The conflict of conscience and law in a Jewish state.
Jewish philosophers in the State of Israel have been forced by reality to think about questions in political theory that in the past lacked practical relevance. The question of the morality of obedience (or disobedience) to the laws is a topic that is present in the classical sources. It is a frequently discussed topic in Israeli public discourse, especially when it comes to the question of the duty to serve in the army. The article examines the concept of conscience in the wider context of the ethics of Yeshayahu Leibowitz. Although Leibowitz was reluctant to attribute any positive characteristics to the conscience in his theoretical works, he openly supported the activity of the left-wing refusal movements in Israel. The article tries to explain the apparent contradiction between Leibowitzian theory and practice. The article also mentions the works of two Israeli thinkers Daniel Statman and Avi Sagi, who are sensitive to the interplay between Jewish sources and western political concepts. They try to construct a new Jewish definition of conscience and to open the way to the development of other related political and ethical concepts.
When Achad Ha'am formulated the concept of cultural Zionism, he dreamed about the intellectual, cultural, and spiritual renewal of Judaism. He believed that from the national home of the Jewish people, the Land of Israel, the old-new Jewish spirit would illuminate Diaspora Jewry, and among other intellectual developments a new Jewish philosophy would be born. If we consider the quantity and quality of research on Jewish thought that has been produced in the Land of Israel since the beginning of the Zionist movement, we can say that from the point of view of academic research the dream has been realized. On the other hand, if we think about really innovative, original Jewish thinking, built on traditional concepts and interpreted in the light of the new Jewish reality after the establishment of the State of Israel, then we are still only at the beginning.
Since regaining national sovereignty after almost two thousand years of exile, the Jews in the modern State of Israel have been forced by reality to think about questions in political theory that in the past lacked practical relevance. This pragmatic imperative would make political philosophy an ideal field for the renewal of Jewish thought. In their everyday lives, Israeli thinkers confront problems such as the ethics of Jewish power, politics, violence, and war, and they can play a leading role in the renewal of Jewish political thinking. The question of the morality of obedience (or disobedience) to the laws is a topic that is present in the classical sources, and is a frequently discussed topic in Israeli public discourse. Still, a new Jewish ethics of disobedience to the laws of the state remains a desideratum.
The public discussion on civil disobedience becomes especially emotionally charged in Israel when it comes to the particular problem of disobeying the duty to serve in the army. (1) Many Israeli legal and moral theorists have written on the question of different forms of disobedience, among them conscientious refusal, but the authors who are concerned with the philosophical question of disobedience usually disregard the traditional Jewish aspect of the question. There is a number of articles, halakic decisions, and rabbinical sermons on the disobedience problem from the perspective of Jewish law and traditional religious Jewish thought, but in these writings the complex general ethical problem of disobedience is almost universally ignored. Since Israel, according to its self-definitions, aspires to be a democratic and Jewish state, it seems rather astonishing that attempts to develop a Jewish philosophical theory of disobedience have been few and far between.
CIVIL DISOBEDIENCE AND CONSCIENTIOUS REFUSAL
In Western political thought there is a well-known distinction between civil disobedience and conscientious refusal developed by thinkers such as Rawls, Dworkin, and others. (2) The essence of the distinction can be summarized thus: civil disobedience is seen as a nonviolent act that is carried out in the public sphere and aims to change a law, while conscientious refusal is based on an individual's desire to remain loyal to certain religious, moral, or other values.
Civil disobedience is basically an act of resistance, or the avoidance of an act of obedience to a certain order, and it can be practiced by the agents and comprehended by the observer without any further philosophical qualifications, in contrast to conscientious refusal, which includes in the very definition of the term the philosophical concept of conscience. While substantial research has been done on the history of the idea and on the practice of civil disobedience in the Jewish tradition, (3) the study of conscientious refusal was almost entirely missing until recent years. The first part of this essay provides an analysis of Yeshayahu Leibowitz's concept of conscience. Leibowitz was one of the most original Israeli thinkers, and had the intellectual and moral authority to make a serious contribution to the Jewish theory of disobedience, but this remained one of the deficiencies of his thought. The second part of the essay tries to show how some critics and students of Leibowitz have created an opportunity to begin to develop such a theory.
