Why is it a leap? Refusal to carry out an order, or failure to carry out an order by a soldier (the difference being whether it was intentional or not), constitute an offense under the Military Justice Law (sections 122 and 123 of that law). Then comes a section saying that a soldier bears no criminal liability if the order was manifestly illegal.
The duty to obey follows from the fact that disobedience is an offense. That is the technique of criminal law. There is no section that forbids robbery; rather, the prohibition follows from the fact that the criminal law says that a robber is liable to such-and-such years in prison. As distinct from a legal system that contains both warning and punishment.
The exception gives a defense only to someone who received a manifestly illegal order. Meaning: if we are not dealing with a manifestly illegal order, the rule remains in force and the soldier is obligated to obey. Including when מדובר in an “ordinary” illegal order (as distinct from a manifestly illegal one). True, they do not often prosecute in cases of soldiers who refused to carry out an “ordinary” illegal order, and that is understandable, but it is still an offense according to the prevailing approach, and the fact that they do not prosecute is not decisive. By the way, I am sure that in disciplinary proceedings many soldiers were tried who refused to carry out an “ordinary” illegal order (a driver who refused his commander’s instruction to drive 95 kph when the speed limit is 90).
Someone who carried out an “ordinary” illegal order, and thereby violated the general law, will be exempt from liability because he will have the defense of justification in executing the law (which obligates him to obey his commander’s orders). That defense is found in the Penal Law, and I also discussed that at length. This defense will not apply to someone who carried out a manifestly illegal order.
(By the way, even Feller, who disagrees, holds that a soldier is forbidden to carry out an illegal order—just only if he knows it is illegal.)

At one time they wanted to amend the law and forbid a soldier to carry out an “ordinary” illegal order. There was a battle over this, led by Chief of Staff Ehud Barak. He was chirping everywhere—except on Twitter back then—that if the law were amended, the value of discipline in the army would be destroyed.

In my poverty, I still don’t understand.
In such a situation the soldier has two conflicting duties upon him (since he is both a citizen of the state and a soldier): the civil law forbids him to do X (I’m speaking only of a case where he knows it is illegal—for example, 95 kph), and the military law obligates him to obey his commander’s order. In that situation he is in a legal dilemma as to what to do, because he is subject to both systems of law.
In your remarks here you assume that if he has no defense against the duty to obey the order, then he is obligated to obey (and disregard the civil law). But that is an argument that considers only one side of the equation. Why not say the same thing the other way around—that if he has no defense for disobeying the civil law, then he is obligated to obey the law (and disregard the military law)?
So far this is a symmetrical description, and for some reason you chose one side (the military one) and ignored the other. But in my opinion the difficulty with your approach is even stronger. The situation is not symmetrical, because civil law has priority over military law (and not that they are of equal rank, which would already be difficult for you). After all, he and his commander are both bound to honor the law (as with obeying parents who instruct one to violate Jewish law: both his father and he are bound to honor the Holy One, blessed be He). Therefore I would actually say that the duty to obey civil law is not only equal to but even overrides the military duty to obey an order. So in the above dilemma it seems obvious to me that the soldier is forbidden to obey an illegal order, even if it is not manifestly illegal.
What am I missing?

What you missed is that he does have a defense for violating the civil law. That is the defense of justification in executing the law, because when he fulfilled the order he was executing the law. Like an executioner in the U.S. who carries out an execution, and in essence kills, but is protected by that justification defense.

And why doesn’t he have a parallel justification defense for disobeying the military order, because he was busy complying with the civil law?

Because there is an explicit section that grants him that defense only in a case where the order is manifestly illegal.

+ the interpretation that if it says “a manifestly illegal order,” then there is such a thing as an order that is not manifestly illegal (and then there is no defense)

It seems to me we need to start with a hypothetical discussion. What was the legal situation before the defense section was enacted (the one that speaks about manifest illegality)? For example, in the Kafr Qasim trial itself, that section did not yet exist then (right?). And yet already there, in the trial, it was determined without any section (not yet legislated) that if the order is manifestly illegal there is no defense. We see from this that logic itself can also grant or deny a defense, and there need not be a section.

