On the afternoon of Tuesday, November 3, 2015, Moshe Halbertal (b. 1958) stood at a lectern in Mondale Hall at the University of Minnesota Law School and waited. About a hundred students and faculty had come for the annual John Dewey Lecture in the Philosophy of Law. A law professor named Oren Gross had introduced him. The announced title was “Protecting Civilians: Moral Challenges of Asymmetric Warfare.”
The protesters rose one at a time. Each shouted, and each was walked out by university police. One woman came back through the door screaming after she had been removed. Outside the hall the chanting continued loudly enough that people inside had trouble hearing. Three people, none of them students, were arrested for trespassing. Roughly forty minutes passed before Halbertal could begin. Among the things shouted at him was “baby killer.”
Dale Carpenter, a constitutional law scholar sitting in the audience, later described Halbertal in a Washington Post blog post as “a well-known, widely respected expert on ethics and the law of war.” Meredith Aby-Keirstead of the Anti-War Committee told the campus paper she could not stand by and “watch the university hire a war crimes apologist.” Rula Rashid, a finance major who led the campus chapter of Students for Justice in Palestine, said protest was the point of a university.
The lecture Halbertal had come to give argued that soldiers fighting irregular forces in populated areas should accept added danger to themselves to reduce the killing of civilians on the other side. He has put the claim plainly in print: precautions must include the expectation that “soldiers assume some risk to their own lives.” It is a position that has made him unpopular with parts of the Israeli defense establishment for twenty years.
Two nights earlier he had spoken at Beth El Synagogue in St. Louis Park under the auspices of the university’s Center for Jewish Studies. A member of the audience there pressed him on the occupation, and said that a talk about how soldiers should shoot avoided the question of why they were there. Halbertal answered that he hoped the occupation would end and that its end will still leave Israel needing a strong army, because the conflict is not reducible to the occupation. He introduced the point by warning that he was about to say “something not pleasant to liberal ears.”
Both rooms took him for a representative of something. In the synagogue he was the moral face of the Israeli army. In the law school he was its alibi. He has spent a career arguing that institutions are neither.
He was born in Montevideo in 1958. His father had come from Łańcut, a town in Galicia, and survived the war by getting east into the Soviet Union. His mother was an Israeli who had traveled to Uruguay to teach Hebrew. They married there. Two sons were born, Dov (b. 1956) and Moshe, and the family moved to Jerusalem when Moshe was a boy.
The house held three languages and three worlds. Hebrew pointed toward Israel and toward the study of texts. Yiddish pointed back toward a Poland that no longer existed. Spanish belonged to the street where he had learned to talk. Jerusalem then supplied the politics.
He was raised modern Orthodox and educated in the texts as commands before he ever met them as objects of study. That order of acquaintance shows in everything he has written. He knows what it feels like to be inside a legal tradition and to owe it obedience. Years later, asked what separates the modern Orthodox from the haredi position, he gave an answer that reads like a summary of his research program: that tradition “doesn’t monopolize all of value, all of truth.”
His brother went the other way. Dov Halbertal became a haredi rabbi and an attorney, ran the office of the Chief Rabbi of Israel, and turned into one of the sharpest internal critics of his own community, arguing for the separation of religion and state and against the subsidy of full-time yeshiva study. The two brothers make an unusual pair in Israeli public argument. They agree that the Jewish people has a survival problem. They disagree about nearly everything that follows.
He took his B.A. in Jewish thought and philosophy at the Hebrew University of Jerusalem in 1984, cum laude, and his doctorate there in 1989. His committee joined two kinds of authority. Menachem Elon (1923-2013) was a Supreme Court justice and the great modern systematizer of Jewish law as a legal system. Avishai Margalit (b. 1939) was an analytic philosopher of language and politics who would become Halbertal’s collaborator. The dissertation was titled “Values as Interpretive Criteria in Jewish Law.”
The title contains the career. A judge does not first extract a neutral meaning from a text and then decide whether morality should soften it. Moral commitments do their work earlier, inside the reading. They determine which analogy looks apt, which contradiction demands resolution, which possible sense of a verse never comes up for consideration at all.
He published the argument as Interpretive Revolutions in the Making, a study of cases where the rabbis of the midrash halakhah did not clarify biblical law so much as replace it while continuing to call the result an interpretation. The standard illustration is the reading of an eye for an eye as monetary compensation. Halbertal’s question is not whether the rabbis departed from the literal sense. They did. His question is how a legal culture performs surgery on its own foundation and leaves no scar.
His answer is that a revolution succeeds when it stops looking like one. The next generation receives the new law as though it had always been latent in the verse. The deepest changes in a tradition are the ones best disguised as continuity. This account rejects the pious story, in which interpreters add nothing, and the debunking story, in which interpretation is a polite name for judicial legislation. What he describes is disciplined invention under real constraint.
From 1988 to 1991 he held a fellowship in the Harvard Society of Fellows, one of the few appointments in American academic life that pays a young scholar to do nothing but think. He stayed on in 1991 and 1992 as a fellow in Harvard’s Program in Ethics and the Professions and taught in the Social Studies program. Then Jerusalem again, as a lecturer, senior lecturer in 1996, full professor in 1999. He joined the Shalom Hartman Institute as a fellow in 1992 and has been there since. In 2002 New York University Law School made him Gruss Professor, and he began the two-continent life he still leads, with an office in Vanderbilt Hall and a teaching load in Jerusalem. He has taught at Harvard Law School, Penn, Yale, and Reichman University, and in the Mandel leadership programs. He was elected to the Israel Academy of Sciences and Humanities in 2010 and to the American Philosophical Society in 2021. In the spring of 2026 he returned to Harvard as a visiting professor in Jewish studies and in Talmudic civil law, teaching confession, self-incrimination, and repentance.
The books came steadily, in two languages, and they divide by subject while repeating one problem.
People of the Book: Canon, Meaning, and Authority asks what a community does when it organizes itself around a sacred text. Owning a canon settles very little. Someone still has to decide what belongs in it, what kind of force each part carries, who may expound it, and how later writing stands to earlier revelation. Halbertal separates the normative canon, which tells members what to do, from the formative canon, which supplies the stories and vocabulary through which they know who they are. The Hebrew Bible sits at the formative center of Judaism while daily practice runs through Mishnah, Talmud, codes, and responsa. Canonization does not end interpretive conflict. It raises the stakes, because once a text becomes sacred, whoever controls its meaning acquires authority without having to claim authorship.
Between Torah and Wisdom took up Menachem ha-Meiri (1249-1315) and the Maimonidean jurists of Provence, men who tried to hold philosophical culture and rabbinic law together without letting either dissolve the other. The Meiri became important to later Jewish argument about non-Jews because he built categories that removed contemporary Christians and Muslims from the ancient rabbinic law of idolaters. Halbertal shows how a judgment about what a society is, morally and institutionally, changes the law that applies to it while the old rule sits untouched on the page. The book won the Goldstein-Goren prize for the best book in Jewish thought published between 1997 and 2000.
Idolatry, written with Margalit and published by Harvard in 1992, asks why idol worship became the thing monotheism defined itself against. They pull apart several senses of the offense. It can be an error about what exists. It can be a forbidden practice performed by someone whose theology is sophisticated. It can be betrayal, which is why the prophets describe it with the language of adultery. It can be a corrupted relation between an image and what the image stands for. The tradition permitted some representations and forbade others, so the target is a kind of relation rather than depiction as such.
The book then turns the analysis on politics. People hand finite things, a nation, a leader, a movement, a piece of ground, the kind of devotion that only an absolute could bear. A political program becomes idolatrous when it demands what belongs to God while remaining a human artifact. Halbertal is careful here. The claim is not that ideologies are secretly religions. The claim concerns misdirected allegiance: an error about what any finite object may legitimately ask of a person. Twenty years of his political writing follow from that page.
Maimonides: Life and Thought is the book that made his name outside Jewish studies, and it won the National Jewish Book Award for scholarship in 2013. Earlier scholarship tended to split Moses Maimonides (1138-1204) into two men, the philosopher of the Guide of the Perplexed and the jurist of the Mishneh Torah, and then to rank them. Halbertal refuses the split. Both projects serve one ambition.
