December 11th, 2013
Review of Elliot Dorff and Jonathan Crane (eds.), The Oxford Handbook of Jewish Ethics and Morality. Oxford: Oxford University Press, 2013. 540pp. $150.
By Ute Steyer
Although ‘ethics’ and ‘morality’ are terms that are often used interchangeably, philosophers tend to distinguish between them. In philosophical parlance, “morality” refers to value judgments about specific issues and “ethics” refers to the theoretical structure of morality and its relationship to other fields, such as religion, law, custom. This book, entitled “The Oxford Handbook of Jewish Ethics and Morality,” is sensitive to this distinction. The book contains a collection of original essays by scholars, activists, and professionals in their respective fields, primarily from North America but also from Israel.
The editors decided to divide the handbook into two parts. Part one is a more historically oriented timeline of thinkers as well as an overview of different ethical theories. This is especially important as far too often similar volumes outline the historical development of Jewish ethical thought as if the development were linear, and they neglect to acknowledge the spectrum of thought that existed during any particular time. There has never been a unified ‘Jewish Ethics’ but rather multiple ethical theories.
The second part of the book contains a collection of essays on specific topics and from specific areas through the lenses of contemporary voices in the field.
In a book as ambitious as this one, there will be certain areas and topics that will not be addressed and will only receive a cursory treatment. The editors acknowledge this limitation in the introduction to the book.
Unfortunately, one of the excluded areas (mentioned also by the editors) is the topic of the relationship between Jewish law (halakha) and morality. This is especially unfortunate as so much of Jewish ethical thought found its expression and articulation in Jewish legal writings. The topic is touched upon indirectly in many of the essays in the way their authors draw on interpretations of Jewish law but one would have wished for a more structured and comprehensive treatment of the subject.
Some of the chapters of part one feel a bit like a Wikipedia entry. For instance, chapter 4 on “Ethical Theories Among Medieval Jewish Philosophers” covers 12 thinkers on 14 pages, devoting no more than a paragraph to some of them. Less would have been more here. Another example is chapter 6 on “Mussar Ethics and Jewish Ethical Theories,” which attempts to cover seven thinkers on 12 pages, leaving less than a half-page to Hermann Cohen. Chapter 7 does indeed deal with the ethical theories of Hermann Cohen, Franz Rosenzweig and Martin Buber, but the structure results in some duplication in the treatment of Cohen.
In some sense, the contributors to the book were overly ambitious. Considering that it is impossible to cover all ethical thinkers in one volume, it would have been preferable for each contributor to concentrate on one or two representatives of a “school” or “period” instead of trying to treat a whole group.
An interesting section that most likely would be absent in other similar handbooks is the one dedicated to the ethical theories of the four major streams in Judaism: Orthodoxy, Conservative, Reform and Reconstructionist. Contributions to this section were made by theologians associated with one of the big seminaries of each movement. Although the question remains whether one can really talk about a specifically Orthodox, Conservative, Reform, or Reconstructionist ethics, the authors nevertheless invested great effort to show some of the major streams of thinking and give specific examples from each movement.
What really sets this handbook apart is the second part. Contributors with diverse backgrounds, in regards to formal academic training, affiliation with a particular movement or personal backgrounds, but with substantial knowledge in their respective areas wrote essays on specific contemporary topics in Jewish morals.
What is true for the first part, that no book can cover all aspects, is even more evident here in the second part of the book. There is a sheer unlimited amount of moral problems and the contributors had to make a selection. Still, the topics they address are of the highest relevance and give a glimpse as to how various Jewish ethical theories are applied to specific moral questions in the interpretation of each writer.
No doubt, this book is an important contribution and will serve well its purpose as a handbook of Jewish ethics and morality. Readers will not only appreciate the essays in the book itself but also the fact that each chapter ends with a substantial list not only of the usual notes and works-cited but with suggestions for further readings.
