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Published online by Cambridge University Press: 24 April 2015
The story would recapture the trace of Judaism, particularly the mystical Jew, in the early literature of international law—I think most readily of Gentilis' obsession with Judaism—a Judaism that seems at once the law that revelation and redemption replace and the mysticism that law and state refuse. Paradoxically enough, we find here our own complex relationship between law and religion exactly mirrored in the relationship between Christianity and Judaism.
This article examines the relationship between the Jewish laws of war and international law. As Kennedy notes in the opening quote, one way of understanding the relationship between Jewish laws of war and international law is as part of the relationship between international law and its “other.” Kennedy defines Jewish law as mystical, and in so doing he asserts that Jewish law is different in form than state law/international law. Kennedy's opposition of Jewish law and international law is not accidental. It is a direct consequence of the history of international law. As Mutua has noted “[i]nternational law claims to be universal, although its creators have unambiguously asserted its European and Christian origins.”From this point of view, international law has “universalized” its particular originswith the consequence that any non-European or non-Christian tradition is not universal and is the “other.” This fact leads Kennedy to argue that international law has ignored (among many other things) the traces of religion, mysticism and Judaism in its history in its quest to claim secular universality.
1. Kennedy, David, Images of Religion in International Legal Theory, in The Influence of Religion on the Development of International Law 137, at 152 (Janis, M. ed., Kluwer 1991)Google Scholar; reprinted in Religion and International Law 145 (Janis, Mark W. & Evans, Carolyn eds., Kluwer 1999)Google Scholar, available at www.law.harvard.edu/faculty/dkennedy/publications/religion.pdf.
2. Mutua, Makau, What is Twail?, 94 am. Soc'y intl L. proc. 31, at 33 (2000)Google Scholar.
3. See Fitzpatrick, Peter, The Mythology of Modern Law 65 (Routledge 1992)Google Scholar. See generally, Nunn, Kenneth B., Law as a Eurocentric Enterprise, 15 L. & ineq 323, 326 (1997)Google Scholar.
4. Comment by Weiler, Josephin Religion and International Law (Discussion) (1988) 82 Proc. Am. Soc'y Int'l l., supra note 4, at 198, 216–17Google Scholar.
5. See generally, Weiler, , Religion and International Law, at 216–17Google Scholar.
6. This structure is hinted at (if not formally identified) by Shabtai Rosenne in his leading work on Jewish law and its influence on the development of international law. In his article Rosenne examines many of the aspects of the relationship between Jewish law and international law examined here: In part II he examines the history of public international law and some of its points of intersection of this history with Jewish scholarship and Jewish law; in Part III he examines Jewish philosophers as a link between international law and Jewish law; in Part IV he examines Jewish law and its structure and origins; in Part V he examines the Jewish laws of war; and lastly he concludes his study with directions for future research. However, this article reverses Rosenne's framework because his research question is a macro question—the relationship between Jewish law and international law: whereas this article seeks to answer a micro question about the image of one aspect of Judaism, the Jewish laws of war, in international law. Consequently, an ascending structure provides a clearer understanding of the problem than Rosenne's descending structure. See generally, Rosenne, Shabtai, The Influence of Judaism on the Development of International Law: A Preliminary Assessment, 5 Netherlands Int'l L. REV. 119(1958)Google Scholar.