THE "LACK OF CONSCIENCE" AND REDEFINITION OF THE TERM "CONSCIENCE"
Conceptualizing a Jewish theory of conscientious refusal seems to be an especially difficult task, since traditional Jewish legal and religious thought never developed a philosophical concept of conscience that would resemble the European theories. (4) Yeshayahu Leibowitz had some interest in the subject of conscience, but his views have not been analyzed in detail. (5) For some unclear reason, he decided to ignore the entire existing philosophical literature on the topic of conscience, and endeavored instead to redefine the whole concept. In one of his conversations with Michael Shashar, Leibowitz proposed several definitions of the concept of conscience. From a psychological point of view, he located conscience in the subconscious sphere of the mind, and declared that if by conscience we mean "the psychological component rooted in the human being that propels him in an unconscious manner towards the 'good'--then this is a most dangerous thing." (6) Although in his definition he used the conditional, from the following part of the discussion it becomes clear that in his view it was (at least one of) the right definition(s) of the term. He also claimed that conscience was an "unconscious urge" and an inappropriate basis for making ethical judgments! (7)
Since the Hebrew word for conscience, matzpun, alludes to something which is hidden and is etymologically not connected to the Hebrew words for mind, knowledge, or understanding, this enabled Leibowitz to come up with his rather astonishing definition, which is possible only if we choose to ignore the meaning and etymology of the word in European languages (for example: conscience, Gewissen). The modern concepts of conscience originate in the Greek notion of synderesis and Latin conscientia. The two are sometimes taken to mean the same thing, and are at other times distinguished. There is no one generally accepted definition of conscience, but it is clearly connected to knowledge, although not in a purely contemplative way, but mostly in the sense of application of the general principles of goodness and appropriateness to concrete cases. It seems impossible for Leibowitz to have been ignorant of the traditional understanding of conscience in the European philosophical tradition, so we must assume that his choice to disregard it was deliberate. Nevertheless, one would have expected him to at least note the fact that his use of the term was absolutely different from the regular use of the word, especially since in the very same pages he dedicates a discussion to the equivalents in Hebrew to the word "ethics." (8)
CONSCIENCE AND THE JEWISH TRADITION ACCORDING TO LEIBOWITZ
It was important for Leibowitz to emphasize that both the biblical and the rabbinical tradition have a negative attitude towards conscience, and they consider it a slave of the urges: "About reliance on the conscience in the decisions of an agent concerning his way of life it was said in the reading of the Shema: And you may not go astray after your own heart and after your own eyes'--since these are the tools of the urges." (9)Leibowitz adds here a rabbinical reference which he understood similarly as a source proving the unreliability of conscience: "The wicked are under the control of their heart ... But the righteous have their hearts under their control." (10) In other places he is even more explicit: "Not only Maimonides but I think all of the prophets would identify conscience with the evil inclination." (11) Not only did Leibowitz identify conscience with the evil inclination, but he considered it an even more negative phenomenon:
The Torah does not recognize moral imperatives stemming from knowledge of natural reality or from awareness of man's duty to his fellow man. All it recognizes are Mitzvoth, divine imperatives. The Torah and the prophets never appeal to the human conscience, which harbors idolatrous tendencies. No equivalent of the term "conscience" appears in Scripture. The counsel of conscience is not a religious concept. The "God in one's heart" which humanist moralists sometimes invoke is a "strange god." (12)
Labelling conscience evil inclination and an idolatrous concept resembles the categorization of ethics by Leibowitz:
Ethics, when regarded as unconditionally asserting its own validity, is an atheistic category par excellence. A person who is ethical in this sense regards man as the supreme end and value, that is, deifies man. A person who perceives man as one among God's creatures and keeps in mind the verse, "I have set God always before me," cannot accept ethics as the overriding norm or criterion. Being moral, from the standpoint of a secular ethic, can have only either of two meanings: directing man's will in accordance with man's knowledge of reality, the ethics of Socrates, Plato, Aristotle, the Epicureans and especially the Stoics, and among the later philosophers Spinoza; or directing man's will in accordance with man's recognition of his duty, the ethics of Kant and the German idealists. Among the passages of the Shema we find the words: "that you seek not after your own hearts and your own eyes"; "after your own hearts" is the negation of Kantian ethics and "after your own eyes" is the negation of Socrates'. (13)
When Leibowitz was asked whether conscience was the basis for humanistic ethics, he did not deny this possibility, but simply answered: "it depends how you define it [i.e., conscience]." (14) From the previous citations it is clear that in his view a religious person has to choose both between the voice of conscience and the voice of the Torah, and between moral and religious imperatives. Leibowitz sometimes distinguishes between the orders of conscience and ethical imperatives in spite of the many common denominators between the two. (15) At other times he treats them as if they were the same.
The following presentation of Leibowitz's views will not always be able distinguish between the moral imperative and the commandments of conscience, since it is not always clear whether he himself distinguished between the two in the relevant texts. Leibowitz did not offer a detailed explanation for his supposition that there was a necessary contradiction between acting in accordance with the voice of conscience and the fulfillment of religious obligations. This essay will suggest three major arguments that, based on his writings, support this claim.
The first argument supposes that there is a necessary contradiction between conscience (understood here as identical with the moral imperative) and religion, since the religious value of an act depends exclusively on the religious intention of the agent. For a religious act the relevant intention is the will to serve God by that act. If an agent acts in order to obey the call of his or her conscience, then the act will be valueless from a religious point of view. Acting out of obedience to an internal voice is essentially the satisfaction of the spiritual and intellectual needs of the agent. The idea of the fulfillment of one's spiritual needs is something that characterizes the "endowing religions," but not Judaism, which is a "demanding religion." (16) Satisfying--physical or spiritual--human needs is the service of the self and not the service of God. If the agent considers this act of satisfying his needs as a religious one, then it is the worst-case scenario because thinking that the service of the self is equivalent to the service of God is a prime example of idolatry. (17)
The second argument claims that there is no guarantee for harmony between the commandments of the conscience and those of the Torah, since in the case of conflict between the two, the individual will be in an either-or situation and will be forced to make a choice.
