Israel's Discriminatory Practices Are Rooted in Jewish Religious Law

By Dr. Israel Shahak

(This is an abridged translation of an article by the author published in the Israeli newspaper Davar on March 15, 1995.)

The rabbis of Safad, joined by the Chief Rabbi Bakshi-Doron, recently issued a judgment prohibiting Jews living in the Land of Israel to lease or sell any real estate property to non-Jews. These rabbis are on the State of Israel's payroll. Yet all too clearly, their judgment contravenes Israeli state laws proscribing public expressions of racism and utterances hurtful to human dignity.¹

Nonetheless, the rabbis of Safad did not invent this prohibition. The racist ruling is part and parcel of Jewish religious law (halacha). Furthermore, all the rulings of Jewish religious law concerning non-Jews, and incidentally, also Jewish women and some other Jewish sectors, are racist and discriminatory. Yet for years such rulings have been routinely invoked by rabbinical courts which are a recognized part of the State of Israel's judiciary.

Two examples show what the application of such laws may involve. According to Jewish religious law, both non-Jews and Jewish women cannot validly testify in rabbinical courts. True, Jewish women are permitted to testify in a few strictly limited matters considered "female affairs." If a case involves "a major judicial effort," however, a Jewish woman's testimony is perforce invalid,² because "all women are lazy by nature." But even in cases not involving a "major judicial effort" when Jewish women can testify, a problem appears when the testimony of a Jewish woman is contradicted by the testimony of a Jewish man. Jewish religious law solves this problem by the formula that "a testimony of 100 Jewish women is equivalent to a testimony of a single Jewish man." ³

The second example concerns the definition of the term "harlot" in Jewish religious law. "We have learned by tradition that the term 'harlot' as designated in the Torah means any woman who is not a daughter of Israel (i.e., not born Jewish), or a daughter of Israel who has had intercourse with a man she is forbidden to marry" (Maimonides, The Book of Holiness, Forbidden Intercourse, Chapter XVIII, Law 1, translated in Yale University Judaica series). According to this racist definition, all women who happen to have been born non-Jewish are automatically considered to be "harlots." On the basis of this definition every female converted to Judaism is still considered by Jewish religious law to be a "harlot"—and as such forbidden to marry a Jewish "priest" (i.e., a supposed descendant from the Biblical "Aaron the priest").⁴ It is easy to imagine what the Jews would have said if any religion or movement branded all Jewish women as "harlots" and maintained that they remain "harlots" forever only because they were born Jewish.

Lands defined as owned by the State of Israel can be leased only to Jews.

All too clearly the enforcement of such laws in the State of Israel is irremediable unless the religion is separated from the state. It is impossible, and in my view even improper, to demand that Orthodox rabbis not issue rulings conforming to Jewish religious law which has for them an incontestable validity as the Word of God. But it is reasonable to demand that those who do not believe in the sanctity of Jewish religious law know what is its real content. The secular Jews should not fall prey to an indoctrination presenting "the Jewish morality" as supposedly enshrined in Jewish religious law, or extolling compatibility between the norms of historical Judaism and modern democracy. As Jews, we should be aware of the undeniable historical fact that for long centuries the entire Jewish nation really believed that all non-Jewish women were "harlots" and that the religious Jews in Israel still so believe.

What is really surprising is that people so seldom realize that laws of the State of Israel pertaining to the use of land are no different in essence from the rulings of the Safad rabbis. The State of Israel has turned most of the land, whether in Israel or in the West Bank, into "state land." After these lands are defined as owned by the State of Israel they can be leased only to Jews. The right to lease such lands is denied to all non-Jews, without a single exception. This denial is enforced by placing all state lands under the administration of the Jewish National Fund, a branch of the World Zionist Organization, whose racist statutes forbid their lease or any other use to non-Jews. It is easy to see that such Israeli regulations are nothing but an effect of corresponding rulings of Jewish religious law, just as secular anti-Semitism is often an effect of secularization of religious anti-Semitism.