An intermediate question: when there is no legislation at all, do we agree that even a non-manifest illegal order must not be carried out (assuming the soldier knows it is illegal—95 kph)? That seems simple to me because of the superiority of civil law (“The words of the Rabbi and the words of the student—whose words do we heed?” and both you and he are bound to honor Me).

Now let us move to the stage after the defense section was legislated. You claim that once they drafted the defense section, it excludes non-manifest illegal orders (because of the interpretation). But I say otherwise: it excludes only a manifestly illegal order because with a non-manifest illegal order the soldier can claim he did not know the law. In a manifestly illegal order it is clear to us that he should have known the law, and therefore he has no defense.
The conclusion that follows is this: if it is clear that he knows the law, then he still has his defense for military disobedience, whose basis is logic (as in the situation before legislation, since I assume it did not change).
Whoever disagrees with me (which is like disagreeing with the Divine Presence itself) does so only because I am assuming Feller’s position (as a matter of logic, not necessarily as an interpretation of the statute), and he disagrees with Feller. But if one accepts Feller (whose claim seems logically simple to me), then my interpretation is the required one, and then Feller is right even after the law; the situation did not change with the legislation. Conclusion: our argument is only about whether Feller is sensible or not, and since in my view he is more reasonable, the current legal situation is also like that.

And finally, I’ll note that the fact that there is no parallel section in civil law giving the soldier a defense for not honoring military law while he is obeying civil law is simply because, “Why do I need a verse for something derived by logic?” (since “The words of the Rabbi and the words of the student—whose words do we heed?”). So nothing can be learned from that.

Am I missing anything?

I am forced to disagree with the Divine Presence.

First, all the statutory provisions I mentioned are of the same rank. Civil law has no superiority over military law; both are laws of the Knesset (“the words of the Rabbi”).

Let us assume that all soldiers know all the laws. True, initially (“the hypothetical discussion”) one could have established that a soldier must refuse every illegal order. By the same token one could have established that a soldier must obey even a manifestly illegal order. A third option was chosen, splitting between an illegal order and a manifestly illegal order. The organizing idea: giving priority, in a body based on discipline, to the duty of obedience—but with one reservation: not something blatant! The reason for that is moral.

By the way, according to the third option the soldier will always be in a situation of obligation, never one of permission. He must obey or must refuse. Theoretically, one could also have chosen a fourth option, under which the soldier would be permitted to refuse in the case of an illegal order. All the soldier’s dilemmas would supposedly be solved.

There is therefore no room to split between a hypothetical discussion and the discussion after the law. And by the way, those same laws also existed at the time of the Kafr Qasim trial. I also do not agree that it is obvious that in a primordial state one must not carry out an “ordinary” illegal order. As I said, there are two rabbis here, not a rabbi and a student.

For purposes of the discussion, and to refine it, I assumed that all soldiers know all the laws. Of course that is not so, and that very fact is already relevant to the decision as to which hypothetical option to choose. It is also relevant because the legality of the order depends on various factual situations. The officer from Unit 8200 who refused to carry out an order relating to a targeted killing was sure that he knew all the relevant facts, but he was told that he did not know all the facts (I do not know who was right). I can understand a legislator who prefers the duty of obedience, among other reasons because under army conditions there is not always time enough to know all the data, and one must rely on the chain of command.

That is not to say that Feller’s opinion is illegitimate, and it may even be that his interpretation is the correct one. One can, like him, interpret and say that whoever knows that the order he received is illegal—for him, that is manifest illegality. But in my opinion the other view is also very legitimate: that intentionally upholds a soldier’s duty to obey an order even when he knows that it involves “ordinary,” not “shocking,” illegality.

May the gentleman forgive me, and I shall wait and entreat him this time.

