Torture, Terrorism, and the Halakhah 47
41. Warhaftig extends this concept of legal responsibility to the non-Jew, who as a“son of Noah” is required to act in accordance with the basic principles of justice (dinim); see above at note 27.
42. Warhaftig, at 148: mi she‘over‘al hachok...ein lo kavod kelal, and“makin oto ‘ad shetetzei nafsho”(B. Ketubot 86a), shekhen beyado lehafsik et sivio.
43. Yad, Sanhedrin 24:4.
44. Warhaftig, of course, does not write a formal judicial opinion in Techumin, yet his article presents itself as the equivalent of one for all practical purposes:“This is how I would rule on the question at hand from the standpoint of Jewish law.”
45. Leora Bilsky ,“Suicidal Terror, Radical Evil, and the Distortion of Politics and Law,” Theoretical Inquiries in Law Tel Aviv University Faculty of Law) 5(2002), at 153-154. Bilsky is a member of the Tel Aviv University law faculty.
46. In addition to Public Committee(note 18, above), Bilsky refers here to Ajuri v. IDF Commander in Judea and Samaria, HCJ 7015/02, and Anonymous Persons v. Minister of Defense, Cr.A. 7048/97. In all three cases, Chief Justice Barak wrote the Court ’s opinion.
47. Public Committee(note 18, above), sec. 1.
48. See, in general, Mark Washofsky,“Taking Precedent Seriously: On Halakhah As A Rhetorical Practice,” in Walter Jacob and Moshe Zemer , eds., Re-examining Progressive Halakhah(New York : Berghahn Books, 2002), 1-70; available at http://huc.edu/faculty/faculty/washofsky/takingprecedentseriously.pdf.
49. Robert Cover “Nomos and Narrative,” Harvard Law Review 97(1983), at 4-5 and 46. See also Michael Sandel , Democracy’s Discontent: America in Search of a Public Philosophy(Cambridge , MA: Harvard University Press , 1996), 350-351: “political community ...depends on the narratives by which people make sense of their condition and interpret the common life they share... without narrative there is no continuity between present and past, and therefore no responsibility, and therefore no possibility of acting together to govern ourselves.” The subject of narrative jurisprudence is sufficiently complex that I hesitate to offer any discussion here beyond the sketchy indications in the text. For my most sustained effort to date, see Mark Washofsky,“Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision,” Pursuing the Text: Studies in Honor of Ben Zion Wacholder, London , Sheffield Press, 1994, at 373-375. The reader might consult the collection edited by Peter Brooks and Paul Gewirtz , Laws Stories: Narrative and Rhetoric in the Law. New Haven : Yale University Press , 1996.