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Sanctification and “Sacred Sites” in a Jewish Democratic State

 
Filed under: Israel, World Jewry
Publication: Jewish Political Studies Review

Jewish Political Studies Review
Volume 31, Numbers 3-4

A Study of Rabbi Shlomo Goren’s Halakhic Rulings

Abstract

The State of Israel has chosen to define itself as a Jewish democratic state. This article will show Rabbi Goren’s efforts to designate places as sacred sites using two tracks: the halakhic trajectory and the civil one. Regarding the religious trajectory, the halakhic practices had been forgotten over the years, and Rabbi Goren had to review the rabbinic literature and other sources in order to learn and develop ways of sanctification in a modern Jewish country.

The examples in this article show that Rabbi Goren tried to imbue the Jewish component of the State of Israel with halakhic content. He believed that there was no contradiction between the principles of the Jewish religion and those of the State of Israel, and thus mutual cooperation developed between him and the state authorities. The State needed a religious justification for exercising sovereignty over the historical Land of Israel, while Rabbi Goren wanted to show that Jewish law does not only concern individuals but is also relevant for shaping the nature of a modern Jewish state.

In the civil sanctification track, Rabbi Goren used Mandatory legislation in a unique way to define a site as a religious monument. He used this process both during internal Israeli disputes (such as the City of David archeological excavations) and in the struggle for Jewish rule in Judea and Samaria. In these cases, the sacred became a tool against the state authorities and delineated areas under the control of halachic leaders.

The concept of sanctity in the religious and secular sectors continues to occupy a central place in the dialogue in Israeli society. The current article helps to understand the ways in which this act of sanctification is expressed.

1. Sanctifying a Place as a “Sacred Site” in a Jewish Democratic State

The State of Israel has chosen to define itself as a Jewish democratic state, a definition that requires three sub-definitions: what is meant by “Jewish,” what is meant by “democratic,” and what is the correct relationship between the two parts of this definition?1 There are many diverse interfaces between the two sub-definitions – the Jewish and the democratic characteristics of the state. The current article focuses on one aspect that links both characteristics to the geographical sphere. By which means can a place be defined as “sacred” (in the Jewish sense) in a Jewish and democratic state, and how does the State refer to this definition?2

This discussion parallels a more fundamental discussion of the State of Israel’s existing and desirable characteristics. The philosopher John Rawls (1921-2002) elaborates on the principle of the liberal state that is fundamentally neutral, enabling individuals to have the space to make their own decisions.3 Applying this definition to the State of Israel, it could be said that the Jewish nature of the State of Israel is expressed mainly in the Law of Return (1950) and in the general adoption of the principles of the Judicial Principles Law (1980). This is the view held by Judges Haim Cohen and Aharon Barak.4

This analysis adopts the opposite approach in which various authorities in Israel work deliberately to consolidate their ownership of specific spaces for predominately nationalistic purposes, relying on the concept of sanctity for this purpose. The most prominent and famous of these struggles is between Jews and Muslims over control of the Temple Mount. The concept of sanctification is used both by Jews seeking to prevent a Jewish presence on Temple Mount and by Jews seeking to increase the Jewish presence on Temple Mount. Yet, many other struggles exist in which the concept of sanctity is used to create spaces governed by halakhic law or Israeli law (in controversies between Jews and Arabs) for nationalist reasons.

The concept of sanctity, by its nature, is elusive and challenging to define in religious terms and hence also in terms that are consistent with secular-legal method.5 In the current context, Rudolf Otto’s classic definition of holiness will be used – “mysterium tremendum” (awe-inspiring mystery) – a constant tension between fear and danger on the one hand and pleasantness and joy on the other.6 In simpler language to describe people’s feelings, a sacred space is one that evokes a sense of honor and esteem, is meaningful to a wide range of believers, and provides comfort and sometimes feelings of transcendence to those within the sacred space.

Introducing the concept of sanctity into the spatial-legal domain grants it advantages but also disadvantages. Sanctity is a spiritual situation, and applying it to a specific site for an extended period and defining it as a “sacred site” is a seemingly inherent contradiction. However, this issue has more to do with the theology and sociology of religion and is beyond the scope of this paper.7 In addition, in general terms, sanctity in a particular place is usually created as a result of faith, accompanied by believers who are continuously active at the site over a long period of time.8 The current article presents a halakhic arbiter’s attempts to sanctify certain areas as sacred sites, with the goal of creating uninterrupted sanctity over time while ensuring that his rulings will be accepted both by the believers and by the state authorities.

This discussion will examine some of Rabbi Shlomo Goren’s (1918-1994) halakhic rulings. Rabbi Goren served in three significant public positions: Chief Rabbi of the Israel Defense Forces (1948–1971), Chief Rabbi of Tel Aviv (1971–1972), and Chief Rabbi of Israel (1972–1983),9 and he was one of the central figures in shaping the Jewish characteristics of the State of Israel. In addition to his many public pursuits, Rabbi Goren engaged in Torah research and extensive halakhic writing.10

Mescheloff (2010) notes that Rabbi Goren considered his position as Chief Rabbi an opportunity to provide fundamental solutions to questions of religion and state,11 but his aspirations were shattered by the general political reality and ultra-Orthodox public opinion.12 Thus, it is his tenure as Chief Rabbi of the IDF that is considered the pinnacle of his public activity.13

A distinction is commonly made between “theoretical authority,” which stems from expertise in a particular field, and “practical authority,” which is conferred on a person by his superiors.14 For most of his life, Rabbi Goren acted as a practical authority, especially in his military role, yet, as will be shown below, he aspired to theoretical authority based on his scholarly abilities and not dependent on any role he held.

Rabbi Goren was very close to many of Israel’s leaders, and especially to David Ben Gurion (1886–1973).15 These leaders of Israel considered themselves to be fulfilling the Prophets’ visions but did not consider themselves committed to religious observance in either their public or private lives.16 Ben Gurion was a firm believer in the perception of stateliness in which the political culture attaches great importance to the state and recognition of it.17 Rabbi Goren shared this view with the Land of Israel, and especially the State of Israel, occupying an important place in his thinking. However, he believed that this concept must be imbued with Jewish philosophical and halakhic content.

In the research literature, the ways in which the Zionist movement tried to define “Jewish areas” and thus demand ownership of them have been extensively discussed. The current article focuses on Rabbi Goren’s activity in the geographical domain, which included the creation of sanctity and sacred sites in attempts to actualize the Jewish dimension of the State of Israel and to create a halakhic basis for Israel’s control of these sites. The public figure of Rabbi Goren is well known, but his activity in this domain has not been described at all.

Rabbi Goren’s main assumption over the years was that the establishment of the State of Israel was a “crucial historical turning point in the national way of life of the entire nation,”18 that the importance of the political dimension forms an essential part of every Jew’s life, and that the State of Israel is the renewal and continuation of the ancient Jewish State of Israel.19 Hence, Rabbi Goren had a positive attitude to the democratic system, and in many of his rulings, he conferred a valid halakhic status on the Knesset (Parliament) and the government in Israel as governing authorities.20

This article reviews three tracks: two halakhic and one civilian in which, acting in his capacity as Chief Rabbi of the IDF and Chief Rabbi of Israel, Rabbi Goren wished to create a “sacred site” in the space he sought to define as the “Land of Israel,” as well as in the space he sought to define as a “sacred site” within the Land of Israel. To this end, Rabbi Goren used well-known, existing halakhic practices, in addition to those that he initiated. The first section of this article discusses this aspect, which will be defined as “Sanctification using the halakhic track.”

In addition, Rabbi Goren also made explicit and non-explicit use of Section 2 of the King’s Order in Council (Holy Places) (1924). This legislation, enacted during the British Mandate in Palestine, determined that sites designated as sacred be granted extra-territorial status. This article will discuss this track, which has not been discussed in the research literature and which will be defined as “Sanctification using the civilian track.”

The main argument presented in this article is that Rabbi Goren sought to use sanctification as a tool for controlling the public sphere during various public struggles waged in the State of Israel over the years and for instilling nationalistic values ​​that he sought to strengthen. To develop this argument, two types of sanctifications will be presented: the first stems from the religious authority of the arbiter and the second from the power of civil legislation. A central part of the discussion clarifies the halakhic sources that Rabbi Goren used to implement his goals. In both tracks, Rabbi Goren used the sanctification tool for political purposes.

The creation of “sacred sites” in Israel did not cease with the death of Rabbi Goren, and the concept of sanctity continues to be used by various parties in struggles over the desired spaces of the State of Israel, especially on the Temple Mount.21 Understanding the practices that Rabbi Goren used during his public activities will also help understand how various parties in Israeli society (private individuals and government agencies) use the concept of sanctification to achieve their political and social goals in the State of Israel today.

The next paragraph (2.1) presents Rabbi Goren’s innovative thought regarding the concept of sovereignty.

2. The Act of Halakhic Sanctification and Its Aims

2.1 Introduction

The idea of modern sovereignty is first mentioned by Jean Bodin (1530-1596).22 According to him, a state of anarchy and the absence of sovereignty is a disaster, while order and stability within the state are necessary for human existence. This order and stability can exist if citizens accept that the state rules them (as a prerequisite for law and a constitution) and make it the supreme authority over each and every citizen. This supreme authority will exist within defined territorial boundaries in accordance with the concept of “national territory.” Giorgio Agamben (1942- ) argues that the act of sovereignty creates a bio-political body that has political and biological characteristics (like a living body).23 This concept of sovereignty is seen, in its various forms, as a cornerstone of the modern state, but it is entirely foreign to political thought in ancient times.24

What is the attitude of Jewish tradition to the concept of sovereignty? Eliezer Don-Yehiya and Baruch Zisser point out that the tradition of “Supreme Law” in Judaism involves the denial of the concept of political sovereignty.25 Thus, according to Eliezer Schweid, “the halakha and the communal institutions that operate in accordance with the halakha should be regarded as a portable state. The Jews carry their “distinct state” with them – a country that does not rely on a defined territory and does not include sovereignty characteristics,”26 Alongside this approach, another approach developed that does consider the institution of modern sovereignty as a basis for the existence of “Supreme Law” in Judaism. For example, Rabbi Avraham Kook (1865-1935) saw nationalism, language, and territory as tools to strengthen Jewish religion in the modern world.

In an article entitled “Greater Israel in the Light of the Halakha,” Rabbi Goren links the concept of modern sovereignty with religious observance:

Jewish sovereignty over the Land of Israel is not only a nationalist value. It is the foundation of the entire Torah of Israel, with its values, commandments, and warnings, since we find that God’s first talk with Abraham, while he was still in Haran, does not revolve on any other commandment of the Torah but on the commandment of settling the Land of Israel.27

The connection between the concepts of sovereignty and nationalism is a critical element of the Zionist worldview, which claims that only by having sovereignty over a particular territory can the Jewish people realize their complete nationalist potential.28 Rabbi Goren’s opening comments refer to this idea, and he then moves on to what he believes to be the key issue: the importance of the political aspect of sovereignty over the Land of Israel for the religious person who considers himself committed to the Torah.

According to Maimonides’ commentary on the Mishna of Bechorot 4, 3; Horayot 1, 1, only in the Land of Israel is the Jewish people defined as a nation and not as a collection of individuals.29 Rabbi Goren used this definition to determine that even though the Jews living in the Land of Israel when the state was established were in the minority (in relation to the Jews in diaspora), they should still be referred to as the “Jewish nation.” Therefore, “commandments that apply to the entire public” can only be applicable in the Land of Israel.30 It is important to emphasize that the question of whether the Jews living in the State of Israel should be considered “public” in halakhic terms is critical to any discussion of Israel’s authorities: the government, the Knesset laws, etc., and serves as a basis for the Zionist-religious worldview.