The third argument is complementary to the former one. Leibowitz takes it into account that by chance the conscience (seen again as identical to morality) and God could command the same thing. However, even in this case there will still be a conflict:
Ethics and religion are incompatible, since everything goes according to the intention. If the intention of one's decision to act is for the sake of Heaven, then this is a religious decision. If the intention is to act for man's own sake, then it is a moral one. It is necessary that one of these two decisions will be overridden by the other one. (18)
Apparently Leibowitz's third argument can be refuted relatively easily. There is a reasonable--although not necessarily convincing--claim that both the religious and the moral act are qualified as such solely by the intention of the agent. If the intention is religious, then the act has religious value, and if the intention is to act in accordance with one's sense of moral duty, then it has moral value. What was unsound in Leibowitz's argument was his assumption that it was necessary for the religious and the moral intention to be mutually exclusive. He did not explain why this exclusiveness was necessary. His claim that only one intention could be attributed to any one act can easily be challenged, since it is refuted by our everyday experience: most of our actions have multiple underlying intentions.
On the theoretical level it is also hard to see why, for example, if one helps the needy and knows that it is both a moral and a religious duty, and either duty would be enough in and of itself to motivate one to act, we should not think of that person as acting with two equally important intentions. And even if we suppose that one of the intentions of the agent was stronger than the other, why should it nullify the other intention?
Maybe what Leibowitz meant was that although it is possible for one to act with two intentions, the ideal agent should choose between them. As Sagi and Statman have shown, there are, both in the Christian and the Jewish traditions, opinions that only the all-embracing love of God (that leaves space for nothing else) can be the ideal situation of the religious agent, but there is no reason to accept this approach as the only authentic one. (19) The biblical religions suggest that one ought to see God's moral perfection as one of his attributes. God is not perceived as a capricious tyrant who created the moral universe on a whim, and the mainstream forms of monotheistic religions encourage us both to accept the moral perfection of God and the principle of imitatio Dei. According to this principle, one is supposed to try to become "similar" to God and to develop his or her moral character in accordance with the moral image of God as reflected in that particular religion. (20)
Accordingly, if, through the fulfillment of a moral commandment, one intends to act also in accordance with the religious duty of imitatio Dei and develop his or her moral character, then this act should not be seen as valueless from a religious point of view. It is easier to argue in favor of the second argument. It is not difficult, either in theory or in practice, to imagine a situation in which a religious commandment contradicts the voice of conscience. The classical case of conflict is the binding of Isaac, which, according to Leibowitz, is the most important moment of the religious history of Judaism. Almost no one doubts that occasionally one may be forced to choose between moral and religious duties, but Leibowitz goes much farther and claims that such situations are the essence of religious existence. (21)
Leibowitz as an original thinker obviously had the freedom to interpret the biblical story as he wished, and he could consider the abandonment of all human values (including moral values) as a typical manifestation of the Jewish faith. But it is very hard to defend his claim that the Jewish tradition considers the binding of Isaac the typical and not the extraordinary religious situation. Abraham's readiness to sacrifice his son (and his moral ideals) is valuable precisely because of the rarity of this situation. (22) Many of Leibowitz's critics have noted that the classical Jewish commentaries do not consider crisis to be the paradigm of religion. (23) Leibowitz had the right to claim that belief in the harmony of human existence was superstition, (24) and that there was no harmony within the framework of religious belief, but this is a rather exceptional view in Jewish thought and cannot be seen as the mainstream opinion.
The following text will consider the first argument, according to which conscience is an idolatrous concept. There is a problem with Leibowitz's definition of conscience to begin with. He cites the same passage to prove that the Torah necessitates a choice between religion and morality that he has used earlier in describing conscience as evil inclination:
Among the passages of the Shema we find the words: "that you seek not after your own hearts and your own eyes": "after your own hearts" is the negation of Kantian ethics; "after your own eyes" is the negation of Socrates'. ... The Torah does not recognize moral imperatives stemming from knowledge of natural reality or from awareness of man's duty to his fellow man. All it recognizes are Mitzvoth, divine imperatives. (25)
In this text, "eye" is not simply the organ of the natural inclination, but the means whereby Greek philosophers learned about the world. Similarly, the heart in this text is not the source of secret inner voices, but one's guidance based on one's understanding of one's duty toward another human being--in the sense of Kantian ethics. Leibowitz acknowledged the rational nature of both Kantian and Greek ethics. It seems that in his interpretation of ethics the eye and the heart are the tools of consciousness and in his interpretation of conscience they are the expressions of the inclinations uncontrolled by consciousness. Leibowitz never explained why he attributed two entirely different meanings to the same biblical passage.