Maimonides did not simply reconcile Aristotle with the rabbis. He tried to rebuild the religious imagination. Anthropomorphic talk about God was, to him, no harmless concession to simple people. It aimed worship at a magnified man. Negative theology, the discipline of restricting what may be said of God, was therefore practical rather than technical, a repair to the object of prayer.
The legal work carried the same intention by other means. The Mishneh Torah took the argumentative ocean of the Talmud and reorganized it into a comprehensive code, in clear Hebrew, with the debates stripped out and the ruling stated. Halbertal reads this as an audacious intervention in the culture of learning. The Talmud preserved law through argument. Maimonides proposed to preserve it through architecture. The code opened the law to readers who could never master the sources, and it freed the strongest minds from a lifetime of dialectic so they could turn to metaphysics and science.
It also threatened the men whose standing rested on knowing where everything was. Talmudic mastery is a form of capital. A code that supplies the answer devalues the guide. The ferocity of the resistance to the Mishneh Torah becomes intelligible on those terms, and Halbertal grants that the resistance won. Jewish law remained a culture of commentary and dispute. Maimonides failed to convert the tradition and succeeded in installing inside it a permanent rival voice.
Concealment and Revelation studies the philosophers, kabbalists, and astrologers who each claimed to hold the secrets of the Torah. They disagreed about the content and converged on the problem. A secret never expressed cannot be transmitted; a secret written clearly stops being one. The teacher must show enough to prove there is something to know and withhold enough to keep the boundary. Halbertal sorts the reasons for concealment. The truth may be dangerous to the unready. It may resist statement. It may require a discipline of life before it can be grasped. And it may confer standing, since a man who claims hidden knowledge cannot be checked. Open teaching can be tested against a text anyone may consult. A secret tradition can always say that the evidence lies elsewhere. Invention then arrives dressed as antiquity.
Nahmanides: Law and Mysticism, expanded from his Hebrew By Way of Truth and translated with Daniel Tabak, presents Moses Nahmanides (1194-1270) as the architect of a full alternative to the Maimonidean project. Where Maimonides pursues purification and knowledge of a transcendent God, Nahmanides fills the world with presence, miracle, sacred geography, and commandments whose performance reaches into the structure of things. Halbertal declines to split him into a cautious Talmudist and a hidden mystic. The two are one enterprise: kabbalah explains why the commandments carry weight, and halakhah gives the mystical claims a body. Nahmanides also had to solve the problem of founding a secret tradition in public, and he solved it by burying the teaching in commentary and allusion, which taught later generations a method as well as a doctrine.
The Birth of Doubt follows the rabbinic category of safek, recognized uncertainty, as it grows from scattered biblical situations into a systematic field. The rabbis worked in a world where prophecy, ordeal, and oracular disclosure had receded, and judges had to decide without them. Presumptions and appeals to the majority let the law act without pretending to know. Different domains handle doubt differently because they fear different errors: what serves for a question of possession will not serve for the validity of a marriage. Every presumption assigns the cost of a possible mistake, and every burden of proof names the error a system would rather commit.
On Sacrifice begins with a distinction between sacrificing to and sacrificing for. Ancient religion offers to a power. Modern moral and political speech gives for a country, a family, a cause. He connects the two through the vulnerability of the gift. An offering can be refused, and refusal humiliates. He reads Cain and Abel as violence that begins in a rejected offering and travels sideways into the brother whose gift was accepted. Sacrifice looks like the opposite of self-interest and can contain an enormous claim: the giver who has paid may conclude that others now owe him. In national life the claim becomes political currency, because the dead leave no instructions and factions speak in their name. Halbertal is not writing against sacrifice. Societies cannot run without people who accept costs for strangers. He is writing against the conversion of sacrifice into title.
The Beginning of Politics, written with the political theorist Stephen Holmes (b. 1948), reads the Book of Samuel as a study of power by an author who understood courts, armies, and public opinion. Kingship arrives without becoming divine. Saul’s authority stays fragile, and fragility turns ordinary conduct into suspected treason. David is the better politician: he attracts love, manages appearances, and repeatedly benefits from killings he did not visibly order. The text leaves his innocence undecided, and the ambiguity is part of his power. Halbertal and Holmes attend to optics throughout, to mourning performed in public and marriages contracted for alliance, because a ruler’s household belongs to the state.
The collaborations are worth noticing as method. Margalit brought analytic philosophy and the critique of ideology; Holmes brought constitutional theory and the history of the state. In each case Halbertal supplies the primary sources and refuses to let them serve as illustrations of somebody else’s theory. The texts generate the concepts, and the concepts then travel.
His politics began in a fight inside religious Zionism. After 1967 the movement associated with Abraham Isaac Kook (1865-1935) and, more consequentially, with the students of his son Zvi Yehuda Kook (1891-1982) read Israeli control of the West Bank as a stage in redemption. Gush Emunim formed in 1974 and made settlement a religious commandment rather than a security policy. Within a decade, to wear a knitted kippah was to be assumed a hawk.
The counter-movement came out of the Lebanon war. After Sabra and Shatila, a spontaneous Jerusalem demonstration drew religious Jews who had never joined the older, professorial group Oz veShalom, and organizers concluded that a new body could reach people who found the existing one elitist. Netivot Shalom held its founding meeting in 1982 in a hall filled to capacity, addressed by Yehuda Amital (1924-2010) and Aharon Lichtenstein (1933-2015), the heads of Yeshivat Har Etzion. Halbertal was among the founders and later served as chairman.
The movement’s problem was legitimacy rather than argument. A secular peace camp could appeal to liberalism, international law, or prudence. Religious opponents of settlement had to show that Gush Emunim held no monopoly on Torah. So Netivot Shalom fought what its own members called a war of verses. It cited Ovadia Yosef‘s ruling that saving life permits returning territory. It read Abraham dividing the land with Lot as a precedent for compromise. It pressed Nahmanides against Rashi on the opening verse of Genesis, to argue that possession of the land is conditional on conduct. Halbertal supplied one of the movement’s recurring formulations, that Israelis were commanded to see the Jewish eyes of the Palestinians, the descendants of slaves recognizing strangers. He also liked to quote the rabbinic observation that a sin repeated twice comes to feel permitted.
Gerald Cromer (1944-2008), the Bar-Ilan criminologist who studied the movement, reached a hard verdict. Netivot Shalom never achieved cultural resonance. It reached its own members and a secular audience that already agreed, and it left the hegemony of the settlement camp intact. Its leaders blamed the deafness of their opponents, which Cromer noted is what a losing movement usually says.
Halbertal’s own argument was never that Jewish law compels withdrawal. Assessments of risk are contested, and halakhah does not draw borders. His claim was narrower and harder to dislodge: land is a value that cannot silence every other value, and any account that removes territory from moral calculation by declaring it holy has produced the thing he and Margalit had written a book about.
In Jerusalem he married Tova Hartman (b. 1957), a psychologist and scholar of gender and education, and the daughter of David Hartman (1931-2013), the American-born rabbi and philosopher who founded the institute where Halbertal has spent thirty years as a fellow. They had three daughters, Naomi, Rachel, and Shira. The marriage later ended.
In 2002 a group of residents of the German Colony, Tova Hartman among the organizers, founded Kehillat Shira Hadasha on Emek Refaim Street. It was the first congregation to put into practice the halakhic arguments of Mendel Shapiro and Daniel Sperber permitting women to read Torah before mixed congregations. The partition stayed. The bimah moved to the center. Women led the parts of the service that are not technically prayer and were called to most of the aliyot. The prayers requiring a quorum waited for ten women as well as ten men. Some accounts place Halbertal among the founding circle. Rabbis across modern Orthodoxy attacked the model, and it spread anyway, to Israel, North America, Europe, and Australia.
What happened on Emek Refaim is the thing his dissertation describes. Minority opinions were retrieved, a value was allowed to operate inside the reading, and a practice changed while its practitioners insisted, credibly to themselves and incredibly to their critics, that they had changed nothing.