Based on his above-mentioned comments, Rabbi Goren anchors the value of modern sovereignty within the commandment to settle the Land of Israel, thereby enhancing the status of this value as a commandment from the Torah and from being a commandment that an individual is required to observe. It becomes a commandment that the public as a whole is required to observe. Hence, the individual is not only required to settle in the Land of Israel but also to physically assist in exercising the sovereignty of Israel in the Land of Israel. In other words, the state authorities are those charged with declaring the state’s sovereignty over a particular area. According to him, citizens must assist the state in implementing this sovereignty.

The connection between the commandment to settle the Land of Israel and sovereignty in the State of Israel and changing the status of the commandment to applying to the general public, and not just to the individual, gives rise to the question of the halakhic status of the various military occupations of the State of Israel over the years. At this point, Rabbi Goren’s answer in principle to this question is given, and in the next chapter, the conquest of Abu-Ageila in the Sinai Peninsula and his designating it as a sacred site in the 1956 Sinai campaign will be discussed.

The supreme ownership of the nation and the state is our sovereignty over the Land of Israel. This sovereignty determines the holiness of the Land of Israel, which our nation initially inherited from our forefather Abraham, and which we lost in our second exile. In our days, in the War of Independence and the Six-Day War, we have regained our national sovereignty over the Land, which is our supreme ownership over the entire Land of Israel, within the biblical borders sanctified by Joshua Bin-Nun when the Jews first entered the Land of Israel from Egypt (hereafter: Olei Mitzrayim) and later by Ezra and the Jews who returned from Babylonia (hereafter: Olei Bavel), and some by the Jews, “the returned.”31

Rabbi Goren’s historical timeline begins with the commandment given to Abraham concerning the Land of Israel and does not mention the conquests by Olei Mitzrayim and Olei Bavel. The next stage of the timeline is the destruction of the Second Temple and the gradual process of exile and loss of sovereignty. It should be emphasized that Rabbi Goren attributes the modern concept of “sovereignty” to these two points of time, thus creating a permanent and definitive concept of sovereignty that comes and goes as a result of historical events.

Rabbi Goren adds another two other events to the historical timeline: The War of Independence and the Six-Day War. Jacob Talmon notes that before the Six-Day War, public opinion in Israel was that Zionism had not yet achieved its goals.32 Rabbi Goren believed that, with these two military conquests, the Jewish people reclaimed its sovereignty over the Land of Israel and thereby advanced one stage further in realizing the goals of Zionism.33

The authority to assert sovereignty over a particular territory is vested in the government that receives its authority from the public. In determining territory as sovereign territory of the state, the government should consider a variety of considerations, including the will of the people as it understands this will. As discussed above, Rabbi Goren interprets the principle of sovereignty as part of the commandment to settle the Land of Israel, and, as such, it also has a dimension of the sanctity of the Land of Israel. The next section discusses how Rabbi Goren sought to combine the democratic aspect of determining sovereignty with the halakhic aspect that views sanctification as a halakhic issue to be determined by halakhic arbiters, who take meta-halakhic considerations into account when designating a site as sacred.

2.2. Dedication of the Abu-Ageila Area in Sinai

A fascinating question regarding the concept of sovereignty that is based on the authority of the state is the relationship between military occupation and how it is translated into the halakhic value of “sanctity.” In such an area that is designated as holy, what is the status of the commandments that are only observed in the Land of Israel? Rabbinic literature distinguishes between two sets of borders: Olei Mitzrayim (those who left Egypt) and Olei Bavel (those who left Babylon). Maimonides states: “All of the lands that the Olei Mitzrayim took possession of were sanctified in the first consecration [of the land]. When they were exiled, that sanctity was nullified since the initial consecration came about because of the conquest. [Hence,] its consecration was effective for the time [it was under their rule], but not for all time… when Olei Bavel took possession of a portion of the land, they consecrated it a second time. [This consecration] is perpetuated forever, for that time and for all time ((Trumot 1, 5). Rabbi Goren’s interpretation of the Mishna is that there are two types of sanctification in Land of Israel: First – resulting from occupation – which can be revoked when it is no longer occupied, and second – sanctification by force of residency – which cannot be revoked.34

It should be noted that the question of the halakhic status of lands captured by the IDF conquests can be divided into two categories: First, the conquest of Judea, Samaria, and the Gaza Strip is the subject of a vast halakhic literature that was written to justify settling in these areas. The second category refers to discussions that were expected regarding the discrepancy between the IDF conquests in the Negev and the Galilee and the halakhic borders demarcated by Olei Mitzrayim and Olei Bavel, but in practice are almost nonexistent. The question of the borders of the State of Israel in a halakhic sense was discussed mainly to justify the first category. In the 1956 Sinai Campaign, Rabbi Goren seized the opportunity to engage in a halakhic discussion of IDF conquests.

This war began on October 29, 1956, and ended in the following month, on November 6, with the conquest of the Sinai Peninsula. The IDF’s 9th Brigade held a victory ceremony in Sharm el-Sheikh, in which Chief of Staff Moshe Dayan read out a special letter from David Ben-Gurion:

You have successfully completed one of the most glorious military operations in our people’s history and one of the most wonderful operations in the history of nations. Once again, the Song of Moses and the ancient Israelites will be heard: “The peoples hear, they tremble; agony grips the dwellers in Philistia. Now are the clans of Edom dismayed; the tribes of Moab—trembling grips them; all the dwellers in Canaan are aghast; terror and dread descend upon them; Eilat will again be the main Hebrew port in the south, and Yotvat, known as Tiran, will once again be part of the Third Kingdom of Israel.35

Whereas the Biblical perception views the Sinai wilderness merely as a transit area between Egypt and the Land of Israel, after the 1956 military conquest, many also came to view the Sinai Peninsula, even if for a short time, as part of the Land of Israel within the borders of the Promised Land as told to Abraham.36 However, Ben-Gurion’s words did not materialize, and on November 8, Ben-Gurion was forced to announce a withdrawal from Sinai. Shortly afterward, the State of Israel withdrew its forces from the Sinai Peninsula.

Many people, including Rabbi Goren, considered it critical to annex the Sinai Peninsula to the fledgling State of Israel. This is an article published in the HaTzofe newspaper entitled “Abu-Ageila has been sanctified with the sanctity of the Land of Israel:”

Sometime after the conquest of the Egyptian stronghold (Abu-Ageila), Chief Rabbi Col. Shlomo Goren arrived and was greeted by the commanders of the occupying forces. His goal was purely a military, territorial one: to sanctify the territory occupied by the IDF with the sacred status of the Land of Israel. Maimonides ruled that every place occupied by the Israeli army must be sanctified with the holiness of the Land of Israel, as based on the verse. “Every spot on which your foot treads I give to you” (Joshua, 1:3). To demonstrate this verse, Rabbi Goren walked around the perimeter of the designated area, reading Psalms 3 and 30. One of the soldiers asked him when we will get to do the same ceremony: When will we do it in Suez?37

Oz Almog writes that the conquest of Gaza and the Sinai Peninsula evoked a sense of pride in Israeli society, and IDF soldiers and commanders were seen as the successors of Joshua Ben-Nun and Alexander Jannaeus (Yanai), who conquered Gaza during the Hasmonean era.38 In this ceremony, Rabbi Goren sought halakhic implementation of the view that the IDF is a continuation of previous Jewish armies whose military conquests change the definition of the land and grant it the halakhic status of the Land of Israel.

However, this ceremony did not create any public awareness in Israeli society and halakhic literature, probably due to the rapid evacuation of the IDF forces from Sinai. Additional reasons for this fact, which has hardly been discussed in the research literature, will be discussed later. However, at this point, the main halakhic arguments used by Rabbi Goren will be introduced.

A few years later, Rabbi Goren published an article entitled “The Sanctity of the Occupied Areas, according to the Halakha,” which deals with the conquest of the Sinai Peninsula.39 Rabbi Goren defines the halakhic discussion: “Is it possible to apply the halakhic definition of the Land of Israel to this area, in the context of commandments that are only applicable in the Land of Israel and not elsewhere?”40 In the halakhic discussion, Rabbi Goren deals extensively with Maimonides’ (Trumot 1, 2, 5; Beit-Habhira 6, 16) writings on the status of first and second sanctity and seeks to extract guiding principles from his writings that would also be applicable to IDF conquests.

Rabbi Goren determines that “the sanctity of the Land of Israel in the matter of the commandments that are only applicable in the Land of Israel does not depend on the borders of the land as specified in the Bible.”41 In other words, Rabbi Goren does not delineate Israel’s borders based on the above-mentioned frameworks (the borders of Olei Mitzrayim and Olei Bavel) and claims that these are only relevant to the commandments that are applicable in Israel. However, the actions of Olei Bavel are interpreted by Rabbi Goren as a “civil settlement and strong settling in the region,”42 explains why he believed the validity of this occupation will never be revoked. So, determining Abu-Ageila as part of the Land of Israel is also contingent on Jews settling and living in the area.43

However, when dealing with the occupation and sanctification of an area, the question arises of who has the authority to sanctify and how it should be determined in a Jewish and democratic state. Assuming that such a sanctification ceremony did indeed take place, it is hardly mentioned in the Tanakh [Bible],44 and no record of this ceremony exists except from Nehemiah (12, 27- 44) and the Mishnah (Shavuot 2, 2), that describe the differences between sanctification of Jerusalem and the Temple Mount: “Additions can be made to the city of Jerusalem or to the Temple courtyards only by a special body comprised of the king, a prophet, the Urim VeTummim [the High Priest’s breastplate of judgment] and the Sanhedrin of 71 judges, and with two thanks-offerings, and with a special song. Once the addition to the courtyard is made by this body and this process, it is given the full sanctity of the original courtyard area. The Mishna provides certain details of the consecration ceremony. “And the court would move forward, and two thanks-offerings would be brought after them, and all of the Jewish people would follow behind them.” These ceremonies are presented as involving both the monarchist-political authority and the religious-prophetic authority of the Urim VeTummim and Sanhedrin. However, these components do not exist in the State of Israel.45

Rabbi Goren notes the apparent contradiction in Maimonides’ remarks; in one source (Melakhim [Kings and War] 5, 6), he does not mention the Sanhedrin as a necessary element to determine military occupation. In another place ([Kings and War] 5, 3), he states that the king performs his actions “according to the Sanhedrin,” and in a third citation (Terumo [Gifts] 1, 2), Maimonides stipulates that there is no need for a Sanhedrin to determine this occupation. Rabbi Goren proposes a solution to this apparent contradiction and says that in Kings, he was referring to an “Optional War,” and in Terumot, Maimonides was referring to a “Mandatory War.” According to Rabbi Goren, the Sinai Campaign falls under the latter category, and, therefore, the IDF’s conquests beyond the borders of Olei Bavel have halakhic validity.46

It is interesting to note that Rabbi Goren simply assumes that the act of sanctification is separate from the act of conquest and should be performed by a Beit Din,47 whereas the main difficulty seen in Maimonides’ writings is the fact that in Melakhim he determines that the Sanhedrin must approve both the conquest and, all the more so, the sanctification. Later in the discussion, Rabbi Goren rules that the sanctity of the land does not apply immediately following military occupation, only after the Sanhedrin performs an act of sanctification or approves such an act.48 This is because the Sanhedrin has to take additional considerations into account in accordance with the people’s needs.49

Elsewhere, Rabbi Goren discusses how to sanctify the land and mentions the opinion of David Ben Solomon ibn Abi Zimra (Radbaz) of the sixteenth century (Maimonides Terumot 1, 5) that oral sanctification together with conquest is sufficient for permanent sanctity. Rabbi Goren deduces from the opinion of Maimonides (Beit HaBekhira 6, 16) that there is no difference between sanctity that is invoked without any active action on our part and sanctity that is invoked through an explicit utterance of the sanctifier. In the present case, Rabbi Goren rules that sanctification of the land can only be performed through an oral declaration.50

The question once again arises, what is the source of Rabbi Goren’s authority to perform this sanctification? He does not engage in any halakhic discussion to answer this point. Two possible answers may be given to this question. First, that Rabbi Goren believed his authority derived from the status of the State of Israel and the IDF by virtue of his role as Chief Rabbi of the IDF (“practical authority”). Second, that Rabbi Goren did indeed view his authority as a kind of Sanhedrin but could not bring any specific halakhic basis for his view. In any case, the lack of a halachic discussion at this critical point is particularly glaring, but it is clear that Rabbi Goren’s self-perception enabled him to act as an authority in this field.

