in Nebraska (then again, who knows, wasn't there recently a TV program called "Mosque on the Prairie" ?).

However, public discourse in Israel has been taken over by the radical left and discussion on alternative ways on how to deal with the enemies of Israel have been pretty much nipped in the bud, and the answers fired back are always 'there is no other way' to attain peace except for the 'land for peace' formula.
 
Further, to hinder a strong military solution as opposed to a weak footed diplomatic solution, many NGO's in Israel, funded by the New Israel Fund, seemed to invent lies about the IDF for the Goldstone commission which put out a UN report further damaging Israel and its military operations against the terrorists.
 
Every time an IDF soldier goes into battle it seems he has to consult with a lawyer before getting off a shot.
As a result, Tzahal (the IDF) is forced to fight with one hand tied behind its back.

Then there is the problem of preservation of property.
Some homeowner might have bought a house with his hard-owned savings and yet stories are heard of leftist activists (funded by NGO's) that entice an Arab, armed with an Ottoman certificate of ownership created in photoshop, to petition the court that the house was built on "private Palestinian land."  
(Perhaps this is why Obama is so fond of the Palestinians, because he also has a hobby of creating certificates in photoshop).

Rabbi Shapira, with his book based on halachic law (Jewish law) is merely trying to inject some sanity into the public debate, and the left cannot accept that. Instead, the Israeli "justice" system has decided to go after the Rabbis who endorsed "Torat ha-Melech."

The headlines scream "Nobody is above the law, not even Rabbis."
The loyalty of religious Jews is questioned because they believe that the Torah is above the law.

Of course, in Israel today, nobody is above the law,  ... well, except for Shimon Peres, Ehud Barak, Arab MK's, and leftist professors and activists [sic].

Is it true that the law of the land is above all other considerations ? 
Of course, in Israel today, nobody is above the law, ... well, except for Shimon Peres, Ehud Barak, Arab MK's, and leftist professors and activists [sic].

What about John Locke's principle of Natural Rights, the basis for modern western democracies, without which, governments would become tyrannies.

Locke stated in his "Two Treatises on Civil Government" (Book II, Chapter II, "The State of Nature"):

"The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent,  no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker;  all the servants of one sovereign master, sent into the world by his order, ... there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s."

Hence, according to Locke, there are certain natural rights to life, liberty and property, which he derives from the fact that we are all the creation of one Creator.

In Israel, the word "democracy" is frequently used by the left to justify all sorts of cruel policies.  
The claim that these were voted on by the Knesset, Israel's legislature, trumps all other arguments.
Thus, it was forbidden to demonstrate against the expulsion from Gush Katif, because that goes against "democracy."

This is certainly not Locke's view.
In his chapter on Tyranny in the "Two Treatises on Civil Government" (Book II, Chapter XVII, "Tyranny"), he states that forms of government other than monarchies can result in tyranny, in which power is used to harrass, impoverish or subdue members of the society (cf. the Israeli government's treatment of people who live over the green line)

"It is a mistake, to think this fault is proper only to monarchies; other forms of government are liable to it, as well as that: for wherever the power, that is put in any hands for the government of the people, and the preservation of their properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it; there it presently becomes tyranny, whether those that thus use it are one or many. Thus we read of the thirty tyrants at Athens, as well as one at Syracuse; and the intolerable dominion of the Decemviri at Rome was nothing better."

Further, Locke states in the treatises that legislative power cannot be unlimited (Book II, Chapter XI, "Of the Extent of Legislative Power"):

"Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; 
yet, First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. "

In the Declaration of Independence, the founding fathers alluded to Locke's conception of natural rights: 
"... that all men are created equal, that they are endowed by their creator with certain unalienable rights ..."

The founding fathers repeated Locke's conception that there are  natural rights given to man by God which no government may take away.

They created the constitution to limit the power of government.
The basic principle of the American system of government is not "democracy", but limited government.  
In fact, until the 17th amendment, senators were appointed by the state legislatures, to limit the power of the Federal Government.

Ironically, it was an Israeli professor, Prof. Jacob Talmon, completely forgotten in Israel today, who coined the phrase "Totalitarian Democracy," a rather apt description of Israel's system of government today.
Thus, the right in Israel must change the discourse from phrases such as 'sedition against democracy' to 'freedom against tyranny'.


Thus, the "seditious" Rabbis who believe that the Torah is supreme are simply asserting the natural rights of citizens against the tyranny of the government. 

The natural right to life:  The right of an Israeli soldier to defend himself and not be a sitting duck, for example, facing a hostile mob, as on one of the flotilla ships with terror linked groups aboard, with only a paintball gun.
And the right to property:  Not to be expelled from the home that you paid for and have lived in for 30 years.

The right to liberty: Against arbitrary arrests.

Thus, the right in Israel must change the discourse from phrases such as sedition against democracy to freedom against tyranny.
The right should make it clear that the purpose of government is not to elect any frivolous laws that the people are enticed to support by demagogues, 
but to preserve life, liberty and property.

And it is the Rabbis grounded in the Torah, who are better attuned to preserving life and liberty, and serve as needed critics of the policies of our elected officials.
Just as  the prophets during the time of the first Temple warned the Kings of Israel when they were violating the rights of the people.