November 15th, 2013
Review of Elizabeth Shanks Alexander, Gender and Timebound Commandments in Judaism. Cambridge: Cambridge University Press, 2013. 296 pp. $99.00.
By Rachel Furst
The Mishnah’s stipulation that men and women do not share the same mitzvah obligations – namely, that women are exempt from some categories of commandments that men are duty-bound to perform – has been understood by medieval and modern scholars alike as a programmatic statement concerning the role of women in Jewish tradition. If the Sages exempted women from certain mitzvot, the thinking goes, they must have believed that something essential about women precludes their participation in those rituals. Accordingly, the Mishnah’s well-known ruling that women are exempt from timebound positive commandments (such as sukkah, lulav, and tefillin) has generated a host of traditionalist, apologetic, and academic claims regarding the Sages’ insights into women’s nature, women’s roles, and the rhythms and restrictions of time.
Now, in an erudite, methodical, and thorough study of the relevant rabbinic texts, Elizabeth Shanks Alexander challenges this widespread assumption. She contends that the perception of these exemptions as programmatic stipulations designed to “construct gender” reflects the Mishnah’s later transmission rather than its authors’ original intent – which was simply to record legal tradition and effectively codify the insights of their own academic endeavors. In other words: when the early Rabbis exempted women from certain mitzvot, their rulings were not contingent on those commandments being either timebound or positive, and extended speculation on the meaning of this category will yield no insight into rabbinic understandings of gender. The book is divided into three sections: Part I focuses on the tannaitic material itself; Part II details its reception history, through the Talmudic period; and Part III returns to the earliest sources that exempted women from specific ritual activities, all associated with the study of Torah.
In light of contemporary debates about the scope of women’s participation in Jewish ritual life, the title and topic of Shanks Alexander’s study may attract the attention of activists and non-academic audiences. A warning to readers: this is an extremely academic book, which is largely about practices of reading Mishnah and other rabbinic texts. That being said, the author is aware of the significance of this particular topic to contemporary audiences and does devote space both at the beginning and end of her study to considering its potential meanings and uses outside the academy. In these sections, Shanks Alexander engages with the work of feminist scholars such as Judith Plaskow, Rachel Adler, and especially Tamar Ross, and these reflections are a worthy contribution in their own right.
From the outset, the author concedes that the main text under discussion, Mishnah Kiddushin 1:7, sounds like an instruction regarding women’s involvement in ritual life:
All father to son commandments – men are obligated, women are exempt.
All son to father commandments – men and women are equally obligated.
All timebound, positive commandments – men are obligated, women are exempt.
All non-timebound, positive commandments – men and women are equally obligated.
Yet Shanks Alexander’s core argument is that this tannaitic passage was not designed as a rule at all. Rather than a prescription concerning women and mitzvot, she claims that this mishnah was formulated by the early Sages as a description of different types of commandments that they identified in the course of study. Specifically, Shanks Alexander contends that the rabbis first articulated the concept of “timebound positive commandments” while engaged in midrashic exegesis on the Book of Exodus, in an attempt to describe the features of the commandment to lay tefillin (Exodus 13:9–10; Mekhilta Bo 17). Due to the legalistic style of Mishnah (and Tosefta), when the rabbis re-articulated their description in the context of those works, it unintentionally began to sound like a categorical, broad-based rule.
This reading is the outgrowth of a larger argument about the genre of rabbinic writing found in the Mishnah and Tosefta. Both here and in her earlier work, Shanks Alexander argues that the seemingly-prescriptive statements that typify these tannaitic collections and appear to be the product of abstract, conceptual thought actually reflect no more than a particular manner of rehearsing legal tradition. Thus, with regard to Mishnah Kiddushin 1:7, she writes: “The four interrelated categories in the Mishnah appear to exist because they are a theoretically sound way to conceptualize groupings of commandments… (But) the perception that the network of related categories maps out a comprehensive field of commandments, and the perception that the category of timebound, positive commandments includes all the commandments that share the traits of being ‘positive’ and ‘timebound’ do not reflect the ways the categories actually function. Rather… both the mishnaic and tosephtan presentations highlight the fact that tradition can be organized by categories and is therefore a coherent and master-able body of information” (pp. 31-32).