The military work began around 2000. Asa Kasher (b. 1940) had drafted a code for the Israel Defense Forces in the 1990s, and the army found it unwieldy. A committee was appointed under the chief education officer to rewrite it. Halbertal has written that he was asked to join a group of philosophers, lawyers, and generals. The others included Avi Sagi, Daniel Statman, Avshalom Adam, Saul Smilansky, and Noam Zohar. The revised document, The Spirit of the IDF, went to the General Staff, and it is the version printed for recruits. Calling Halbertal a co-author of the army’s code, as reference works routinely do, compresses a committee into a byline and obscures a dispute.
The dispute broke open in 2005, when Kasher and Amos Yadlin, then head of the National Defense College and later of military intelligence, published a doctrine for what they called the new warfare. Their priority ranking placed a state’s own soldiers above enemy noncombatants who are not under that state’s effective control. For Gaza the implication was direct. Muhammad Ali Khalidi, among others, wrote that this reversed centuries of thinking about the rules of war.
Halbertal argued against them, and the argument survives as his most original contribution outside Jewish studies. He distinguishes two risks a soldier carries. Associational risk comes from the soldier’s role as the defender of his own political community, and it explains why his obligations to his own citizens run deeper. Agency risk comes from the fact that his operations may kill innocent people, and it does not track nationality, because the right to life of the civilians in the building does not depend on which flag they live under. From this he concludes that soldiers may be required to accept some calculated additional danger to verify a target or reduce foreseeable harm, and that a doctrine of total force protection produces a permissive culture of fire, because every hesitation can be described as a risk to the men.
He sets limits on his own claim. He does not ask soldiers to die for enemy civilians. He says no formula fixes the acceptable increment, which depends on the target, the alternatives, the intelligence, and the likely reduction in harm. He has also argued that requiring more care pushes armies to develop better weapons, better intelligence, and better training, so that the total risk falls.
The position isolates him twice over. Against Israel’s harshest critics he insists that an army may strike military targets even when the enemy fights from among civilians, and that an organization which fights out of uniform and from populated ground bears responsibility for the consequences of that choice. Against the defense establishment he insists that the enemy’s misconduct does not cancel the standing of the people who live there.
In November 2009 he published “The Goldstone Illusion” in The New Republic, a long reading of the United Nations fact-finding report on the Gaza war led by Richard Goldstone (b. 1938). He conceded at the outset that he had read the document, which distinguished him from most of the people praising and attacking it. His central complaint was that the report obscured the deliberate strategy of erasing, in his words, “the front and the uniform,” and then treated the resulting confusion as though it were Israel’s invention. He also faulted the commission for adding assessments of Israel’s war aims and long sections on the West Bank to a mandate about Gaza, and said the report might have done real good by gathering and testing testimony from Gaza and acknowledging that such testimony is partial. His colleague at the Hebrew University, David Shulman, replied that some of the report’s gaps followed from Israel’s refusal to cooperate with it.
The essay was widely cited by people who had no interest in the rest of his views. That is a recurring cost of his position. He has never made peace with the slogan about the most moral army in the world; at a 2016 panel in New York he said he finds it “empty as a moral political gesture” and that it closes the listener’s ear. The remark did not save him from the reporter for The Electronic Intifada, who described the evening’s wine and pita chips and concluded that he and Kasher were selling the same product in different packaging.
That criticism deserves a fair statement, because it is not frivolous and Halbertal’s own work supplies its premises. An ethics code can function as institutional legitimation. It gives an army a vocabulary of restraint that survives the destruction of neighborhoods, and it converts contested strategic choices into questions of individual conduct at the tactical edge. The Institute for Palestine Studies and the Israeli group Breaking the Silence have both argued that field orders in Gaza tracked the Kasher priority rather than the one Halbertal defends. If a rule is treated as proof of virtue rather than as a standard conduct can fail, it has stopped being a rule. Halbertal has said as much about religious institutions for thirty years. Whether he has said it loudly enough about the one he helped write for is a question his critics are entitled to press.
The domestic version of his politics has drawn a different objection. He argues that Israel can be a Jewish state and a liberal democracy, that the argument worth having concerns what kind of Jewish state, and that cultural neutrality is not required of a democracy. He and Margalit had defended a right to culture, not to culture in general but to one’s own, and they held that a state may reasonably decline neutrality toward a majority culture only on the assumption that the majority can look after itself. Halbertal applies this to Hebrew, the calendar, the school curriculum, the Law of Return, and public symbols, and compares Israel to Denmark or the Czech Republic. He sets two tests. Does the national character of the state damage the political, economic, or cultural rights of minorities? Does the state recognize the right of another national group living under it to self-determination? He supports civil marriage. He warns the ultra-Orthodox against using the coercive machinery of the state to adjudicate who is a Jew.
Omri Boehm (b. 1979), an Israeli philosopher at the New School, published the sharpest reply in Boston Review in 2014. Boehm grants that cultural neutrality is not necessary for liberal democracy and argues that ethnic neutrality is. Membership in the Jewish people runs through descent, which is why a Jew can be Danish and a Muslim cannot be Jewish. The comparison with European states therefore fails at the point where it has to hold. He presses the education system hardest: French and German public schools are French and German, and Jewish parents in Paris pay for Jewish schooling privately, as Christian parents pay for Christian schooling. An Israeli public system that is Jewish is not analogous, because a non-Jewish family cannot enroll in it. His conclusion is compressed into one line: giving up one’s Judaism in a Jewish state means giving up one’s equality as a citizen.
Boehm also notes, in passing, that Moshe Halbertal’s brother had published a column expressing alarm that a member of Knesset saw nothing wrong with marrying a gentile, and that the Knesset does in fact legislate to prevent intermarriage. He is careful to say that Moshe Halbertal rejects Dov Halbertal’s politics and bears no responsibility for his brother’s opinions. The example does its work anyway. It asks whether the majority’s right to its own culture, once institutionalized, can be kept from hardening into a right to ethnic separation.
Halbertal’s answer, in substance, is that no political community escapes interpretation, and that claims to read a program off the land, the majority, or halakhah conceal the interpretive choices that produced the program. Critics on his right make the mirror complaint: that his Judaism is whatever liberalism will license, and that the boundaries are always drawn from outside.
In January 2023 the new Israeli government presented a plan to change the selection of judges, curtail review of legislation, and abolish the reasonableness standard. Protests ran weekly for most of the year. Halbertal became a visible opponent, and his argument had two parts.
The first was about Judaism. A movement that identifies its own compound of nationalism, territory, and rabbinic authority with the tradition converts a plural inheritance into property. His scholarship is a long demonstration that Jewish tradition never existed as one settled political doctrine. It contains schools that lost, arguments left open, and revolutions that presented themselves as continuity. A government claiming exclusive title suppresses the plurality that kept the tradition alive.
The second was institutional. Israel has no single entrenched constitution and few structural checks on a governing coalition that controls the legislature. In such a system courts carry more of the load, and removing that load leaves very little.
He put the general theory in print in February 2026, in a symposium essay in the California Law Review responding to David Strauss. He distinguishes two conceptions of judicial review. The narrow one descends from the Carolene Products footnote and from John Hart Ely (1938-2003): courts intervene where the political process misfires, above all where discrete and insular minorities cannot protect themselves. Halbertal’s objection is that this turns constitutional protection into a competition for the status of victim, which powerful groups are well placed to win.
The broader conception asks a different question first. It asks whether the state has entered a domain that politics has no business governing at all. Belief, expression, intimate life, communal practice, and conscience mark boundaries that a majority may not cross, whatever its size and however fairly it was assembled. Alongside this, he argues that judicial review protects equal citizenship inside the domains where the state does belong, because majority rule draws its authority from the equal standing of those it rules. A majority that legislates against a minority’s standing attacks the ground of its own claim to obedience. He notes his debt to Ronald Dworkin (1931-2013) and marks where he departs.
He does not defend courts as wise. He defends a limit on another power, and he grants that the limiting institution can insulate itself and rule badly.
Then October 7, 2023.
