Two minor items to get out of the way:
1. The Likud event yesterday was the usual uninspiring stuff. The result -- primaries will not be moved up (earlier) -- was very disappointing. I am partly to blame -- I only voted once.
2. What's the deal with yihyu leratzon in shma koleinu of selichos? Does anybody actually say it? If not, why is it there? Is this just a trick to expose baalei teshuvah?

Now for the main point.

There is a rule cited a number of times in the gemara that kol kavua ke-mechtza al mechtza dami. The canonical example is that if there are ten butcher stores in town and someone bought meat in one of them but does not know in which of the ten, we do not follow the usual principle of following the majority but rather it is treated as "mechtza al mechtza" (roughly translated as "50-50" but this is not quite right). By contrast, if a piece of meat is found on the street in that town, we follow the rule of kol de-parish mi-ruba parish. That is, we follow the majority.

Most commentators, including RGN, explain that for one reason or another (either logical or psychological), cases of kavua are such that the set from which the object originates (e.g. the ten stores) is rendered irrelevant so there is no majority to follow and we're left with a 50-50 problem (safek hashakul) by default. I'm quite certain that this is wrong.

The proper explanation, I believe, is that cases of kavua are such that the object in question is so inextricably part of the set (e.g. of the ten stores) that in assigning it some status, we must first assign the set of stores a status, namely "mixed", and the object in question then inherits that mixed status. In the case of parish, however, where the object has been isolated from the set, the status "mixed" is inappropriate (it's a single object) and we must therefore assign it a definite staus. So we assign it the majority status.

My explanation is the opposite of the usual one. Kavua means that the object is in the set, not out of the set. It inherits the set's "mixed" status only where bitul could not be applied to the set; where bitul is applicable the set is not regarded as mixed. According to this explanation, "mechtza al mechtza" does not mean 50-50 (safek hashakul) but rather is a definite status, like that of a mixture of two objects, one kosher and one not kosher (hence, "mechtza al mechtza").

There are numerous proofs that kavua is not treated as safek hashakul, but I'll spare you.

A neighbor was kind enough to give me a book I've been meaning to get for a while: R. Yitzhak Sheilat's (RYS) edition of the shiurim of R. Gedalya Nadel (RGN) zt"l. It's good stuff. I still have to finish going through it and to think about it more carefully. Still a few comments are in order.

The book covers the sources of halakhah, touching on well-known problems concerning the terms halakhah le-moshe mi-sinai (HLMM) and divrei soferim (as used by Rambam). Another chapter deals with the concept of rov (majority) and its relationship with probability. The longest chapter deals with the question of truth and myth in sefer bereishis. In other words, the good stuff.

Each of these merits a lengthy discussion, but for now I just want to make a few quick observations. Before I do, I should point out that RYS is a cautious fellow and has not made the book commercially available (although, it can be found in some stores). He also declares that anybody who finds certain views expressed in the book too racy should simply reject them. In that spirit, I will try to be discreet and understated and not try to fan flames.

With regard to HLMM, the problem is that the status of HLMM is assigned to a number of laws that are clearly late and clearly derabanan. Moreover, as Rambam argues, a law that originates at Sinai permits no dispute. Yet many laws assigned status of HLMM are clearly subjects of dispute (as pointed out by Havos Yair at great length). RGN's solution is similar to that of the the Netziv in his introduction to haamek sheilah and to that of R. YB Soloveitchik in the essay Shnei Sugei Masores in Shiurim LeZekher Abba Mari. In other words, as far as his neighbors in Bnei Brak are concerned, RGN is in some very very bad company. Read it yourself.

The term divrei soferim generally means derabanan and the Rambam explicitly identifies the two terms in a letter to Rav Pinchas haDayan. Nevertheless, the Rambam applies the term to laws learned from derashos that are generally regarded as deoraisa. Moreover, the Rambam himself treats laws that he calls divrei soferim as deoraisa; for example, kidushei kesef -- which Rambam says is divrei soferim -- are sufficient to establish a status of eishes ish deoraisa. RGN takes the path of R. Yitzhak Isaac Halevi that the term divrei soferim refers to the origins of the law and not its status, which (in the usual yeshivish sense of the terms) might be derabanan or deoraisa. RGN doesn't expand on the importance of the establishing the origins of the law as divrei soferim, but there are in fact many important consequences. (Both R. NE Rabinovich and RYS himself have written on this point.)

On the topic of rov, RGN argues cogently that bitul and other related ideas are concerned with assigning a single status to a mixed set. But he argues that the principle of kol kavua ke-mechtzah al mechtza is an exception in which an individual object is treated separately from the set from which it originated. I'm quite sure that RGN is wrong on that point (be-mechilas kevodo, but he was the sort who appreciated independent thinking). But explaining why will take us a bit far afield, so I'll save it for another day.