Transferring this discussion from an internal-halakhic one to the question of the relationship between Judaism and democracy in the State of Israel, the question of authority becomes even more acute: what was the source of Rabbi Goren’s authority to take this action? It is conceivable that Rabbi Goren assumed that during those euphoric days, the state intended to apply sovereignty over this area, and so he acted to imbue this military occupation with halakhic content. For him, the IDF’s conquest stemmed from the decision of a democratically-elected government, and therefore the act of sanctification sought to establish a halakhic basis for the territorial claim on this region.

Rabbi Goren believed that the IDF is a continuation of Joshua ben Nun’s army and acts accordingly. However, an additional component of civil religion in the State of Israel must be noted. There is no comparison between a soldier fighting in a specific area because of its strategic importance and one fighting in this area because it is the sanctified Land of Israel. In this case, the unwritten contract between Rabbi Goren and the state authorities (assuming that they were aware of this and that the Israeli presence in Sinai would have continued) was to grant sanctity and importance to the military-tactical step and recognition of Rabbi Goren’s authority as the religious authority in the civilian-led army fulfilling a historical role as a continuation of Joshua Ben Nun’s army.

This contract lasted as long as Israel’s leaders were interested in imbuing Jewish content and applying the “sanctity of the Land of Israel”51 to areas occupied by the IDF. As the direction and outlook of the political and military authorities changed direction and began to evacuate areas in Judea and Samaria, the contract was violated. In the final months of his life, Rabbi Goren was strongly opposed to the Oslo I Accord, the evacuation of Hebron, etc., as mentioned at the beginning of this paper. The discourse among Israel’s political leaders transitioned from focusing on sanctity to defense and economic issues.

According to the analysis presented in this paper, democracy is not a set of values, but rather it is the rules of the game that are necessary to fulfill an external need.52 As far as Rabbi Goren was concerned, these rules of the game led to the desired outcomes. Therefore, he was interested in imbuing them with “sanctity.” It should be emphasized that the need to exercise Jewish sovereignty in the State of Israel using the concept of sanctity was not initiated by Rabbi Goren, but he innovated the use of legislation and formal means for achieving this.

Rabbi Goren dealt with this topic elsewhere in his writings Meshiv Milchama II (pp. 416- 422), discussing a question posed to him by a soldier regarding taking tithes (ma’aser) from produce grown in Sharm al Sheikh.53 Rabbi Goren mentions several sources discussing this question and mentions the Rishonim (medieval commentators) who believe that the Sinai Peninsula is included within the borders promised to Abraham in the Bible.54 Rabbi Goren writes:

However, even according to this opinion, if this area has not been sanctified now when it was captured by the IDF, then the sanctity of the Land of Israel does not apply to it, because it was not conquered by us in the second conquest by Olei Bavel, and the first sanctification by Olei Mitzrayim was only temporary and not for all times…

The sanctity of the place by virtue of it being captured by the IDF does not apply here; if we had not intended to sanctify it by virtue of the sanctity of the Land of Israel or because we conquered it before we conquered all the borders of our land that are closer. We have already clarified this problem.55

In this ruling, Rabbi Goren changes his approach regarding the sanctification of Abu-Ageila. Whereas he had previously claimed that although Abu-Ageila is beyond the Olei Bavel borders, it could still be sanctified. Here he claims that it is not possible to sanctify an area beyond these borders. Additionally, with regard to Abu-Ageila, he rules that Maimonides’ ruling (Terumot 1, 3) does not apply, and in this instance he gives this ruling a broad interpretation that prevents sanctification of this area.

How is this change to be understood? It is possibly connected to the fact that this area was only occupied for a short time. Rabbi Goren understood that actual change is not brought about through declarations of sanctity, but rather through civilians settling in these areas, as well as his understanding that his action did not make any impression on the general and halakhic discourse.56 As mentioned above, the public’s attitude to a halakhic ruling is crucially important for it to be accepted in practice. The fact that the area was returned so quickly to Egypt made it superfluous to discuss the status of the area, and the attempt to incorporate it into” Israeli” territory by defining it as part of the sanctity of the Land of Israel was unsuccessful.57

Anita Shapira writes that Ben-Gurion had an ambivalent attitude towards history, and he invested considerable effort in shaping the historical consciousness of the State of Israel.58 It can be assumed that in the case of Abu Ageila (as well as in another case of the Shofar-blowing at the Western Wall during the Six-Day War), Rabbi Goren sought to participate in shaping the history of the State of Israel. Designating an area as a sacred site after it had been captured by the IDF and imbuing it with the holiness of the Land of Israel after over two thousand years are attempts to return to Jewish history the connection of military power with sanctity. As we have seen, this attempt did not attract any public attention due to the rapid evacuation of the Sinai Peninsula. However, as will be expanded on in the following chapters, Rabbi Goren did not abandon the use of the concept of sanctity to mold Jewish content in the State of Israel.

2.3 Designating Mount Herzl as a Military Cemetery

In his position as Chief Rabbi of the IDF and Chief Rabbi of Israel, Rabbi Goren was very active in taking care of fallen soldiers and their burial, including the religious and military aspects.59 The first General Staff Ordinance dealing with the establishment of the Military Rabbinate (December 23, 1948) stipulated in section 4 that: One of the military rabbinate’s duties is to “oversee the identification of fallen soldiers and their burial procedures.”60

In the Middle Ages, Jewish communities considered the treatment of the deceased and their burial as one of their essential functions, giving rise to an extensive literature of laws and customs on the subject. Nevertheless, Rabbi Goren was required to add a new dimension of halakha about state burials that did not exist in the standard burial procedures in the communal cemeteries of Jewish communities.

Death is considered the end of physical life on earth; thus, there is a corpus of halakha regarding burial, mourning rites, and the mourners’ obligations to the deceased. However, death is not only the end of life. It can also be a source of strength and identification for the living, as well as a justification of a society’s values and its way of life.61

Creating a burial place at a particular location is also an attempt to bestow symbolism and meaning on the location,62 as can be seen in the Mapai (Labor) Party MK Shmuel Dayan’s speech in the plenum in 1952 regarding the definition of “sacred sites” as part of the Petroleum Law legislation:

I remind everyone that we have buried our dead for several generations in our new settlement. They are the ones who conquered the land with their sword and especially with their sweat, and they are holy to us. Moreover, we especially remember our dead, who liberated the land for us. We will also always remember that we become angry when we hear about the desecration of Jewish cemeteries somewhere else in the world. I do not think there is a person in the country who would agree to disturb the bones of our dead.63

At a simple level, burial may be viewed as a practical matter of finding a permanent place for a body and establishing a cemetery as a communal solution to this problem. The Bible also imposes strict impurity on the dead body, and those who are strict about the laws of purity will avoid coming in contact with it. Nevertheless, over time, the cemetery changed from being an impure site to a holy one,64 a place that gives meaning to its surroundings and even one that signifies Jewish ownership.65 Thus, setting up state cemeteries is an act of creating renewed “sacred sites” that confer significance on the actual location. In some cases, society may come to view the symbolic importance of a grave as being even more important than biblical sites.

One of the first questions the military rabbinate faced was treating the dead of the War of Independence.66 The halakha states that soldiers who fall in action should be buried at the site of their death (Eruvin 17a, Bava Kamma 70a), and thus the answer should have been clear: each soldier would be buried where he fell.67

The IDF defined that one of the military rabbinate’s functions was to identify the fallen and oversee their burial. Interpretation of this task is very significant: in its most limited form, the rabbinate simply has to identify a body that is brought to them and then bury it. Many armies in the world do not systematically bury all the dead in military cemeteries. Instead, they erect a “Memorial to the Unknown Soldier,” which marks the deaths of many soldiers who fell in battle and who were buried in an unorganized manner and who were not identified. It is important to emphasize that the nature of injuries sustained in battle makes the identification of bodies, and certainly their burial, very difficult.

Mescheloff writes that Rabbi Goren acted differently:

In complex military operations, Rabbi Goren and his soldiers crossed borders and even roamed in minefields to locate, identify, and bury the IDF fallen soldiers, releasing their wives from their marital status. They identified and buried the soldiers from Gush Etzion, Fallujah, Latrun, Jenin, Nablus, and dozens of other areas. Searching for the remains of the War of Independence’s bodies took over two years, during which more than one thousand dead bodies were given a full Jewish burial.68

Rabbi Goren played a decisive role in deciding that mass burial and memorials to the unknown soldier was not an option for the IDF.69 After Rabbi Goren overcame the halakhic difficulty of returning the dead bodies from the battlefield to the State of Israel,70 he was faced with two questions: where to bury the dead and how to arrange the funerals. Rabbi Goren described his point of view:

After we had completed gathering the bones [of the fallen] in Gush Etzion and the Latrun area, we decided to arrange the funeral … I wanted to expedite their burial, and we decided on a mass burial in Jerusalem, where we would bury all of them in mass graves on Mount Herzl. The first grave would be for the 35 members of the Gush Etzion convoy, the second for those who fell in the bunker, the clinic, and the trenches of Gush Etzion, and the third for all those who fell in Latrun and the Tahun valley area. Many people came to me and told me: if the military rabbinate had only been established for arranging this funeral and returning the bodies from beyond enemy lines that would have been sufficient.71

It was decided to bury the fallen in mass graves because it was impossible to individually identify most of the bodies with the methods available at that time. Anita Shapira points out that the battle of Latrun is an example of the importance of bringing all the fallen soldiers to one place, determining the final tally and the cause of their deaths, and in this way constructing the collective memory through this battle.72 Similarly, defining the IDF casualties as “martyrs”73 emphasizes that these soldiers died in the line of duty defending the fledgling state.

A key question was where to bury the dead. Rabbi Goren describes that he was party to the decision to open a military cemetery on Mount Herzl and thought it was correct to locate it adjacent to Herzl’s grave “as a place of the nation.”74 He felt that burying these casualties in this location emphasized the idea that the War of Independence was the practical realization of Herzl’s vision.

Mount Herzl has become one of the prominent places of ritual gathering for civil religion in Israel, combining the two facets of the State of Israel as a Jewish and a democratic state. It was the state authorities that decided to locate a military cemetery on this site. However, it was the sanctification process, the religious aspects of burying the fallen, and the traditional religious burial ceremonies that gave a religious significance to the death of the soldiers, thus making their death meaningful.