On Friday, February 16, 2024, three philosophers appeared together on a Zoom screen for the fourth session of the Weatherhead Center‘s series on the war. Michael Sandel (b. 1953) moderated. Halbertal joined from one square. Sari Nusseibeh (b. 1949), the former president of Al-Quds University and once the Palestinian Authority‘s representative in Jerusalem, joined from another. Sandel described the two as old friends from Jerusalem. The audience heard that they had seen a good deal of each other during the Oslo years, and Nusseibeh recalled an evening at Halbertal’s home.
Both men opened by describing a personal crisis. Halbertal spoke of the fragility Israelis felt after the attack, and of watching people he had taken for partners move toward denying that his country should exist. He said that in bad moments he returns to a conviction he cannot abandon, that there is no solution other than two states, and that Jewish self-determination will be justified only if Palestinians have their own. Nusseibeh said he had believed there was enough sanity on both sides to keep negotiating, and that four months had thrown him out of that frame of mind.
Halbertal mentioned a student of his who had been murdered along with the student’s son. Nusseibeh referred, without detail, to something terrible involving cousins on his mother’s side, and said that raising it made him think in ways he could not defend.
Nusseibeh condemned the attack of October 7 as senseless brutality. He endorsed two states as the most practical of the available proposals, said the effort had failed, and said it should be tried again. Both men opposed the occupation. Halbertal, whose father had come out of Galicia and whose family had reached Jerusalem by way of Montevideo, said the occupation rests on force, that it is wrong, and that he hoped it could be ended peacefully.
Then Sandel asked whether Israel’s war in Gaza was a just war, and the friendship stopped covering the distance.
Halbertal answered that October 7 was not an act of resistance to occupation, and that Hamas had worked since the 1990s against any negotiated settlement. He said Israel is obliged to protect its citizens from a repetition, and that “the only justification of war, if there is any, is defense.” He then made the separation he has made for twenty years, between the justice of going to war and justice in its conduct, and said the second question is a different question.
Sandel pressed him for his answer to the second one. Halbertal said the campaign was an attempt to harm Hamas rather than an intentional and indiscriminate attack on civilians, which he called the worst thing a country can do. He said the cost to the people of Gaza was enormous and painful, that the question is how to end the war in a way that relieves civilians while the legitimate aims are met, and how life is to be rebuilt afterward. He said Israel’s conduct will be judged in part by what it does after the fighting stops.
Nusseibeh said he was suspicious of the whole vocabulary. Palestinians see the occupation as inseparable from Israel in the same way Israelis see the deaths in Gaza as inseparable from Hamas. One side’s self-defense cannot be justified at the expense of the other’s. He said the language leads people away from what has to be done, and that what is needed is to sit together and face each other.
The session ended there, with the disagreement stated and unresolved, which is the honest outcome and not a consoling one.
Halbertal has been criticized from every direction available. Historians question whether categories built by philosophical analysis fit texts produced across centuries by different communities with different interests. Social historians note that in his reconstructions the ideas usually arrive first and the institutional pressures arrive afterward, which may reverse the order of events. Critics of liberal Zionism argue that his two tests are necessary and insufficient, and that formal equality does nothing about the distribution of land, immigration rights, and security. Critics on the religious right argue that he has let liberalism set the perimeter and then found a Judaism that fits inside it. Critics of military ethics argue that an ethics starting from what the rifleman may do accepts the political arrangement that put him on the street.
None of these objections has produced a Halbertal school, and he has not tried to found one. What he has is a method, repeated across subjects with unusual consistency. He rebuilds an institution in its strongest form, names the human good it protects, and then shows what goes wrong when that good is made absolute. Canon preserves memory and creates a fight over who may speak for it. Secrecy protects difficult knowledge and shelters invented authority from testing. Sacrifice expresses love and mints a claim on other people. National identity makes solidarity possible and can turn into exclusion. Force protection discharges a state’s duty to its own and can push every danger onto foreigners. Democracy empowers citizens and can coerce them.
The pattern rules out apologetics, which drops the danger, and denunciation, which drops the good. It also explains why he is a poor recruit for anybody’s campaign. He can be quoted against the Goldstone report and against the doctrine that ranks Israeli soldiers above Palestinian civilians. He can be quoted for the legitimacy of a Jewish nation-state and for the Palestinian right to one. He was shouted down in Minneapolis by people who called him a war criminal and criticized in Jerusalem by people who think he asks soldiers to die for the enemy.
In the spring of 2026 he was in Cambridge, teaching self-incrimination and repentance, which are questions about what a man is required to say against his own interest and what happens to him afterward. He has been circling a single problem since the dissertation. Revelation reaches people through interpreters. Justice reaches them through courts. Security reaches them through armies. A tradition reaches them through a canon and the men who control it. None of these intermediaries can be removed, and each of them, given the chance, will claim to be the thing it stands for.
Notes
NYU Law faculty CV (birth in Montevideo 1958; B.A. cum laude 1984; PhD 1989; Harvard Society of Fellows 1988-1991; Harvard Ethics and the Professions 1991-92; Social Studies lecturer 1991-92; Hebrew University lecturer 1992-95, senior lecturer 1996-99, full professor 1999; Hartman fellow from 1992) and the mirrored PDF
NYU overview and publications (Gruss chair appointed 2002; visiting posts at Harvard, Penn, Yale; Bruno Award; Goldstein-Goren; Israel Academy 2010)
Wikipedia (father a Holocaust survivor from Łańcut; mother an Israeli who came to Uruguay to teach Hebrew; married to Tova Hartman, three daughters Naomi, Rachel, Shira; American Philosophical Society 2021; the “doesn’t monopolize all of value, all of truth” line and the state-funding-of-religion position, both sourced to an Australian Jewish News interview)
Harvard Law School and Harvard Program in Jewish and Israeli Law, spring 2026 visiting chairs
Hebrew University academia.edu page, for the recent article list including “Mishnah and Halakhah,” “Two Concepts of God” (Liberties, 2023), the Temple Mount essay, and “Medieval Judaism and the Roots of the Welfare State” (Sapir)
Brother
Dov Halbertal (b. June 8, 1956, Uruguay), sibling link
Daniel Gordis on Dov Halbertal as a haredi rabbi, attorney, former head of the Chief Rabbi’s office, and internal dissenter on separation of religion and state and on subsidies
Marriage, Hartman Institute, Shira Hadasha
Tova Hartman (b. 1957), daughter of David Hartman, married to Halbertal, founder of Shira Hadasha
Shira Hadasha, founded 2002, 12 Emek Refaim, German Colony; first congregation to implement the Shapiro and Sperber opinions
Mechanics of the partnership minyan (partition moved, bimah in the center, ten women and ten men, which aliyot)
Tova Hartman interview on founding it and on her father
Gerald Cromer (1944-2008), “The War of the Torah,” Jewish Political Studies Review 13:3-4 (Fall 2001). This is the source for the 1982 founding meeting, the packed hall, Amital and Lichtenstein addressing it, the Sabra and Shatila demonstration as the trigger, the Ovadia Yosef ruling, the Abraham and Lot precedent, the Rashi-versus-Nahmanides fight over Genesis 1:1, the “war of verses,” and the judgment that the movement failed to achieve cultural resonance
Cromer’s note 28 attributes “to see the Jewish eyes of the Palestinians” to an interview with Halbertal, “one of the founders and a past chairman of Netivot Shalom,” and points to Ha’aretz, April 4, 1995, p. B4, for the experience that convinced him of territorial compromise. That Ha’aretz piece would be the single best unpublished-in-English item for you to chase; it apparently contains a formative episode I could not reconstruct.
Cromer’s note 51 attributes the rabbinic line about a sin repeated becoming permitted (Yoma 86b) to Halbertal.