And sefer bereishis is an altogether different story.

The Israel Policy Center has just posted what will likely be the definitive report on systematic violations of the civil rights' of opponents of the withdrawal from Azza. The authors did a bang-up job, reviewing all the relevant court protocols, seeking out and interviewing all alleged victims, tracking down all relevant media reports, etc. The report should scare the hell out of anybody who wishes Israel were a democracy. Here are a few excerpts:

Since the passage of the Law on Evacuation and Compensation (“The Disengagement Law”) by the Knesset in February 2005, the civil rights of opponents of disengagement have been subject to extensive violations. These include the suppression of legal dissent, widespread police brutality, false arrest and the harsh use of punitive detention to deter and intimidate...

Justices of the Supreme Court ... viewed the opinions of protesters, rather than anything they may have done, as a threat to state security justifying inflated criminal charges and pre-trial detention... Pre-trial detention was used for purposes not authorized by law: As a deterrent to others, to intimidate defendants and coerce them to compromise their legal rights and their defense, and to erode the legal guarantee of the right to remain silent. We have documented at least 97 cases of indictments filed against minors and 68 against adults in which pre-trial detention or other limitations on the liberty of defendants appeared to be unwarranted by law... Neither the law nor any other consideration justified holding seven minors, most not yet 15 years old, in prison for five weeks...

The GSS was also used to harass opponents of the Prime Minister engaged in legal protest...

The phenomena documented in this report did not occur in a vacuum, were not the acts of rogue cops, rogue prosecutors, or rogue judges, but were the consequence of the policy of Israel’s law-enforcement and judicial systems.

Read the full report here.

(This will be my last post on the withdrawal unless something happens.)

What will change quickly in the religious Zionist world is the dominance of the notion of mamlachtiut. Mam lach ti ut' (with the emphasis on the last syllable) is a Ben Gurion-Mapai quasi-fascist ideology which subordinates all other values to the good of the state (or, more precisely, the good of Mapai). It went hand in hand with the socialist ideas of the early Labor Zionists. Mam lach' ti ut (with the emphasis on the second syllable) is a Kooknik quasi-fascist ideology that assigns religious value to the state and all its institutions and activities. This ideology has effectively caused religious Zionism in Israel to implode.

A generation of children have been taught theological mumbo-jumbo attempting to rationalize all the state's deficiencies. Consequently, when the state spectacularly fails to live up to the messianic role assigned to it, the true believers react as if the sky has fallen in. Next stop, Satmar. Moreover, the Mafdal has essentially ceased functioning because every political matter is treated as an ideological one that requires consultation with Rav Shapira and Rav Eliyahu, both of whom invoke metaphysical considerations in resolving mundane matters. The result, as I can personally attest, is paralysis.

What we have needed to do for a long time, and will at long last get done, is the following:

1. Distinguish between the state and the secular oligarchy that runs it. In the early days of the state these two were indistinguishable. As a result religious Zionists who idolized the state took for granted the right -- indeed the divine right -- of the secular oligarchy to run it. The Mafdal's job was to deliver convocations, score a few lirot and bark not-too-loudly from the sidelines. Haredim, who also conflated the state with the oligarchy, hated the oligarchy and so hated the state as well. This stage is now over. We need to dislodge the oligarchy but at the same time keep the state in good working order.

2. Politics is the art of the possible. We need to steer entirely clear of theology in taking political positions. We need to have a clear idea of what we want and what we can actually get away with. Anybody who has a hot line to the riboino shel oilam via which they are informed of how the divine plan will play out right down here on earth should stay out of politics. There are many forums where theological speculation is admirable and virtuous. The political arena isn't one of them.

From now on, fewer people will prattle on about IDF uniforms being bigdei kehunah and the state being yesod kisei hashem ba-olam. But, nor will the state be an Evil Empire or a failed experiment to be resisted, manipulated or ignored. The state will simply be a vehicle for Jews to live a full political life in the best muddling way they can manage. Anybody with a modicum of historical awareness and political sophistication should appreciate that that alone is an awful lot to be grateful for.

And if this imbecilic expulsion of Jews from Aza taught us this lesson alone, dayeinu.

So what's going to be with religious Zionism now? Let's take a step back and ask some obvious questions that have been ignored.

I've mentioned in the past that I find the use of Nazi symbolism by opponents of the expulsion from Azza to be revolting. But what's it really all about (and why does something deep inside me empathize)? And for that matter, what about all those mean-spirited self-righteous articles arguing that the victims (truly salt-of-the-earth decent people, if ever there were any) had it coming?

To understand the sub-text here, you first have to appreciate that millions of Jews who find the thought of throwing hostile Arabs out of their villages morally repugnant, find the thought of throwing Jews out of their villages perfectly reasonable, even virtuous. All the sophistry that draws bogus distinctions can easily be dismissed. The real point is that Jews can tell anti-semitic jokes, blacks can tell racist jokes, etc. So, too, the unstated argument goes, Jews can expel Jews. It's all in the family. Members of the family can take liberties with each other.