Shanks Alexander is not the first to argue that women’s exemption from specific commandments predated the formulation of the mishnaic stipulation. As she herself notes, Shmuel Safrai, Tal Ilan, Rachel Biale, and others have already made the case that Mishnah Kiddushin 1:7 was a generalization based on popular practice, which explains why there are so many exceptions to the presumed rule (as both the Babylonian and Jerusalem Talmuds are quick to point out). But whereas the other scholars assume that the Mishnah’s focus on the timebounded-ness of the particular commandments that women did not perform reflected the Sages’ perceptions of social and cultural reality, Shanks Alexander insists that the category derived from pure academic study and had no direct bearing on contemporaneous understandings of gender. She also positions herself in contrast to scholars such as Judith Hauptman who understand women’s exemption from timebound positive commandments as a reflection of their subordinate position within the family and a desire on the part of the rabbis to maintain that social order.
The author does not deny that the tannaitic rule had an impact on the social standing and social identities of women subsequent to its formulation; and she herself demonstrates that the latest, post-amoraic stratum of the Babylonian Talmud did assume that the mishnah was prescriptive (as did medieval scholars). She insists, however, that the stipulation was not originally a reflection of those identities nor was it intended to shape them; and she dismisses even the idea that the prescriptive reading of the late amoraim was motivated by a concern with gender. (Instead, she believes that it was motivated by the general proclivity of these Babylonian scholars to read the Mishnah in a prescriptive, categorical manner.) If anything, Shanks Alexander contends, the process of formulating the rule was an act of shaping and solidifying the Rabbis’ own identity and authority as legal interpreters and arbiters of tradition.
This is a thought-provoking argument, particularly for scholars (like myself) who study the intersection of law and culture and are interested in the ways that law constructs identity and identity shapes law. On one level, the author’s claim about the social and cultural (in)significance of women’s exemption from timebound positive commandments seems extremely narrow, as it pertains only to the earliest stage of the rule’s history. But on another level, it highlights the ways in which the cultural meaning of a law even one or two generations after its genesis may be entirely distinct from its cultural meaning when it was initially formulated. This, as I see it, is one of the book’s most significant contributions.
In a strange way, the third and final section of the book seems both peripheral and crucial at the same time. In Chapter 6, Shanks Alexander digresses from her central argument to demonstrate how the Sages came to perceive the recitation of Shema and the laying of tefillin as ritualized forms of Torah study. The ostensible purpose of this chapter is to provide some insight into why the Mishnah (Berakhot 3:3) exempts women from these two mitzvot. To do so, it builds on the author’s claim that the tannaitic Sages were committed to an independent, early tradition that excluded women from the study of Torah (which, incidentally, is not a timebound commandment). This tradition, she reminds the reader, is best exemplified by the Mekhilta passage identified earlier in her study as the original source of the timebound positive category of mitzvot: in that passage, the Sages deemed women exempt from the commandment to lay tefillin because of its association with the mitzvah of Torah study, which they seemed to know from elsewhere was a commandment incumbent only on men. Which of course begs the question: how and why did the Rabbis gender the practice of Torah study?