Indeed, the duty to obey an order and the law are of the same rank since both were enacted by the legislator, but the specific order given by the commander is not of the same rank. I’ll clarify this through two examples:
1. The director-general of a government ministry has received authority from the legislator to issue subordinate legislation. Now he legislates a regulation contrary to primary legislation. In such a case his rule is void (because he was not given authority to legislate against the primary legislation). The citizen, the addressee of the law, is not in a dilemma. The primary legislation applies to him, while the subordinate legislation is void. Therefore he will follow the primary legislation.
2. The Torah commands one to listen to one’s parents. The duty to heed them is of the same rank as the other commandments, of course, since the Torah established them all. But when a parent asks me to bring him (or to drink myself) a cup of libation wine, his instruction is void. The Torah did not give him authority to issue me such an instruction (against the primary legislation). So as his child I am not in a dilemma. I must obey the Torah’s instructions, not my parents’ instruction.

Back to our case. The commander instructs the soldier to drive 95 kph. The duty to obey an order is indeed of the same rank as the other civil laws. But the commander’s specific order is not of such rank. It is subordinate legislation, and the commander has no authority to order the soldier to do something illegal (even if not manifestly so). Consequently, the soldier is not in a dilemma, and therefore he must obey the general law and not his commander’s order. That is in the primordial situation before legislation.

What happens after legislation? You wrote, in brief, that a third option “was chosen.” But that was chosen only according to your view. According to my view it was not chosen. I proposed that the distinction between illegality and “from a diving board” obviousness is only with respect to the soldier’s ability to defend himself by claiming he did not know the law. As for the legality of the order itself and the soldier’s duty to obey it, there is no difference at all. So even now the hypothetical situation that prevailed before the legislation remains intact (as the Divine Presence spoke through my throat in the previous message).

My questions in brief are: 1. Do you now agree with the hypothetical analysis? 2. If so, does that not make my interpretation preferable even in the post-legislation situation? It is not necessary, but to my mind it is much more reasonable (assuming my hypothetical conclusion is correct).

I’m glad that first I corresponded with the Divine Presence, and now Your Honor (Her Honor) is already forgiving me. I feel I’ve moved up in the world.

You deny the possibility that the legislator would prefer the value of obedience to the commander over the value of obedience to the law itself. You do not believe that the “secular” Torah would require listening to one’s parents even when they instruct one to do something contrary to Torah. I think I understand you, but it seems to me that this is the root of the dispute.

Oops, I have to stop. I’ll rethink everything, also because my well-known wife (the upper Divine Presence) is shouting at me (she’s one floor below me) that I’m not coming down to organize the suitcase. We’re traveling for Sabbath to Modi’in…

And obedience to one’s wife overrides everything. Regards.

I didn’t understand why the discussion about Israeli law is important, but I’ll just note that the claim that subordinate legislation has a lower rank has implications that would complicate the matter. For example, the prohibition on driving over 90 kph is not direct legislation of the Knesset. The speed limit itself comes from the Traffic Regulations—that is, legislation by the Minister of Transportation (authorized under the Traffic Ordinance by the Knesset). If we are talking about a road sign, then the general determination of signs is by some person in the police who was apparently authorized for that in the regulations, meaning this is tertiary legislation. It may be that the placement of the specific sign is quaternary legislation. Does a direct order of a commander (secondary legislation) override a road sign?
It seems to me that what is special about the duty to obey a military commander is not that this is subordinate legislation but that it is ad hoc legislation. There is logic in thinking that ad hoc legislation overrides general legislation (I imagine one must obey a police officer even against traffic laws), but that is only when that is the purpose of the ad hoc nature. A police officer overrides traffic laws because he was given authority precisely to allow flexibility in cases where the general law gives no answer. By contrast, the military commander was empowered to legislate not because the law is problematic but because the military system is built on particularized commands.

That’s just a misunderstanding. Primary legislation overrides subordinate legislation because the subordinate draws from the primary and receives its validity from it. By contrast, in two parallel chains, there is no preference for secondary over tertiary—obviously.