The message in the yellow (orange) star, in the slogan "A Jew doesn't expel a Jew", and a host of other images that many found offensive was this: You people are not Jewish enough to be taking such liberties. You have other loyalties. We, not you, will bear the consequences of what you are doing. We view it as an act of hostility, not a liberty taken by brothers.

The "you have it coming" response was of the you-want-hostility-we'll give-you-hostility variety. And the settler-hugging-soldiers response was of the but-we're-brothers-after-all variety.

So are we brothers after all? Can we continue the struggle for a sort-of-Jewish state together? Honestly, no. Not the way it's been. Something very significant snapped and it will never be the same. In some ways, it might actually get better. (But it's almost Shabbos, so I'll explain why in my next post.)

Awright, awright, I know it's been a while since I promised an official report on civil rights violations in the withdrawal affair. The legal eagles are still dotting and crossing and all that stuff so bear with me.

The main damage has already been done: 10,000 people are out on the street. Now it's time for a realistic assessment of the consequences for Israel's security and its social cohesiveness, respectively.

The main elements of security (at least in Israel's case) are defensible borders, preparedness of the defense forces, deterrence and effective alliances. The second of these is closely tied in to the question of social cohesiveness, so I'll leave it for that discussion.

The definition of defensible borders is not clear cut: it involves topographic considerations (controlling the high ground) and demographic considerations (keeping hostile populations out), in addition to the obvious desiderata of maximizing controlled area for maneuverability while minimizing the length of vulnerable borders. It should be borne in mind that in determining optimal borders considerations other than defense are also relevant: the empty country is perfectly defensible but probably not what you're after.

The main claimed advantage of the reshaping of the borders to exclude Azza are the exclusion of approximately one million Arabs from areas nominally under Israeli control and the shortening of defense lines. The hallucinatory left (which now includes Ehud Olmert, who is making his case for Shinui voters since he knows he's dead in Likud) also believes that Israel's deterrence is enhanced as a result of the reduction in Arab hostility that the withdrawal will bring. In addition, the mere fact of Israel's having made concessions is claimed to have strengthened the quality of its alliances.

The reality is, unfortunately, somewhat different. It is true that defense lines have been shortened, mostly as a result of withdrawing civilians from Netzarim, Kfar Darom and Morag, which were inconveniently situated. Gush Katif could have been secured at little cost in terms of defense lines, if the refugee camp in Rafiach had been properly dealt with. The Arabs in Azza have not been under Israeli civilian control for ten years and they will remain under Israeli military control as soon as the IDF is forced to return there to control rocket fire.

With regard to deterrence, well, no country has ever improved its deterrence capability by withdrawing under fire and permitting unfettered importation of artillery into an area from which it is already being attacked. And as for diplomacy, by withdrawing right back to the '67 borders (including withdrawal from Elei Sinai which clearly results in less defensible borders), Israel is merely inviting pressure for its withdrawal to the '67 borders in Yehuda and Shomron as well. And this is the nub of the problem because those borders are certainly not defensible.

So what is to be done? First, to restore its deterrence, Israel must respond to artillery fire from Azza by -- let's not bother phrasing this too diplomatically -- bombing the shit out of them. We do now have the advantage of there being no Israelis there to suffer from the fallout. And artillery fire from another country -- which Azza now effectively is -- certainly constitutes causus belli. Second, to prevent the extension of the withdrawal principle to Yehuda and Shomron, those areas of Yehuda and Shomron that lie within whatever borders are deemed defensible must be physically secured and possibly annexed. (Annexation is just a paper event and is less important.) Third, the precedent of removing inconveniently situated communities in the context of political realignment of borders must be presented in a manner that is sufficiently broad to include eventual application to the Arab populations in those areas. (This last sentence has been REVISED in response to the cogent comments of kaspit and zalman.)

Two final comments:

In case, you're thinking that Sharon is in fact doing exactly what I'm claiming should be done, think again. There is a simple test: choose a parcel of land that everyone agrees is critical for Israel's security but has not yet been physically secured and that the rest of the world wishes to see Israel relinquish. Let's see if Sharon does what needs to be done or backs down to pressure. Well, there is such a parcel of land -- called E1 -- that connects Jerusalem to Maaleh Adumim and here is how Sharon is dealing with it. Neither Bush's phantom promise nor the supposed goodwill generated by the withdrawal have bought us the tiniest advantage in this respect.

Finally, if you supported the withdrawal from Azza but find my third point above (about expelling Arabs) morally repulsive (as opposed to just difficult), you might be part of the problem. I hope to post on this next as part of a discussion of the effects of withdrawal on Israeli society.