In Chapter 7, Shanks Alexander endeavors to demonstrate that it was self-evident to the Sages that women could not be included in the form of ritual Torah study which functioned as a mechanism for cultural reproduction. Drawing upon insights from the field of ritual studies, she suggests that the sources which exclude women from this activity refer to Torah study whose purpose was to initiate the learner into a covenantal community that comprised fathers and sons, (male) teachers and (male) disciples; whereas the few sources that depict women studying refer exclusively to instrumental Torah study, intended to convey knowledge and sharpen one’s intellect. The distinction between ‘ritual study’ and ‘utilitarian study’ – which may sound, to some readers, strikingly similar to contemporary apologetics concerning women’s involvement in Talmud Torah – is (to my mind) a debatable distinction in the tannaitic sources. But what Shanks Alexander achieves in demonstrating women’s longstanding exclusion from ritual Torah study and, by extension, from the commandment to lay tefillin – which, when described in the language of the Mishnah, generated the category of timebound positive commandments – is a means of explaining how the Sages managed to articulate a stipulation about women’s exemption from that group of commandments that was not actually the product of gendered assumptions involving time.
Ultimately, however, this leads Shanks Alexander to the conclusion that the exemption of women from the performance of specific mitzvot was a reflection of the Rabbis’ gendered assumptions – only that those assumptions were not associated with time but with Torah study. And so, by the end of the book, it seems that in spite of her initial assertions to the contrary, the author has not fundamentally challenged the idea that the Mishnah’s rules concerning women, men, and ritual activity drew upon contemporaneous cultural constructs; instead, she has simply contended that generations of scholars misconstrued the Mishnah’s formulation in a manner that led them to look for the Rabbis’ understandings of gender in the wrong places. While this may frustrate readers hoping for new insight into the relationship between law and culture, it does demonstrate, once again, the slippery nature of gender and the complexity of using idiosyncratic legal texts to draw reliable historical conclusions.
 This is Shanks Alexander’s translation.
November 12th, 2013
By Yitzy Hammer
Over the past few years, I have become familiar with two very different areas of law – International Humanitarian Law (IHL – i.e. the laws of war) and Jewish Law. I became acquainted with IHL last summer when I was chosen to represent the IDC in a moot-court competition focusing on the laws of war. In the months leading up to the competition, my teammates and I prepared ourselves to go up against other universities, ultimately acquiring an unofficial “degree” in the field of IHL. As to Jewish Law, for the past two years, I have had the distinct privilege of working as a research assistant for one of the most renowned scholars in the field of Jewish law, Prof. Aaron Kirschenbaum, giving me a first-class opportunity to familiarize myself with this fascinating field of law.
Consequently, I had both IHL and Jewish law in mind when I began looking over the weekly Torah portion of Vayishlach last year.
I have always found the story of Dinah to be a fascinating one and while I had read and reread the story tens of times over the years, it was with my new knowledge of IHL that I began to recognize various modern humanitarian law issues in the age-old biblical saga. And so, with these two legal disciplines in mind, I thought it may be interesting to conduct a legal analysis of Shimon and Levi’s actions towards the city of Shechem, from a modern humanitarian law perspective.
For those of you who are unfamiliar with the subject, it is important to point out that humanitarian law is not human rights. While humanitarian law applies only during war time, in conflict-ridden territories – human rights apply everywhere, all the time, to everyone.
“Shimon and Levi are brothers, stolen tools are their weapons. Into their design may my soul not enter! With their congregation, do not unite, O my honor! For in their rage they killed a man and in their wish they hamstrung an ox. Accursed is their rage for it is mighty, and their wrath for it is harsh; I will divide them in Yaakov, and I will disperse them in Israel.” (Gen. 49:5-7)
The story of Dinah (Gen. 34:1-31) stirs up a host of mixed emotions. Two of Yaakov’s sons, Shimon and Levi, acting out of their own initiative, engage in a brutal take-no-survivors attack, killing Shechem, the regional prince, and all the men of the city. But it isn’t only who they target which we find problematic. The brothers, exploiting Shechem’s trust in them (or perhaps his overpowering lust for Dinah), convince him that if all the males of the city undergo a circumcision, Yaakov’s sons will agree to unite with the people of Shechem and the prince may take Dinah as his wife. Having persuaded his entire city to cooperate, whilst the men of Shechem recover from their recent surgical procedure, Shimon and Levi attack, brutally killing Shechem, his father King Hamor and all male residents of the city.