7. This question of authority is more complicated than it first seems. Judaism lacks an authoritative body to interpret the law. Consequently, pluralities of interpretation and questions of authenticity can always arise in Jewish law. Further, Charmé notes that authenticity is a key concept in “postmodern” debates about Jewish identity. Moreover, he notes that the term authenticity is used in a variety of ways: Essentialistic (as a statement of a person's “Jewish knowledge, observance or commitment”); Existential (the freedom to embrace one's Jewish identity or reject it)—Charmé traces this controversial form of authenticity both to Sartre and Fackenheim's post Holocaust theology); and the more recent Decentered authenticity (postmodern authenticity which recognizes that there is authenticity in recognizing the inability to establish authenticity). Charmé, Stuart Z., Varieties of Authenticity in Contemporary Jewish Identity, 6 Jewish Social Stud. 133–35, 135–40, 140–44, 149–51 (2000)Google Scholar. As Rabbi Professor Magonet notes in 1995, representing a Reform or liberal position, it is even questionable whether there is a “Jewish” way of interpreting scripture in the late 20th century. See Jonathan Magonet, Face to Faith: The New Reform Judaism Prayer book makes worship for the ipod generation, says Jonathan Magonet, available online at http://www.guardian.co.uk/commentisfree/2008/aug/02/religion. While Magonet acknowledges that the Bible is the core religious text of the Jewish religion, he asserts that the relationship of that text to its exegesis in law is a human creation—one of rabbinic interpretation. He also notes that it is the Rabbis who determine both the scope and extent of the non-Biblical sources of law, setting a “canon” of sources as well as a “methodology” for “interpretation” which allow them to establish “their own authority and that of a Rabbinic Judaism.” While the idea of a “canon” can be controversial in some areas of study, it is argued here that the development of rabbinic law prior to the Enlightenment produces widespread agreement as to the legitimate sources of Jewish law. What this means is that at a minimum, and on this various streams of Judaism would agree, there is a body of sources of Jewish law broadly accepted as authoritative within Judaism. Where disagreement arises is over the relationship these sources have to each other, their origin (for example the divine authority of non-Biblical sources Magonet questions), and their relative weight in interpretation of the law (if all law is divinely inspired it deserves equal weight, if it is not it does not). In sum, there is a range of “authentic” Jewish law that rests on a set of accepted sources. This article examines these accepted sources as they interpret the laws of war without entering into the debate on authenticity and without reference to the religious position of the author Magonet, Jonathan, Rabbi, Dr., “How Do Jews Interpret the Bible Today?: Sixteenth Montefiore Lecture” (02. 17, 1994), University of Southampton 66 J. study OLD testament 3–4 (1995)Google Scholar. To understand where Magonet's liberal position fits within modern Judaism further explanation is necessary. Miri Freud Kandel notes that since the European Enlightenment, Judaism has had to face the challenge of the modern world, and it does so in a series of responses that “revolved [around] questions of religious authority, individual autonomy, the value of tradition, and the nature of Jewish peoplehood.” One response is to retain the separation of Judaism from the modern world. This is called ultra-orthodoxy. On the other hand, modern orthodoxy engages with modernity as characterized by the idea of strict adherence to tradition and involvement with the society they inhabit—embodied in the saying “Torah im derech eretz” popularized by Rabbi Samson Raphael Hirsch. Alternatively, Reform Judaism embraces the values of modernity and action over law. An “intermediary” position is struck between these two movements in Conservative Judaism, which also has its offshoot, Reconstructionist Judaism. This is a brief summary of Miri Freud Kandel, , Modernist Movements, in Modern Judaism: An Oxford guide ch. 6, pp. 81–92 (Lange, Nicholas de & Kandel, Miri Freud eds., Oxford Univ. Press 2005)Google Scholar. Outside of these formal religious movements one can also find secular Jewish movements and Jewish renewal movements. See generally, id. at ch. 7. Rabbi Professor Magonet's speeches and writings can be understood only within this spectrum. His stance on authority falls explicitly within the Liberal or Reform stream of Judaism and is the most open to the modern world of the established streams of Judaism. However, it is often difficult to use any terminology to define modern Judaism. See also id. at 1. Additionally, the term “progressive” can “refer to all non-Orthodox religious Judaism.” Id. at 5. It is this author's understanding that outside of the three established streams, orthodoxy, conservatism and reform and their offshoots the range of sources which are authoritative are even more open to interpretation.
8. Walzer, Lorberbaum, Zohar and Loberbaum open their first volume in their edited collection of Jewish sources, The Jewish Political Tradition, Authority by discussing with the notion of authority in Jewish law. This work contains a chapter on the Biblical covenant. The first source they cite is the acceptance of the Torah; the second is the covenant at Sinai, Exod 24:1–8, 12–18. See The Jewish Political Tradition, Vol. 1: Authority, at 13–14 (Walzer, Michael, Lorberbaum, Menachem & Zohar, Noam J. eds., Lorberbaum, Yair co-ed., Yale Univ. Press 2000)Google Scholar.
