Mark Washofsky

secular culture— but the purely utilitarian aim to protect society from the acts of antisocial persons. In contrast to all this, the Torah holds each of us responsible for our own actions and charges us as a society“to eradicate the evil from within your midst”(Deuteronomy 13:6 and elsewhere).“The eradication of evil is a religious and not merely social value... In our law, the killing of the rodef is not merely excused after the fact; it is an obligation, a divinely-imposed duty.” With this in mind, it is absurd to speak of“rights” that protect the sinner against the just punishment that his own actions bring upon him.

Discussion. Professor Warhaftig’s essay may or may not reflect a consensus opinion among Orthodox halakhists. It does, however, allow us to see how at least one highly regarded Orthodox academician approaches our subject on the basis of the halakhic tradition. Liberal halakhists are likely to find some serious problems with his position. I list some of them here.

First, as a matter of technical legal analysis, Warhaftig’s critique is unfair to the Israel Supreme Court . As a law professor, he should know that the Court ’s duty is a judicial one: to interpret and apply the existing law, the law as it is rather than the law as the justices or anyone else might wish it to be. Procedures governing interrogations are fixed according to statute,’ and the Court unanimously’ found that the legislation makes no allowance for“cruel and inhuman” methods of interrogation. The Knesset , perhaps, should alter the law, but in the absence of any specific legislative act to that effect the justices can hardly be blamed for fulfilling their constitutional responsibility to act as justices and not as legislators.

Second, Warhaftig’s determination that normal legal protections may be set aside during“time of war” does not distinguish Jewish law from the Western legal tradition. Most modern constitutional regimes make provisions for their governments to assume broad, even draconian enforcement powers during national emergencies; the Torah offers the state no advantages that the secular law does not already guarantee it.** That the government of Israel has not decreed such an emergency during the present crisis may or may not constitute a mistake in political judgment. It does not, however, constitute a structural defect in the Israeli legal system or an indictment of modern Western law.