We may find the source of this negative attitude in a text already cited--Leibowitz's interpretation of Maimonides' "Eight chapters." He claims: "Not only Maimonides but I think all the prophets would identify conscience with the evil inclination." (26) Leibowitz also claimed that conscience was a physical force in human beings that could not be controlled by the will, just like the rhythm of the heartbeat or the circulation of blood. (27) He called this force "imaginative power" ([??]), an inborn ability with two major functions according to Maimonidean anthropology: remembering, and imagining through the selection and the rearrangement of our memories. The imaginative power is able to select and rearrange whatever is absorbed through our senses but "it cannot produce anything new that was not absorbed formerly." (28) It is able to combine impressions from our past without the control of our consciousness or will, thus becoming an obstacle to rational cognition:
To know the true nature of reality demands from one to overcome his biological characteristic called imagination ... since cognition through imagination leads astray. ... our other senses lead us astray only in the case of serious illness but it is in the nature of imagination to deceive us. One can trust his other senses ... but has to be suspicious about imagination because if it leads him astray it will lead to the most severe consequences. (29)
When Leibowitz was asked if Maimonides identified conscience with the imaginative power, his answer was affirmative. He also added: "It is clear that there is no good or bad conscience and everything that we read in the fourth chapter is a warning to men not to follow his conscience. When Mai-monides said that every extreme way was bad, what he had in mind was a man who followed his conscience instead of his reason." (30)
Maimonides supposed that rational judgment would always lead man to the virtue of the Aristotelian golden means, and that the imaginative power was a biological faculty which could occasionally mislead one's clear rational judgment. Leibowitz concluded that the imaginative power and conscience were the same in Maimonidean philosophy. It is not easy to judge whether Leibowitz's concept of conscience was shaped by his interpretation of Maimonides, or whether he used Maimonides as a source to give his definition more plausibility. (31)
If we try to explain Leibowitz's extremely negative understanding of conscience, we could suppose that he was influenced by the history of the twentieth century full of mass murderers and terrorists who had a clean conscience. There is, indeed, no guarantee that one will do the right thing when relying on his or her inclinations and drives. Leibowitz's skepticism concerning the nature of the inclinations of the human soul can be understood easily, but we need to add that, in light of historical experience, one is similarly justified to be skeptical about the supposed rationality of man (32) or about religious imperatives. Not a few massacres were justified by reference to these two cultural concepts.
Since Leibowitz was skeptical about the conclusive power of reason, and thought that humanist morality was no more rational than the values of fascism, (33) and since he was fully aware that one can commit crimes against humanity and try to base behavior on the imperatives of the Torah, it is hard to understand why he considered conscience (or the imagination) public enemy number one. In his article, "After Kibiyeh," (34) Leibowitz gives examples of how one can justify collective punishment of innocent people on a biblical basis and, more importantly, he makes the claim that when religious terms--especially the term "holiness"--are used in a secular context they can be used as a religious justification of almost anything. (35)
The idea of conscience as an "inner voice uncontrolled by reason and will" provides a very convenient target to attack, but one must ask the question whether anyone in the history of philosophy has understood the concept of conscience in this manner besides Leibowitz. We may also ask why Leibowitz formulated such a radical interpretation of conscience when he must have known that by force of the extreme nature of the definition it would arouse criticism. Maybe the answer to this question lies in his relationship to Kantian ethics.
Leibowitz never claimed that his understanding of religion had been influenced by Kant. (36) However, when we read Kant's critique of the Jewish religion in his book, Religion within the Limits of Reason Alone, it seems reasonable to suppose that the dichotomy between religion and ethics in the thought of Leibowitz can be at least partially explained as a reaction to the Kantian critique. According to Kant, the only universal and everlasting content that any religion can have is the moral imperative that it advocates. Faith in God cannot be justified on the basis of rational assumptions, history, or the natural sciences, but only on an ethical basis. Faith has a practical, moral value, since the concept of God is a psychological fulfillment of man's desire to have an absolute morality.
The ideal church has to be invisible; there is no need for clerical intermediates. Kant argues that Christianity is closest to this ideal. Judaism, according to him, is a particularistic and statutory religion: it supposes that the service of God cannot be done without statutes, that is, "ordinances held to be divine, which are arbitrary and contingent as viewed by our pure moral judgment." (37) According to Kant, the superiority of the religion of pure reason lies in the removal of all known nonmoral contents of a religion.
Leibowitz's defense ofJudaism can be seen as a counterattack on Kant, who despised the statutes ofJudaism. Leibowitz emphasized that one has no human interest whatsoever to observe the statutes ofJewish law: he or she does so only out of commitment to serve God. This is the essence of "true" religion according to Leibowitz, and Kant's "ethical religion," where God is only a supplier of morality, is the service of man instead of God.
According to Kant, human beings are supposed to follow pure reason in their religious life. Salvation can come through obedience to the moral and not to the divine imperatives. The source of the ethical imperatives is human beings themselves, and they are able to discover the content of these imperatives through their own conscience. As has been argued above, in Leibowitz's view this equals idolatry, since a human category has become the supreme value, and obligations derived from human nature have become absolute obligations.
Kant's critique may hold, but we can even take a step back and question the connection between the conscience, defined by Leibowitz as the bad inclination, and the inner voice uncontrolled by reason on the one hand, and the conscience of Kant, defined as "a state of consciousness which is in itself duty" (38) and "the moral faculty of judgment, passing judgment upon itself" on the other. (39) We might come to the conclusion that the concept of conscience was criticized by Leibowitz regardless of its real meaning in the context of Kantian philosophy.