It can be assumed that Rabbi Goren viewed this as yet another Jewish characteristic of the State of Israel and another proof that halakha is relevant and necessary even in a modern Jewish state. The state authorities, for their part, viewed his decision to sanctify the mountain as a burial ground as a religious one which also helped to reinforce the message that the State of Israel is a continuation of the Jewish tradition and its time-honored burial ceremonies. The result of the decision was the creation of an important national-religious site in Jerusalem, with deep-felt nationalist meaning for the State of Israel and the image it wished to portray.

2.4 The State Ceremony for Burial of the Bar-Kokhba Warriors (circa 135 C.E)

Whereas the sanctification of Mount Herzl as a military cemetery may be seen as a logistical solution for the burial of many unidentifiable dead soldiers, in the case of the burial of the Bar-Kokhba warriors, the logistical aspect was marginal, and the nationalist consideration took central stage.

At the end of March 1960, a delegation led by archaeologist Yigal Yadin set out for archeological excavations in the valleys of Nahal Hever and Nahal Arugot in the Judean Desert.75 During the excavations in Nahal Hever, a stockpile of 25 human skulls and a bundle of papyrus sent by Bar-Kokhba to his subordinates were discovered in the “Cave of Letters.”

Like the excavations in Masada in a later period (1963-1965), excavation camps were established by the IDF, and soldiers were part of the excavation team. Haim Weiss notes that Yadin interpreted the IDF’s involvement as a sign of continuity from the Bar-Kokhba army to the modern IDF.76 Finding the bones next to Bar-Kokhba’s writings led to the bones being attributed to Bar-Kokhba warriors and was a clear sign of coming full circle: IDF soldiers discover the bones of Bar-Kokhba’s soldiers and bring them to a proper burial.

As a rule, archaeological finds are put on display to the public in exhibition spaces (such as museums) or in the Israel Antiquities Authority warehouses. Finding the bones evoked the question of whether they should be treated as ordinary antiques or as human bones requiring burial. An opinion given by the Attorney General (22/7/1994) stated that “human bones are not antiques” and should be transferred to the Ministry of Religious Affairs for burial.77 However, this issue is still a matter of public controversy, and reports occasionally surface of human bones kept in university research institutes.

In 1961, the government established a committee for the treatment of bones from the Bar-Kokhba period found in the Judean Desert, headed by Ministry of Defense official Jacob (Jan) Yanai. The committee determined that the bones found in the Cave of Letters are very likely to be bones of refugee families from the Bar-Kokhba period. Rabbi Goren stated that Rabbi Akiva’s halakhic ruling should be followed: “a corpse with no one to bury it [met mitzva] acquires its place and is buried where it was found, and martyrs – in the place where they were killed, there they are buried.” Thus, the skeletons and bones must be left in the caves where they were found, and whatever was removed should be returned.78 The application of this halakha strengthened the symbolic connection between the bones found and the Mishnaic scholar Rabbi Akiva, who, according to the Midrash in the Palestinian Talmud, (Ta’anit 4,5, 68d) proclaimed that Bar-Kokhba “has the law of the Messianic King” (the ultimate King of the Jews).79

However, Rabbi Goren changed his mind later. In 1981, under the pressure and encouragement of Rabbi Goren in his capacity as Chief Rabbi of Israel, the Ministerial Committee on Ceremonies and Symbols ordered the IDF, in collaboration with the Chief Rabbinate, to organize a state burial ceremony for those bones found in the Nahal Hever cave.80 As part of the preparations for the ceremony, Rabbi Goren decided to fly to the cave himself by helicopter and check for additional bones. This move, which became an iconic image in the media,81 was heavily criticized by the archaeologists who claimed he manipulated the findings for his own purposes.

On the symbolic date of 18 Iyar Lag Ba’Omer in 1982, a state burial ceremony for the burial of 25 Bar-Kokhba fighters was held in Nahal Hever, and Rabbi Goren addressed the participants:

We have gathered here for the burial of 25 holy people … all of whom were unquestionably identified by archaeologists as Jews who fought with Bar-Kokhba and their families, based on the archaeological findings and other scientific tests … This state burial ceremony of Bar-Kokhba fighters…attended by IDF soldiers, liberators of Land of Israel and the successors of Bar-Kokhba’s ethos of bravery is a public statement to the world that the Bar-Kokhba War was not in vain, there is a continuation, hope, and aftermath of their struggle and suffering… On this occasion, I publicly congratulate the momentous historical undertaking of the archaeologists in Nahal Hever headed by the deceased Prof. Aharoni and Prof. Yigal Yadin, and others… I will say here clearly, there is, and will not be, any conflict between halakha and archeology, as long as our esteemed colleagues respect the halakha and the graves that are considered by the halakha as holy sites. They will find that we are fully supportive [of them.82

As Haim Weiss points out, Yigal Yadin participated in the military burial ceremony in 1969 for some of Masada’s fighters and even read excerpts from the rebel leader Elazar Ben Yair’s speech during the ceremony.83 Therefore, the state burial of the bones discovered in the Nahal Hever as the burial of Bar-Kokhba fighters should have been a natural continuation of this approach.84 This raises the question of why Yigal Yadin and his archaeological friends did not participate in this ceremony and even sharply criticized it.

In his writings, Rabbi Goren often argued that archeological findings can be used to support halakhic discussions. Regarding the phylacteries that Yadin found in the Judean Desert, he claimed that this is a confirmation of the halakhic ruling that the chapters on the parchment were written one below the next.85 In a discussion about the height of partitions in synagogues, Rabbi Goren states that the Amah measurement should be reckoned as 48 cm (according to Rabbi Na’eh’s opinion), and added, “I have already investigated this based on the archaeological and halakhic findings that no further halakhic structures should be made regarding the measurement of the Amah and the Tephah….”86 He also discusses the characteristics of the “Kingdom of Ben Koseba [Bar Kochba’s original name]” in light of the findings in the Judean Desert.87

The archaeologists provided the information, yet for many years it was used to construct the nationalist ethos and forge a link between the State of Israel and ancient Jewish history. Concurrently, Rabbi Goren also made use of these findings to consolidate his religious-Zionist outlook.

Finding ancient bones and their possible identification as bones of Bar-Kokhba fighters were within the purview of the archaeologist. However, a final determination that these were the fighters of Bar-Kokhba and their burial in a full military-religious ceremony constituted a crucial seal of approval for this identification, as Goren said in the ceremony when he addressed the archaeologists: They will find that we are fully supportive of them. Thus, in their actions, Rabbi Goren and Yigal Yadin collaborated with each other but ensured that neither encroached on the other’s territory. Yet, each side benefited from the other’s actions.

Following the changed process in the self-perception of Israel’s academic community as a “national academy,” which peaked in 1977, scholars (especially archeologists) could no longer be recruited for the national appropriation of areas of the Land of Israel.88 The science of archeology transitioned from being a scientific discipline that provides findings that justify the nationalist aspirations of the Jewish nation in its land and views this aspect as an important component of the discipline, to one that takes a critical approach that casts doubt on the nationalist interpretation given to archaeological findings. Moreover, during this period, the struggle concerning the archaeological excavations in the City of David began. Rabbi Goren adopted an unequivocal stance against the prevalent position of the archaeologists.

It seems that Rabbi Goren’s activity in these two areas (in Nahal Hever and in excavations in the City of David) caused Yadin and the other archaeologists to understand that Rabbi Goren identified the perceptual change in the archaeologists’ viewpoint and that he was prepared to replace them, not only to interpret the archaeological findings but also to actively search for archaeological findings. The source of his authority would not be to declare the importance of the research, but rather an attempt to become a central authority in sanctifying a site as a sacred site and thus granting religious authorities the sole right to take care of the site.

By absenting themselves from the burial ceremony of the bones, these senior archaeologists were totally rejecting Rabbi Goren’s identification of the bones, and in particular, his attempt to make himself an expert in the field of archeology as well.

For Rabbi Goren, this was a closing of a circle. Just as after the end of the War of Independence, he took it upon himself to gather the bones of IDF fallen soldiers, identifying and burying them; he wished to have the same role with the bones found in the Cave of Letters.

In both cases, identifying and burying the bones in a full military ceremony was not only the fulfillment of halakhic requirements but also used for contemporary Jewish symbols in the modern State of Israel. Whereas no doubts were raised about Rabbi Goren’s identification of the victims of the War of Independence, when it came to the bones in the Cave of Letters, Rabbi Goren confronted the archeological community that rightly regarded him threatening archeology as a scientific and independent discipline. Henceforth, the vocal confrontation between Rabbi Goren and Yadin was also inevitable.

However, Rabbi Goren did not act alone, and he urged the state authorities to conduct this ceremony. Here too, Rabbi Goren viewed himself as the one who imbued the ceremony with Jewish content. For him, this was another attempt to create sanctity and meaning for some regions of Israel, by dedicating them as cemeteries for ancient and recent fallen soldiers.

In this respect, this decision can be seen as a decision made by Israel’s democratic institutions. However, Rabbi Goren did not act as a governing authority, but rather as one who provides the Jewish content needed to implement this decision. In other words, setting up a sacred site such as a military cemetery that bears a nationalist Zionist message could not have occurred without the cooperation of an authoritative religious figure such as Rabbi Goren.

Alex Weingrod wrote that “the struggle for the control and burial of bones is a struggle for the control the past, and therefore also a struggle for the character of culture and society in Israel today.”89 Rabbi Goren seemed to fully understand the centrality of the discourse about fallen soldiers and bereavement in Israeli society. All through his public career, he made great efforts to assimilate the set of values that he believed were needed for Israeli society through the identification and burial of the fallen soldiers. By doing so, Rabbi Goren sought to construct symbolic spaces that connect Israeli society to the Land of Israel and to reinforce the Jewish character of the state.

2.5 Summary

In his writings, in general, and in sanctifying Abu Ageila, in particular, Rabbi Goren views the State of Israel as of the continuation of Olei Mitzrayim and Olei Bavel, who had the authority to sanctify areas in the Land of Israel. He, like David Ben Gurion, viewed the IDF’s conquests in the Sinai Campaign on a continuum of military victories from the days of the Tanakh to the present.90

However, this division of roles between the democratic institutions of the state and the imbuing of the decisions made by these institutions with a “sacred” content could continue so long as the state acted in the way Rabbi Goren saw as correct. Following the first Oslo Accords and other agreements, Rabbi Goren downgraded the significance of the democracy component in his thinking and focused on the rhetoric of “ancestral merit” and a “divine plan” which, he believed, impose a duty on every individual to continue to settle in Judea and Samaria.91

In this chapter, I reviewed the halakhic way of thinking in which Rabbi Goren (as a halakhic arbiter) used the concept of sanctity in order to establish Jewish-Israeli ownership as well as Zionist values in various areas in the Land of Israel. The following section will examine how Rabbi Goren used civil legislation in a unique manner to define “sacred sites” in the State of Israel.

3. Defining a “Sacred Site” in Civil Law

3.1 Introduction

One of the characteristics of the British Mandatory legislation in the Land of Israel, which has been extensively discussed in the literature, was the attempt to grant autonomy on specific religious matters to the various religious sectors, with the main domain being family law. The Mandatory legislation also sought to extend religious autonomy to the territorial aspects of sacred sites.

Section 2 of King’s Order in Council (Holy Places) (1924) determines that:

Notwithstanding anything to the contrary in the Palestine Order in Council, 1922, or in any Ordinance or Law in Palestine, no cause or matter in connection with the Holy Places or religious buildings or sites in Palestine or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any court in Palestine.