On closer inspection it turns out that almost everything the State of Israel does or says in its relations with non-Jews is an effect of such a secularization of religious notions. As an example let me give the recent spontaneous pronouncement by senior officials of the Housing Ministry in justification of their policy of supporting the Jewish settlers who squat in houses that the ministry builds. In such cases the ministry's policy is to spend public money for connecting such houses to the electricity, water and sewage networks. When asked why they do it, the Housing Ministry officials answered that "it was inconceivable to leave the Jews without electricity or sewerage, no matter what they do."

Gentile Villages

It is not difficult to point to Arab villages in Israel (let alone in the occupied territories) whose residents have been left for decades "without electricity or sewerage," often until the present day. It is not difficult to point to the striking contrast between spending tax money for construction of magnificent public buildings in the center of Jewish Gush Etzion (in the West Bank) or Jewish Gush Qatif (in the Gaza Strip) and the dilapidation of Druze villages in Israel which are not being granted budgets for the most essential amenities, even though a large majority of their residents serve in the Israeli army. We are often told of "an alliance of blood" between the Druze and the Jews. For all such talk, however, the Druze are Gentiles, which automatically turns them into frequent victims of discrimination, both by Jewish religious law and Israeli policies.

There are well-intentioned people who believe that this situation could be significantly remedied if the Knesset enacted more laws against discrimination, or if the Supreme Court passed more verdicts against it. In fact, there is no basis for such hopes because the State of Israel has a multitude of ways of circumventing legal obstacles. The Supreme Court verdict which ordered the government to let the Arab villagers of Baram and Ikrit return to their villages has never been made effective⁵ and the Meretz ministers in the present government did not help these villagers either. Racist and inciteful pronouncements of Jews against non-Jews, especially against Arabs, abound in the State of Israel. Yet I do not recall a single instance of a Jew being convicted for such an offense, although many Arabs have been convicted for incitement against the Jews. I do not deny the existence of major differences between Israeli laws and Jewish religious law. But the most important of these differences seems to be that the manner of drafting the Israeli laws permits obfuscation of what Jewish religious law states with bluntness.

Official racism and discrimination pervade all walks of life in Israel. Israel is not the only state which robbed the natives of their land, whether in the West Bank after 1967, or by more legal means in Israel in the 1950s and 1960s. In those decades most land owned by the Arab citizens of Israel (let alone the refugees) was in effect filched from them. There are many states which in the past were systematically engaged in land robbery. The U.S., for example, robbed Indians of their land, transforming most of it into state land. Nevertheless, this land is now available for use by any U.S. citizen. One of the differences between Israel and other states is that the latter might have practiced racial or ethnic discrimination in a specific period of time in the past, whereas in Israel such discrimination still is practiced.

We need to recognize that in Israel the real issue is discrimination not only against the Palestinians (including those who serve in the Israeli army, police and Shabak), but against all non-Jews. This discrimination has the same character as that which the anti-Semites want to apply against the Jews. Unless we understand those realities, we will not be able to change them. But these realities include the fact that Israel practices systematic discrimination against non-Jews because it defines itself as a "Jewish state mandated to preserve its Jewish character."

Until the beginning of the Jewish Enlightenment⁶ all Jews firmly believed that non-Jews should be discriminated against whenever possible. It now turns out that the Jewish Enlightenment failed to change the attitudes of all, or perhaps even of most, Jews in this respect. Many completely irreligious Jews still believe that for the sake of the Jewish tradition which commanded discrimination against non-Jews, the latter should be discriminated against in the "Jewish state" forever.

Of course this argument cannot justify discrimination against non-Jews. On the contrary, it closely resembles the arguments of anti-Semites in favor of continued (or renewed) discrimination against the Jews, to the point of virtual identity.

Challengers of the view that adherence to tradition justifies discrimination can be divided into two completely different categories. Some argue that a racist and discriminatory tradition is to be denounced in any event, even if in the past it helped provide a state or society with some cohesion. The advocates of this view assign to justice a priority higher than to tradition and are accordingly willing to oppose their own or their ancestors' tradition if it conflicts with the principles of justice. According to this view, social reforms should aim at a removal or change of such traditions. I fully concur with this view.

