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Confronting problematic tenets of religious law: Judaism could follow Islam

James M. Dorsey



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Christianity, Judaism, Hinduism, and others have been comfortable for over two decades. Post-9/11, international attention focused on perceived Islam problems that supposedly breed violence.


What turned young Muslims into suicide bombers? What drives militancy and the willingness to sacrifice one's life and those of innocent others? And what was it in Islam that produced supremacy, intolerance, and rejection of pluralism?


Desperation, disenfranchisement, marginalisation, frustration, and anger are only partial explanations.


To be sure, these factors played a role. But so did the ability to justify such attitudes in religious texts.


Even so, Muslim political and religious leaders and world leaders joined a chorus of voices insisting Islam was not part of the problem.


However, Indonesia’s Nahdlatul Ulama, the world’s largest and most moderate Muslim civil society movement, bucked the trend, insisting that Islam is part of the problem.


The congregation waved the NU flag. Photo: ANTARA/Yudhi Mahatma


But equally important is Nahdlatul Ulama’s assertion that it is not just Islam that embraces legal concepts that are outdated, obsolete, and/or problematic today. The movement argues that this is equally true for most, if not all, religions.


In the case of Judaism, that has become more evident. This is not just with the rise of the most far-right, ultra-nationalist, and religiously ultra-conservative government in Israel's history.


It has also become more evident in how Israel confronts the reality that a two-state solution to the Israeli-Palestinian conflict has no shelf life and that a one-state solution is all that remains on the table and is already a reality.


That reality is unlikely to change. It is not temporary; it is permanent. So what needs to be decided and what is at the core of today's struggle is what the nature of that state should and will be.


Scholars Michael Barnett, Nathan Brown, Marc Lynch, and Shibley Telhami argued in a recent Foreign Affairs article entitled ‘Israel’s One-State Reality: It’s Time to Give Up on the Two-State Solution’ that “a one-state arrangement is not a future possibility; it already exists, no matter what anyone thinks. Between the Mediterranean Sea and the Jordan River, one state controls the entry and exit of people and goods, oversees security, and has the capacity to impose its decisions, laws, and policies on millions of people without their consent.”


Israeli Prime Minister Binyamin Netanyahu’s vision of Israel may be grounded in militant nationalism rather than militant religion. This is despite paying lip service to a two-state solution and trying to project himself as the moderate voice in the extremist government he heads.


Israeli Prime Minister Benjamin Netanyahu, delivers a political statement in the Knesset ,the Israeli Parliament, in Jerusalem, Israel. Photo: Reuters


Even so, Mr. Netanyahu’s vision, at the very least, does not challenge militant religious Jewish claims to Palestinian lands. “Israel is not a state of all its citizens” but rather “of the Jewish people—and only it,” Mr. Netanyahu asserted in 2019, a year after the Knesset, the Israeli parliament, passed a law to that effect.


Moreover, the likelihood of the one state’s permanence has been decided by Israel’s self-defeating creation of facts on the ground, foremost among which Israeli Jewish settlements that make sustainable and legitimate Palestinian carve-outs impossible and lay the groundwork for the exercise of de facto Israeli sovereignty justified by an ultra-religious, nationalist, and supremacist interpretation of religious law.


When it comes to discriminatory and repressive policies towards the other, militant religious Zionism’s interpretation of Jewish religious law resembles in many ways the precepts of a militant Islamic state, even if it does not endorse or advocate the extremes of the Islamic State group whose murderous brutality, including beheadings and enforced slavery, shocked Jews and Muslims alike as well as adherents of other faith groups.


The religious Zionist concept of one state in Israel/Palestine is diametrically opposed to traditional notions of either a bi-national state in Israel/Palestine in which communities enjoy cultural autonomy or a civic state in which all have equal rights irrespective of ethnicity, race, or religion.


The religious Zionist approach to a one-state solution brings into sharp relief problematic tenets of Jewish religious law, the Halakha.