Still, after what I explained, do you think there is no preference for the speed limit over a military commander’s order because both are subordinate legislation?
It seems to me not—that the speed law does have priority, and not because it is primary (because it isn’t), but because it is general.

Lex specialis is a last-resort rule that one applies only when there are two equal norms that conflict and there is no other way to decide (like a positive commandment versus a positive commandment, or a prohibition versus a prohibition). Therefore, for example, when there is a positive commandment versus a prohibition we do not say that; rather, the positive commandment overrides the prohibition.
When a commander gives an order to drive faster than permitted, the order is void by itself because it is against the law, to which he too is subject (unlike a police officer, who is not subject to the military commander’s order). Therefore in such a case there is no dilemma from the outset, and no reason to invoke lex specialis. Similar to the story about Rabbi Jonathan Eybeschütz, where the priest argued against him that Christians are the majority and we should follow them. He answered that when there is no doubt, one does not follow the majority.

Hello Rabbi,

I sent our “dispute” to my friend, and he sent me his position. The idea of comparing this to “you shall not deviate” in connection with normative “hierarchy” echoes for me the distinction between Torah-level and rabbinic-level law. In any event, I accept his last sentence in section 3 regarding the interpretation of the provision in the Military Justice Law (regarding a manifestly illegal order). Here is his position:

The man is indeed serious, but completely mistaken. I will formulate my remarks in a manner somewhat tending toward formal language:

1. A meta-legal starting assumption is that the law possesses consistency and completeness. That is to say: with respect to every person subject to the law, including a soldier, and with respect to every possible act or omission on his part, the law can determine whether the act is permitted or forbidden, and insofar as the act is permitted, it does not constitute a violation of any law. No person is ever in a situation where both doing an act and refraining from it are offenses.
2. With regard to a soldier, whichever way you look at it: either he is obligated to obey the commander’s orders under the Military Justice Law, and then he is exempt from other offenses (for example, assault) if he obeys them; or he is forbidden to obey the commander’s orders, and then he is not exempt from other provisions of the law if he obeys. The law never leaves soldiers in unresolved dilemmas; there is no “Woe is me from my Maker, and woe is me from my inclination.”
3. In order to satisfy this meta-legal condition, the Military Justice Law establishes the priority of the order (so long as it is not manifestly illegal) over other laws, and once it has so established, that determination qualifies the scope of application of the other laws. The correct analogy is not to the commandment of honoring father and mother, but to “you shall not deviate from the thing they tell you, right or left.” For if section 125 of the Military Justice Law had stated that if a commander tells you that right is left or left is right, etc., no one would claim that the conflict is between law and order and that the order is from a lower normative tier, because it would be clear that the section is meant to do exactly that: to qualify all the laws when a certain condition is met. So too here: the section should be read as determining that notwithstanding what is stated in other laws, one must carry out a commander’s order unless it is clear and obvious that it is illegal.

In my sins, until now I presumed to disagree with one jurist, and now I dare to disagree with two (the danger of the slippery slope).
Even according to my view there is no situation in which the soldier has two equivalent possibilities or zero possibilities. According to my view, he should always obey the law and not the order (because of the priority of law). But when he violated the law due to obedience to the order, he has a defense—and that is only if he did not know it was against the law. If he knew, he has no defense. And if the illegality is manifest, there is a presumption that he knew, and then no soldier has a defense (like a civilian who did not know the law, whose ignorance does not exempt him. The Military Justice Law section comes to qualify the principle that ignorance of the law is no excuse. In the case of a soldier who received an order, it does excuse him so long as the illegality is not manifest).
So according to my view too, the system is closed and does not leave a situation of two forbidden paths or two permitted paths, and everything is fine.