9. As Walzer, et al., supra note, Genesis ch. 15 states: “In that day the LORD made a covenant with Abram, saying: ‘Unto thy seed have I given this land, from the river of Egypt unto the great river, the river Euphrates,’ Gen 15:17.” This covenant is later reiterated in Genesis 17, “I am Shaddai. Walk in My ways and be blameless. I will establish my covenant between Me and you, and I will make you exceedingly numerous.” Gen. 17:1–2. The discussion in this entire paragraph is summarized and introduced at Walzer et al., supra note 8, at 6–10.
10. Id. at 6–10, 13–23.
11. See, e.g., the difference between BT Shabbat 88a and Sifre Numbers 115 quoted in id.; and in Michael J. Sandel, Commentary, in Walzer, supra note 8, at 6–10, 28–33.
12. Writing in different times and contexts, commentators have been troubled by this problem. For example, Walzer et al discuss and provide excerpts Abravanel and Judah Loew (The Maharal of Prague) who are concerned about the relationship of the covenant and exile. Summary and excerpts from Walzer et. al, supra note 8, at 9, excerpts at 36–42; Interestingly Walzer, et al. also excerpt from Spinoza, who argued for a social contractual view and the fact that Covenant was not binding once in exile. Summary and excerpts from Walzer et. al, supra note 8, at 10, excerpt at 43–46.
13. See Walzer et al., supra note 8, at 43–46.
14. Solomon, Norman, Judaism and the Ethics of War, 87:858 Int'l Rev. Red Cross 295, at 295 (2000), available at http://www.icre.org/eng/assets/files/other/irre_858_solomon.pdf (accessed Sept. 10, 2012)Google Scholar.
15. Id. at 295–96.
16. Deut 20:17, Jewish Publ'n Soc'y (1917), available at www.mechon-mamre.org/p/pt/ptO.htm (accessed Sept. 10, 2012).
17. Walzer, Michael, Commanded and Permitted Wars, in Law, Politics, And Morality In Judaism 149, at 149 (Walzer, Michael ed., Princeton Univ. Press 2006)Google Scholar.
18. Solomon, supra note 14, at 297.
19. Id. at 298.
20. Walzer, supra note 17, at 153.
21. Id. at 153.
22. Id. at 158.
23. Solomon, supra note 14, at 298 (emphasis original).
24. Id. at 298; see also Rosenne, supra note 6, at 142 (discussing the development of this requirement in the Mishna and then the Talmud).
25. Solomon, supra note 14, at 298.
26. Cohen, Stuart A., The Changing Jewish Discourse on Armed Conflict: Themes and Implications, 17 Terrorism & Political Violence 353, at 353 (2005)Google Scholar.
27. Id. at 354.
28. Id. at 358.
29. Id. at 359.
30. Id. at 360.
31. Aviezer Ravitzky, Prohibited Wars, in Law, Politics, and Morality in Judaism, supra note 17, at 169, 171–72; see also Cohen, supra note 26, at 359–61. See generally Rosenne, supra note 6, at 143–44.
32. See, e.g., Cohen, Stuart A., The Re-Discovery of Orthodox Jewish Laws Relating to the Military and War (Hilchot Tzavah U-Milchamah) in Contemporary Israel: Trends and Implications, 12 Israel Stud. 1 (2007)CrossRefGoogle Scholar.
33. Rosenne, supra note 6, at 149.
34. There is a dualism in Judaism, which Vajda, et al. has described as dialectical, between Torah and Kabbalah or law and myth. Vajda argues that there a several dialectics that shape Judaism, revelation and law, written and oral law and messianism and covenant. In this Judaism has, arguably, always privileged the latter term in each pair over the former. See Vajda, George, Ferace, Allesandro & Cantarella, Neida, The Dialectics of the Talmud and the Kabbalah, 15 Diogenes 63, at 63–65 (1967)Google Scholar.
35. See generally, Jacobs, Jonathan, Judaism and Natural Law, Heythrop J. 930 (2009)Google Scholar. For a detailed examination of the relationship between Jewish Law and Natural Law in the Halachah and the origins of the debate over this relationship, see Lamm, Norman & Kirschenbaum, Aaron, Freedom and Constraint in the Jewish Judicial Process, 1 Cardozo L. Rev. 99, 105–20(1979)Google Scholar.
