A Philosophical View of the Current Disputes (Column 564)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

“For there is silence within the storms”

(Yechiel Mohar)

In the previous column, we dealt with situations in which there is a debate about the rules of the game and distinguished them from debates about specific issues within that system of rules. I explained that in the second case (such as the Disengagement), the radicalization of the debate stems from the difficulty and the significant harm to the protesting minority, whereas in the first case (as in today’s debates) it stems from the nature of the dispute—namely, that it concerns the rules of the game themselves. A dispute that touches on the rules of the game, by its nature, cannot be resolved within them; therefore it tends to intensify and reach an impasse, even if the subjects at hand are not, in themselves, acute.

My claim, essentially, was that there are situations in which one is justified in acting not according to the rules of the game. In cases like the Disengagement, the justification is the depth of the harm; in cases like the current one, the justification is a crisis in the system of rules itself. In this column I wish to examine various situations of offenses within systems of law, and I shall address each separately. At the end I will return to examine the current disputes in light of the map of cases described here.

A Manifestly Illegal Order

Let us begin with the military context, because it is more common there. There are at least two types of manifestly illegal orders: (a) orders that stand in sharp contradiction to basic moral values (e.g., Nazi orders, or even the killing at Kafr Qasim); (b) orders that clearly contradict the law. In both of these cases, the order must not be obeyed, even if it is given by a competent authority (such as a commander in the army). I will elaborate on these categories below.

The legal philosopher Ronald Dworkin argued that every legal system includes additional principles that do not appear within it and yet are binding just like enacted law, and even override it. We can speak of two kinds of such principles: (a) universal moral principles; (b) principles that underlie the culture of that particular state (even if they are not universal; for example, some would say that in Israel something that contradicts its being Jewish or democratic is unlawful even if it accords with a statute enacted by the Knesset, and some would go further and say that a statute enacted by the Knesset is itself void if it contradicts these foundational values).

In terms of the distinction I made above between the two kinds of manifestly illegal orders, it seems that these two kinds of principles fall under the first category. These are two types of principles that have force even without being enacted, and an order that contradicts such a principle is void and must not be obeyed. What is the reason for the nullity of such an order? Before I explain, I will refer to an argument I have had more than once with a good friend, a well-known jurist and renowned expert on these matters.

This friend argued that a manifestly illegal order is only one that flagrantly and blatantly contradicts moral principles. He denied the existence of the second category, and in his view (and I assume he is right) this is the prevailing legal conception among jurists. According to him, a soldier cannot decide that an order is unlawful, since he is not a jurist, and the term “manifestly” indicates that only the first category exists. When a soldier receives an unlawful order that does not contradict fundamental moral principles, he must obey it and afterwards pursue the matter with the commander.

I, by contrast, argued that any order that is in direct contradiction to the law, even if not severe, is manifestly illegal. Consider, for example, a commander who instructs his driver to drive ten km/h above the speed limit on the road. According to my friend, the soldier must obey; I think not. Incidentally, here there is no interpretive problem and no legal expertise is required to understand that this is unlawful. Beyond that, in my view the category of a manifestly illegal order is not intended solely to prevent moral atrocities. Its basis is, fundamentally, logical.

A commander’s authority derives from the law, and my obligation to obey him is because the law stipulates that I must do so. Therefore, when the commander gives me an order that clearly contradicts the law—any law—then by virtue of that very fact it does not bind. I argued that the term “manifestly” serves to exclude situations in which the matter depends on interpretation, since a soldier is neither authorized nor permitted to interpret the law. But when the unlawfulness is clear, the order has no force and must not be obeyed. It cannot be denied that the famous metaphor of Justice Benjamin Halevi, who in 1957 regarding the killing at Kafr Qasim determined that it was “an order over which a black flag flies,” likely refers to the first kind. But that does not mean the second kind does not exist. I claim more: the basic category of a manifestly illegal order is actually the second one—the contradiction to enacted law. The contradiction to moral rules is an extension of this concept, using Dworkin’s theory that treats what he calls “principles” as part of the law.