In effect, the emergence of a halachic approach reinforced by the rise of the current Israeli government is also a reflection of the failure of Zionism to create a state that caters to all Jews irrespective of their religiosity or social, political, and religious views rather than a state populated by a Jewish tribe that, perhaps necessarily, charts a course different from that of the majority of Jews who are not part of the state.


The focus on Jewish religious law further explains the seemingly arbitrary, humiliating, and unnecessary brutality and harshness of the Israeli occupation of Palestinian lands. This can only be understood by tracing its roots to religious Jewish legal concepts.


Like various forms of ultra-conservative Islam such as Wahhabism, jihadism in the shape of the Islamic State and Al Qaeda, and Hindu and Christian nationalism, militant, supremacist expressions of Judaism represented by religious Zionism in the way it is currently expressed demonstrate the risk of leaving unaltered problematic tenets in religious law.


"Language has weight. It matters," said Foundation for Middle East Peace president Lara Friedman. Ms. Friedman countered arguments that the persecution of Jews was exceptional rather than on par with the oppression of other religious and ethnic communities, including the Palestinians.


Failure to reform religious jurisprudence allows religious militants, irrespective of faith, to justify their militancy, supremacy, and violence in theology and religious law.


In a seminar on religious law's role in the Israeli-Palestinian conflict, Mohammed Abdelhafez Yousef Azzam, a Palestinian Sharia court judge, appeared to confirm Ms. Friedman's assertion that words matter.


Palestinian Sharia court judge Mohammed Abdelhafez Yousef Azzam. Photo: Screenshot from Yotube/ TVNU Televisi Nahdlatul Ulama


Applying supremacist concepts, the judge, wearing a red-topped white felt hat of a graduate of Al Azhar, the Cairo-based citadel of Islamic learning, argued that Islamic law precluded concluding a peace deal with Israel.


“There is no way to asserts there is something in Sunni doctrine to make peace,” Mr. Azzam said.


The judge was criticising the title of the seminar, ‘Building Peace Between Palestine and Israel, on the Basis of Sunni Islamic Jurisprudence for a Global Civilization (fiqh al-hadara ahl al-sunnah wa'l-jamaa'ah) and Jewish Law (Halakhah)’, because of its reference to Sunni Muslim jurisprudence as a basis for peace.


Mr. Azzam quoted Verse 4 of the Al-Isra Sura, also known as Bani Israel, of the Qur’an, viewed by Muslims as the word of God, which says: "You will surely cause corruption on the earth twice, and you will surely reach (a degree) of great haughtiness."


The verse may refer to Jewish exceptionalism but prominent scholars interpreted it in starker terms.


Syed Abul A'la al-Maududi, a prominent 20th-century Islamist scholar, defined the Sura’s significance as admonishing disbelievers “to take a lesson from the miserable end of the Israelites and other communities and mend their ways within the period of respite given by Allah, which was about to expire….


"The Israelites…were warned, ‘Take advantage of the Prophethood of Muhammad (Allah's peace be upon him) because that is the last opportunity which is being given to you. If even now you behave as you have been behaving, you shall meet with a painful torment," Mr. Maududi said.


Like in the case of Mr. Azzam, whose views reflected problematic tenets of Islamic law, elements of the influence of equally problematic Jewish legal concepts were embedded in Zionist and Israeli attitudes towards Palestinians from day one. They also were entrenched in long-standing notions of Jewish identity.


“The Jewish people was always ethnocentric. It believes in the supremacy of its ethnic collective over other nations. This is a blatantly hierarchical conception, according to which the Jew is superior to the non-Jew. But throughout history, this was a supremacy that lacked the force of a state and an apparatus for wielding control over non-Jews,” said political scientist Menahem Klein.


Author Menachem Klein in conversation with Cilly Kugelmann, 8 May 2018; Jewish Museum Berlin 2018. Photo: Screenshot from Video "Lives in Common: Arabs and Jews in Jerusalem" in jmberlin.de


Mr. Klein is one of several scholars who have charted the emergence of contemporary expressions of militant Judaism. Mr. Klein labels it Jewish messianism and categorises it as “a new Judaism.”


