Elor Azaria, Yeshayahu Leibowitz, and the Rule of Law

Sam Mellins, University of Chicago

In the book of Leviticus, almost immediately following the “eye for an eye” legislation, one finds this command: “You shall have one law for stranger and community member alike: for I the LORD am your God” (Lev. 25:21). In contrast to the “lex talionis,” which to the modern reader can seem brutal in the extreme, the above quoted command seems to express a fundamental principle of what today is recognized as fairness in the rule of law: within the jurisdiction of the law, those who commit the same offence must be punished in the same manner, regardless of relation to the community within which the laws are enforced. Ibn Attar, an 18th century commentator, noting that the stranger is mentioned before the community member, wrote that, “If it had not been written thus, it would have seemed that the level of the stranger is lower than the level of the community member [in relation to legal proceedings], and that the smaller is dependent on the greater. The meaning of ‘for stranger and community member alike’ is that a stranger is as a community member when they are weighed in judgment.”

This law belongs to what is known in academic biblical scholarship as the “Holiness Code.” Comprising chapters 17-26 of the book of Leviticus, the Code is widely believed to be of significantly earlier origin than the other sections of Leviticus and the Priestly source, dating from the 7th century BCE, and probably composed by the priests of the temple cult in Jerusalem. In contrast to the non-Holiness Code sections of Leviticus and the P source, composed throughout the 6th Century, following the destruction of the First Temple, the Holiness Code, including the above command, was written when the Jewish people possessed a significant level of legal and judicial autonomy, in the context of a sovereign political entity.

Today, once again, there exists a politically sovereign entity ruled by the Jewish people, which includes a significant number of resident aliens (the idiomatic translation of “stranger” as found in the holiness code) who are not part of the Jewish community. The state of Israel, based on, as stated in the Declaration of Establishment, “Justice and peace as envisaged by the prophets of Israel,” gives the laws of the Holiness code a remarkable opportunity to speak to the modern reader again. The Holiness code asks: in matters of legal judgment, will those who are not of the community be weighted in judgment as those who are?

This week, I had some small amount of faith in Israeli rule of law restored when Sgt. Elor Azaria was sentenced to 18 months in prison, a year suspended sentence, and a demotion in rank for shooting and killing an incapacitated Palestinian attacker named Abdel Fatteh al-Sharif, in the West Bank city of Hebron. His guilt was abundantly clear. The video of the event showed him shooting the attacker after he had clearly been incapacitated, and Azaria’s fellow soldiers testified that before the shooting, he said, “How is it that my friend has been stabbed and the terrorist is still alive,” and immediately after the shooting, said, “The terrorist was still alive, and he has to die.” But the finding of this case was an outlier: the Israeli human rights organization Yesh Din reports that of 260 investigations into killings at the hands of Israeli soldiers in Palestine since 2000, exactly one has lead to a conviction for homicide, a 2003 case involving the shooting death of a British activist. And those who supported the verdict were quick to note the light sentence: Yusri al-Sharif, Abdel Fattah’s father, was quoted saying, “If someone is arrested for throwing a rock, they get a two-year sentence. In this case, a soldier murdered and got a year and a half. My son is not an animal.” Even so, the verdict and sentencing produced significant outrage among Israelis, with multiple cabinet members immediately calling for a pardon, and protests in support of Azaria that at times turned violent.

When the legislation in the Holiness Code of Leviticus speaks of the stranger, it is imagining, as is explicitly stated in Chapter 25, the resident alien, a minority living within the larger community, subject to its laws, and integrated to a significant degree. The law thus seems to be more concerned with affording the resident alien the same degree of legal protection as a moral issue, rather than as a directive for shaping a system of administration of justice. But in the case of modern Israel, where the “strangers” are not integrated into the national community, and are in fact separated both by national identity and physical location, is the law of the Holiness code a realistic aspiration for administration of justice?

Yeshayahu Leibowitz, the 20th century Israeli chemist and philosopher, would have said that it is not. From the beginning of the occupation, Leibowitz recognized that the occupation could not exist in any conditions besides those of military rule, in the manner of a police state. In his essay, “The Territories,” first published in May 1968, less than a year after the Six-Day War, Leibowitz wrote, “The territories are not the problem, but rather the population of 1.25 million Arabs who are their inhabitants, upon whom we will need to impose our authority,” if Israeli rule over the territories was to persist. As the population of the Arabs living in the territories grew greater, “A state ruling over 1.4 to 2 million non-citizens [using the same word as the ‘stranger’ of the Holiness Code’] will of necessity be a secret police state…The typical corruption of every colonial police force will attach itself also to the State of Israel.” Perhaps most precient of all was his assertion that, “There is also a fear that the Israel Defense Forces, which until now has been a people’s army, will become an army of occupiers.” The last half-century of military rule over the Occupied Territories testifies to the sad truth of this statement, and the injustice that the rule of an army of occupiers implies.

The law of the Holiness Code does not seek to create a homogeneous society–it recognizes that within a political community, there will be both those who stand both inside and outside of the national community. But it demands that the majority provide for the minority the same protection of the law afforded to the majority itself. The State of Israel has so far failed in this regard. But for a state based on the vision of the prophets of Israel, this seems like a more than worthy aspiration.