Whose orders were they following? Certainly not Yaakov’s; his reaction makes that clear: “Yaakov said to Shimon and Levi, ‘you have discomposed me, making me odious among the inhabitants of the land…they shall gather together and attack me, I will be annihilated…” (Gen. 34:30) – Yaakov sounds angry, embarrassed and even scared. So, what really happened here? In retrospect, if an international criminal tribunal would be established today, its mandate being the laws of war drawn both from Jewish law and IHL, could Shimon and Levi be held accountable for war crimes? In this analysis, I will delve into the midrashic texts and attempt to understand Shimon and Levi’s motives and choice of action.
Another question which begs understanding is that of ‘chilul Hashem’ – can you imagine how neighboring nations and cities interpreted these acts? How cowardly of Yaakov’s sons to strike an entire city while they were ailing – ailing, because they had voluntarily circumcised themselves in a show of good faith to Yaakov’s family, and then Yaakov’s sons took advantage of that confidence to, “striking them while they were down” – how did this reflect on the Nations of the Worlds’ opinion of Yaakov and his sons? It is also important to remember, these aren’t just any two brothers; these brothers represent the foundation of the Jewish people.
In order to examine the conflict between Shimon, Levi and Shechem from a humanitarian law perspective I will conduct an anachronistic analysis, attributing the relatively modern laws of international humanitarian law (IHL) to events that occurred thousands of years ago. This analysis will draw on two separate aspects of the laws of war: that of Jewish law and that of IHL. The Jewish law applied throughout relates to the law as interpreted by the sages and commentators of the Talmud.
- 1. Classifying the conflict and establishing the applicable law
In order to determine the applicable law from an IHL perspective, we must first classify the conflict. As the field of international law is relatively new, many of its areas are grey, leaving much room for interpretation. One can imagine that when dealing with laws and treaties of a global magnitude, it can be extremely difficult to draft a document agreed on by all sides – therefore, the term “customary law” is used to refer to laws and treaties that have been so widely accepted and have been around for such a long time that they are thought to apply to everyone. It is thus important to define which type of conflict we are dealing with in order to determine the applicable laws – Is it an international armed conflict (IAC), the applicable law being the four Geneva Conventions of 1949 (which are considered customary), their First Additional Protocol of 1977 (API – certain aspects of which are considered customary) and other relevant customary international law. Or, is it a non-international armed conflict (NIAC – non-international conflicts are an extremely controversial subject, as such there are very few laws applying to it that are considered customary), the applicable law being Common Article 3 of the four Geneva Conventions (one article, Art. 3, of the GC’s refers specifically to non-international conflicts and is largely accepted as the only real law which can be applied to conflicts of non-international character) and Additional Protocol II (APII) when relevant?
At first glance one may argue that as both Shechem and Yaakov’s families represent nations, the conflict is international in character, however, Yaakov purchased his land from Shechem (Gen. 33:19), implying that it may in fact have been an internal armed conflict, fought within the territory of Shechem. Furthermore, Yaakov is only to become a nation after the episode with Shechem (Gen. 35:10-13) and only receives international recognition of his new nation-status by Pharaoh when he is offered to settle in the land of Goshen, thus for our purposes we will address the conflict as non-international in its nature.
- 2. Legality of the conduct of hostilities
Thus, assuming that the conflict is non-international (NIAC), I will begin by addressing the legality of the conduct of hostilities and the means and methods applied. Looking at the jus ad bellum (before hostilities began), we see that immediately after Dinah was kidnapped, Yaakov first attempted to resolve the conflict through diplomatic means. According to Sefer HaYetsira, as soon as Yaakov heard what happened, he sent two servants to reclaim Dinah from Shechem’s house, but Shechem drove them away. Regretting his initial hostile approach, Shechem asked his father, Hamor, to contact Yaakov and request that Dinah be given to him as his rightful wife. Hamor then approached Yaakov with a proposal to amalgamate the two nations “…intermarry with us; give your daughters to us, and take our daughters for yourselves. And among us you should dwell; the land will be before you – settle and trade in it, and acquire property in it.” (Gen. 34:9-10) – sounds like a peace proposal to me.