Mr. Klein argued that “this new Judaism was not shaped in the beit midrash (study hall of the Torah) as classical Judaism was, but within the framework of a dominant Israeli regime in general and rule over the Palestinians in particular. The ethnocentrism evolved from a form of self-awareness into a modus operandi, from a universal mission into oppression and occupation.”


“Jewish messianism has undergone a transformation. Classic Jewish literature depicted the advent of a messianic age following a catastrophe or great crisis, the birth pangs of the Messiah, a war of Gog and Magog. All those elements are part of the messianic transition from the realm of history into one that transcends history,” Mr. Klein said.


“In contrast, the new Jewish messianism is a product of historical success, the achievement of Jewish sovereignty, and the wielding of power over non-Jewish surroundings,” the political scientist went on to say.


Israeli-born sociologist Gideon Shafir has charted what he describes as an evolution from a perceived secular Jewish privilege that justified a claim to Palestine based on religion, ethnicity, and/or race to notions of Jewish supremacy rooted in Jewish religious law as articulated by members of Israel’s current government and proponents of militant religious Zionism.


Both scholars' research is significant as religion and religious law take centre stage in Israeli claims to all of Palestine. The territorial claims and treatment of Palestinians shine a spotlight on Jewish religious legal precepts, much like the 9/11 attacks did with Islam.


For now, religious Zionism informs Israel’s militant nationalist, ultra-religious, and settler communities. The degree to which that reflects sentiments among a majority of the Israeli public remains unclear. This is even if recent mass protests against Prime Minister Netanyahu’s judicial overhaul failed to take into account Palestinian concerns.


A recent Israeli television Channel 13 opinion poll suggested that if elections were held today, Mr. Netanyahu’s Likud party would lose 12 of its 32 seats in parliament. Seventy-one percent of those polled said Mr. Netanyahu performed poorly as prime minister.


Ultra-nationalist and ultra-religious parties would fare better, losing only five of their 25 seats in parliament. In other words, they represent a committed minority of 20 per cent of the Israeli primarily Jewish public, a substantial minority but a minority.


Even so, according to the polls, Mr. Netanyahu’s coalition would not emerge from new elections with a parliamentary majority.


The numbers are significant beyond the perspective they cast on the trajectory of Israeli policies hardening on the occupied West Bank and Israel’s borders with Gaza, Lebanon, and Syria.


For now, the numbers suggest that religious ultra-conservatism has made significant inroads in reshaping religious Zionism but has yet to secure buy-in from Israel’s majority secular and traditional electorate.


It may also have yet to secure acceptance among more moderate religious Zionists. This is even though religious Zionists agree, in the words of Israeli religious Zionist writer Ehud Neor that “Israel is not a nation-state in Western terms. It's a fulfilment of Biblical prophecy that Jewish people were always meant to be in the Holy Land and to follow the Holy Torah, and by doing so, they would be a light unto the world."


Speaking to the author, Mr. Neor went on to say that “there is a global mission to Judaism. We've been forced to think of it that way because of the exile and the trauma of 2000 years of persecution. The idea is that there is an ideology behind this religious belief. It's a religious approach that is also a political ideology.”


Nevertheless, the emergence of religiously anchored concepts of Jewish supremacy has potentially far-reaching consequences for resolving the Israeli-Palestinian conflict, particularly as the fiction of a possible two-state solution sinks in and Israelis and Palestinians accept that they are condemned to live in one state.


The question is what impact that realization will have on Israeli public opinion and, more importantly, what kind of state it will imagine.


“In the 21st century, the expansion of the settlements and the transformation of the Palestinian Authority into a subcontractor of Israel has resulted in a single regime between the Jordan River and the Mediterranean Sea. The settlements are not built ‘there,’ far away; they are ‘here.’ This is, in effect, a regime of Jewish supremacy. The number of Jews living under that system is roughly equal to or slightly less than the number of Palestinians,” Mr. Klein noted.


“Jewish supremacy is also the response to the challenge posed by Palestinians who are Israeli citizens. Their increasing integration into the Jewish-controlled public domain and labor market, even as they emphasize their indigenous Palestinian identity, and their collaboration with Jewish civil society organizations, are giving rise to a hybrid reality for them as well. This is an ethnic-civil hybridity,” Mr. Klein went on to say.