The Mandatory legislature sought to establish two types of space in the Land of Israel: the civil sphere and the religious one, in which civil courts would have no authority. It seems that the legislator sought to create religious autonomy in the sacred spheres of the various religions in the Land of Israel, thereby reducing the friction between the civil authorities and the religious ones. Subsequently, the Mandatory legislature ruled that dispute over the classification of spaces would be under the jurisdiction of the Minister of Religious Affairs (ibid. section 3).92

The former president of the Supreme Court, Aharon Barak, wrote: “The idea underlying the provisions of sections 2 and 3 of the King’s Order in Council (Holy Places) (1924) is that in light of the “intricate and delicate” nature of the rights and claims to the holy places, and in light of the inter-ethnic and international implications it may have, it is not desirable for the civil courts to decide matters concerning the holy places.”93

However, the critical question in this case, as well as in other areas involving religious and legal matters (particularly family law), is whether the religious or civil courts should determine the definition of “sacred sites.”

The King’s Order in Council (1922, section 46) stipulates that Ottoman law will remain valid so long as not determined otherwise. Subsequently, the Law and Administration Ordinance (1948), section 11, states that Mandatory law shall remain in force in the State of Israel as long as no alternative legislative arrangements will be established. Since no alternative legislative arrangement for the status of the holy places was enacted, and the King’s Order in Council for Holy Places was not repealed, it remained the binding legislation in the State of Israel.94

The following section shows how Rabbi Goren explicitly (and implicitly) used Mandatory legislation to define spaces in the State of Israel as sacred sites.

3.2 The Status of the “Hesed le’Abraham” Synagogue in the Jewish Settlement in Hebron

The Hadassah Building in Hebron was established by the Jewish community in 1893 as a community center. During the 1929 massacre, many members of the community were murdered, and the building was abandoned. In 1979, a group of women and children led by Miriam Levinger secretly infiltrated the building, heralding a gradual return of renewed Jewish settlement in Hebron. Over the years, Rabbi Goren expressed his fondness for the city of Hebron and those who settled in it, as can be seen by his remarks about the 1994 plan for the evacuation of Jews from the city: “We must be prepared to fight with our lives against this malicious plot of the Israeli government, which is based on the support of Arab Knesset members, and we will be prepared to be killed and not allow the destruction of the Jewish Community of Hebron, because it is like a cardinal sin that we must be prepared to die rather than transgress it.”95

The Trumat H’agoren responsa provided Rabbi Goren’s response to the Beer Sheva Magistrate’s Court discussing the halakhic status of the “Hesed Le’Abraham” Synagogue in Beit Hadassah.96 He raised two key questions in this case: whether a synagogue that has been destroyed still maintains its sanctity and whether the area of a synagogue located within another building can be delineated to mark the boundary between the ordinary building and the synagogue. These questions are related to the claim made by the defendants in this case that this place is defined as a sacred site, and thus the civil court does not have the authority to discuss the case.

In his opinion, Rabbi Goren cites halakhic sources that indicate the synagogue’s sacred status. He cites Maimonides’ rulings about the status of the synagogue (Tefila 11, 11) and his ruling on the status of Jerusalem and the Temple (Beit-Habechira 6, 16). In both cases, Maimonides wrote, “They retain their sacred status [even after they are destroyed],” From this, Rabbi Goren deduced that, like the Temple’s sanctity, even when a synagogue is destroyed, its status is not affected, and it retains its sanctity. Therefore, he determined that the synagogue in Beit Hadassah in Hebron is also a sacred site: “According to the halakha, the synagogue in the Hadassah building in Hebron is a synagogue as far as its sanctity is concerned… and in any case, it is included in the King’s Order in Council (Holy Places) (1924), which prevents civil courts from discussing this case.”97

The main innovation here is the attempt to use civil legislation to define a place as a “sacred site.” Generally, halakhic arbiters prefer to justify their rulings and base their acceptance among the general public. In this case, Rabbi Goren seeks to act in the public sphere regarding a site that is subject to public controversy, and thus he believes it is more effective to define it as a “sacred site” which is not under the jurisdiction of civil law.

If the purpose of the Mandatory legislator was to reduce the friction between the civil and religious authorities and among the religious authorities themselves, then Rabbi Goren was trying to use this law not only as a tool that reacts to the reality but also as one that tries to shape reality.98 In other words, the law is supposed to be used here as a tool for accepting Rabbi Goren’s authority to designate sacred sites in the State of Israel.

In addition, it can be assumed that the Mandatory legislator sought to expropriate the civil authority from decreeing on sites that were already recognized as active sacred sites. In the Beit Hadassah case, Rabbi Goren proposed using the law to try and determine the sanctity of a site that has not been an active sacred site for the past 50 years. He was not against a competing religious authority but against the civil authorities in the State of Israel that opposed Jewish settlement in this area. Defining the place as sacred was also a means to apply Jewish nationalism in this space.

However, it seems that the question that engaged the defendants, in this case, was not only the status of the synagogue but the status of the Hadassah building itself, and thus Rabbi Goren wrote:

The entire house was set up to serve as a prayer house for all the Jews in Hebron and not as a private synagogue, and everyone who came to the Hadassah Building was permitted to pray there. The law of this synagogue is like the synagogue of a metropolis as interpreted by Maimonides (Tefila 11, 16): “But as to a synagogue in a city, since it was built as a public place of worship for all, where anyone who comes to that district shall be able to pray, it constitutes the public property of all Israel and may never be sold.99

The discussion on this question can be divided into two parts: the facts – and their interpretation. Rabbi Goren determined that the entire Hadassah House is a synagogue, but the source for this ruling is unclear. In interpreting the facts, Rabbi Goren applies the definition of a “synagogue in a city” to the Hadassah Building and therefore argued that according to Maimonides, it is not possible to sell it. The difficulty arising from this interpretive stage is that the vast majority of synagogues are intended for the use of all the Jewish people. If his interpretation were to be applied, then every synagogue in the world would be defined as a “synagogue of a city.”

Rabbi Goren was using the framework of these halakhot to assist in the legal battle waged by the Jewish settlers in Hebron to consolidate their presence in the city. In this respect, the purpose of sanctification is to create a sacred site to assist further Jewish settlement in Judea and Samaria.

3.3 The Case of the Archaeological Excavations in the City of David

In 1978, Prof. Yigal Shiloh from the Hebrew University began a large-scale archaeological excavation in the City of David (Area G) in Jerusalem, with a digging license granted under the Antiquities Law (1978). In 1980, ultra-Orthodox Jews claimed that the excavations were damaging graves at the site, and they began protesting the continued archaeological excavations, claiming that they were harming an ancient Jewish cemetery, a claim rejected by archaeologists.100 Rabbi Goren came to the site twice, on August 10 and 26, 1981, and the Chief Rabbinate declared the entire site of the City of David as a Jewish cemetery and banned the continued excavations at the site.101 The same claim was made in a proclamation published by some of the leading ultra-Orthodox rabbis – Auerbach, Elyashiv, and Scheinberg.102 A struggle ensued between the ultra-Orthodox Eda Haredit group and other ultra-Orthodox parties and the archaeologists who were excavating at the site.

Following pressure exerted on Education Minister Zevulun Hammer (1936 – 1998) by religious and ultra-Orthodox officials, as well as a halakhic ruling by the Chief Rabbis of Israel, Hammer rescinded the authority of the Director of the Department of Antiquities in the Ministry of Education and Culture. He acted to suspend the license granted for this excavation. The matter reached the Supreme Court and was discussed in HCJ 512/81, the Institute of Archeology and Others versus the Minister of Education. The judges ruled that Minister Hammer had exceeded his authority and the suspension of the license was revoked.

In referring to Rabbi Goren’s ruling, Judge Landau wrote:

The Knesset recently defined the functions of the Chief Rabbinate Council in a Law (Israel’s Chief Rabbinate Law, 1980). According to section 2(1) of this law, one of its functions is “providing answers and opinions on Halakhic matters to those who request it.” What the law does not state, and what is quite obvious is that in a state such as ours, which is not a theocracy, the answers of the Chief Rabbinate Council (or Chief Rabbis) and its halakhic opinions do not obligate the state authorities in any way to follow the rulings when they come to exercise their stately powers. However important the rabbinical ruling may be to a believing Jew, the Chief Rabbinate Council, as well as the Chief Rabbis, are not authorized by law to determine facts for implementing a law. The elected representatives of the State of Israel are not bound by the halakhic rulings of the Rabbis. If the Rabbis’ rulings are based on factual evidence, these can be taken into consideration by those empowered to implement civil law. However, their rulings are not to be unequivocally accepted without an independent examination.

As this paper has shown, at various points in his halakhic rulings, Rabbi Goren relied on archaeological research and used it to strengthen his halakhic conclusions. In this affair, there was a breakdown of this reliance, and Rabbi Goren adopted a different approach, even arguing that, as opposed to the field of medicine, in which corpses may be used for research purposes, this is not the case in archaeology where “there is no religious commandment to engage in archeology, and it is all done for self-benefit, or to fulfill the wish to be more knowledgeable.”103 This position stood in stark contrast to Rabbi Goren’s use of archaeology as a tool for establishing sanctity throughout the areas of the Land of Israel.

According to Michael Feige, both the archaeologists and the ultra-Orthodox public viewed Rabbi Goren as jumping on the bandwagon and entering a confrontation between two distinct parties to bolster a declining political and religious status. In Feige’s opinion, Rabbi Goren’s status in the middle between the two camps, and that of Hammer, the Minister of Education in charge of archeology, reflects the complexity and problematic dual status of Religious-Zionism as a whole.104

The climax of this position was not only the attempt to halt any archaeological excavations at the site by defining it as a sacred site105 but also Rabbi Goren’s halakhic ruling in 1981 prohibiting the exhuming of graves for conducting scientific studies, and that only the Chief Rabbinate was authorized to determine the identity of the corpses and how they should be handled.106 In other words, not only did Rabbi Goren demand that he be given the authority to handle the burying of bones as is customary in Jewish law but also to identify them, and thus have a significant influence on the nationalist discourse in the State of Israel.

As seen throughout this study, the purpose of halakhic rulings is often difficult to ascertain. Nevertheless, because of Rabbi Goren’s long-standing reliance on archaeological research, it would have been expected that he would adopt the narrative of the excavations in the City of David as a vital tool in consolidating the historical relationship between this politically controversial region and the State of Israel.107 It can be assumed that adopting the ultra-Orthodox narrative that said a Jewish cemetery was at the site and halting the archaeological excavations constituted a rupture in the relationship between Rabbi Goren and the state authorities, or more precisely, an attempt to return to religious and ultra-Orthodox mainstream society after the secular courts ruled on the “brother and sister affair” (regarding their status as bastards [mamzer] who are unable to marry) and its spin-offs.108

It seems that Rabbi Goren’s activity in the two spheres of dead bodies, Nahal Hever and the excavations in the City of David, caused Yadin and other archaeologists to understand that Rabbi Goren recognized the change in the archaeologists” status, and he was prepared to replace them, not only as an interpreter of archaeological findings but also as one who excavates them. In this case, the source of authority would not be the importance of research, but rather defining the place as a sacred site and thus giving religious authorities the sole right to look after the site.

As mentioned earlier, the King’s Order in Council (Holy Places) (1924) does not grant the civil courts any authority to deal with places designated as sacred sites. However, Rabbi Goren did not explicitly mention this ruling, nor do the judges of the HCJ 512/81 Institute of Archeology and Other’s ruling. As for Rabbi Goren’s ruling, the use of legal rhetoric in a halakhic ruling is not a position of strength, rather it shows a weakness in internal halakhic discourse.