36. Jacobs, supra note 35, at 941.
37. Id. at 941–42.
38. See a discussion in id. at 944.
39. Id. at 945.
40. See generally and e.g., Novak, David, Natural Law in Judaism (Cambridge Univ. Press 1998)CrossRefGoogle ScholarPubMed.
41. Faur, José, Law and Hermeneutics in Rabbinic Jurisprudence: A Maimonidean Perspective, 14 Cardozo L. Rev. 1657, 1660–61 (1992)Google Scholar.
42. See generally id. at 1661–62.
43. See generally id. at 1660–61.
44. See Vajda et al, supra note 34 at 65.
45. Rosenne, supra note 6, at 124.
46. Id. at 122–24.
47. Id. at 124.
48. Mark W. Janis, Religion and the Literature of International Law: Some Standard Texts, in Religion & International Law, supra note 1, at 121,121.
49. See, e.g., Mark W. Janis for this statement and his skepticism of its utility. Janis, supra note 48, at 121. See also Hilaire McCoubrey who devotes a section of his work to Secularization and the Grotian Revolution. Hilaire McCoubrey, Natural Law, Religion and the Development of International Law, in Religion and International Law, supra note 1, at 177, 183.
50. Murphy, Cornelius F. Jr., The Grotian Vision of World Order, 76 Am. J. Int'l l. 477, 482 (1982), available at http://omero.humnet.unipi.it/2004/matdid/517/murphy_ocr.pdfGoogle Scholar.
51. Knight, W.S.M., Balthazar Ayala and His Work, Ser. 3, 3 J. Comp. Legislation & Int'l l. 220, 220 (1921)Google Scholar.
52. Murphy, supra note 50, at 482.
53. Id. at 482; or as Kingsbury puts it, “But Grotius goes beyond Gentilis in his attempt to construct a philosophically robust system of international law that he believes might be truly universal.” Kingsbury, Benedict, Grotius, Gentili and Extra-European World, in The Law of the Sea: The Common Heritage and Emerging Challenges 39, 42 (Schreiber, Harry N. ed., Kluwer 2000), available at http://www.iilj.org/aboutus/documents/GentiliGrotiusandtheExtra-EuropeanWorld.pdfGoogle Scholar.
54. I take this from Rosenne, supra note 6, at 123–24.
55. Id. at 124.
56. For example, this claim is made by Molen, Van Der, Molen, G.H.J. Van Der, Alberico Gentili and The Development of International Law: His Life Work and Times 113 (A.W. Sijthoff 1968)Google Scholar. A committed Protestant, Gentili flees Italy with his father to escape the Inquisition. As such he gains extensive knowledge of the Bible and sources such as Josephus and Philo. Gentili is best known for his “secularization” of international law, which as Van Der Molen notes, is summed up in the phrase “Silete theologi in munnere alieno.” However, as she also observes in her seminal study, Gentili does not want to “… deprive the legal norms from their religious basis.” He more modestly feels that law and theology are two separate spheres of study. Further, she argues that his insistence on this division is based on his personal history and life. Van Der Molen at 38, 210, 274; Phillipson, Coleman, Albericus Gentilis, 12 J.Soc'y Comparative Legislation 52, 58 (1911)Google Scholar; see also Rosenne, supra note 6, at 124.
57. Rosenne, supra note 6, at 124.
58. Id.
59. Id. at 125.
60. The term appropriation is used in Sally Engle Merry's “broadest” sense of cultural appropriation, the
…. taking [of] an existing cultural form from one social group and replaying it in another with different meanings or practices: perhaps taking the tune and playing it in a different key or at a different tempo so that it becomes something different, yet still the same.
This often is applied in intellectual property to the act of dominant groups using the cultural forms of subordinate groups. Merry, Sally Engle, Law Culture, and Cultural Appropriation, 10 Yale J.L. & Humanities 575, 585–86 (1998)Google Scholar. In this context specifically I mean the appropriation of Jewish tradition. As Plaskow notes in her discussion of the use by Christian feminists of the word “shalom,” this form of appropriation requires an “acknowledgment” of the fact that “[f]or two thousand years Christian interpreters have read Hebrew Scripture in a way that renders invisible both Israelite religion and the subsequent history of rabbinic interpretation.” Plaskow, Judith, Appropriation, Reciprocity and Issues of Power, 8 J. Feminist Stud. Religion 105, 107–08 (1992)Google Scholar. Of course she acknowledges that as a “white middle-class woman” she also needs to be aware of her own deployment of appropriation of other traditions. Id. at 108.