“Although these Palestinians are discriminated against, their citizenship is secure and thus threatens the ethnic underpinnings of the regime,” he added.


Men like Israeli National Security Minister Itamar Ben-Gvir and Finance Minister Bezalel Smotrich envision a religious Jewish state grounded in Jewish religious law where, ideally, Palestinians would disappear but, more realistically, be discriminated against, politically repressed, second-class citizens.


Head of the Otzma Yehudit party MK Itamar Ben Gvir seen during a vote expanding his powers as incoming minister of national security, in the assembly hall of the Knesset, on December 28, 2022. Photo: Olivier Fitoussi/Flash90


In hindsight, the evolution from secularism toward religiously justified Jewish supremacy may have been inevitable.


An evolving emphasis on different religious texts characterizes the evolution. The secular Labour movement and the left, which initially dominated Israel for its first several decades, sought religious grounding in the Talmud, the primary rabbinical source of religious law and theology.


In contrast to the Tanakh or Hebrew Bible, the Talmud focuses less on the history of Jewish life in the Land of Israel in Antiquity. The Hebrew Bible’s focus makes it more of a guiding text for religious Zionists and ultra-nationalists like Messrs. Ben-Gvir and Smotrich.


“A sovereign state with a large Jewish majority could not have existed without the ethnic cleansing carried out in the 1948 war and its aftermath. Back then, a new form of Judaism had already started to take on form and substance. That process was accelerated after 1967 with the establishment of the settlements. In school textbooks, the Books of Joshua, Judges, and Kings supplanted those of the prophets who had preached social justice and a moral regime – Isaiah, Jeremiah, and Amos,” Mr. Klein noted.


The transition from privilege to supremacy, described by Mr. Shafir, the sociologist, was fuelled by Israel’s 1967 conquest of Arab lands and the rise a decade later of right-wing leader Menahem Begin who envisioned the occupied West Bank as the biblical lands of Judea and Samaria rather than the building blocks of a future Palestinian state.


The transition raised tricky legal questions for religious Zionist rabbis and scholars. While the harsh commandments of conquest codified in Maimonides’s 12th century Mishne Torah barred a return to Arab sovereignty of occupied land, the status of the territories’ inhabitants needed to be defined, according to Mr. Shafir.


Did they qualify as ger toshav, resident aliens, and on what conditions? Were they idolaters, or did they observe the seven commandments of the Sons of Noah that constitute principles imposed on non-Jews? Did residents need to recognise Jewish supremacy? If so, was it still necessary to make them ‘wretched and humiliated’ following Maimondes’ commandments, and how does one do that? What is the fate of the residents if they did not qualify as ger toshav and therefore had no right to remain on the territory?


Israelis evaded answering these questions before the capture in 1967 of the West Bank, Gaza, and Jerusalem. They were effectively fudged as Israel tried to figure out how to deal with a non-Jewish minority within its legal borders. The willingness and ability to continue to do so post-1967 was fundamentally altered by the demographics of the conquest of land that held great significance for religious nationalists.


Israeli leaders after the capture of East Jerusalem at the the Dome of the Rock in the al-Aqsa Mosque Compound in June, 1967. Photo: Getty Images


Fudging issues was no longer an option. Instead, the conquest set off a process in Judaism not unlike the impact of Muslim religious forces’ political and social involvement in the search for a social order in Muslim-majority lands that accommodated both Islam and modernity with similar outcomes.


Militant religious Zionism's halakhic state is not that different from concepts of an Islamic state's notions of the caliphate, and political Islamic and jihadist thinking, regarding what it means for the majority of the population as well as minorities.


The process of building support for notions of a Jewish or an Islamic theocracy involved ensuring that a politicized religion played an ever more important role in identity.


Much like in the Islamic State, politicization involved territorial ambition. In militant religious Zionist views of a Jewish state grounded in the Halakha, this meant an Israel that controlled the land of ancient Israel in which there would be no place, indeed no equitable place, for non-Jews.