When an order contradicts fundamental moral principles, it is commonly thought that this too is considered a manifestly illegal order, even though those moral principles were not enacted in that state (as with the Nazis). The claim is that such principles are included in every human legal system by virtue of it being human, even if they were not actually enacted within it, and even if it explicitly enacted contrary laws. For this reason it was possible to try a Nazi soldier or officer for his actions even though they were done according to law and competent orders in Germany at that time.

I would note that in this regard there is a difference between a soldier and a civilian. A soldier can be in either of these two situations, but a civilian, who is subject to the law and not to a commander’s authority, does not face the second kind. A law that contradicts the law (at least a Basic Law) is a matter for the court to declare it void, not for the citizen. For a civilian, only non-compliance with a law that contradicts foundational values (as in Nazi Germany) is relevant. True, even there the matter will generally be submitted to the court, since we are not dealing with a specific instruction for a given time and place, but with a principled stance toward a general law intended to bind everyone always. But in extreme cases where there is no judicial system to do this (as in Nazi Germany), it is indeed the responsibility of the citizen himself.

Conscientious Objection

So far we have dealt with an order or statutory directive that is manifestly illegal. There is a different category called “conscientious objection,” which is relevant both to soldiers and to civilians. When a person feels that an order or law contradicts his values in a substantive and blunt way, he is permitted to refuse to comply. This is not a case in which the order or law is manifestly illegal (in either of the senses I described). It is an order or law that is entirely lawful (that is, not only is it not manifestly illegal; it is not even correct to say it is unlawful), not contrary to any law, nor to universal foundational values, nor even to the principles underpinning that state’s system—and yet, if it sharply contradicts my personal values, I may refuse to carry it out.

The legal definition of such a situation is unclear, since such action is an unjustified transgression of the law, and whoever violates it must bear the penalty set by law for such an act. But liberal legal thought recognizes the legitimacy of such a step, since a person is sovereign to choose his values, and it is unreasonable to let the state dictate to him any behavior that comes to its mind, even if in the majority’s view it is justified. Examples can include a soldier’s refusal to evacuate a settlement or refusal to serve in the occupied territories,[1] refusal to pay a tax that contradicts my values, and the like.

It is commonly said that the condition for the legitimacy of such refusal is that the conscientious objector be prepared to bear the penalty prescribed by law for such an act. But simply, this is not because he “deserves” punishment—for he acted in a justified manner. Bearing the penalty is meant to ensure that such a decision is not taken lightly. The concern is that any lazy soldier, or one who fears danger, will use conscientious objection as a fig leaf to evade duty. Therefore we say he is permitted to refuse—while bearing the penalty. This will cause each person to consider seriously whether it is indeed worth refusing in such a situation or whether the issue is not that acute for him. Therefore such an “offender,” one who chose to refuse and bear the penalty, is not perceived as someone with moral turpitude on his record. This is not truly a crime, and the penalty is not truly a punishment. The penalty is intended to preserve the framework of law and make it harder for those who would break it without sufficient justification.

The Difference Between the Two Categories

The difference between a manifestly illegal order and conscientious objection is that with a manifestly illegal order there is a prohibition on compliance. One who complies will be punished, whereas one who does not comply acted rightly and is of course exempt from any penalty (and even worthy of praise). Conscientious objection, by contrast, is unlawful conduct that carries a penalty. One may perhaps do it, but there is certainly no obligation to refuse. It is a person’s right to act according to his worldview, not every citizen’s duty.

I have often heard rabbis, in various contexts (such as during the Disengagement), declare that an order to evacuate a settlement in the Land of Israel is manifestly illegal and therefore must not be carried out. In my understanding, this is a categorical confusion. They may intend conscientious objection, but not a manifestly illegal order. An order to evacuate a settlement—if adopted in proper procedure and by competent authorities—is entirely lawful. It also does not contradict foundational moral values, certainly not in a clear and blunt way. It may contradict the values of a soldier unwilling to lend a hand to such an act; for him, conscientious objection is available. But it cannot be said that the order is unlawful, and certainly not manifestly unlawful.