61. Lachs, Phyllis S., Hugo Grotius' Use of Jewish Sources in On the Law of War and Peace, 30:2Renaissance Q. 181, 184 (1977)CrossRefGoogle Scholar.
62. See id. at 183; 1 Grotius, Hugo, The Rights of War and Peace 111, at 126 § L n1 (Tuck, Richard ed., Liberty Fund 2005)Google Scholar (from the edition of Jean Barbeyrac 1738).
63. Rosenne, supra note 6, at 125.
64. Meijer, Jacob, Hugo Grotius' Knowledge of Hebrew, 14 Historia Judaica 133, 133 (1952)Google Scholar [hereinafter Meijer, Hebrew]. See also 15 Baron, Salo Wittmayer, A social and Religious History of the Jews: Late Middle Ages and Era Of European Expansion: 1200–1650, Resettlement and Exploration 26 (Colum. Univ. Press/Jewish Pubi. Soc'y Am. 1973)Google Scholar.
65. Meijer, Hebrew, supra note 64, at 133–34.
66. Id. at 135.
67. Id. at 135. Meijer, Lachs and Rosenne all seem to agree that Grotius is intimately involved in the practical terms of “Converso” Jewish settlement in Holland from Portugal after their expulsion (first from Spain, for some, and then from Portugal for all). This takes the form of the Remonstratie—Remonstrance—which not only discusses the need for religious freedom for Jews but 49 “articles” for organization of this religious freedom. The reason for Grotius's involvement in this remonstrance is the subject of debate as well. See Rosenne, supra note 6, at 126; Lachs, supra note 61, at 182; Meijer, Jacob, Hugo Grotius' Remonstratie, 17 Jewish Soc. Stud. 91, 91–92 (1955)Google Scholar [hereinafter Meijer, Remonstratie].
68. Meijer, Hebrew, supra note 64, at 136. For example, Meijer notes that the first edition of Grotius's major theological work, De Vertate Religionis Christianae, is first published in 1627. He notes that the first edition of this work is not annotated and does not contain direct reference to Jewish law sources; the annotated version only appears in 1640. This together with inaccuracies in the Catholic sources mentioned in the first edition and differences with those in the 1640 edition indicate to Meijer that all Jewish law sources are inserted post publication. In fact Meijer argues that the Hebrew quotations in this work are almost uniformly incorrect; id. at 142–43. So, he concludes by noting that, “[i]t clearly proves that rabbinic literature was terra incognita for Grotius. His knowledge of Hebrew derives from secondary translations not from the Hebrew originals.” Id. at 144.
69. Meijer, Remonstratie, supra note 67, at 92. Meijer also notes that Jewish converts are often used as translators. Id.
70. Rosenne, supra note 6, at 126. Meijer argues that it is probably the scholar Vosius who introduces Ben Israel and Grotius, and that Vosius likely acts link between the two on an ongoing basis. Meijer, Hebrew, supra note 64, at 139. However, the copies of Ben Israel's works that Vosius procures for Grotius are Spanish translations, a fact which, Meijer observes, makes Grotius's knowledge of Hebrew less certain. Id. at 139–40.
71. See, e.g., Shoeps, Hans-Joachim, Philosemitism in the Baroque Period, 47 Jewish Q. Rev. 139, 143–44 (1956)Google Scholar.
72. Meijer, Hebrew, supra note 64, at 139.
73. Id. at 139.
74. Lachs, supra note 61, at 183. As Lachs notes, Grotius refers explicitly to Menasseh's Concilliator in Book III of the notes to De Jure Belli Ac Pads, which reads: “And also this Lishnot mifno tashlim michar [transliterated by author from Hebrew—original note in Hebrew] One may speak ambiguously for advantage quoted by Menasses Ben Israel.” grotius, supra note 62, at 1211 n.5; Lachs, supra note 61, at 183.