Religion as Nationality

But there also exists a second category of challenge to tradition. Its advocates can be recognized by their refusal to adhere to universalist values and, even more typically, by their hypocritical and self-interested recourse to democratic principles. A good example of that is the behavior of a great majority of diaspora Jews. They have always been vociferous in demanding equal rights for themselves. Of course, in this they have been right. Accordingly, they are right when they become enraged at opponents abroad of equal rights for Jews and proponents of at least some anti-Jewish discrimination who invoke the need for social continuity and respect for tradition. For example, the current official definition of the concept of a "Frenchman" in France or a "Turk" in Turkey, includes the Jews of these countries. But in France before the French Revolution the Jews living in that country were not considered French, whether by officialdom or by common people. Likewise, before the reforms of Kemal Ataturk, neither the Jews nor the Christians living in Turkey were regarded as Turks. Now, both the French fascists and the Turkish Islamic extremists want to re-enact the traditional definition of nationality in their respective countries: a definition in which nationality is roughly co-extensive with religion.

Let me sum up. A solution to the problem of discrimination against non-Jews by the State of Israel seems to me much more important than the peace process. Such a solution, however, in turn depends on the rejection of the linkage between Israeli policies and Jewish traditions. At the same time, we must never lose sight of the fact that all the problems stemming from the linkage between the state and its national character also exist in all other Middle Eastern states, with the exception of Turkey. All these states define themselves officially as either "Arab" or "Muslim" or both. Needless to say, I oppose the concept of an "Arab state" or a "Muslim state" no less than the concept of a "Jewish state." This is why I believe that the separation of religion from the state in all Middle Eastem countries is a precondition of a true and durable peace between them. Before the struggle for such a separation is crowned with at least a partial success, we can at best expect only truces and cease-fires, even if some of them would be dignified by naming them peace treaties.

This applies not only to the Arab-lsraeli conflict but also to all other Middle Eastern conflicts. Needless to say, a truce is preferable to a war, but it should not be regarded as a "solution." A true peace in the Middle East can be made only between the citizens of democratic states rigorously applying the principle of equality before the law, resting on adherence to universalist values. Such a peace can only be established by looking forward, not backward.

NOTES:

¹ Plenty of such laws exist, but since only the attorney general has the right to charge people who seemingly contravene them, they are almost always applied against the Arabs and hardly ever against the Jews. For example, the late Nazi Meir Kahane was never charged for calling Arabs "dogs" as was his custom.

² The example given in halacha is that a Jewish woman can testify that a single dish or several dishes are kosher. But if she testifies that many dishes prepared for a big reception are kosher, her testimony is invalid on the assumption that her laziness and resultant reluctance to make a major effort could make her lie if they really were non-kosher.

³ Although this ruling is provided in the English translation of the authoritative Talmudic Encyclopedia (under the entry "Yisha," "woman"), it cannot be found in any of the numerous books dealing with Judaism in English or other foreign languages.

⁴ In the U.S. this ruling is accepted by the Orthodox and the Conservatives, i.e., by the majority of American Jews. Needless to say, neither they nor the Reform Jews (who do not accept it) ever discuss the matter in their English-language publications.

⁵ The verdict was issued in 1951. Ben-Gurion's response was to order the Israeli air force to bomb the two villages on Christmas Eve of that year, with the adult male villagers rounded up and forced to watch from the nearby hill as their houses were being demolished. Such practices are possible because Israel has two systems of laws, both equally in force. One comprises various "emergency regulations" which are hardly ever applied against the Jews, and the other relatively liberal laws applied whenever the Jews are concerned.

⁶ In the 1780s. It spread rapidly in France, Britain and Holland, slowly in Germany and the Austrian Empire, but it began in the Russian Empire only in the 1860s and in the Ottoman Empire even later.

Israel Shahak, a Holocaust survivor and retired professor of chemistry at the Hebrew University in Jerusalem, is chairman of the Israeli League of Human Civil Rights.