One can of course engage in pilpul and argue that evacuating settlements in the Land of Israel contradicts the foundational values of Judaism, and therefore it is a manifestly illegal order of Dworkin’s second type (since this is a Jewish and democratic state). But that is formalistic pilpul, nothing more. It is implausible to claim that this is what lies at the base of the Israeli ethos and culture when a large majority of the public disagrees (even those who think evacuating settlements is wrong mostly do not see it as intrinsically forbidden; most simply think it is politically and security-wise unwise). We must remember that the state arose on the basis of a territorial compromise per the UN decision; from its very founding it relinquished the actual realization of the idea of Greater Israel. The interpretation of this or that person that principle X is a foundational principle of Israeli culture cannot form the basis for the legality of an order. Legality is something that should enjoy broad consensus among the Israeli public. This is distinct from values and conscience which, by definition, are personal, and thus can undergird conscientious objection but not the illegality of an order or law.

Note that both the mechanism of conscientious objection and that of a manifestly illegal order allow action that truly or apparently contravenes the law. Such action is taken within a given system of laws or rules of the game, but without shattering the framework or the existing rules of the game. In this sense, these are somewhat different categories from those I described in the previous column. We will return to this below.

An Offense “for Its Own Sake”

There is a sugya in Nazir 23b that deals with the notion of an “offense for its own sake” (aveirah lishmah). I have already dealt with this in several columns (see columns 353, 357, and 441 and the articles referenced there), and I will not re-enter the details here. For our purposes I will summarize by saying that, in principle, halakhah allows a person (not necessarily a decisor and/or a scholar) to make decisions that contravene halakhah when he is in extreme situations. The example brought there is Yael, wife of Hever the Kenite, who was married (to Hever) and had sexual relations with Sisera in order to kill him and save Israel. There is no halakhic permission for this, since sexual prohibitions override every commandment in the Torah (one must be killed rather than transgress), and yet under those circumstances the Gemara views it as legitimate. I explained there that this is not a rule of overriding like “a positive commandment overrides a negative one” or “human dignity overrides rabbinic prohibitions,” since the formulation used by the Gemara is “an offense for its own sake” (it appears that, halakhically speaking, it remains an offense).

How should we regard this “permission”? Is it a permission at all? As noted, there is no halakhic permission and yet such an act is seen as legitimate and even praiseworthy. This category falls between the two categories defined here. On the one hand, it is indeed an offense (halakhah itself does not permit it). On the other hand, such an act is viewed positively; that is, it is not only legitimate but worthy and desirable. This is how one ought to act. This is not about Yael’s private values, but about an act required of anyone in such a situation. In this sense, the definition of an offense for its own sake differs from conscientious objection, which is only a retrospective recognition of the refusal’s legitimacy. The halakhic parallel to conscientious objection would be someone who refuses to kill an Amalekite child or who desecrates Shabbat to save a non-Jew because his conscience does not allow him to uphold the law. In such a case he is, ostensibly, a full transgressor, and halakhah does not acknowledge or legitimize such conduct even after the fact. One could say that halakhah itself will not legitimize it because, in halakhic categories, it is indeed forbidden. The permission to act thus does not belong to halakhah but to the broader value system of the person, and therefore cannot receive halakhic legitimization. But the Holy One, blessed be He, may well legitimize it (some would argue that He even expects us all to act thus—akin to a manifestly illegal order, and not like conscientious objection).

Constitutive and Regulative Systems of Rules

In analytic philosophy it is customary to distinguish between two types of systems of rules: constitutive (that define a “game”) and regulative. A constitutive system defines the “game” whose rules these are (the term “game” in game theory does not refer only to leisure games, but to any competition between people or groups on some matter; for this purpose, war, politics and policy, or investing in the stock market, are also games). Thus, for example, in chess, if a person moves a piece in an illegal way (e.g., uses chess pieces to play checkers), he is not an offender (unless he concealed it). He is simply not playing chess, akin to the elephant example in Maimonides’ Guide of the Perplexed (I:76). By contrast, the system of traffic laws is regulative, because someone who drives unlawfully still drove and used the road and the car—only that he did not act according to the rules, i.e., he violated the law.