Background on Oz veShalom and Netivot Shalom
The IDF code and the risk dispute
Forward, “In Wartime, Who Comes First — Soldiers or Civilians?“ for the 1994 Kasher version, the rewrite committee, the 2000 adoption of The Spirit of the IDF, and the changed Purity of Arms language
Halbertal’s own account of being asked in 2000 to join philosophers, lawyers, and generals: opening section of “The Goldstone Illusion”
Kasher and Yadlin’s 2005 priority ranking and Muhammad Ali Khalidi’s response
The National‘s summary of the Halbertal position against Kasher-Yadlin, with the “soldiers assume some risk to their own lives” formulation
Institute for Palestine Studies on the code as legitimation, and on Breaking the Silence and PCATI evidence about field orders
Electronic Intifada account of the 2016 JCC panel, including the “empty as a moral political gesture” remark and the description of the room
Goldstone
Halbertal, “The Goldstone Illusion,” The New Republic, November 6, 2009 (note the date discrepancy: TNR‘s web page says November 6, the print issue is dated November 18, and Grokipedia says November 5) Peter Berkowitz quoting the “front and the uniform” phrase
David Shulman’s reply, “Israel Without Illusions: What the Goldstone Report Got Right,” discussed at [https://www.jeremiahhaber.com/2009/11/](https://www.jeremiahhaber.com/2009/11/)
Minneapolis, November 3, 2015
Star Tribune news story (Mondale Hall, roughly 100 attendees, 30-plus minute delay, three nonstudent arrests, Rula Rashid, Dale Carpenter’s “well-known, widely respected expert” description) Oren Gross’s op-ed, with Carpenter’s description of protesters standing one by one and the woman returning screaming, and the 40-45 minute figure Times of Israel (Dewey Lecture, Meredith Aby-Keirstead’s “war crimes apologist” line, the content of the talk) Middle East Forum piece containing the Beth El Synagogue exchange two nights earlier and the “not pleasant to liberal ears” quotation Tablet, for “baby killer” Haaretz coverage
Boehm and liberal Zionism
Omri Boehm, “Zionism and the Right to Culture,” Boston Review, October 30, 2014, including the education argument, the two Halbertal criteria, the Dov Halbertal column, and the note that Moshe Halbertal supports civil marriage
Halbertal’s underlying Haaretz essay is linked from Boehm’s piece; the Halbertal-Margalit “Liberalism and the Right to Culture,” Social Research 61 (1994), 491-510, is in the NYU CV.
The 2013 NYU panel with Dorit Beinisch and Stanley Fischer, source of the “threat to the lives of their children” line and the “coercive machinery of the state to adjudicate Jewish identity” phrasing
Judicial review
Halbertal, “Two Concepts of Judicial Review and Two Senses of ‘Political,’” 113 California Law Review 2251 (2026), responding to David Strauss, citing Ely’s Democracy and Distrust and Carolene Products footnote four, and noting the departure from Dworkin
Background on the 2023 overhaul and its components
February 16, 2024 dialogue
Weatherhead Center event page
Christy DeSmith’s Harvard Gazette write-up, which is my source for every element of that scene: the “sense of fragility,” the delegitimization remark, the two-state statement, Nusseibeh’s four months, Sandel calling them old friends from Jerusalem, the Oslo-era acquaintance and the evening at Halbertal’s home, the murdered student and his son, Nusseibeh’s cousins, Sandel’s just-war question, “the only justification of war, if there is any, is defense,” the ad bellum / in bello separation, the “so big, so painful” acknowledgment, the judgment-by-aftermath point, and Nusseibeh’s closing rebuttal.
Robert Cover (1943-1986) taught at Yale Law School and died of a heart attack at forty-two, in the summer of 1986, while translating a Renaissance Hebrew text on the law of jurisdiction. Two years later Moshe Halbertal arrived in Cambridge as a junior fellow, a year before submitting a Jerusalem dissertation on how moral values operate inside the reading of Jewish law. They missed each other by a season and a highway. Nobody has put them in the same room since.
In the 1983 Harvard Law Review foreword Cover called “Nomos and Narrative,” he proposed that people live inside a normative universe, a nomos, and that law is what a community makes when it binds its texts to its stories. The stories do the work. A rule without a narrative is an instruction; a rule inside a narrative is a world. Communities generate law constantly and abundantly. Cover called this jurisgenesis, and he insisted that the state has no monopoly on it. A congregation, a movement, an order of monks, a group of squatters on a hillside: each produces law, in the full sense, whenever its members treat their reading of their texts as binding and act accordingly.
He then divided the generative work into two patterns. The paideic mode is world-creating. It runs on shared texts, common education, and interpersonal obligation, and it produces meaning faster than any institution can absorb. The imperial mode is world-maintaining. It runs on institutions, hierarchy, and enforcement, and its job is stability rather than fertility. Every durable nomos needs both, and the two are permanently in tension, because the paideic mode keeps making more law than the imperial mode can hold.
He divided the communities too. Insular ones want to be left alone to live by their own law. Redemptive ones want to remake the world according to it. And he made the observation that gives the essay its bite: courts, faced with the surplus, do not create law so much as destroy it. Confronted with several communities each holding a serious and internally coherent reading, a judge picks one and kills the others. Cover called this jurispathic. He did not think it was avoidable. He thought it should be admitted.
Three years later, in “Violence and the Word,” he supplied the sentence everyone remembers. Legal interpretation, he wrote, “takes place in a field of pain and death.” A judge reads a text and somebody is taken away. Between the reading and the taking sits a division of labor, and the division is what makes it possible. The man who writes the words does not carry the prisoner. The man who carries the prisoner did not write the words and may not have read them. Each can perform his part without confronting the act as one act. Cover thought a theory of interpretation that ignores this is a story interpreters tell themselves.
Halbertal has spent forty years on both halves of that and has never, so far as I can find, been read through it.
Start with the dissertation. “Values as Interpretive Criteria in Jewish Law” and the book that grew from it, Interpretive Revolutions in the Making, are a study of jurisgenesis conducted from inside the workshop. Halbertal takes cases where the rabbis of the midrash halakhah produced law that a straightforward reading of the biblical verse does not support, and asks how a legal culture performs that operation while continuing to describe itself as a transmitter. His answer is that values enter the reading rather than arriving after it. They select which analogy looks apt, which contradiction demands resolution, and which possible sense never comes up.
This is the thing Cover asserted and did not explain. Cover was confident that paideic communities generate law and that the generation is real law rather than aspiration or protest. He was less interested in the internal craft by which the new is presented as the old. Halbertal supplies it, and supplies the finding that a revolution succeeds when it stops looking like one. Cover's picture has communities producing rival meanings that then collide in the open. Halbertal's has the winning meaning erasing the record of its own arrival, so that the next generation inherits a change as an inheritance. The paideic mode covers its tracks. That is a correction to Cover from a man who never cited him, working on the texts Cover was reading in his last year.
People of the Book extends it. A canon is the imperial mode's principal tool: the device by which a community stabilizes its normative world and decides who may speak for it. Halbertal separates the normative canon, which commands conduct, from the formative canon, which supplies the stories, the memory, and the vocabulary of self-description. Set that beside Cover's pairing and the fit is close without being exact. Cover's nomos and narrative are two aspects of one thing. Halbertal's two canons are two functions that may sit in different books, and in Judaism they do: the Bible forms and the Talmud and the codes command. Where a tradition's formative center and its normative center come apart, the fight over who controls the meaning of the formative text becomes fiercer rather than milder, because a sacred book confers authority on its expositor without requiring him to claim authorship. Cover would have recognized that as jurisgenesis running through an institution that was built to slow it down.
Gush Emunim is a redemptive nomos of the purest kind Cover described. After 1967 a strand of religious Zionism reading Abraham Isaac Kook through his son took Israeli control of the West Bank as a stage in redemption, and settlement as a commanded act rather than a policy preference. The movement did not petition. It built. A caravan on a hilltop is a legal claim, executed, and its adherents understood it in exactly those terms. Cover has a name for the difference between that and a demonstration: a movement of law rather than a movement of protest, one that redeems the world by performing the law rather than by asking the state to change it. In an unfinished chapter published after his death, “Bringing the Messiah Through the Law,” he took up the Jewish version of this ambition as a case study. He did not live to see it acquire an army.
Halbertal helped found the rival community. Netivot Shalom held its first meeting in a packed Jerusalem hall in 1982, addressed by Yehuda Amital and Aharon Lichtenstein, and Halbertal later chaired it. Read through Cover, what the movement attempted is legible in one line. It tried to run a competing jurisgenesis inside the same paideic community, using the same corpus, the same schools, and the same weekly cycle of Torah reading, against a rival that had already established possession.