The comparison to those who say that right is left is not correct. The reason is twofold: first, there is a dispute on the matter. As is known, the view of the Jerusalem Talmud is only when they say that right is right. According to many opinions, and that is the plain sense of the Talmud in Horayot 2, it is forbidden to obey them when they say that right is left (the Talmud there says that the obedient person is “mistaken in the commandment to heed the words of the sages”). Second, the sages are authorized to interpret the Torah and even to add to it and suspend certain components within it (such as not blowing the shofar on Rosh Hashanah that falls on the Sabbath, and much more). Therefore, when they say something against the Torah, that itself is the Torah’s own instruction. By contrast, a commander is not authorized to interpret the law or add to it and qualify it; he merely received authority to command (within the framework of the law). Therefore when the commander says that right is left, one should not obey him.

Therefore, in my humble opinion, the man is indeed serious but completely mistaken. 🙂

As a first response, I’ll note that I suspected I was setting myself up for a serious smash…

And perhaps one more clarification. Since I am not a jurist and do not even know the wording of the section (I only saw in your piece that your friend interpreted it that way), my claim does not necessarily concern the correct interpretation of the section. What I am claiming is that this is how things ought to be. Even if this is not the correct interpretation of the law (I don’t know), this is how the law should have been, in my understanding.

Hi, the wording of the section is:

A soldier shall not bear criminal liability under sections 122, 123, and 124 if it is clear and obvious that the order given to him is illegal.

The wording appears in my article on p. 463 (my friend’s reservation is on p. 470).

For a jurist, of course, it is very important to distinguish between the law as it is and the law as it ought to be. It is true, however, that our dispute mixed the two. As is well known, interpretation often “bridges” between what is and what ought to be, and that is what my friend argued there—that his position is correct also by virtue of interpreting the existing law. In note 52 I recounted a bill that sought to establish that a soldier must carry out only lawful orders.

And on p. 469 I recounted an interesting case in which an officer carried out an illegal order and was convicted because it was determined that the order was manifestly illegal. On appeal he was acquitted because it was determined that the order was “ordinarily” illegal.

Last week, in this connection, I thought about the company commander who was dismissed after refusing to participate in an exercise after his soldiers had been given only 3 hours of sleep. I do not know all the facts, but if I were his defense lawyer, I would petition the High Court of Justice to overturn his dismissal on the legal argument that the order he received was manifestly illegal.

Hello.
In my layman’s opinion, the wording of the section can be interpreted as I said (one more proof-text against your friend). The comprehensive defense is only when the illegality is manifest. But there is also a defense in a case of ordinary illegality if the soldier did not know about the illegality.
As stated, the main dispute is about what ought to be, not what is. Still, the gentleman rightly noted that what ought to be is an interpretive consideration regarding what is (in Jewish law too, as Moshe Halbertal argued at length in his book Interpretive Revolutions, and much more could be said). And the Beit Yosef already taught us in Yoreh De’ah that it is preferable to strain the language rather than the logic, and that itself is his intent.

The cases you brought also fit my conception. The only practical difference between us will be when it is proven in court that the soldier or officer knew that the order was illegal (even though its illegality is not manifest). In my opinion he should be convicted in such a case, and in your/your friend’s view he should be acquitted. By the way, what about the commander who orders his driver to drive above 90 kph, and he knows that is illegal? Does the person giving the order also have a defense? That is really absurd in my humble opinion. Is he above the law? And if indeed the commander is not protected, then the order is thereby manifestly illegal. Of course, that brings us back to an old dispute between us (very closely related to this one): in my opinion “manifest” means clearly, whereas in your opinion “manifest” means blatantly (that is, that the order itself suffers from extreme unreasonableness or immorality). I explain that “manifest” refers to the degree of clarity of the illegality (the “illegal” is manifest), whereas in your view it refers to the degree of the illegality itself (it is “illegal” in a manifest way). I’ll note that at least linguistically, I think in this case you would admit I am right—except that here it is precisely you who brings in your assumption about what ought to be (that this should be applied only to extreme acts), and therefore you interpret it the way you do. In my view, what ought to be is as I say, since every illegality prevents the order from being lawful.