Simply put, in constitutive systems there is no such thing as an “offense,” since an offense would mean playing the game in a way that does not accord with the rules. But in a constitutive system, if you do not obey the rules, then you are not playing that game (perhaps you are playing another game). In halakhah and in state law we are dealing with regulative systems, not constitutive ones; therefore there are acts that are offenses. Another example is the laws of nature. There, too, there are no offenses—but not because it is a constitutive system; rather, because it is not a system of rules in the usual sense at all. One simply cannot transgress them even if one wishes.

Yet it turns out there are games dominated by constitutive systems of rules wherein, nonetheless, there appear to be actions that would be considered “offenses.”

“Offense” in Soccer: Contrary To Duty imperatives

Consider soccer or basketball. Ostensibly these are constitutive systems of rules, not regulative ones, for they define the activity carried out within them. If so, one would expect that there would be no “offenses” defined within them. One who does not play by the rules is simply not playing soccer or basketball, but another game. Yet the situation there is not so simple.

In 2010 there was a soccer match between Ghana and Uruguay. The score was 1–1, and then a ball was kicked toward Uruguay’s goal. The situation is captured in this video:

In words: Luis Suárez, a player for Uruguay’s national team, stopped the ball with his hand and thereby prevented a certain goal. The problem was that he was not the goalkeeper, and as is known, an ordinary player is forbidden to touch the ball with his hand. The referee sent him off and awarded a penalty kick to Ghana, which was missed. The game ended in the same draw, 1–1, and a penalty shootout followed, in which Uruguay won 4–3. The upshot is that Suárez’s unlawful act prevented Ghana’s victory and thus led to Uruguay’s victory.[2]

After that match there was a heated debate among soccer fans worldwide: did Suárez act properly, and should Uruguay’s victory be stripped? The arguments addressed both the (sporting) law and morality. What exactly is the point of contention? In soccer or basketball, there are actions defined as “fouls” (offenses). Ostensibly this is a deviation from the rules of the game—a contravention of the rules—but only ostensibly. Everyone knows that in these two games a “foul” is a legitimate tactic. A player may commit a foul to prevent a basket or a goal; sometimes the coach will instruct his players to foul. People or expert teams can discuss whether it is advisable or not to commit a foul in a given situation. This language does not reflect discourse on criminality, but a tactical discussion. The foul is a step one sometimes chooses, deliberately, to achieve some tactical aim, and of course the price attached to it is calculated in advance (penalty kick, free throws, turnover, ejection, and so on).

One can bring as an analogy the phrasing of our criminal code, in which the statute does not say “Do not steal,” but rather “one who steals—his punishment is such and such.” Ostensibly there is no prohibition to steal; the law merely stipulates what is done to one who steals. True, in law it is customary to interpret that the statute intends to prescribe a prohibition and a punishment together; but in soccer the conception is that there is indeed no prohibition to commit a foul—the law merely sets a price alongside it: one who commits a foul will lose the ball to the other team, and in more serious cases there will be a penalty, free throws, a technical foul, etc. All these are price tags that are part of the game’s rules themselves.

One could explain it differently. The fact that the rules of the game themselves recognize fouls and impose sanctions does not imply indifference to committing fouls. Israeli law imposes a punishment for theft because, despite the prohibition, in practice there are and will be thieves; but that does not mean theft is, in its eyes, not forbidden (just a step with a price attached). So too in soccer and basketball. The fact that sanctions were imposed does not mean it is recognized as legitimate. In the logic of norms (deontic logic),[3] this mechanism is called CTD (Contrary To Duty imperatives). Thus, for example, halakhah defines the positive commandment to return stolen property. Does that mean theft is neutral in its view? Clearly not. There are duties imposed upon one who has violated the law, and the law itself imposes them. Similarly, in the case of rape, the rapist must marry the victim. This does not mean rape is legitimate in halakhic terms.