It should be noted that interpretation of the King’s Order in Council (Holy Places) was used in HCJ 267/88 Ha-Idra Seminaries Network Assoc. and Rabbi Shlomo Goren v. Municipal Affairs Court, which dealt with a memorial for Holocaust victims that was erected on top of the Rabbi Goren’s Idra seminary in the Western Wall plaza without a prior permit, as required under the 1965 Planning and Building Law. In the legal discussions, it was claimed that this case should fall under the jurisdiction of the King’s Order (Holy Places), and thus the civil court would not have any authority over this space. An additional argument was put forward that the Minister for Religious Affairs should be given the sole authority to determine whether it is a sacred site or not. In his ruling, Judge Aharon Barak rejected the appeal and wrote that one of the main purposes of this legislation is to ensure public order in sacred sites, and therefore not applying criminal law in these sites would harm this purpose. He also mentions the purpose noted by Judge Ayala Procaccia that not applying jurisdiction in sacred sites stems from “their religious-ethical and political-international emotional baggage” (ibid. section 9).

It could be argued that the legal arguments presented by Rabbi Goren are part of the judicial attempt to reject the criminal accusation. However, it seems that this is part of a process that he wished to promote of sanctifying sacred sites using the civil law trajectory, a path he followed in this case, as well as in his ruling about the Hadassah House synagogue in Hebron and the City of David excavations. He believed that the Mandatory legislation could be used to determine sacred sites in the State of Israel, and thus create an additional trajectory for this purpose, and in doing so, entrenching the status of the religious authorities in these places.

From the examples mentioned in this article, Rabbi Goren seemed to know about the characteristics of this legislation and sought to use it to create sites of holiness in which religious authorities, and not civilian ones, are empowered to make decisions regarding the management of these areas. As noted above, the excavations in the City of David are an exception to the various ways in which Rabbi Goren used archaeological identification as a basis for dedicating places in order to support an increased Jewish presence in the areas of Eretz-Israel.

4. Summary and Conclusions

This article examines the definition of the State of Israel as a Jewish and democratic state in light of Rabbi Goren’s attempts to determine places as sacred sites using both the halakhic and the civil trajectories. His public image is quite well known, but this area of activity has not yet been studied.

Regarding the religious trajectory, the halakhic practices had been forgotten over the years, and Rabbi Goren had to conduct an in-depth study of halakhic sources to learn where and how to sanctify sites in a modern state.

The examples in this article show that Rabbi Goren tried to imbue the Jewish component of the State of Israel with halakhic content. He felt that there was no contradiction between the principles of Jewish religion and the principles of the State of Israel, and this caused him to cooperate with the state authorities, which was a mutual feeling: the state needed the seal of approval of holiness, while Rabbi Goren needed the state’s seal of approval to show that halakha is not only applicable to an individual but also to a sovereign and modern state.

As for the civil trajectory, it is possible to learn from Rabbi Goren’s rulings, as well as from his conduct in the City of David excavations, that he wished to make use of the King’s Order in Council (Holy Places) to determine places as sacred sites in the State of Israel, both as part of struggles within Israeli society and as part of the attempt to fortify Jewish settlement in Judea and Samaria. In these cases, sanctification became a tool against the state authorities and an attempt to reinforce areas that would be under the jurisdiction of Rabbis and halakhic arbiters.109

It is important to emphasize that in both trajectories, Rabbi Goren acted in the dimension of sanctification “from above,” and in some cases, his identification of a place as sacred was indeed accepted by the general public. In addition, he made use of burial laws to determine a site’s sanctity and to imbue it with symbolism related to Jewish nationalism.

What is Rabbi Goren’s legacy in contemporary Israeli society in the context of using the concept of sanctity as part of the struggles for control over sites? It seems that the religious and secular use of the concept of sanctity continues to occupy a central place in the Israeli society, and this article helps to understand the ways in which this act of sanctification is expressed.

The continuum of caring for, identifying, and burying soldiers stretches from the Bar Kokhba fighters and the soldiers who fell in the War of Independence. Sanctifying these sites as a memorial to these soldiers served as a justification of the Zionist movement in its attempt to establish a Jewish home in the Land of Israel.

* * *

Notes

1 Much research has written on this subject, see: R. Gavison, “A Jewish and Democratic State – Political Identity, Ideology, and Law”, Law Review 19(3) 175-180 (1995). For a discussion of the complexity of the concept of democracy, see D. Barak-Erez, “Toward Law of Democracy in Israel”, Law Review 33(3) 527-553 (2011).

2 See, D. Bar, Sanctifying a Land: the holy Jewish holy places in the State of Israel 1948- 1968, Jerusalem 2007, D. Bar, “Holy places or historical sites: Defining sacred and archeological sites in Israel 1948- 1967”, History of Religions 58,1 1- 23 (2018). For a more extensive discussion of the relation between law and space in Israeli law, see I. Rosen-Zvi, Taking space seriously: Law, Space, and Society in Contemporary Israel (2004).

3 J. Rawls, Political Liberalism, New York 1993.

4 H. Cohen, being a Jew: Culture, Law, Religion and State 482 (2006), A. Barak “Protected Human Rights: Scope and Limitations” Mishpat umimshal 1(1) 30 1993.

5 See, for example, in CA 223/67 Ben-Dov v. Minister of Religion. Judge Agranat, in paragraph 3 tries to define the obligation to protect sacred sites and writes that “it is difficult to define what is meant by profaning holiness, for the simple reason that it is very difficult to define the very essence of holiness …”.

6 See R. Otto, The Idea of the Holy: An Inquiry into the non-rational Factor in the Idea of the Divine and Its Relation to the Rational (trans. By J.W. Harvey), New-York 1958, and see also R. Horowitz, “On Holiness in New Jewish Thought”, in: Multiple-faceted Judaism, Beer-Sheva 2002, pp. 463-485.

The concept of holiness is multifaceted and see, for example, J. Dan, On Sanctity, Jerusalem 1997. In the context before us, they are only in this concept concerning its definition in space.

7 It should be briefly noted, that in many cases, the sacred site tends to have a makeover that allow it to be culturally accessible to additional audiences.

8 See the discussion in D. Statman, Man-Made Boundaries, and Man-Made Holiness in the Jewish tradition in: States, Nations, and Borders: The Ethics of Making Boundaries 41 (A. Buchanan & M. Moore eds.), Cambridge University Press 2003.

9 For a review of Rabbi Goren’s appointment to this position, see A. Cohen and A. Kampinsky, “Religious Leadership in Israel`s Religious Zionism: The Case of the Board of Rabbis”, Jewish Political Studies Review 18:3‑4 (2006), pp.119‑140. However, this aspect of Rabbi Goren’s activity has not yet been presented in the research literature.

10 A definitive characteristic of Rabbi Goren is that he wrote articles published in halakhic journals or the general press, for example his opinion on a Constitution for the Jewish State: “In those days, the discussions about the establishment of the state began. Already then, Rabbi Herzog requested that I meet with him to work on drafting a constitution, based on halakha, for the State of Israel that is about to be established. I later published a series of three articles dealing with a Jewish-Halachic constitution for a state that will be established in the Hazofe newspaper.” A. Rat [ed.], Rabbi Shlomo Goren: Strength and Intensity- an Autobiography 103 [2013]). Another example is the writing of the Military Halakhic Code of Conduct: “All the halakhic rulings I published in the Machanaim military magazine, with all the responsa and articles, I wanted to publish in one book as Military Halakhic Code of Conduct” (ibid., p. 260). Rabbi Goren understand the importance of the media in the public discourse, as reflected in the following statements he published in the context of the use of an artificial heart (Rabbi S. Goren, Theory of Medicine (Edited by Y. Tamari), 104 [2004]).

However, it should be emphasized that in his later writings, he focused more on practical halakha, and less on “classical” scholarly fields.

11 Cf. Bloch, D. (1972) What to expect of Rabbi Goren? Davar, 20.10.1972, p.11 [in Hebrew]

12 S. Mescheloff, “The Zionist View of Rabbi Shlomo Goren”, Israel 20, 82 (2010). Rabbi Goren notes that as a young man, following his meetings with Rabbi Avraham Kook (1865-1935) on Mount Carmel, he thought about serving of Chief Rabbi (Rat [see note. 10], 160). However, over the years, he came into conflict with Rabbi Herzog and with Chief Rabbis Unterman and Nissim (see N. Zabuloni, “A Rabbi against the Chief Rabbis” Herut 16/08/1964, p. 2)

13 See, for example, the review by A. Edrei, “War, Halakhah and Redemption – The Military and Warfare in the Halakhic thought of Rabbi Shlomo Goren”, Cathedra 125, 119–148 (2004).

It should be noted that in his autobiography, he devotes about two hundred pages to his military service, while his review of his public activity review takes up just ten pages (which include his description of his activities during the Yom Kippur War). However, it is important to note that the recordings (upon which the autobiography is based) were discontinued about a month before his death (Rat [see note. 10], 16), thus Rabbi Goren was not able to describe this latter period at length. Nevertheless, the significant dissonance between these two reviews also indicate how he related to these two parts of his public activity.

14 See Steutel, J and Spiecker, B. “Authority in Educational Relationships”, Journal of Moral Education 29(3) (2000), pp. 323–337.

15 See S. Mescheloff, ““My Friend and Friend of all of Beit Israel”: Rabbi Shlomo Goren and David Ben-Gurion”, Cathedra 145, 148–159 (2004). Rabbi Goren says that “as soon as I started talking with Ben-Gurion, I saw that there was some ‘chemistry’ between us” (Rat [see note. 10], 155).

16 Rabbi Goren, following the religious Zionist ethos, endeavored to minimize the halakhic weight of this fact. See the review in Y. Brand, Who is a Secular Jew? Readings in Jewish Religious Law, Jerusalem, 2012.

17 See B. Kimmerling, State, and Society: The Sociology of Politics, p. 155-156 (1995).

18 Rabbi S. Goren, Torat Hamoaadim 598 (2011).

19 M. Hakohen, “Meshiv Milkhama, Rabbi Goren’s halakhic rulings on religious and military questions”, Milin Chavivin[Hebrew], 1, 3, 2005.

20 See, for example, Rabbi S. Goren, Torat Ha`medina 18 (1996).

However, the first Oslo Accords, and the processes that preceded them, constituted a breaking point in Rabbi Goren’s relationship with the State of Israel and its institutions. Shortly after the signing of these agreements, Rabbi Goren’s passing soon after the signings makes it impossible to know whether this was a temporary break or whether he was adopting a different approach to the State and its institutions.

21 See E. Taub & A. Hollander, “The place of religious aspirations for sovereignty over the Temple Mount in religious-Zionist rulings”, Sacred Space in Israel and Palestine: Religion and Politics (M.J. Breger and al. eds), Routledge: London and New-York 2011, pp. 139- 167.

22 See Kimmerling (see note. 170), 135–136. See, for example, the discussion of the concept of sovereignty in Y. Shilhav, ““As a Man Doing in His Own” – On Sovereignty, Territory and Control in our Time”, “Sovereignty in the Land of Controversy, Jerusalem, pp. 78-202.

23 See G. Agamben, Homo Sacer: Sovereign Power and Bare Life (D. Heller-Roazen tr.), Stanford 1998.

24 For a distinction between the concept of sovereignty in ancient and modern times, see, for example, N. Vazana, All the Boundaries of the Land: A Promised Land in Biblical Thought in light of the Ancient Near East, 14 (2004).

25 A. Don-Yehiya and B. Zisser, “Continuity and Transformation in Jewish Political Thought”, Kinship and Consent: The Jewish Political Tradition and Its Contemporary Uses (edited by D. Elazar), 100–134 (2004).