LEIBOWITZ, DISOBEDIENCE, CONSCIENCE, AND LAWS
As has been suggested above, since Yes hayahu Leibowitz was seen as a moral authority by wide range of intellectuals, he could have made a major contribution to Israeli Jewish political philosophy had he developed a theory of civil disobedience or conscientious refusal, but unfortunately he missed this opportunity, in spite of the fact that he did contribute to the public justification of the activities of the refusal movements. (40)
An essay titled "The Fighting Man and His State" by Leibowitz was published by the Yesh gvul movement in 1985 in a collection of papers on the limits of obedience. (41) A major part of the essay dealt with the concept and value of heroism. Leibowitz reiterated here one of his main political theses, namely, that the state has instrumental value only. He also reinforced his claim that absolute obedience to the laws meant the adoption of a fascist mentality. Only the last few pages of the essay are dedicated to the topic of disobedience and the refusal of service in Lebanon, and through a somewhat surprising thought process Leibowitz in the end arrives at the conclusion that the soldiers who refused to serve in the IDF outside the territory of the 1967 borders were heroes according to the classical Jewish sources. (42)
It is hard to escape the impression that in the essay the author used his moral authority for the justification of the refusal movement, but added nothing on the intellectual level to the understanding of the theory of civil disobedience. Moreover, Leibowitz simply had no such theory; he saw civil disobedience as a useful political act, (43) and had no interest whatsoever in conscientious refusal.
In his other writings, mostly in letters and newspaper articles, Leibowitz revealed a few further thoughts concerning refusal. He clarified that refusal is not a matter of conscience (which is individual by its nature), but a public political tool, so it should be not an individual but a group action backed up by a political party or some other political-social movement. (44) It is important to note, as Rothenberg has done, (45) that Leibowitz did not encourage a general refusal of army service based on a commandment of the conscience to be a pacifist; he only opposed service under certain circumstances, for example, in what he regarded as participation in the occupation of another people's land.
We can describe Leibowitz's support of disobedience as an unambiguous call against what he regarded as the "cancelation of the Israeli democracy through the negation of the rights of 1.5 million Palestinians," (46) but he never provided a theoretical argument for disobedience. The main reason for the absence of this theory is very simple: Leibowitz thought that there were no universally valid rational arguments to support it. In his other writings, (47) he clearly stated that being a democrat (or a humanist) rather than a fascist was a voluntary decision which could not be based on rational arguments, since an individual's values are chosen by the conative and not the cognitive parts of one's personality.
If we apply this principle to our problem, what Leibowitz says is that there are no rational arguments for refusal of service that could convince anyone who does not want to be a refusnik. If one's conviction is that there is no place for rational arguments in political principles, since to choose fascism or democracy is rational on the same level, then it becomes a real challenge to develop a political theory. Many critics of Leibowitz have already noted that the weakest point of his thought might be the total split between the world of facts and the world of values, the absolute separation of thought and will, of practice and theory. (48) It was possibly this highly unrealistic description of human nature that also prevented Leibowitz from contributing to the political theory of disobedience. He could have offered a much more convincing theory of civil disobedience had he not insisted that it was impossible to rationally argue for value decisions. Moreover, he could have also contributed to the theory of conscientious refusal had he not objected--irrationally, it can be suggested--to using a reasonable interpretation of conscience. (49)
CONSCIENTIOUS REFUSAL AND THE "LEIBOWITZIAN LEGACY"
The following part of this paper presents briefly the approach of two important Israeli thinkers influenced by Leibowitz, Avi Sagi and Daniel Statman. In 2002 the Israel Law Review dedicated a special volume to the topic of disobedience. Avi Sagi and Ron Shapira demonstrated in an article that the present instances of refusal to serve in the territories were to be classified as cases of civil disobedience and not as cases of individual conscientious refusal. While they admitted the possibility that the state could exempt from punishment a person who disobeys the laws in order to preserve his or her personal autonomy and moral integrity (this is the case of private conscientious objection), they insisted that this did not apply to the vast majority of Israelis who refuse to serve in the territories:
There is something unfair and pitiable in the scenario of a person purporting to carry aloft this splendid torch turning to the court or to a military committee, at the decisive moment in which he is required to pay a price, and seeking an exemption or mitigation of punishment on the basis of his alleged status as a conscientious objector. If the service objectors and their defenders indeed wish to bring about change, the right way, from their point of view, ought to be to flood the prisons and question the system, and not to turn to it with an appeal for protection. (50)
There is no evidence that Leibowitz had any direct influence on the above claim, and the authors--who are both very familiar with the writings of Leibowitz--could doubtlessly arrive at the same conclusion without him. However, Sagi and Shapira, similar to Leibowitz, claim that soldiers who refuse to serve in the army should not be considered as individuals fighting for their personal autonomy and right for conscientious refusal. They definitely see in the refusal movement an organized and communal act of disobedience that aims to change the policy of the occupation. Accordingly, they insist that whoever refuses to serve in the territories must act "heroically"--in the Leibowitzian meaning of the word--and accept punishment. If we agreed to classify the members of the refusal movements as individual conscientious objectors, the whole movement would lose its social importance. The act of refusal would become a private decision that can be approved or disapproved of from a moral point of view, but has no significance for Israeli society. (51)