In any event, I’d be glad to hear what you think about the responsibility of the commander who gives an illegal but not manifestly illegal order. Do you agree with my position there? If so, why not draw from that the necessary conclusions regarding the subordinate’s defense?

As for Company Commander Meni Eitan, the case also caught my attention. I very much appreciated the man and his courage, but I’m not sure he was right on the merits. I’m now writing a post for my site about a certain aspect of the act (not the illegality). As for the illegality, his commanders’ claim was that within the framework of a night exercise, and especially a continuing exercise (day + night), there is no obligation to provide six hours of sleep. That is exactly what one trains for (that is also what will happen in war). Is that not correct? It is plain fact, in my experience and theirs and everyone’s, that we did night exercises with not the slightest insistence on six hours of sleep as supposedly required. By the way, the company commander himself also did not claim that the problem was conducting the exercise after three hours of sleep, but only driving home after the exercise at the end of service.
The case raises several questions related to parallel perspectives and split responsibility for an act, and that is what I am writing about in that post.

I’ll start with your last sentence: in my opinion you are really postmodern…

I agree that the only practical difference between us will be when the recipient of the order knows that the order is illegal. As for your question: the commander who gave an illegal order will have no defense. I quote from the article itself:

“It is important to remember that this distinction between two types of illegal order—a distinction that is sometimes not simple—has significance only with respect to the recipient of the order, but not with respect to the giver of the order. Obviously, the giver of the order must ensure that his orders are lawful, and he will not enjoy a defense if he deviated from the law in giving the orders; that is, there is no practical difference, from the standpoint of the giver’s own criminal liability, whether the instruction he gave is manifestly illegal or ‘merely’ illegal.”

At the same time, I do not agree with Your Honor’s next sentence: “And if indeed the one giving the order is not protected, then the order is therefore not manifestly illegal.” That is exactly the point of disagreement: it is דווקא the recipient of the order who is protected, and that is by virtue of the very fact of receiving the order. The giver of the order (who did not himself receive an order, that is, absent a chain of orders—which does happen quite a bit…) does not have this unique defense. The commander giving the order can be unprotected, while the order he gave may be manifestly illegal or “merely” illegal.

Regarding the difference between “clearly” and “blatantly”: I of course agree to the distinction itself. However, I did not write that I advocate specifically the interpretation of “blatantly.” I am undecided on this matter, and it is connected to several distinctions I wrote about in my article and footnotes, and too much to go into here (is a commander who orders a soldier to break all the chairs in the military classroom so they’ll replace them with new ones—“clearly” illegal, or also “blatantly” illegal? Is a commander who orders his driver to drive thousands of kilometers for no reason, so they’ll replace his car with a new one—but while observing all traffic laws—only “clearly” illegal, or also “blatantly” illegal? And all of these—real cases…)

As for the company commander, it is clear to me that the facts are what decide, and therefore I too emphasized that I do not know all the facts, and therefore I too am not sure he was right (which does not prevent me from liking him).

And I have written what seems correct in my humble opinion, and one should not rely on my understanding,

Why postmodern? (I’m really offended 🙂 ).
The version of the quote you brought from me seems strange. I didn’t check, but my intent was of course exactly the opposite (perhaps a “not” slipped out): if from the commander’s standpoint there is no defense—meaning he cannot order someone to drive above the permitted speed—then the soldier who receives the order easily understands that it is illegal, and therefore it turns out that it is manifestly illegal (according to my view: clearly illegal). So there is no reason to give him a defense if he obeyed it against the law.
My assumption is that the commander is not more knowledgeable in law (certainly civil law) than the soldier; he is only more militarily skilled (so I hope). Therefore if the commander understands that it is illegal, the soldier also understands this, and it becomes a case of “manifest.”

I had a feeling you’d be offended, but that you’d forgive me once you heard the prosaic reason: your last sentence was that you are now writing a post about the company commander matter.
The company commander matter is from just the last few days—that is, modern.
And the post is a post.
And together?
> Q.E.D.

Given the abundance of my sins, I’m too slow for such flashes of brilliance. 🙂