But in soccer and basketball, as I argued above, the common discourse nevertheless reflects a different situation. We saw that there, fouls are discussed as tactical considerations ab initio. It therefore seems that, regardless of the original intent of the game’s founders, at least today it is quite clear that a foul in soccer is indeed a foul, but it is not perceived as deviating from the game’s rules. These are not forbidden acts and not contrary to the game’s rules, but simply actions that carry a price tag (on this distinction in halakhah and more generally, see columns 377 and 342). If so, it seems that Suárez took a legitimate step and thereby saved his country from defeat. Some would say that had he not done so, he would have betrayed his role (to bring his team to victory by every legally possible means). If indeed so, then the conclusion is that the rule systems in soccer and basketball are in fact constitutive, not regulative. The “fouls” defined there are only a homonym. They are steps with a price tag—nothing more. They are not offenses in the criminal or halakhic sense (i.e., actions that are unworthy).

Note that I am not speaking here of a deliberate gross foul, or a foul in secret. In both of those cases there is agreement that this is forbidden conduct. True, it is very difficult to define when a foul is gross enough (some argued that Suárez’s act was such), but that category certainly exists. The same applies to one who committed a foul and concealed it from the referee and the public (cf. Maradona’s “Hand of God,” 1986). That is dishonest conduct and, by all accounts, violates the rules. Our discussion here is of an act done in full view, with willingness to bear the price (and even so, it is not really conscientious objection as defined above). Suárez did not conceal his act, and he was prepared to pay the price—and did so. Our discussion is of such an act per se, without reference to ancillary questions of deceit and concealment.

Extreme Cases

There is room to distinguish between a penalty and the ejection of a player. When a soccer player commits a foul that mandates ejection, it already approaches more closely an offense in the chess sense—namely, he violated the rules and did not act within them. But it is not a standard chess offense, because there we saw that there is no ethical aspect at all; he is simply not playing chess but something else. If he does so in secret, then indeed there is an ethical offense, for he presents himself as if he is playing chess. Such a violation is not only against the game’s rules but also against general human ethics.

In soccer, a player is sent off when he commits a particularly serious act, but the meaning of ejection is not only that he is not playing soccer; it is that he is an ethical offender. This is akin to a chess player who conceals from the referee that he moved his knight as if it were a rook. Note that Suárez did not conceal the matter from the referee, yet one can still see an ethical problem in his action—and hence it mandates his ejection from the match. According to this view, an extreme violation of the game’s rules becomes an offense in the general ethical system (not necessarily of chess—or soccer). For this reason, it is possible that what Suárez did was indeed an ethical offense and not merely a tactical step with a price tag attached. When the penalty is not merely a penalty kick but ejection, it means that he committed an ethical offense, not just a rules violation. That is already a problematic step that cannot be seen as a legitimate tactical decision within the game.

What Is the Relationship Between Manifestly Illegal Orders and Conscientious Objection, and Fouls in Soccer?

What is the relationship between these “offenses” and conscientious objection or a manifestly illegal order? It is quite clear that a manifestly illegal order is a different category, for there the instruction itself lacks validity; therefore no penalty is imposed on one who does not comply. That is certainly not the situation in soccer. But conscientious objection seems closer. In both cases, one may violate the rules and bear the consequences (pay the price). Still, the feeling is that there is a difference: in conscientious objection there is a value dimension in both directions—complying with the instruction is an ethical duty and not merely a rule of the game (as a rule in soccer), and the transgression is done for ethical reasons and not purely tactical ones. Nevertheless, there is indeed a resemblance.

To complete the picture, I will bring another category: apparent offenses.