26 A. Shavid, “The Attitude of the State in the New Jewish Thought before Zionism”, Kinship and Consent: The Jewish Political Tradition and Its Contemporary Uses (edited by D. Elazar), 145–160 (2004).

27 Torat Ha`medina (see note. 20), 68.

28 In a way, it can be seen as returning to the simplification of the verses (Deut 12: 1), from which it stated that the Land of Israel is the place where the commandments are to be observed.

29 See Torat Ha`medina (see note. 20), 71: The Land of Israel by its holiness makes Jews to a Nation”.

It should be noted that Maimonides’ remarks are based on bHorayot (3a): Rav Asi says: And with regard to the definition of the majority that establishes liability for performance of a transgression on the basis of the ruling of a court, follow the majority of the residents of Eretz Yisrael, as it is stated: “And Solomon held the feast at that time, and all Israel with him, a great congregation, from the entrance of Hamath until the Brook of Egypt, before the Lord our God, seven days and seven days, fourteen days” The Gemara clarifies the words of this verse: Since it is written: “And all Israel with him,” why do I need to add: “A great congregation, from the entrance of Hamath until the Brook of Egypt”? Conclude from it: It is these residents of Eretz Yisrael who are characterized as a congregation”.

30 J. Blidstein, Political concepts in Maimonidean Halakha, Second Edition, 28 (2001)

31 Torat Ha`medina (see note. 20), 124. We will discuss the status of IDF conquests in this view later.

32 Y. Talmon, “The Victory in the Six-Day War in Historical Perspective”, Bitfuzot Ha`gola 3-4 33- 34 (1969- 1970).

33 In doing so, I would like to conclude the brief discussion of Rabbi Goren’s remarks. However, I emphasize that these things, which appear to be clear, require a fairly extensive discussion of halakhic sources, such as the geographical definition of the people that came from Babylonia, whether the nature of these borders depends on military occupation or civilian settlement. Due to the scope of this discussion, which goes beyond this article’s limits, I did not continue this discussion here.

34 Rabbi S. Goren, Meshiv Milchama II 423 (1994). On this subject there is a vast halachic literature that is not the place to elaborate on its components and see the summary of halakhic rulers’ methods of “Eretz Israel” in the Talmudic Encyclopedia, pp. 218- 222.

For a connection between religious sanctity and military considerations, see, for example, tSanhedrin (3, 4 and parallels): “Abba Shaul says that there were two areas in Jerusalem: the lower and the upper. The low area was sanctified with the sanctity of Jerusalem, and the upper was not fully sanctified (the Urim and Thumim was not used) … the upper area was not fully sanctified because it was not protected, and it could be easily captured”.

35 See D. Sha`ham, Israel – 40 Years, Tel-Aviv 138 (1991).

36 See the description in the Covenant of the Pieces:)Gen. 15:18)” On that day the LORD made a covenant with Abram, saying, “To your offspring I assign this land, from the river of Egypt to the great river, the river Euphrates”. This is in contrast to the “river of Egypt” mentioned in other border descriptions (Numbers 22:40; Joshua 15: 4, etc.).

37 Hazofe (2/11/1956, p. 8). The same article published in Maariv newspaper on the same date (p. 2). In both papers, the journalist’s name is not mentioned, and based on the wording it can at least be presumed that Rabbi Goren took an active part in its writing.

38 See O. Almog, The Sabra – a Profile 212 Tel-Aviv (2004). Oz Almog notes (ibid., P. 26 and p. 211) that the public viewed this war as the victory of the Israeli Sabra and, at the pinnacle, the image of the paratrooper and pilot.

39 Cited in Torat Hamoaadim (see note. 18), 658 668.

40 Torat Hamoa`adim (see note 18), 658. In his book Meshiv Milchama (see note. 34, 422- 423), the question of the endowment status of the Abu-Agela area was raised after the withdrawal of IDF forces from Sinai. Rabbi Goren states that this dedication was similar to that of OleyOlei Mitzrayim, and since the cancellation of the IDF’s occupation of the place, the dedication of this place is void anyway.

41 Torat Hamoaadim (see note. 18), 659.

42 Torat Hamoaadim (see note. 18), 659.

It should be emphasized that the subject area at the beginning of the article ‘To its Holiness and All those Laws applicable in the Land of Israel’ (ibid., P. 658), maybe somewhat misleading. The Abu-Ageila area is about 30 km west of Nitzana and has great strategic significance due to its intersection of Roads to Al Arish, the Suez Canal, Etc. (See, for example, M. Pa`ail, “Three Abu-Agela Battles- 1948, 1956, 1967”, Battlefield: Decisive Battles in the Land of Israel (A. Shmuelevitz ed.) 261–283 (2007). However, there were no Jewish settlements in the area, so in this case, it was not the practical need of the territory that motivated Rabbi Goren to deal with this issue, but rather the desire to take a halachic position related to the status of the IDF conquests.

43 It should be noted that one of the difficulties Rabbi Goren faced was the halakhic question of how to sanctify areas as being part of the Land of Israel while the city of Jerusalem was not under Israeli sovereignty. See Torat Hamoaadim (see note. 1118), 665-666.

44 As an exception, the description of the sanctification of the walls of Jerusalem in Nehemia 12 may be mentioned, but Rabbi Goren does not use this model for obvious reasons.

45 See Meishiv Milchama (note 25 above) 424-425

46 . See the discussion in Meshiv Milchama (note 11), 66t-668. Rabbi Goren also adds the writings of Rabbi A.Y. Kook (Responsa laws of the Priest, section 144) on the status of the King in contemporary terms.

47 Torat Hamoadim (note 11), 660-661, which is based primarily on the Tosefta in Yebamot.

48 Torat Hamoadim (note 11),660-662

49 Torat Hamoadim (note 11), 661

50 Meshiv Milchama (note 25) 426

51 In 209, Rabbi Israel Ariel related that after the Six Day War, Shimon Peres proposed setting up a Hesder Yeshiva on Mount Sinai, because of the symbolism of the mountain as the place where the Torah was given. ( http://www.ynet.co.il/articles/0,7340,L-3678024,00.html). See also, Segal, Yamit, p. 12. This is a good example of the contract between the state authority that seeks to strengthen its control over these areas by changing the public’s perception of their “Israeli-ness” and the religious authority that seeks to enable Torah study on a site that is considered sacred and thus help the state authority consolidate the perception of its control over the area.

52 See the review of the research literature by D. Barak-Erez, “Towards Law of Democracy in Israel”, Tel-Aviv University Law Review 33: 3, 529 (2004)

53 The questioner’s style is somewhat is strange. At first, he points out that he does not trust the taking the tithes in the IDF, and therefore he personally takes them from any food that he gets. Then he asks what the Halacha of fruits is brought from Israel to Sharm el-Sheikh as well as the law of the Sharm el-Sheikh in the matter of tithes. From this it can be surmised that this question was not asked in whole or in part by a soldier or by Rabbi Goren himself.

54 According to the approach that identifies Nahar Mitzrayim as the Nile river (Meshiv Milchama II, 418).

55 Meshiv Milchama II (see note. 34), 418- 419.

56 It should also be noted that in the short chapter Rabbi Goren devoted to describing his actions in the Sinai Campaign (Rat [see note 3], 251 253), he did not mention this event.

57 It should be noted that the discussion regarding the status of Judea and Samaria after the Six Day War can be viewed as a continuation of the discussion of whether these areas became Israeli because of their sanctity or whether they are Palestinian areas in which Jews settled.

58 See, for example, A. Shapira, New Jews Old Jews 217 Tel-Aviv (1997).

59 See, for example, Zvi Tzameret, “Shlomo and David – Two Dreamers, Warriors and Builders: Chief Rabbi Shlomo Goren and Prime Minister David Ben-Gurion”, in Rat (see note. 10) 349. (2013)

Rabbi Goren succeeded, as he noted, in creating a burial ceremony that includes many traditional elements, but this ceremony also included other elements, and in one place he writes that the IDF custom should not be allowed to lay wreaths on the grave (Rabbi S. Goren, Trumat Ha’goren II, 204 [2012]).

60 M. Michelson, “Chief Military Rabbinate”, Tzahal Becheilo – Encyclopedia of Military and Security 88 (1982). However, it should be emphasised that this perception was also common in additional eras. See, A. Reiner that creating sacred sites in the Land of Israel was part of the Judeo-Christian disagreement about ownership of the land. (Reiner, Zion, 63, 160-161 (1997).

61 See for example, Y. Levi. Divine commander: the theocratization of the Israeli military, 317 (2015).

62 For a discussion on this widespread practice, see “Sacred Sites” in civil religion in Israel, see Y. Bilu, (1997). The Sanctification of Place in Israel’s Civil and Traditional Religion. Jerusalem Studies in Jewish 65-84.

63 Cited by A. Hacohen, ““What a Terrible Place This Is” – About Sacred Places: Between Religious and Law”, Sha`arei-Mishpat Law Review 3(2) 356 (2003).

64 For a description of this process, see Y. Lichtenstein, Consecrating the Profane: Ritual performed, and prayers recited at Cemeteries and Burial Sites of the Pious, Tel-Aviv (2007). I

65 See recently D. Bar, Ideology and Landshape: Reinternment of Renowned Jews in the Land of Israel 1904- 1967, Jerusalem 2018.

66 Meshiv Milchama II, (see note. 25) 335-348.

67 A halakhic problem that exists in this solution is the question of impurity of the dead in these graves, and if there are many bodies, then priests (Kohen) will be prevented from coming to large areas of land.

68 See S. Mescheloff, In the Eye of the Storm: The Public Image and Creative Torah work of Rabbi Shlomo Goren 1948-1994, Doctoral dissertation, Bar Ilan University, 23-24 (2004), and the description in Mescheloff (see note. 68), 91.

69 See for example In Yehuda Amichai’s poem “We have no Unknown Soldiers”: We have no unknown soldiers, We have no grave of the unknown soldier, One who wants to place his wreath Has to dismantle the wreath Into many flowers and to divide them Into leaves and disperse themAnd all the dead come home And all of them have names. And you too, Jonathan My student, whose name is in the class register Just as you name is in the list of the dead…”, see note.

70 I note briefly that during the Mishnaic and Talmudic Periods, the deceased were buried first and then second, see J. Patrich, “Graves and Burial Practices in Talmudic Sources”, Graves and Burial Practices in Israel in the Ancient Period (I. Singer ed.), Jerusalem 1994, pp. 190- 211.

Rabbi Goren discusses a variety of sources, and in this context, he also cites the words of the Hazon-Ish (Avelut 209, p. 283), which states that the Halakhot of the evacuation of the deceased also apply in the case of a mitzvah.

71 Rat (see note. 10), 213-214. See the overview in Maoz Azaryahu, “There is no Unknown Soldier in the Entire Land of Israel”: A Study on the Commemoration of the Fallen in Israel, Haifa 2018, and also E. Witztum, R. Melkinson & S. Rubin, Loss, traumatic bereavement, and mourning culture: The Israel example, New-York: Springer 2016.

72 Shapira (see note. 58), 61.

73 

74 Rat [supra note. 10], 206. Similarly, Rabbi Goren describes that he had a significant part in determining the Memorial Day for IDF victims from the year 1949 onwards close to Independence Day (Rat [see note. 10], 256-257).

75 The description of the historical background can be found in H. Weiss, “From Secular to Religious Archaeology: The Case of Bar-Kosibah, Yigael Yadin and Shlomo Goren,” Theory and Criticism 46 143-146 (2004).