Opportunity and necessity beckoned militant religious Zionism with the 1967 war conquests because control was no longer a theoretical issue. The commandment to inherit and settle the land of Israel could no longer be shoved to the sidelines.


As a result, it became the battering ram in what was a struggle between religious Zionism’s halakhic notions of the Land of Israel versus the secular Zionist concepts of a State of Israel.


It was a battle that was fought, unlike discussions in Islam about the nature of an Islamic state, in which legal debate about the rules that govern statecraft, warfare, and policies towards minorities had stagnated for more than a millennium because they were of no relevance to a community that did not control a state and land of its own and was a minority in its own right.


“There is no precedent in Jewish history for the existence of a Jewish state that constitutes a regional power and rules another people. Never before has the Jewish people possessed a combination like this of sovereignty, power, and control, which are being exploited to oppress another people,” said Mr. Klein, the political scientist.


American Rabbi Brant Rosen, a co-founder of the Jewish Voices for Peace Rabbinical Council and former president of the Reconstructionist Rabbinical Association, noted that “Judaism was always a Diaspora-focussed religion. Jews have always lived throughout the Diaspora… The question is, how do we ensure Jewish safety? Is it through nationalism, through ethnic nationalism?... Jewish safety at the expense of safety of other people is not safety at all."


Rabbi Brant Rosen, co-founder of the Jewish Voices for Peace Rabbinical Council and former president of the Reconstructionist Rabbinical Association. Photo: Jordan Elgrably / Levantine Cultural Center


Religious Zionists had little, if anything, to help them come to grips with the immense changes in the structure and legitimacy of the state since Maimonides codified Jewish law in the 12th century.


The codification represented a worldview that did not bode well for Jews or non-Jews, certainly not in a 21st-century world. Yet, Maimonides' 14-volume magnus opus constituted legal ground zero for them.


Maimonides codified Jewish concepts that influenced Muslim legal thinking and have been retained in Judaism and Islam even though they were no longer appropriate or fit for purpose.

The halakhic notion of the ger toshav was not all that different from the notion of the dhimmi but suddenly had taken on a relevance it had not had for a thousand years.


Like the dhimmi, the ger toshav was expected to pay tribute. Also, like the dhimmi, the ger toshav did not enjoy equal rights.


Maimonides argued in favor of the subjugation of the ger toshav that needed to be “demeaning and humiliating.” Residents were not allowed to lift their heads against Israel or be offered preferential treatment.


The modern-day religious Zionist interpretation of these principles means that the Israeli government must demand that ger toshav or residents recognise Jewish sovereignty and Israel as a Jewish state. Refusal to do so would deprive them of the right to reside on the land, a principle creeping into Israeli policies.


The Israeli-Palestinian conflict has become a zero-sum game; it's ‘us against them.’ A one-state solution with equal treatment and protection for all is no longer feasible if militant religious Zionism gets its way.


Common wisdom says what is needed is pressure on Israel, particularly from the United States and Europe. No doubt, pressure helps, but much like Nahdlatul Ulama has taken the lead in tackling head-on legal, ideological, and religious issues that make Islam part of the problem rather than the solution, Jews will have to do the same for Judaism.


9/11 put Islam’s problems on the front burner. Israel and Jews could face a similar situation as circumstances in the occupied territories, including East Jerusalem, as a result of Israeli policies spin out of control.


This article is based on remarks by the author at an April 13, 2023 seminar in Jakarta entitled ‘Building Peace Between Palestine and Israel, on the Basis of Sunni Islamic Jurisprudence for a Global Civilization (fiqh al-hadara ahl al-sunnah wa'l-jamaa'ah) and Jewish Law (Halakhah)’ The seminar was organised by Nahdlatul Ulama and Universitas Islam Internasional Indonesia.



Dr. James M. Dorsey is an award-winning journalist and scholar, a Senior Fellow at the National University of Singapore’s Middle East Institute and Adjunct Senior Fellow at Nanyang Technological University’s S. Rajaratnam School of International Studies, and the author of the syndicated column and blog, The Turbulent World of Middle East Soccer.


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