Daniel Statman, in one of his essays, addressed whether or not the state is supposed to give full exemption from army service to those citizens who have conscientious reasons for not wanting to be recruited, for example, pacifists. Statman suggested that the state should offer pacifists an alternative national service instead of serving in the army, since not all conscientious reasons are strong enough to grant full exemption from a public duty. Again, it is not possible to prove that his skeptical approach to the sufficiency of conscientious reasons to exempt people from their duty has been influenced by Leibowitz. In another essay (authored together with Gidon Sapir), Statman cites Leibowitz (52); "Leibowitz seems to be close to the truth in his harsh statement: 'The Torah and the prophets never appeal to the human conscience. ... The counsel of conscience is not a religious concept. The "God in one's heart" which humanist moralists sometimes invoke is a "strange god." '" (53)
In the given context Statman wanted to emphasize that in opposition to Protestantism, in Judaism God is not perceived as an entity that reveals its will through human conscience. However, the fact that Statman--who has an extensive knowledge of the meaning of the term "conscience" in Western philosophy and the complexity of the Jewish sources, and who is a well-known critic of Leibowitz--left Leibowitz's highly exaggerated claim without any critical remark is still surprising. He seems to have been influenced in his judgment both by the negative Leibowitzian approach to conscience and by the relative lack of traditional Jewish sources on the topic. (54) On the other hand, since Statman is one of the few Israeli thinkers who continuously tries to tie in modern philosophical concepts with Jewish sources, it is not surprising that he concludes another article of his with a remark showing how the author's proposal for an alternative military service is compatible with the rabbinical interpretation of the Bible. (55)
In an article written about the place of conscientious refusal in Jewish tradition, Avi Sagi has offered an in-depth philosophical analysis of the concept of conscience in the thought of Kant and Heidegger. After presenting a sophisticated understanding of conscience, he makes an effort to find something resembling the concept of conscientious refusal in the Jewish sources. After showing some similarities, he demonstrates that we cannot find a concept in the Jewish tradition that would fit the European definition. Nevertheless, at the end of his article he concludes that since tradition is an everlasting dialogue between present and past, the efforts of present-day thinkers to develop a concept of conscientious refusal based on Jewish sources will be a legitimate part of traditional Jewish discourse. (56)
In many cases we can detect a sometimes hidden and unfortunately negative influence by Leibowitz on Israeli philosophers, and this might be one of the reasons that the concept of conscience and theories of conscientious disobedience have not yet been developed in contemporary Jewish thought.
At the same time, Israeli philosophers such as Sagi and Statman are sensitive to the interplay between Jewish sources and western political concepts, and contribute to the development of a renewed Jewish political philosophy. By constructing a new Jewish definition of conscience, the way can be opened to the development of other related political and ethical concepts. It is important to stress that often we do not reveal hidden concepts that were formerly present in Jewish thought, but rather create newly constructed ones. However, the process of construction makes the effort genuinely Jewish, since we can ask ourselves: what else does the Jewish philosophical tradition constitute, if not the history of building something new from Jewish sources and from concepts borrowed from other intellectual traditions?
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(1.) On the early history of the civil disobedience in Israel, see Aleck Epstein, "Hamaavak al halegitimatzia: hitpatchut hasarvanut hamatzpunit bisrael mehaka-mat hamedina vead milchemet Levanon," Sotziologiya Yisraelit 1 (1999): 319-52.
(2.) Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985), 106-09; John Rawls, A Theory offustice (New York: Oxford University Press, 1973), 363-81.
(3.) See, for example, Leo Landman, "Civil Disobedience: the Jewish View," Tradition 10 (1969): 5-14. For a more recent study see Yoram Hazony, "The Jewish Origins of the Western Disobedience Tradition," Azure 4 (1998): 17-74.
(4.) Neither the Jewish Encyclopedia (from 1906) nor the much more updated Encyclopedia Judaica has an independent article on conscience. Among the few studies written on the topic of conscience, see Zwi J. Werblowsky, "The Concept of Conscience in Jewish Perspective," in Conscience, ed. Curatorium of the J. C. Jung Institute (Evanston: Northwestern University Press, 1970), 81-109; 'Wyschogrod, Michael, 'Judaism and Conscience," in Standing before God, ed. Asher Finkel and Lawrence Frizzell (New York: Ktav, 1981), 313-28; Harold Schulweis, Conscience: The Duty to Obey, and the Duty to Disobey (Woodstock: Jewish Lights Publishing, 2008).
(5.) On the conscience in Leibowitzian thought not a lot has been written, but there are numerous articles on the ethics of Leibowitz and on the relationship between ethics and religion. See, for example, Eliezer Goldman, Yahadut lelo ashlayah, ed. Sagi Avi and Daniel Statman (Jerusalem: Shalom Hartman Institute, 2009), 157-63; Daniel Statman, "Torato hamusarit shel Leibowitz," in Yeshayahu Leibowitz: olamo vehaguto, ed. Avraham Sagi (Jerusalem: Keter, 1995), 326-43.
(6.) Yeshayahu Leibowitz, Al olam umlo'o (Conversations with Michael Shashar) (Jerusalem: Keter, 1992), 148.
(8.) Leibowitz, Al olam, 148-49.
(9.) Leibowitz, Al olam, 148.
