Torture, Terrorism, and the Halakhah 41

to do and yet we frequently seem to fall short of that standard. We usually explain this discrepancy on the grounds of human weakness or the evil impulse(yetzer hara), and we often console ourselves with the thought that“the Torah was not given to the angels.”’** In this instance, however, the difficulty arises not from some moral fault or illicit desire but from our desire to“do the right thing”: we perceive that in order to save the lives of countless individuals, we shall have to make a choice that conflict with our pronounced moral principles. One way to deal with this conundrum is to pronounce ourselves to be realists or pragmatists: “Such is the world in which we live. We cannot change human nature. Our only choice is to do the best we can in the situation that confronts us.” Fine with me. However, we also proclaim ourselves to be halakhists and teachers of Judaism , and as such, we should be wary of allowing the “real” to blur our vision of the ideal. Our task is to remember that it is the Torah we are interpreting, and when we speak in the name of Torah , we must keep in mind that we bear the ultimate responsibility for the lessons that we teach in its name. What we might do when we confront the terrorists of our time is admittedly an open question. But that reality does not alter the fact that, from our perspective and to borrow Professor Kreimer’s language, ours is not a Torah that condones torture. To know this will not necessarily rescue us from all moral difficulties. It does give us, however, a firm basis upon which to stand as we struggle with the moral challenges of our age. And that is no little thing.

Notes

1. United States Code, title 22, chapter 38, section 2656f(d).

2. 1 am not claiming that the concept of“rule of law” originated in the modern West. Indeed, the ancient Greeks are aware of“the ideal of the state whose authorities act in accordance with preexisting, known laws not arbitrarily or without regard to those laws,” even if they do not enunciate the concept in explicit form. See J. M. Kelly, 4 Short History of Western Legal Theory(Oxford : Oxford University Press , 1992, 24-25. For the history and theoretical underpinnings of the concept see Brian Z. Tamanaha, On the Rule of Law(Cambridge: Cambridge University Press , 2004). My point is that in the contemporary context, the“rule of law” is the major distinguishing characteristic between democratic and dictatorial political systems.

3. As one popular formulation would have it,“the government shall be ruled by the law and subject to it”; Joseph Raz ,“The Rule of Law and Its Virtues,” in R. L. Cunningham, Liberty and the Rule of Law(College Station: Texas A&M Press, 1979), 5. Raz does go on to say that the formulation is a tautology; a“government”