However, Hamor’s proposal was not as genuine at it may have seemed. According to one source Hamor saw the wealth that Yaakov’s family possessed and saw this as an opportunity to monopolize Yaakov’s wealth without really offering him anything in return. In turn, Yaakov’s sons respond by giving Shechem an ultimatum: Sorry buddy, we can’t give our sister to an uncircumcised man like yourself – it’s insulting – if you really want her, you’re going to have to circumcise every male in town (Gen. 34:13).
- 3. Direct participation in hostilities
The most basic humanitarian law rule is that you may not kill civilians. A civilian is defined simply as any person who is not a combatant (‘combatant’ – a member of the states’ armed forces). However, civilians, while ultimately protected, may lose their protective status if they are seen as “taking direct participation in hostilities” (DPH). The notion of DPH is thought to be the most significant and at the same time the most controversial subject of IHL. As most armed conflicts today are fought asymmetrically and rarely on the conventional battlefield, it is easy to see the significance of assessing which civilians are legitimate targets and which are not. As to the controversy surrounding DPH – this stems mainly from the difficulty in determining who in fact is and who is not DPH. Professor Hersch Lauterpacht, a renowned international humanitarian law expert, has stated with regard to the field of IHL: “If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”. At the very deep end of that vanishing point, lies the notion of DPH.
Although Shechem had only to follow the seven Noahide Laws, far less stringent than the laws Shimon, Levi and the rest of Yaakov’s family were bound by, nonetheless, the people of Shechem had disobeyed at least two out of those seven laws (see below), and thus can be seen as having taken direct participation in hostilities, causing them to lose their protected status as civilians and rendering them legitimate military targets, free to be targeted by the brothers. Thus, Shimon and Levy acted in accordance with the laws of IHL when they attacked Shechem.
According to the Talmud in tractate Sanhedrin, the seven Noahide Laws are the following: the prohibitions of idolatry, murder, theft, sexual immorality, blasphemy, eating flesh taken from an animal while it is still alive and the mitzvah of Dinim – a requirement to establish courts of law. According to Rambam, this last mitzvah is to be used as a tool to enforce the first six mitzvoth, while Ramban interprets the mitzvah of Dinim more broadly as a requirement to judge between people in general. Transgressors of the above mitzvoth are to receive capital punishment for their deeds. Therefore, assuming the people of Shechem were indeed guilty of transgressing one or more of the above, Shimon and Levi also acted in accordance with halakha when they planned to kill the inhabitants of Shechem, who were already due to receive the death penalty.
- 4. Torture
There is also the issue of torture. In Genesis 34:2, it states that Shechem took Dinah, lay with her and ‘וַיַעַנֶהַ’. The word vaya’aneha is commonly mistranslated as “he violated her”. However, the word stems from the root “עִינוּי – inui“, which means torture. Torture is prohibited under all bodies of IHL even in non-international conflicts. Although the Torah doesn’t forbid torture outright, it is evident by the way the Torah chose to carry out its punishments that all measures were taken to avoid unnecessary human suffering even for convicted felons. For example, one of the four types of capital punishment, serefah (burning), was done by pouring molten lead down the throat of the condemned person. The hot liquefied lead causes direct thermal injury to the lungs, leading to instantaneous death, as a result of acute pulmonary dysfunction and shock, minimizing as much as possible the suffering of the individual (Journal of Clinical Pathology). However, when the Talmud in Tractate Avoda Zara tells us how the Romans killed the Ten Martyrs (Aseret Harugey Malchut), an entirely different method is used. Here too, the punishment was ‘death by fire’, however, contrary to the method adopted by Bet Din wherein the suffering is minimized, the romans chose to wrap Rabbi Hanina Ben Tardayun in a Torah scroll and placed wet sponges on his heart so he remain alive and be forced to endure as much suffering as possible. Furthermore, the Talmud, in tractate Avoda Zara, sets down a list of business transactions which are to be avoided. For example, it is forbidden to enter into a business contract with idolatrors engaged in building a bima – a stage. What is the nature of this prohibition? The Talmud tells us that these stages were built rather high and were used to throw people off them to their demise – the Talmud wanted to ensure that Jewish businessmen kept their hands clean and avoided taking a part in torturous acts at all costs, further alluding to their illegal nature.