(10.) Ibid. See also the original in Bereshit Rabah 34:10. It would be but too easy to prove that this interpretation of the rabbinic saying is not conclusive, since in the original context the sages simply compare the use of the biblical terms "he said in his heart" [??] to "he said to his heart" [??]. Leibowitz might admit the nonconclusiveness of his interpretation, since he clearly stated "To be sure, we are all influenced by the literary sources from which we learn that Judaism has been and what outstanding Jews have thought, but we shall not be bound by such sources. Citations and allusions to them will serve as illustrations, not as evidence." Yeshayahu Leibowitz, Judaism, Human Values and the Jewish State (Cambridge: Harvard University Press, 1992), 3.
(11.) Yeshayahu Leibowitz, Sichot al 'shmona prakimi larambam (Jerusalem: Keter, 1995), 101.
(12.) Leibowitz, Judaism, 111.
(13.) Ibid., 18.
(14.) Leibowitz, Al olam, 149.
(15.) See note 7 for a source where Leibowitz claimed that conscience is an inappropriate basis for ethical judgments.
(16.) "The religion of values and beliefs is an endowing religion--a means of satisfying man's spiritual needs and of assuaging his mental conflicts. Its end is man, and God offers his services to man" (Leibowitz, Judaism, 14). At the same page we can be find a more detailed explanation of the distinction between the two kinds of religions.
(17.) "Service of God through Torah and Mitzvoth and worship of 'God in the heart' or the 'conscience' of humanistic religion are in sheer opposition. The latter is worship of man, nothing other than the idolatry referred to by the verse 'that you seek not after your own heart.' Anything a man does to satisfy his own needs, whether material or spiritual, is self-service, not divine service. As such it is perfectly legitimate. But if a man attributes religious import to this act he is transforming God into a means and instrument for his own good" (Leibowitz, Judaism, 20).
(18.) Yeshayahu Leibowitz, Yahadut am hayehudi umdinat Yisrael (Jerusalem: Schoken, 1979), 294.
(19.) Avraham Sagi and Daniel Statman, Dat umussar (Jerusalem: Bialik, 1993), 223-31.
(20.) On the commandment of imitatio Dei and he image of God, see: Avi Sagi, "Tekhunotav hamussariyot shel had besifrut hahilkhatit vemaamado shel hamus-sar behalakha," in Mechkarim behalakha uvemachshevet Yisrael, ed Moshe Bar (Ramat Gan: Bar Ilan University, 1994), 261-86.
(21.) Yeshayahu Leibowitz, Emuna, historiya vearakhim (Jerusalem: Akademon, 1982), 57-58.
(22.) For a realistic understanding of the Binding of Isaac see Avi Sagi, "The Meaning of the Akedah in Israeli Culture and Jewish Tradition," Israel Studies 3 (1998): 45-60.
(23.) See, for example, Avi Sagi, Yahadut: Beyn dat lemussar (Tel Aviv: Hakibbutz Haxneuchad, 1998), 257-68.
(24.) "The crisis is not an event or a special situation that makes the faith problematic, it is the essence of the religious faith" (Leibowitz, Emuna, 58).
(25.) Leibowitz, Judaism, 18.
(26.) Leibowitz, Sichot, 101.
(27.) Ibid., 43. When Leibowitz was aced with the claim that the Indian gurus are able to control the rhythm of their heartbeat, he answered they do it through their concentration and not through their will. One can decide how convincing this answer was.
(28.) Ibid., 39.
(29.) Ibid., 41.
(30.) Ibid., 101.
(31.) Leibowitz was criticized many times for imposing on Maimonides his own views. It is irrelevant to the subject of my paper to try to show if in our case this criticism holds or not. On the topic of the imaginative power in the thought of Mai-monides see, for example, Jeffrey Macy, "Prophecy in al-Farabi and Maimonides: The Imaginative and Rational Faculties," in Maimonides and Philosophy, ed. Pines Shlomo es Yuvel, Yirmiyahu (Dordrecht: M. Nijhoff, 1986), 185-201; Joseph Stern, "Maimonides' Epistemology," in The Cambridge Companion to Mairnonides, ed. Kenneth Seeskin (Cambridge: Cambridge University Press, 2005), 105-33; and Ruth Birnbaum, "Imagination and Its Gender in Maimonicles "Guide," Shofar16 (1997): 13-27.
(32.) It is enough to mention the classical criticism of rationalism: Theodor W. Adorno and Max Horkheimer, Dialectic of Enlightenment (New York: Seabury Press, 1972).
(33.) Leibowitz, AI olam, 149.
(34.) Leibowitz, Judaism, 188-90.
(35.) Needless to say, Leibowitz considered it as an illegitimate use of the religious language, but on the other hand he clearly was conscious to the fact that a part of the religious population understands deeds like the massacre in the Hebron cave in 1995 as authentic religious acts. See Michael Shashar, Madua pochadim mYeshaiyahu Leibowitz? (Jerusalem: Shashar Publishing, 1995), 83.