The tactics follow. Members called their campaign a war of verses. They cited Ovadia Yosef's ruling that danger to life permits returning territory. They read Abraham dividing the land with Lot as a precedent for compromise. They pressed Nahmanides against Rashi on the opening verse of Genesis to argue that possession is conditional on conduct. They published a weekly pamphlet for four hundred synagogues. Halbertal supplied a recurring formulation, that Israelis are commanded to see “the Jewish eyes of the Palestinians.” None of this is protest. It is an attempt to make law by making meaning, which is what Cover says communities do.
It failed. Gerald Cromer, studying the movement, concluded that it never achieved cultural resonance, reached mainly people who already agreed, and left the settlement camp's hold on religious Zionism intact. Cover's framework explains the failure better than the movement's own leaders did, and the explanation is unflattering to Cover. Jurisgenesis is not a fair contest. Two readings of the same corpus do not meet as equals when one of them has already been naturalized, so that its adherents no longer experience it as a reading. The dominant meaning stops looking like an interpretation and starts looking like the text. Halbertal had described that process in the rabbinic sources before he lived through it in his own community, on the losing side.
The counterexample sits three kilometers away, on Emek Refaim in the German Colony, where in 2002 a group including Tova Hartman founded Kehillat Shira Hadasha. It implemented the halakhic opinions of Mendel Shapiro and Daniel Sperber, kept the partition, moved the bimah to the center, called women to most of the aliyot, and waited for ten women as well as ten men before beginning the parts of the service that require a quorum. Rabbis across modern Orthodoxy attacked it. The model spread to four continents. Some accounts place Halbertal in the founding circle.
Both movements are paideic in Cover's sense, both retrieve minority opinions, both refuse to leave the tradition. One won and one lost, and the difference is not the quality of the argument. Shira Hadasha needed a room, a Torah scroll, and twenty willing people. Netivot Shalom needed the army to come off a hilltop. A nomos that asks nothing of sovereignty can propagate on its own merits. A nomos that requires the state to act must capture the state or die, and at that point it stops competing with a rival reading and starts competing with a coalition. Cover, writing about Mennonites and Amish and abolitionists in a country where he could take the state's stability for granted, never had to draw that line. Israel draws it.
Around 2000 the Israel Defense Forces convened a committee to rewrite the ethics code Asa Kasher had drafted in the previous decade. Halbertal has written that he was asked to join a group of philosophers, lawyers, and generals. The document that came out, The Spirit of the IDF, went to the General Staff and is the version printed for recruits and carried in the pocket. Men in a room in Tel Aviv wrote sentences about the use of force. Nineteen-year-olds carry those sentences into Khan Younis and read them, or do not, before deciding whether the figure at the end of the street is a combatant.
This is Cover's field of pain and death with the labor divided about as far as it can be divided. The philosopher writes the clause. The education officer teaches it. The battalion commander compresses it into a rule of engagement. The rifleman applies the rule under fire, at night, tired, in a language of orders that has traveled three translations from the sentence. Cover's insight is that each man in that chain can do his part without experiencing the sequence as a single act, and that the arrangement is what permits the violence to proceed. The philosopher's contribution to the killing is real and structurally invisible to him.
Halbertal's central technical move reads, in this light, as an attempt to break the arrangement. He distinguishes associational risk, which a soldier bears because his role is to protect his own political community, from agency risk, which he bears because his own operations may kill innocent people. The second obligation does not track nationality, since the right to life of the family in the building does not depend on which flag they live under. From this he concludes that soldiers may be required to accept some calculated additional danger to verify a target or to reduce foreseeable harm, and that a doctrine of total force protection produces a permissive culture of fire, because any hesitation can be described as endangering the men. He put it in print that precautions must include the expectation that “soldiers assume some risk to their own lives.”
What that distinction does is refuse the division of labor at the point where it does the most damage. It tells the man holding the weapon that the cost of his interpretation is partly his to carry, in his own body, rather than exportable to the people downrange. Nothing in Cover requires that conclusion. Cover diagnosed the structure and did not prescribe. Halbertal, working the same structure from the inside of a military rather than a judiciary, produced the prescription that follows from the diagnosis.
He lost. In 2005 Kasher and Amos Yadlin published a priority ranking that placed a state's own soldiers above enemy noncombatants outside that state's effective control. Muhammad Ali Khalidi wrote that this reversed centuries of thinking about the rules of war. Israeli organizations including Breaking the Silence and the Public Committee Against Torture, and researchers at the Institute for Palestine Studies, have argued that field practice in Gaza followed the Kasher ranking rather than the one Halbertal defends. The words Halbertal helped write are in the pocket. The words he argued against are, by several accounts, in the orders.
Cover's framework makes the standard criticism of Halbertal sharper than its authors made it. The charge from the Palestinian side, and from the Israeli left, is that a military ethics code launders. Put in Cover's terms, the charge is that the code operates in the imperial mode while advertising itself as paideic: it stabilizes and legitimates an existing normative order while presenting itself as the fertile moral creativity of a community examining its conscience. A code that is treated as evidence of virtue has stopped functioning as a standard that conduct can fail. Halbertal has said exactly this about religious institutions for thirty years. Whether he has said it with the same force about the one he helped write for is the question his critics are entitled to press, and the honest answer is that he has said it more quietly, and later, and in rooms where the audience was already sympathetic.
The Minneapolis lecture of November 3, 2015 becomes legible on the same terms. Two dozen protesters shouted him down in Mondale Hall for forty minutes, and one of the things shouted was “baby killer.” They were treating him as an official of the Israeli nomos, the man whose interpretation authorizes the violence, which is a Cover reading of him and not a foolish one. He had come to argue that the violence should be constrained at the cost of the men who commit it. Two nights earlier, at a synagogue in St. Louis Park, an audience member had told him that a talk about how soldiers shoot evades why they are there, and Halbertal had answered by warning that he was about to say something “not pleasant to liberal ears”: that the conflict does not reduce to occupation and that the end of occupation will still leave Israel needing an army. Two rooms, two assumptions about which nomos he speaks for, and in both rooms the assumption was wrong in the same way.
On February 16, 2024, on a Zoom call moderated by Michael Sandel, Halbertal and Sari Nusseibeh, friends since the Oslo years, tried to conduct an argument across two normative universes. Halbertal named the murder of a student and the student's son. Nusseibeh referred, without detail, to cousins on his mother's side. Both condemned the attack of October 7. Both said they wanted two states. Both opposed the occupation. Then Sandel asked whether the war was just, and Halbertal made his standing separation between the justice of entering a war and justice in its conduct, and said that “the only justification of war, if there is any, is defense.”
Nusseibeh's reply is the strongest Cover-shaped objection in the record, and he did not need Cover to make it. He said that Palestinians see the occupation as inseparable from Israel in the same way Israelis see the deaths in Gaza as inseparable from Hamas, that one side's self-defense cannot be justified at the expense of the other's, and that the vocabulary leads people away from what has to be done. What he was declining was the assumption that a shared moral language sits above the two nomoi and can adjudicate between them. In Cover's account there is no such language. There are normative universes, and where they meet, someone with power picks one.
Cover distrusted judges because they kill rival law. His sympathies ran to the communities whose readings get killed. When the Israeli government proposed in January 2023 to change judicial selection, curtail review, and abolish the reasonableness standard, Halbertal became a public opponent, and his argument was that Israel's courts carry more load than most because the country has no entrenched constitution and few structural checks on a coalition that controls the legislature. In a February 2026 symposium essay in the California Law Review, responding to David Strauss, he set out the general theory. He rejects the narrow conception of judicial review descending from the Carolene Products footnote and John Hart Ely, on the ground that it turns constitutional protection into a competition for the status of victim, which powerful groups win. He proposes instead that courts ask whether the state has entered a domain politics has no business governing at all: belief, expression, intimate life, communal practice, conscience. And he argues that review protects equal citizenship inside the domains where the state does belong, because a majority that legislates against a minority's standing attacks the ground of its own claim to be obeyed.