Apparent Offenses: Rules of Overriding

At the end of tractate Gittin, the Gemara brings a dispute between Beit Hillel and Beit Shammai regarding lying to a newlywed couple: may I tell the groom that his bride is beautiful and gracious even if she is not. According to Beit Hillel, this is permitted and apparently even desirable. Beit Shammai argue that this is a forbidden lie. What is the status of such a lie? For the sake of discussion, let us assume that halakhah forbids lying (and certainly does not look kindly upon it). Yet here there is permission to transgress that rule. This is an action that deviates from the rules, but it seems to be merely a matter of definition. One can formulate that part of the rules is that it is permitted and desirable to lie in such situations. I once mentioned the words of R. Dessler in Mikhtav me-Eliyahu, who wrote that a permitted lie (e.g., the cases brought in Bava Metzia 23b, or for the sake of peace) is not a lie at all, because a lie, by definition, is forbidden speech, and therefore permitted speech cannot be considered a lie.[4] I think his intention is this very principle. For our purposes here, we can say this is an apparent offense. Such a lie is not an offense at all. One can liken it to a manifestly illegal order, for here, indeed, one is required to “transgress” (and not merely permitted), and of course there is no sanction for one who does so. The obligation to tell the truth in such a case is manifestly illegal. This is quite similar to an offense for its own sake, except that, with an offense for its own sake, we saw that the act is still halakhically defined as an offense, and yet we are required to do it; here, however, halakhah itself permits it—that is, one who does so has not transgressed at all.[5] So it is with all halakhic rules of overriding, such as a positive commandment overriding a negative, or pikuach nefesh overriding Shabbat, and so on. In these cases, halakhah itself instructs us to “transgress” for the sake of a value or rule that overrides it.

Apparent Offenses: Exceptions

In the same vein, we can discuss a very amusing example mentioned here in the past: the BBC’s Golden Balls series (see column 122, which deals with the prisoner’s dilemma, and column 197). The game is based on the prisoner’s dilemma, and it is defined as follows. Two contestants compete over a sum of money. Each contestant has two golden balls, one with the word split inside and the other with the word steal. Each player chooses one ball; he himself knows what is written in it, but his counterpart does not. The rules are:

• If both choose split, each receives half the sum.
• If one chooses steal and the other split—the “thief” takes all the money.
• If both choose steal—neither gets anything.

If one wishes to maximize payoff, ostensibly one should choose steal; but of course, if both choose it, neither gains anything. If someone considers choosing split, he risks the other choosing steal and leaving him empty-handed.

The BBC’s variation is that before the players make their choices, they are given a few minutes to talk and try to convince each other to adopt a joint tactic (a coalition, in game-theory terms). It is seemingly natural to agree that both will choose split and split the money. That is not the maximal payoff, but it is safe. The problem is that even if I keep our agreement and choose split, the other can break his word, choose steal, and leave with all the money. But if I get clever and choose steal myself—I risk that he will do the same, and we will both leave with nothing.

In the standard videos, the initial dialogue revolves around both players trying to explain to each other that it is in their interest to agree to choose split and not steal, since that way at least each will leave with half. After that, in the various clips, different types of tricksters are revealed. One standard example is here:

Ostensibly this ought to be rather boring, and all the videos would be predictable repeats. But it turns out that people have boundless imagination, and the differences between the clips are truly fascinating (all of them, of course, focus on the preliminary dialogue and not on the choices themselves—there are only three possible choices).[6]

If we return to the first (standard) clip, you can see there that one contestant explains that she will never choose steal because the Bible forbids stealing. Even after her partner deceives her and takes all the money, she still says she is at peace for not betraying her values. Her partner explains that this is a game and these are its rules; therefore there is no deceit here and no theft. The entire point of the game is to observe what happens between people and how one maximizes profit; lying here is a tactical game tool. Each participant has surely seen previous clips and understands that lying is one of the options, and he must take into account that his counterpart may lie. The goal is to maximize profit, not to come out a righteous person. In such a case I tend to think there is no problem of lying or theft. This is a game that examines how best to lie, and so it is defined from the outset. One who enters to play knows that this is the game. It is hard to speak of the offense of lying in such a situation. Similarly known is what some halakhic decisors wrote: although there is a halakhic prohibition of sleight-of-hand deception (achizat einayim), professional magicians performing today do not transgress if they inform the audience that all their acts are tricks and sleights, not actual sorcery.

I will conclude this section with two marginal comments. First, the offense in question here is not theft but lying. One who lies and then takes the money did not steal anything from her partner; at most she lied to her. Consider that instead of the charged words split and steal, the slips inside the balls read “1” or “2.” In that case, no one would dream of speaking about theft—at most, about lying. The terminology here creates bias and distorts our analysis of reality. I think this also helps us understand why lying within such a game is not an offense. Again, we must overcome the biases created by the terminology.

