A Response to the Halakhic Ruling Against the Return of Territory



The halakhic ruling recently issued, entitled, “The word of G-d – the Halakhah on the Matter of Preservation of Life, by Rabbis of Israel,” is actually a political declaration masquerading as a halakhic ruling, which forbids the return of territories for the sake of peace, even if the and when the government orders such. The situation referred to in the ruling is that the legitimately-elected government of the State of Israel declares that, in the framework of a peace process being carried out with our neighbors and with the Palestinians, it is willing to return territories in exchange for peace; in this way, claims the government, less people will be killed, both in future wars and by terrorist attacks, both in the short term and in the long term, and that this is its main goal.

The “ruling” is based on the words of the Shulkhan Arukh Orach Chaim 329,6, which are themselves based on the Talmudic passage in Tr. Eruvin 45a. The passage deals with a case of Gentiles who are attacking Jewish towns. The Talmud determines that in the case of a border town, it is permitted to desecrate the Sabbath in order to defend it, even if they are coming merely to steal “hay and straw;” for we fear that otherwise they will capture the town, from where it will be easy for them to then capture the rest of the Land (according to Rashi and the other commentators.) This passage does not deal with the return of territories, but rather with a dispensation to violate the Sabbath even in the face of doubtful future endangement to life. In such a case, because it is a border town, it is permitted to violate the Sabbath in order that a possible danger to life not arise in the future; in a non-border town, the Gentiles’ seizing of property would not be sufficient cause to justify Sabbath-desecration.

The above has nothing whatsoever to do with the return of territories for the sake of peace. Concerning the question of evacuation of an area for purposes of peace, the authorized leaders of the town – negotiating with those who are agreeing to make peace, and not with “enemy Gentiles who are attacking” – are of the opinion that our voluntary relinquishing of the area will prevent future deaths (the “preservation of life” argument), as well as the desecration of G-d’s Name in the world. They feel that there is no fear that the relinquished areas will be used as a springboard for an attack on the entire Land. Therefore, this is not a case of “enemies who are coming merely for hay and straw.” For even in the above Talmudic case, the dispensation to violate the Sabbath is only to decrease the chances of life endangerment; but to to do an act that will increase the risk, or to refrain from doing something that will decrease the risk, is certainly forbidden.

In the above “ruling,” there is a purposeful twisting of the term “matters of hay and straw(!)” In keeping with their political views, they explain it as being akin to the claim of the Gentiles that they want peace and not territories. But this is not so. The Gentiles in the Talmudic case claim explicitly that they want to unlawfully take property, and they do not claim to want peace, and therefore we fear that there may be a danger to life in the future. The real question is, “Does the halakhah permit the ceding of territories for peace?”

At worse, the return of territories may be considered a violation of the injunction, lo techanem – “Thou shalt make no covenant with them, and show them no kindness” (Deut. 7,2). But this prohibition, as all others in the Torah, is “pushed aside” in face of danger to life. This point is uncontested. The definition of danger to life is not a halakhic one, but is rather given over to experts. This is similar to one who is ill on Sabbath or Yom Kippur; the determination as to whether he is permitted to violate the Sabbath (or to eat on Yom Kippur) is made by the expert, namely, the doctor. Similarly in this case: the experts must decide, and they are none other than the legitimately-elected government. Only the government is in possession of the most recent intelligence evaluations, the estimates of the dangers of war and continued terror attacks if peace is not attained, the detailed agreements reached with our former enemies – who today are our partners in peace – and the international evaluations of what it is likely to occur in this region if peace does not succeed. If the experts of the government decide that the danger to life from another war and continued terror attacks is greater than the dangers incurred in making peace, than the halakhah determines that the experts must be listened to. If we do not act in accordance with the experts, and a catastrophe occurs, this is murder. The other path, which is likely to endanger lives, has no halakhic basis. The halakhah in this case is straightforward, according to accepted halakhic principles, and so ruled the leading rabbis of our time.