At a Settlement, a Battle Over Both Law and Judaism

Gershom Gorenberg

The Israeli Supreme Court today took a small step toward restoring the rule of law. It issued a temporary injunction against continuing to build nine new homes in Ofrah, the flagship settlement of Gush Emunim in the area north of Jerusalem.

Ofrah, as I explained in The Accidental Empire , was established in 1975 without government permission but with lots of government help, especially from then-Defense Minister Shimon Peres. Most of the settlement is built on private Palestinian land. It’s an embodiment of the settlement paradox – half rogue operation, half national project. The petition to the Supreme Court by the Israeli human rights group Yesh Din against the latest construction is a bid to make the government live up to the principles of a state based on law.

My new article explaining the legal fight and what’s at stake  politically just  went up at The American Prospect.

There’s another facet of what’s happening at Ofrah that I didn’t mention in the Prospect: The fight over the houses points out how radically the settlement movement has rewritten Judaism, creating a religion in which settlement and holding land are the central values.

When Yesh Din went to court asking for an injunction finishing the new houses or moving into them, the settlement responded by speeding construction. The idea was to render the request moot, by moving people in before the court could rule. (Luckily, that didn’t work.) To hurry things, Ofrah’s rabbi, Avraham (Avi) Giesser gave permission for the non-Jewish construction workers to work seven days a week, including on Shabbat, in the midst of the Orthodox settlement.

When I spoke to Giesser, he explained that there was nothing new or exceptional in what he’d said. Normally, it’s true, a Jew isn’t allowed to ask a non-Jew to do something on Shabbat that’s forbidden for the Jew. But there are exceptions. They include avoiding major financial loss, he said – or acting for the sake of "building the Land of Israel." And he cited lines from the Shulhan Arukh, to show that these are old, well known laws. In this case, he argued, both reasons applied – the people who invested in the new houses would lose money if they weren’t completed, and the purpose was "building the land of Israel."

Let’s take that line about major financial loss. It’s in the Shulhan Arukh. I’ll leave it to someone else to research all the ways it’s been interpreted.  What’s clear is that it wouldn’t normally be exploited to hurry a construction project. If a contractor wanted to speed up building a mall or apartments in Tel Aviv, even to meet contracted deadlines, I can’t imagine an Orthodox rabbi telling him to go ahead. Saying that the point was to "build the Land of Israel" wouldn’t help.

What’s different in this case? The "sanctity" of settlement in "Yesha" – the word settlers use for the occupied territories, an acronym for Judea, Samaria and Gaza that also means "redemption." Settlement outweighs Shabbat, according to Ofrah’s rabbi. And it certainly outweighs the prohibition on stealing someone else’s property, the Palestinian land on which the houses are being built.

Shabbat, I’ll stress, isn’t just a ritual commandment in Judaism. It is the expression both of human freedom (just say "no" to work) and acknowledgement of God as Creator. As for theft, a classic midrash says God only judged the world and found it wanting in the time of Noah because of theft. The meaning of that metaphor is that the prohibition of theft is something that precedes Torah; it’s a universal human truth.

But in Ofrah settlement is more holy.

Religions constantly change, as believers choose how to respond to new conditions and new ideas. But when religions change, it’s often by insisting that they are staying the same. They change by citing old texts. 

This is a classic example. The religious settlement movement chose to absorb ultra-nationalism, to theologize it. Its religion has been transformed by that choice. The result is something that often looks a lot like Judaism: same rituals, same prayers, same books. Just not the same values.   


2 thoughts on “At a Settlement, a Battle Over Both Law and Judaism”

  1. As a Christian observer to Israel in March and as a trial lawyer and a history major in undergrad Israel is a most interesting study of complex problems. There is a segment of the international community and the “homegrown” Palestinians who say the settlements are illegal and should be torn asunder, but who is going to enforce the evacuation order? Let’s move to a more reasonable practical solution: withdraw the financial underpinning for the maintenance and construction of these settlements ;like roads ,sewage,embarqoing building materials. electricity and water. As an outsider I saw the destructive and corossive effects these settlements are having on normalcy in the country. The state that the Palestinians are to get is something right out of Rube Goldberg and any half-intelligent person looking at the proposed map would come away saying “you got to be kidding!” There has to be a land link between Gaza and the East Bank or your going to have the old West Pakistan/East Pakistan problem Reducing the number of settlements would greatly reduce the effect of the radical elements’ stature in any future negotiations.The equity argument in regard to the land upon which the settlements set can be viewed either from the English equity tenet of “adverse possession” or proscribes from Torah or “might makes right “Israel needs strong and wise leadership and counsel now not tomorrow and to get the financially and morally compromised out of the “seats of power”
    Israel is a miracle in this modern age but as a Bulgarian Jew told me after I asked why the City of Tel Aviv didn’t take better care of the Rabin Memorial outside the City Hall ,he said “miracles last only three days in Israel” I guess the translation for me would be “out of sight,out of mind” In the long run ,legal abuses may be remedied but moral abuses sanctioned by clergy whether they be rabbis’,priests,inmans or any other interpreters are not easily remedied or forgotten by those most affected especially those whose land is taken from them. The book ,The Lemon Tree , a true story, helped me understand those things Iwitnessed in March on just this issue

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