Read through Cover, Halbertal is defending the jurispathic institution and asking it to do more killing, not less. He wants the court to destroy a rival reading of the Jewish nomos, one held by a large, sincere, textually literate community that has produced the Jewish Underground, Baruch Goldstein (1956-1994) at the Cave of the Patriarchs, and Yigal Amir (b. 1970). His grounds are that a nomos which makes land unconditional has removed a political object from moral judgment, which is the definition of idolatry he and Avishai Margalit published in 1992.
Cover’s framework tells you that the settlers are making law, that their reading is serious, that the court which strikes it down is destroying meaning, and that the destruction should be admitted rather than dressed as neutrality. It does not tell you that the court is wrong to do it. Cover distrusted the jurispathic function; he never claimed a state could operate without it. What Halbertal adds is a criterion, drawn from thirty years inside the tradition in question, for which rival readings a state may kill: those that make a finite thing absolute, and therefore immune from the moral judgment every other thing is subject to.
Cover's violence is domestic. The sheriff, the prison, the gallows, the marshal at the schoolhouse door. It is violence a polity applies to people it claims as its own, under a law they are presumed to owe obedience to, with an institution standing behind the man who applies it. That is not what an army does. War is violence between normative universes, applied to people who owe you nothing and to whom you owe no obedience, and the moral problem there is not the one Cover analyzed. His frame illuminates the writing of the code and the chain that carries it to the rifleman. It has nothing to say about what a state may do to a civilian population that is not its own. Halbertal's twenty years of work on necessity, distinction, proportionality, and the distribution of risk sit in a region Cover never entered and might not have wanted to.
Cover's redemptive communities are abolitionists and civil rights workers, and his warmth toward them shows on every page. He was arrested in Georgia as a young man. He backed divestment from South Africa. His frame was built to explain communities whose law was better than the state's. Israel offers the same structure with the moral sign reversed: a paideic community of formidable learning and total sincerity, generating law abundantly, producing settlements, and producing assassins. The framework holds. The affection it was built with does not survive the transfer, and anyone who keeps the affection while changing the example has stopped doing analysis.
A man makes meaning out of texts, and the meaning is real law, and it goes out into the world and is executed by other men. Cover said those two facts belong in one theory and died before he could put them there. Halbertal wrote the first half in Jerusalem in the 1980s, on the midrash halakhah, and spent the next thirty years living the second half: on a committee that wrote sentences for a pocket, in a movement that lost a war of verses, in a lecture hall in Minneapolis where he was shouted at for a violence he had asked his own country to accept more danger to reduce.
In the spring of 2026 he taught at Harvard on confession, self-incrimination, and repentance, which are the questions of what a man is required to say against his own interest and what happens to him after he says it.
Notes
Cover, primary
“The Supreme Court, 1982 Term — Foreword: Nomos and Narrative,” 97 Harv. L. Rev. 4 (1983). Full text at Yale. Source of nomos, jurisgenesis, paideic and imperial modes, insular and redemptive communities, jurispathic courts, and the bridge from the world we have to an alternative future.
“Violence and the Word,” 95 Yale L.J. 1601 (1986). Full text: Yale Law School Legal Scholarship Repository. The opening paragraph, on interpretation in a field of pain and death, and the argument about role differentiation, are at 1601 and 1607 respectively.
“Bringing the Messiah Through the Law: A Case Study,” published posthumously in Nomos XXX: Religion, Morality, and the Law. Discussed in Samuel J. Levine, “Law and Redemption,” 34 Yale J.L. & Human. 253 (2023)
“Obligation: A Jewish Jurisprudence of the Social Order,” 5 J.L. & Religion 65 (1987), for the mitzvah-versus-right contrast. I did not use it in the essay; it is the obvious next installment if you want one.
Biography, dates, cause and place of death, the Hebrew jurisdiction text he was translating
Cover, secondary
Robert Post, “Who’s Afraid of Jurispathic Courts? Violence and Public Reason in Nomos and Narrative,” 17 Yale J.L. & Human. (2005), which argues that all nomoi are jurispathic because paideic communities are exclusionary. This is the best available counter to my Netivot Shalom section and you may want to cite it.
Judith Resnik, “Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover,” 17 Yale J.L. & Human. 17 (2005).
Steven Fraade, “Nomos and Narrative Before Nomos and Narrative“. Fraade is the Yale Judaic scholar on Cover’s rabbinic sources and would be the referee for whether my dissertation-corrects-Cover claim holds.
Julen Etxabe, “The Legal Universe After Robert Cover,” 4 Law & Humanities 115 (2010), for the paideic/imperial and insular/redemptive taxonomy.
Cambridge, “Politics and constitutional jurisgenesis,” for Cover’s distinction between a movement of law and a movement of protest, which is the hinge of my Gush Emunim paragraph
Samuel B. Hainbach, “Nomos and Narrative in New York,” 57 Colum. J.L. & Soc. Probs. 685 (2024), applying Cover to Hasidic yeshivas and New York education law. Closest existing analogue to what I did here, and worth a sentence if you want to show the method has precedent
Cover’s essays are collected in Minow, Ryan, and Sarat, eds., Narrative, Violence, and the Law (Michigan, 1995). A Hebrew translation of “Nomos and Narrative” together with “Bringing the Messiah” was published by Shalem Press in 2012, translated by Aviad Steier, with an introduction by Yossef A. David.
Andrew Abbott
Andrew Abbott (b. 1948) published The System of Professions in 1988 and gave the field one word to work with: jurisdiction, the link between a profession and its work. Professions do not rise or fall on their own. They exist in a system, they compete for tasks, and when one gains a task another loses it. The competition is settled in three arenas, which do not agree with each other. There is the legal arena, where the state licenses. There is the public arena, where reputations are made. And there is the workplace, where the actual division of labor sorts out day by day, often in defiance of what the other two arenas have decided.
Abbott adds that the weapon in these fights is abstract knowledge. A profession holds a territory by owning the system of ideas that classifies the problem, reasons about it, and prescribes a response. Diagnosis, inference, treatment. Whoever controls the abstraction can redefine a neighbor’s problem as a case of his own kind and take the work.
The dispute between Asa Kasher and Moshe Halbertal over Israeli military ethics has been discussed for twenty years as a moral argument. It is also a jurisdictional contest between two claimants over one task, with an army as the client, and it can be scored.
Consider the claimants’ equipment.
Kasher holds the Laura Schwarz-Kipp Chair of Professional Ethics and Philosophy of Practice at Tel Aviv University. The chair names a jurisdiction. Professional ethics is the abstraction that permits one profession to write the rules of every other, and Kasher had built a career on exercising it across Israeli institutions. He took his doctorate in philosophy at the Hebrew University in 1971, worked in philosophy of language, published Military Ethics in 1996, which won a national prize for military literature, prepared the first IDF code of ethics in 1994, and served as academic adviser and professor at the IDF College of National Defense. He received the Israel Prize in 2000. By Abbott’s criteria he had everything: the abstraction, the credential, the publication record inside the client’s own institutions, and a physical position within the client organization.
Halbertal had none of it. His standing was in Jewish thought and medieval philosophy, later in law. He had written on rabbinic interpretation, canon, idolatry, and the Meiri. He held no chair in ethics, had no prior work on armed conflict, and had no post inside the military education system. He arrived on the task in 2000 because a committee was convened and he was invited onto it.
The convening of that committee is the first jurisdictional event. Abbott’s account of client-initiated shifts covers it. A client that finds an existing professional product unsatisfactory can reassign the work, and the reassignment is a demotion of the incumbent whatever anyone says at the time. The chief education officer found the 1994 code unwieldy for training purposes and appointed a group to rewrite it. Halbertal has written that the request came to him as an invitation to join philosophers, lawyers, and generals. The rewrite, The Spirit of the IDF, went to the General Staff and became the version printed for recruits.
On the face of it the committee won and Kasher lost. The document in the soldier’s pocket was theirs. Abbott’s framework predicts that a client-granted jurisdiction of this kind is unstable, because nothing licenses it. The committee had no monopoly, no statute, and no continuing institutional position. It disbanded. The army retained the text and the authority to interpret it.