Here we are dealing with an apparent offense, but not because there is a rule of overriding that justifies it. The players act within a framework or context that is excepted from ordinary human activity; it is defined such that within it, lying is not an offense. To treat such an action as a lie is to mix frames of reference (or to ignore the game’s exception from ordinary human activity). One can liken this to a sport like boxing. Generally there is a prohibition to strike your fellow or injure him, but a boxing match is a context excepted from ordinary human activity, and within it causing injury to another is not an offense.

In these contexts the rules of the game do not even impose a sanction on one who does so, and as we saw in the BBC game, he can even profit from it.

Back to the Current Disputes: The Disengagement

Let us now return to the disputes discussed in the previous column and try to examine them in terms of the mechanisms described here. We saw there several different scenarios. There were violations of the rules of the game around the Disengagement. I explained that there the debate was not about the rules of the game themselves, but some saw the government’s conduct as a blatant violation of them—perhaps not of the law per se, but of accepted norms.

Because the government’s conduct there was neither against the law nor against agreed moral values, it is hard to see it as manifestly illegal orders. Ostensibly we could liken the protests against it to an offense for its own sake, for it was a violation of the rules of the game without shattering the game itself. Their value-based motivation justified, in their eyes, such an offense. But as we saw, an offense for its own sake is not an offense, and certainly bears no penalty. In my view, the violations during the Disengagement did warrant penalties, since the order was entirely lawful. In such contexts, one can think of conscientious objection by those for whom the Disengagement and its accompanying orders sharply contradicted their values. There is also a matter of proportionality and degree, for the lawbreaking by protesters there did not significantly threaten the game itself. It was clear that the debate was about a particular decision, and the rules of the game were not in danger.

The current dispute is more interesting on the theoretical plane. I explained that, at least in the protesters’ view, the coalition deviates from accepted rules of the game; therefore they permit themselves to bend the game and its rules. Even in their eyes, some steps perhaps do not threaten the very existence of the game; these can perhaps be viewed as conscientious objection. But some steps truly threaten the entire game.

Back to the Current Disputes: The Judicial Reform Dispute

If we consider soldiers’ refusal to obey orders of the elected government, this is a step that contravenes the law. Ostensibly this, too, is conscientious objection. But the similarity is not complete. They were not dealing with manifestly illegal orders, but with orders given by a government acting in a manner unacceptable to them. Thus, this is not a manifestly illegal order, but a lawful order of a government that, in their opinion, did illegitimate things. The refusal here serves the purpose of protest, not to avoid an act that violates their conscience. Therefore it does not neatly fit either category—conscientious objection or manifestly illegal order. Refusal to comply with the reform laws themselves might perhaps be considered one of those two.

Here we are dealing with refusals of the protest type, which might perhaps fall under the heading of civil disobedience. Civil disobedience is refusal for the sake of achieving a political aim. Examples such as blocking roads in a demonstration or a tax strike—meant to protest and change government policy—are undertaken even though the deviation of those actions from the law lacks intrinsic justification (they oppose legitimate actions of the government as a protest against it).

But even this is too minimal a description. The deviations here threaten the very existence of the game, and effectively shatter its rules quite bluntly. These are not local deviations but a real threat of breaking the game altogether (not merely local refusal; some have labeled it an insurrection using military force to change the decisions of an elected government—somewhat exaggerated in my view, but not wholly detached). In the previous column I explained that the rules of the game themselves permit deviations where the other side has done something that substantially deviates from them and effectively shatters the game and its rules. When there are no rules, there is no deviation from rules. A dispute about the rules cannot be decided within those very rules. The justification to deviate from the rules in such a situation differs from any other situation: there are simply no rules, and in particular there is no authority for the majority’s decision and no duty upon the minority to accept it. If that were the situation, there would be no point entering all the cases I described above. All of those were offenses within the game’s framework, not dissolution of it.

However, in the previous column I also noted that the protesters are not actually shattering the game. I spoke there of a “migo”—that the power to shatter the game grants the minority legitimacy not to obey the majority’s decision (if the majority breaks the rules or changes them). But all this is done within the game, for we have not yet dismantled it. Ostensibly, such a situation is a kind of offense committed within the legal system. The whole idea of migo is that the framework is not actually dissolved; rather, the ability to dissolve it grants the minority the right to act thus within it. How can we justify such a pair of actions within the game’s legal rules?