75. Lachs, id. at 184–86.
76. Id. at 185–86.
77. Id. at 186, 187–88.
78. Midrash, , The Oxford Dictionary of the Jewish Religion 463 (Berlin, Adele ed., 2d ed., Oxford Univ. Press 2011)Google Scholar. “Midrash.”
79. Lachs, supra note 61, at 186–87, 188.
80. Id. at 189. She also observes that Grotius at one point cites the Talmudic source together with the work of the “learned Constantine” whom she identifies as Dutch scholar Constantine L'Empéreur van Oppijck. Van Oppijck, she argues “would have provided Grotius with Jewish source material.” He also translates several Jewish commentators into Latin, and these may be the sources to which Grotius refers. Id. at 190–91.
81. Id. at 194–95.
82. Id. at 197, 198.
83. Id. at 198.
84. Baron, supra note 64, at 26.
85. Lachs, supra note 61, at 200.
86. Wilson, George Grafton, Grotius: Law of War and Peace, 35 AJIL 205, 223, § 47Google Scholar. This is an article which reproduces (with an introduction) the Progolemena of the Law of War and Peace.
87. But not necessarily more access than other contemporaries. Nearly contemporaneously with Grotius, John Selden in England is considered to possess “… Rabbinic erudition [which] has had very few equals among non-Jewish Scholars.” Herzog, Isaac, John Seiden and Jewish Law, Ser 3, Vol. 2 J. Comparative Legislation & Int'l L. 236, 236 (1931)Google Scholar. Particularly of note is Selden's work, De Jure Naturali et Gentium Juxta Disciplinam Erbraeorum, in which Jewish law features prominently. In this work he specifically identifies the division between laws commanded to those of the Jewish faith and the Laws of Noah obligatory on all as parallel to natural law and the Jus Gentium. Id. at 238; I was not able to easily find an English translation of this work, but I would refer the interested reader to Seldeni, Joannes, De Iuri Naturale & Gentium: Iuxta Disciplinarum Ebraeorum: Libri Septum (London, 1640)Google Scholar, available in Early English Books Online. However, like Grotius, many laud Selden's Jewish learning, but some have questioned this assessment. One prominent critic is Herzog who is skeptical of Selden's knowledge of Jewish law. He agrees that Seiden relies on primary sources in the Jewish sense (such as the Mishna, Talmud and commentaries including Maimonides). And he also concedes that his citations are generally correct (or no more incorrect then a similarly situated Jewish scholar). He does however criticize the fact that Seiden seems never to have studied Jewish sources systematically and so lacks what he calls the “Talmudic technique.” He also queries whether much of Selden's information came from Christian Rabbinists. So, rather than seeing Selden's extensive use of Jewish sources as a positive, as others do, Herzog sees him as undiscerning. He also is not necessarily using the most current of sources to interpret a legal debate. Consequently, Herzog appraises Selden's Jewish scholarship, much like Grotius's, as “exaggerated”; id. at 242–45. However, as Rosenne notes, there are more favorable reviews of Selden's Jewish study than Herzog's. Rosenne, supra note 6, at 130. Thus, while it appears that Seiden has better knowledge of Jewish sources than Grotius did, it is possible to assert that Selden too engaged in appropriation of Jewish law, particularly in his analogizing Jewish law to natural law and Jus Gentium, which, as noted above, is a contestable interpretation of Jewish law and one which, at the very least is read back into Judaism and is not part of the sources themselves. Additionally, it is worth noting that Rosenne closes out his study with the followers of Grotius, Pufendorf and Barbeyrac. One reason for ending this survey of the influence of Jewish law on international law at this point is that there is a window in the period of formation of international law in which Jewish law offered scholars a Biblical, non-European, but non-Catholic influence on international law. This period ends with the process of secularization of international law. Rosenne, supra note 6, at 130–32.
88. For an example, see the discussion of Seiden supra note 87.
89. See Novak, supra note 40.
90. See Fitzpatrick, supra note 3, at 65. See generally, Nunn, supra note 3, at 326.
91. Kennedy, supra note 1, at 152.
92. Id.