Art. 1 of the UN Convention against Torture, defines torture as “any act by which severe pain or suffering…is intentionally inflicted on a person for such purposes as obtaining from him…information or a confession, punishing him for an act he…has committed or is suspected of having committed…” – Even though the Torah uses the word inui, it is arguable whether the acts Shechem performed on Dinah could be classified as such given their nature – Shechem’s acts, while brutal, are not likely to have been inflicted on her “for such purposes as obtaining from her…information or a confession, punishing her for an act she…has committed”.
- 5. Pillage
Another issue to be discussed is that of ‘pillage’ or ‘plunder’. Pillage is prohibited under all circumstances under the Hague Regulations and under the Fourth Geneva Convention. It has also been recognized as a war crime under the ICC’s Rome Statute, and is prohibited in non-international conflicts. In Gen. 34:27, it states: “The sons of Yaakov came upon the slain, and they plundered the city which had defiled their sister”. Although the Torah warns against the taking of plunder without instruction from Hashem in certain cases, the taking and dividing of plunder can be seen as a recurring theme throughout the Nation of Israel’s wars to the point that King David finally sets down rules guiding the division of plunder (1 Sam. 30:23-25). Thus, this action, at the time it was carried out, may not have been seen with the same severity by the Torah as it is by IHL. Judge Moshe Drori has written that today we adopt the approach taken by Yehoshua when conquering the Land, that is, that pillage is prohibited. Drori adopts the rule taught in tractate Bava Metsia whereby the applicable law is the one which has most recently been applied. According to Drori, since the Jews of Shushan refrained from taking from the spoils offered to them by Ahasuerus, thus, that is the applicable rule today. As to Shimon and Levi, it is possible that this was a common and widely accepted method of warfare at the time and therefore cannot be seen as forming a part of customary IHL.
- 6. Age
Another issue to be addressed is the legal age for participating in hostilities. According to the Midrash, Shimon and Levi were only 14 and 13 years old, respectively, at the time of Dinah’s rape. APII clearly states that children under the age of fifteen are prohibited from participating in hostilities, however, even when they do – they continue to maintain their protective status. While the Torah doesn’t expressly warrant a minimum recruitment age, nonetheless, all the censuses conducted of the Children of Israel in the desert, from the very first census pertaining to Trumat Shekalim (Exodus 30:14), as well as in the census conducted in the Children of Israel’s second year after leaving Egypt pertaining to military conscription and finally in the Plains of Moab at the end of the forty years in the wilderness; in each census all those who were “from twenty years and upward, all those who had served in Israel’s military” took part. Rashi, on that passage (Numbers 1:3) understands this to mean that twenty was the minimum age for conscription.
- 7. Perfidy
There is also the issue of “Perfidy” (API Art. 37). A perfidious act is defined as “inviting the confidence of an adversary…with intent to betray that confidence” – here, the brothers invited Shechem’s confidence by persuading him to undergo a circumcision, and then took advantage of his weakness to kill him. It would seem than that the brothers acted perfidiously.
When I first started pondering this issue, I tried to think of other perfidious acts in the Tanach and immediately the story of Yael and Sisra came to mind. Sisra, the enemy of Israel, is fleeing from the battlefield, when he is invited by Yael, a family friend, to come and hide in her tent. After wining and dining him with fresh milk and honey, Yael tells Sisra not to worry, whereupon she covers him with a sheet, lest he be discovered– at least that’s what yael leads him to beleive – immediately after covering him, Yael grabs a sharp tent-stake and drives it into his skull.