76 Weiss (supra note. 75), 151-153.

77 See “Human Bone Treatment Procedure at Excavation Site” on the Israel Antiquities Authority’s website (3/12/2003) (http://www.antiquities.org.il/images/proc/nohal3.6.pdf).

78 Mescheloff (supra note 58), 86-88.

79 Also, during his burial ceremony, Rabbi Goren emphasized the connection between the bones discovered and the image of Rabbi Akiva: “On this day, Lag Ba’Omer, which is dedicated to the Israeli tradition today of the victory of Bar-Kokhva soldiers, and as the great Tanna Rabbi Akiva and his disciples, the tool bearer of Bar-Kokhva … The Israeli Government is paying off a sacred moral debt to the heroes of Israel Bar-Kokhva fighters and their families … “ (Rabbi S. Goren, Mishnat Hagoren: Articles, speeches and letters [K. Dambinsky ed.], Tel-Aviv 2016, pp. 230).

80 See the discussion of this case in M.J. Aronoff, “Establishing Authority: The Memorialization of Jabotinsky and the Burial of the Bar-Kokhva Bones in Israel under the Likud” idem (ed.), The Frailty of Authority, New Brunswick. NJ, 1986, pp. 105-130.

81 See the pictures brought in Rat (see note. 10) before p. 289).

It should also be noted that in other cases, Rabbi Goren worked to create iconic images that created a media echo of his actions, such as blowing the shofar at the Western Wall, the Torah writing on Jabel Musa in Sinai, in which the arrival was made by helicopter (https://www.facebook.com/israelarchives/videos/1555225124502026/) and more.

82 Mishnat Hagoren (see note. 79) 230-231.

83 This also strengthens the question of whether there was no burial for Bar-Kokhva’s victims and see Davar “Rabbi Goren: Yadin did not bury Bar-Kokhva’s bones”, Davar 13/8/1981, p. 1, and T. Zimuki, “Rabbi Goren wants to bury the bones of the Bar-Kokhva’s fighters in a Roman camp above the caves of Nahal Hever”, Davar 17/1/1981, p. 1.

84 Weiss, 158

85 Torat Hamoa`adim (see note. 18), 534 549, and Rabbi S. Goren, Trumat H`agoren I 29- 30 (2005).

86 Trumat H`agoren I (see note. 85), 98.

87 Torat Hamoaadim (see note. 18), 518-533.

88 M. Feige, Two maps for the West Bank: Gush Emunim, Peace Now, and the Construction of the Israeli Space 32 (2002).

89 Feige (see note. 88), 67.

90 It is possible that the desire to equate a religious significance to Mount Sinai can also be seen in Rabbi Goren’s ascent to Jabel-Musa which is identified as Mount Sinai, and his writing of a Torah scroll there “for the first time since Moses” in his words (Rat [see note. 10], 251-252; Mescheloff [see note. 79], 30). In 1978, Rabbi Goren offered to call “Santa Catherine” by the name of “Meromei Sinai” (Rabbi S. Goren, “Santa Catherine – Meromei Sinai in Hebrew”, Ma’ariv 24/10/1978, p. 3). This is despite the religious difficulty in accepting this Christian tradition.

91 See, for example, his remarks in Torat Ha`medina (see note. 20) 138: “I believe with complete faith that the fate and future of Israel ever since we entered the era of the Third Redemption, some one hundred years ago, are determined neither by us nor by our past and present leaders, who about their own physical strength. It is quite clear to me that there is a Divine plan for the Land of Israel … for realizing the prophetic visions. This vision is expressed by six main functions…”.

92 It is interesting to note that in the decision of the Israeli Government (dated 01/02/2009), a procedure was set for determining an arbitrator under this section in any event of a land dispute, one of the parties to this procedure is the Catholic Church.

93 HCJ 267/88 Kollel Ha`idra and Rabbi Shlomo Goren v. Court of Local Affairs Verdict Kollel Ha`idra, paragraph 6. The question of King`s Order in Council (Holy Places) (1924) interpretation came up in this petition that dealt with a memorial structure for Holocaust victims erected above this building in the Western Wall plaza, without the permission required by the Planning and Building Law, 1965. In the legal proceedings, The Kollel argued that this case could not be jurisdiction by civil authorities. Another argument was that whether it is a sacred structure should be conveyed to the Minister of Religion’s sole decision.

Judge Barak (who wrote the judgment) rejected the petition, stating that one of the purposes of this legislation is to ensure public order in the holy places, and therefore he argues that failure to apply criminal law to holy places would harm that purpose.

However, in paragraph 20, Judge Barak states: “the supplier in the interpretation of section 2 to King`s Order in Council (1924) must find a judicial solution. It should not be transferred to the executive branch. If there are differing judicial views regarding the meaning of the second section of the King’s order, the decision between these views, or finding a golden path between them, should not be left to the executive branch. The decision on the interpretation of the law lies with the court system”.

It should be noted that this petition dealt with a memorial structure for Holocaust victims erected above the Kollel Ha`idra building (which Rabbi Goren compared with the Eternal Flame in the Temple (Trumat H`agoren Responsa [see note. 85], 109-110). Rabbi Goren designated a hall to the future Sanhedrin in this institution and even claimed that according to the future temple dimensions in the book of Ezekiel, the yeshiva building would be at the center of the Temple Mount (Torat Ha`medina [see note. 20], 473). However, in practice, this institution, as a Torah institution, did not gain importance in the Jewish world.

94 It should be noted that in HCJ 222/68 National Circuits Registered Association et al. V. Minister of Police, PD 24 (141), was determined in most opinions that the King’s 1924 statement concerning the holy places was valid in Israel. See this discussion in A. Maoz, “Between the Allenby Bridge and the Western Wall”, Tel-Aviv University Law Review 3 200 (1973- 1974).

95 N. Shragai, Rabbi Goren rules: “To resist with all one’s soul the intolerable plan to evacuate Hebron”, Ha’aretz 7.3.1994 [For Rabbi Goren’s personal connection to Hebron and his actual participation in the liberation of the city see also Rat [see note. 10], 100 102; 285 288]). On this day (7.3.1994), Rabbi Goren was interviewed on Channel 7, explaining that there is a difference between the struggle for Hebron and the struggle for Yamit because Hebron is the second holiest city after Jerusalem. It should also be noted in this context that Hebron’s holiness stems from both the historical dimension and the concept of the “holiness of the Land of Israel” (this distinction was noted in Feige [see note. 88], 44). For Ben-Gurion’s attitude to Hebron versus Jerusalem after the 1948 events see Shapira, see note. 60), 220.

96 See note. 85, pp. 89-92. I tried to locate the judgment on the Nevo website on this matter in search of the name of Judge Jacob Ganen but found no result.

97 Trumat H`agoren responsa (see note. 85), 94.

98 This critical distinction is found in P.S. Atiyah, “From Principle to Pragmatism: Change in the Function of the Judicial Process and the Law”, 65 Iowa Law Review (1980), 1249.

99 Trumat H`agoren responsa (see note. 85), 94.

100 However, archaeologists later admitted that bones and skeletons were found on the site and that they lied to the ultra-Orthodox public about this (brought to Feige [see note. 88], 59 note.7).

101 Torat Ha`medina (see note. 20), 252. It should be noted that both Rabbi Goren and Rabbi

Yitzchok Yaakov Weiss (1902- 1989) visited the site and argued that reality indicates that there is an ancient Jewish cemetery in this place, while archaeologists rejected this claim. To view this phenomenon as a characteristic of Jewish Orthodoxy in the State of Israel, see H. Cohen (see note. 4), 82-83.

For a description of the Chief Rabbinate’s struggle against Israel’s archaeological excavations from Rabbi Goren’s perspective, see Torat Ha`medina, 245–255.

One of the arguments Rabbi Goren sought to deal with was how the Jews of Jerusalem could designate the southern slope of the Temple Mount as a burial ground (see, for example, the determination of a U.S. rabbinical court in this matter in N. Zevuloni, “It is permissible to dig on the Temple Mount”, Davar 15/08/ 1983, p. 8) This discussion is cited in Torat Ha`medina, 255-277 and appears to be mainly determined “by the shared method used by two leading sages – Maharit and the Radbaz, both of whom claim that the location of the City of David is at the peak of The Mount of Olives, and not on the southern slope of the Temple Mount. This approach should not be dismissed out of hand. (ibid., p. 269). It should be noted that the Minchat Yitzhak Responsa (9, 121) question does not address this subject at all. It should be noted that another consideration not mentioned here is the attitude to Jewish cemeteries in Europe where Jewish communities no longer exist (see, for example, Shevet-Halevi Responsa 10, 214).

Besides, during previous excavations conducted at the site, the top layer was removed from it, so that it could be said that the testimony of Jerusalem elders that burials took place in this site (see ibid., p. 245) is valid for this layer that has already been removed. Rabbi Goren rejects this argument, using the approach of arbiters that “the sanctity of the cemetery applies unto the lowest layer” (ibid., p. 273). However, Rabbi Goren himself cites the opinion of the Hazon-Ish (Yore-de`a 209); …. It goes without saying that the Eda Haredit extremists who opposed the City of David excavations and are opposed in general to excavating ancient graves did not make use of the Hazon Ish’s opinion.

102 Hashakdan A. p. 206. A similar halakhic ruling was given in the Minchat Yitzhak Responsa (9, 121).

103 Torat Ha`medina (see note. 20), 274.

104 Feige (see note. 88), 58. See also Hayah Katz, “The Attitude of Religious-Zionist Society to Archaeology, 1948- 1967”, Cathedra 160 (2016), pp. 105- 122.

105 For a discussion of the legal meaning of the definition of a place as “holy” in Israeli law, see Hacohen (see note. 63), 352-365.

106 Shut Trumat H`agoren II (see note. 59), 189-190.

107 Judge J. Cohen (HCJ 512/81 Institute of Archeology and Others v. Minister of Culture, para. 8): “It can be said, as an analogy to the well-known phrase, that excavation is too serious a matter to be left to the archaeologists. This is a matter of great sensitivity, especially in our country, and the authorities not only may, but are obligated, in such matters, to use their discretion under the law, while taking into consideration the faith of some members of the public, as long as it is a sincere belief, which is not used for ulterior purposes, even if that belief is negated by scientists. This does not mean that the interest of promoting science must retreat from any objection based on faith, but it is the difficult task of the authority to strike a proper balance between conflicting interests.” M. Feige writes in connection with this struggle that” the ultra-Orthodox response to the Nationalist perception was an attack on a central Zionistsymbol, the archaeological excavation that reveals the the history of nation” (Feige [see note. 88)], 56).

108 In an interview, Rabbi Goren said that this affair helped him to show that he did not “act according to dictates and align with any ruling party, and as if I had become a kind of “mouthpiece Rabbi”.’“ (R. Primor, “Rabbi Goren and the Red Line”, Maariv 22/10/1981, p. 19).

109 A disclaimer: On the one hand, the state did not apply its sovereignty over these areas and did not grant their citizens political rights as citizens; On the other hand, the state, through its various agencies, has been a critical partner in the Jewish settlements in these areas and over the years has attempted to apply some kind of annexation over parts of these areas. See, for example, Idith Zartal and Akiva Eldar, Lords of the Land: The War for Israel`s Settlements in the Occupied Territories 1967- 2007, New-York 2007.

The Edmund Levy Committee (2012) also gave high weight to the fact that the Israeli Government supported Jewish settlement in Judea and Samaria (http://www.pmo.gov.il/Documents/doch090712.pdf, pp. 49-50 and more).