(36.) A good number of analyses are already written about the different aspects of the connection between the thought of Kant and Leibowitz. See, for example, Yo-chanan Silman, "Motivim kantianim bhaguto sel Leibowitz," in Sefer Yeshayahu Leibowitz, ed. Asa Kasher and Loewinger Yaagov (Tel Aviv: Agudat Hastudentim shel Universitat Tel Aviv, 1977), 47-55; and Naomi Kasher, "Tfissat hadat shel Leibowitz leumat tfissat hamussar shel Kant," in Sefer Yeshayahu Leibowitz, ed. Ma Kasher and LoewingerYaagov (Tel Aviv: Agudat Hastudentim shel Universitat Tel Aviv, 1977), 21-34. Especially relevant is Naomi Kasher, "Elohim bitfissat hayahadut shel Leibowitz," in Yeshayahu Leibowitz. olamo vehaguto, ed. Avraham Sagi (Jerusalem: Keter, 1995), 92-108.
(37.) Immanuel Kant, Religion Within the Limits of Reason Alone, trans. Theodore M. Greene and Hoyt H. Hudson (New York: Harper, 1960), 156.
(38.) Kant, Religion, 173.
(39.) Kant, Religion, 174.
(40.) On the contribution of Leibowitz to the public legitimacy of the refusal, see Naftali Rothenberg, "Sherut, sarvanut or mered? Al ha maase hanaot hanovea min hachova haarkit umin haneemanut haezrachit," in Yeshayahu Leibowitz: beyn shamranut laradikaliut, ed. Aviezer Ravitzky (Tel Aviv: Van Leer Institute, Hakibbutz hameuchad, 2007), 366-68.
(41.) Yeshayahu Leibowitz, "Haadam halochem umdinato," in Gvul haziut, ed. Dina Menuchin and Ishai Menuchin (Tel Aviv: Yesh Gvul Movement), 160-74.
(42.) "These are the heroes of Israel in the sense of the term heroism as it is understood in the first words of the Sulchan Arukh: Those who are not afraid of the mockers" (Leibowitz, Haadam, 173).
(43.) Yossi Ziv tried to suggest that Leibowitz's his call for not to serve in the territories should be classified as civil disobedience. According to Ziv's interpreta-tion--which has surprisingly few prooftexts from Leibowitz's writings--Leibowitz called for nonviolent public disobedience that would aim to save the Israeli democracy. See Yossi Ziv, "Leibowitz vehasiruv haezrachi," in Yeshayahu Leibowitz: olamo vehaguto, ed. Avraham Sagi (Jerusalem: Keter, 1995), 228-37.
(44.) See, for example, in a letter of Leibowitz to Knesset member Shulamit Aloni in 1988. http://tpeople.co.il/leibowitz/letters.asp?id=3.
(45.) Rothenberg, Sherut, 372-73.
(46.) Leibowitz, Haadam, 174.
(47.) For example, Leibowitz, Al olam, 157.
(48.) See, for, example these two recent articles: Gili Zivan, "Hahakhraa hadatit al pi Yeshayahu Leibowitz: iyun bikorti," in Ravitzky, Leibowitz, 137-54; and Avinoam Rosenak, "Yeshayahu Leibowitz: teoriya vepraxis," in Ravitzky, Leibowitz, 280-306.
(49.) Naftali Rothenberg provided one of the most comprehensive analyses of Leibowitz's (lack) of theory of disobedience: see Sizerut, 366-87. According to Rothenberg, Leibowitz can be understood as calling not for nonviolent civil disobedience, but for revolt (378-81). His conclusion was that the arguments of Leibowitz were operated with such undefined concepts that his arguments for a revolt against the regime that favors occupation could easily be used also by the enemies of democracy (Sherut, 386-87). On the other unwilling contribution of Leibowitz to his ideological interlocutors, see Pinhas Shifman, "Hafkaat hamus-sar min hatodaa hadatit: truma selo midaat lachilun, laleumiut velacharediut," in Ravitzky, Leibowitz, 59-73.
(50.) Avi Sagi and Ron Shapira, "Civil Disobedience and Conscientious Objec-don," Israel Law Review 36 (2002): 214.
(51.) The approach of Sagi and Shapiro was harshly criticized by fellow Israeli philosophers. See Mon Harel, "Unconscionable Objection to Conscientious Objection; Notes on Sagi and Shapira," Israel Law Review 36 (2002): 219-26; David Enoch, "Some Arguments against Conscientious Objection and Civil Disobedience Refuted" (Harel, 227-53).
(52.) See above the cited text in its extended version in note 14.
(53.) Dani Statman and Gidon Sapir, "Chofesh hadat, chofesh midat vehagana al ragashot datiim", Mechkarei mishpat 21 (2004): 12n27. (From the English version of the article the note on Leibowitz is omitted.) Dani Statman and Gidon Sapir, "Why Freedom of Religion Does Not Include Freedom from Religion," Law and Philosophy 24 (2005): 467-508.
(54.) It is worth emphasizing that the lack is only relative, but not absolute. See Jonathan Gorsky, "Conscience in Jewish Tradition," in Conscience in World Religions, ed. Jayne Hoose (Notre Dame: University of Notre Dame Press, 1999), 129-54.
(55.) Dani Statman, "Hirhurim bikortiim al ptor mesherut tzavai mitaamei matzpun," Iyunei Mishpat 31(2009): 707.
(56.) Avi Sagi, "Conscientious Objection and Jewish Tradition," Democratic Culture 11(2009).; 253-93.
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