What does the Torah say regarding perfidy? Is there an analogous concept which exists in Jewish law?
In the Torah, we find two alternate terms resembling perfidy: begidah and meilah. What is the difference between the two? Could one of them be an appropriate match for perfidy? Malbim, expounding on the passage “nefesh ki tim’ol ma’al” (Leviticus 5:15) offers an explanation: ‘meila‘ and ‘begida‘ are synonymous verbs; both are used with regard to a man’s clothing. Just like a garment is used to cover oneself, so to a ‘boged’, or a traitor, hides his true intentions from his victim – on the outside, he appears to be a lover and a friend, but under his “garments”, so to speak, he is conniving, conspiring to lie and cheat. The difference between these two terms, Malbim continues, can be learned from the difference between a ‘meil’ (a jacket/an outer garment) and a ‘begged’ (an undergarment). Just like a meil is worn on the outside, over your clothes, and the begged is worn under your clothes, so to begida refers to when one lies to his friend in secrecy (‘under his garments’), and meila refers to one who commits an act of public treachery.
Nonetheless, all examples of begida and meila found in the Talmud generally apply to one who either cheats on his wife or turns his back to G-d, as such, it would be impossible to charge the brothers as having acted perfidiously towards Shechem from a Jewish law perspective, however they would likely be held accountable in an IHL court.
- 8. Conclusion
There are still other issues of humanitarian law to be addressed, such as the prohibition pertaining to “denial of quarter” (listed as a war crime under Art. 8(2)(e)(x) of the Rome Statute) - according to this principle, one may not declare “no prisoners will be taken alive” as in this case, however this no longer remains an issue assuming that the whole city was indeed taking direct participation in hostilities.
Shechem himself was certainly liable to capital punishment for having kidnapped Dinah as her kidnapping was an act of thievery. According to Rambam (Hilchot Melachim 9:14), the people of Shechem were also guilty since they were aware of Shechem’s theft and failed to bring him to justice – therefore they violated the seventh Noahide law, that of dinim, requiring them to establish courts and to bring transgressors to justice. Rav Eliezer of Worms (1176-1238), author of ‘Sefer haRokeach’ offers a different explanation as to why the people of Shechem were guilty: Part of Shechem’s agreement with Yaakov’s children was, in addition to the act of circumcision, an obligation to abandon idol-worship. Although they made it appear that they had done so, they continued to idol worship in secret – therefore they violated the mitzvah of no idol worshipping. Rokeach goes on to say that Yaakov’s sons even kept some of the idols they found in Shechem to serve as proof, should they be criticized by other nations of the world for killing Shechem without reason – the idols serve as proof of Shechem’s breach of their agreement with Yaakov’s family and testifies to their nature as idolaters. Ramban disagrees with Rambam’s reasoning. According to Ramban, if the people of Shechem were indeed DPH, Yaakov should have acted on his own. However, not only does Yaakov not act on his own, he reprimands his sons twice (Gen 29:5-7, 34:30) and ultimately punishes them by not giving them a portion of land inside Israel – Simeon’s tribe is forced to settle within Judah’s portion (Joshua 19:1) and Levi is given sporadic Cities of Refuge throughout the Land of Israel (Numbers 35:1-34) – Clearly Yaakov was not happy with his sons’ actions.
Yitzy Hammer lives with his wife and two children in Netanya. He made aliyah from the U.S. in 2000, studied in the yeshivat hesder in Otniel, and served in the IDF’s Combat Engineering Corps. Yitzy is currently studying towards an LL.B. in Law and a B.A. in Government at the Interdisciplinary Center (IDC), Herzliah, where he works as a research assistant in the subject of Jewish Law