This brings us to an offense for its own sake or to the soccer “foul” (we saw the difference is that, with an offense for its own sake, there is a value dimension both to the duty to obey and to the right to rebel). One can say that, as part of the rules of democracy, the ability to dismantle the game introduces into the game itself the possibility of committing “offenses” against the rules. Because there is no independent referee as in soccer (our dispute concerns the judicial and governmental system), there are implicit meta-rules that allow a minority in severe distress to take steps that will constitute an offense and to accept upon itself the sanctions that follow from them. This is not exactly conscientious objection, though it is quite similar.

True, the law is not a set of constitutive definitions of a game like chess or soccer; thus one who violates it acts improperly—at least as long as the game exists and its rules are valid in his eyes as well. The punishment imposed here is not merely a price tag as in conscientious objection. But it is also not an “offense” like in chess, for in chess such an act has no problematic aspect; one who does it simply is not playing chess. Precisely because of the migo, we can nonetheless liken it to a foul in soccer. Even if the game is not yet shattered, the migo indicates that when one side breaks the rules or when the debate turns on the rules themselves, the other side (the minority) has legitimacy to deviate from them. This is all still done within the game, and whoever does so should bear the consequences (the penalty), somewhat akin to conscientious objection. The protesters will go down and block the road, will be arrested by the police, and will answer for it. So too for the refusers in the army. In the terms above, this is civil disobedience, and it bears similarity to a foul in soccer. Part of the game is the minority’s option to exercise non-conventional power in extreme cases or when the debate concerns the rules of the game themselves. It is an offense whistled by the meta-rules (since there is no referee, as noted), but it certainly warrants a penalty—at least so long as we have not decided to dismantle the game altogether.

Concluding Remarks

Of course, this analysis does not define where the line runs between the different types. When is the offense grave enough to be considered ethical and not merely a violation of the game’s rules? How severe must the harm to the minority be to justify its “offenses” as legitimate, and when is it obligated to be sent off from the game? What risk is posed by the reform—or by the protests against it—and what justification underlies these steps?

I will conclude by noting that although, in a debate about the rules of the game, the management of the protest need not necessarily operate within them (and thus it becomes extreme), there is an element that must be preserved: the element that does not derive directly from the rules of the game but from the principles that underlie the system. We saw that Dworkin posits that at the base of every legal system stand “principles,” some universal and some particular (e.g., that the state is Jewish and democratic). These principles must be preserved even in a dispute about the rules of the game—at least so long as we have not dismantled the game itself. Transgressing them is, in effect, de facto dissolution of the game.

[1] There is an excellent film, Hacksaw Ridge, based on a true story. The film tells of a soldier who held a pacifist view for religious (Christian) reasons. He refused to bear arms because of his religious principles. At the same time, he insisted on serving in the army as the duty of every citizen when his country is at war, but since he would not carry a weapon, he was trained as a medic. He participated in fierce battles against the Japanese in World War II, and throughout the war he was on the field without a weapon in his hand.

[2] Whoever wants a recap of the entire sequence—from the handball, through the missed penalty, to the penalty shootout at the end and the match’s result—can watch it here (from 9:30).

[3] See on this and on CTD logic in the third volume of our ‘Talmudic Logic’ series.

[4] I recall that someone even provided the precise source in the book, which I have since lost. I have written more than once that, in my opinion, this is a vexing statement; it would be more accurate to say this is a permitted lie, not that it is not a lie at all. The question is whether such a lie is in the category of “permitted” (hutrah) or “overridden” (dekhuyah), a discussion for another time.

[5] This distinction is very hard to define theoretically. If I am required to do it, what does it matter that it is halakhically defined as an offense? This is akin to the distinction between hutrah and dekhuyah (which I discussed in column 404 and elsewhere). In those columns I noted that this distinction likely has no practical ramifications.

[6] For example, in this clip one side makes a brilliant proposal to his counterpart, and the ending is no less riveting. Worth watching.