Kasher’s response in 2005 is the more interesting move, and it is a textbook expansion by abstraction. He did not petition for the return of the code. With Amos Yadlin, then commanding the IDF College of National Defense, he published “Military Ethics of Fighting Terror: An Israeli Perspective” in the Journal of Military Ethics, and a companion piece, “Assassination and Preventive Killing,” in the SAIS Review. The argument opens by declaring the existing categories inadequate. The war paradigm does not fit a fight against terror and neither does the law enforcement paradigm, so a third model is required, and the authors supply eleven principles for it, presented as universal and independent of any position on the political conflict.
Abbott would identify each element. Redefining the problem so that established categories fail is how a profession takes territory from a neighbor: the ground is not contested, it is reclassified. Claiming universality converts a local commission into a contribution to a general body of knowledge, which is what academic legitimation is for. And the co-authorship performs the crucial operation. Yadlin was a serving major general who headed the institution where the doctrine was developed, and who later ran military intelligence. A paper by an outside philosopher is an opinion. A paper by an outside philosopher and the commander of the client’s own war college, describing work done by a team they headed inside that college, is a doctrine with a home.
Halbertal’s countermove operated in a different arena and had a different structure. He argued that the priority ranking in that doctrine, which places a state’s own soldiers above enemy noncombatants outside the state’s effective control, inverts the standing of civilians, and he offered a distinction of his own: associational risk, which a soldier bears because his role is to defend his own political community, and agency risk, which he bears because his own operations may kill people who have done nothing. The first tracks citizenship. The second does not. From this follows the claim that soldiers can be required to accept some calculated additional danger, and that a doctrine of maximum force protection produces a permissive culture of fire.
That is a rival system of diagnosis and inference, which is what a jurisdictional claim requires. Where it went is the point.
The public arena filled up. In May 2009 Avishai Margalit and Michael Walzer (b. 1935) published “Israel: Civilians and Combatants” in The New York Review of Books, attacking the Kasher-Yadlin priority as an erosion of the combatant-noncombatant distinction. Kasher and Yadlin replied in the June 11 issue. Shlomo Avineri wrote in to say that both sides were obscuring the question and that no army owes enemy civilians what it owes its own population. Margalit and Walzer answered him in August. In November Halbertal published “The Goldstone Illusion” in The New Republic. Critiques and responses accumulated in the Journal of Military Ethics and Philosophia for years afterward. In November 2015 he was shouted down for forty minutes in a law school lecture hall in Minneapolis by people who had read none of it.
Abbott’s warning about the public arena is that claims there are made in simplified form to audiences that cannot evaluate them, and that they bind nobody. The dispute produced an impressive citation record and no settlement.
Meanwhile the workplace settled the jurisdiction on a third profession that had not been party to the argument.
The IDF’s International Law Department sat inside the Military Advocate General’s corps. Daniel Reisner (b. 1963) headed it from 1995 to 2004, the exact window of the code rewrite and the Kasher-Yadlin doctrine, advising the General Staff, the Ministry of Defense, and the Prime Minister’s Office on counterterrorism operations. By the 2010s the arrangement had hardened into something that comparative scholarship treats as anomalous. A study published by the Stockton Center for International Law identifies Israel as the exception to the rule that military legal advisers are purely advisory: IDF legal advisers hold de facto veto power, and the Military Advocate General, appointed by the Minister of Defense, sits on the General Staff and operates independently of the Chief of Staff on legal questions.
The practice is visible in the paperwork. Journalists given access to the unit have described target cards carrying intelligence and operational data, which the lawyers must mark before a strike proceeds. They call the mark a tick. The final call belongs to the commander, and the lawyer’s mark is a condition of reaching him.
Run Abbott’s scoring. The lawyers hold full jurisdiction: a monopoly over the task of certifying which buildings may be struck, exercised inside the client organization, at a defined point in the workflow, backed by state appointment and by an independent reporting line. The philosophers hold advisory jurisdiction at best, which in Abbott’s typology is the weakest of the settlements, amounting to a right to be consulted and no right to decide. Kasher’s structural position was stronger than Halbertal’s throughout, and the difference between their positions is small next to the difference between either of them and a colonel with a veto.
Two further pieces of evidence confirm the reading, and both come from the winner of the public argument.
Reports from Israeli human rights organizations and researchers at the Institute for Palestine Studies have argued that field practice in Gaza tracked the Kasher priority rather than the committee’s language. Take that as true. It does not establish that Kasher held the jurisdiction. Practice can converge with a doctrine because commanders find the doctrine congenial, without the doctrine’s author controlling anything. Abbott calls the informal absorption of one profession’s knowledge by people outside it workplace assimilation, and notes that it dissolves the boundaries the formal arenas draw. An officer who reasons in Kasher’s categories without Kasher in the room has taken the knowledge and left the jurisdiction behind.
The second piece is Kasher’s own complaint. In more recent years he has written in Haaretz that the code he produced has been largely forgotten and not enforced, and that incidents he regards as scandals happened because nobody consulted it. In January 2024 he told the same paper that reported uses of the Hannibal Directive on October 7 required immediate investigation and that nothing in the code permits killing an Israeli citizen, in uniform or not. Those are the statements of a man discovering the limits of advisory jurisdiction. The client accepted the product, filed it, and did not grant the producer any continuing authority over its use.
Abbott also explains the asymmetry in what the two men risked.
Inside academic philosophy, applied and professional ethics sits low. Status within a profession attaches to the purest work, the work furthest from clients and from the unsorted mess of human cases. Kasher had built his chair and his prize on the impure territory, which meant the army jurisdiction was his professional base and had to be defended when challenged. Halbertal’s base was elsewhere. His standing rests on the Maimonides book, the Nahmanides book, the work on canon and doubt, and the chairs at the Hebrew University and NYU Law. The military ethics is a sideline. He can be denounced for it in Minneapolis and honored for it in a synagogue in St. Louis Park without either outcome touching what he is paid for. That difference in exposure predicts the difference in how hard each man fought, and it predicts which of them kept the argument going in journals for two decades.
There is a further Abbott consequence that neither man seems to have priced. The committee that produced The Spirit of the IDF had no successor body, no standing, and no continuing relation to the client. Abbott’s professions survive by holding positions, not by producing documents. A profession that delivers a text and disperses has performed a service and vacated a jurisdiction. The lawyers, by contrast, occupied a slot in an approval chain, which meant they were consulted on every case whether or not anyone found their reasoning persuasive.
Three limits on the frame, since the frame has been run to its end and should be tested.
Abbott has no truth condition. His system tells you who ends up with the task and why. It says nothing about whether Halbertal’s distinction between agency risk and associational risk is correct, and the distinction is correct or incorrect independent of committee outcomes. A frame that predicts which philosopher won cannot be quoted on which philosopher was right, and the temptation to let the first stand in for the second is the standing hazard of this kind of analysis.
Second, Abbott’s professions serve clients who want their problems solved. An army wants its problems solved and also wants to be seen as an army that solves problems in an acceptable way. The second want deforms the demand, because it can be satisfied by a document nobody enforces. Abbott’s doctors and lawyers face clients who eventually notice whether the treatment worked. A client purchasing legitimacy has no such feedback, and a profession serving that client can be paid indefinitely for a product that does nothing. The complaint Kasher now makes about his own code describes that condition from the inside.
Third, and this is where the frame stops being adequate to the case, Abbott’s client and Abbott’s object are the same person. The patient hires the doctor and receives the treatment. Here they come apart. The client is the army. The people the treatment is applied to are in Khan Younis, and they have no standing in the system at all: they cannot select the professional, cannot evaluate the work, and cannot withdraw. Every question that makes this dispute a moral question rather than an occupational one lives in that gap, and the frame is silent on the whole of it.
What the frame does deliver is a correction to the way the episode is usually narrated. It is normally told as two philosophers disagreeing about the value of Palestinian lives, with the winner’s doctrine descending into the conduct of the army. The jurisdictional account says something duller and better supported. Two philosophers competed for a task neither one ended up holding. The task went to a corps of military lawyers with an approval veto and a direct line to the Minister of Defense, who work in a different abstraction, international humanitarian law, which asks whether a strike is lawful rather than whether a soldier should accept added danger to make it unnecessary. That is a different question, and the answer to it can be yes on every target card in a campaign.
Notes
Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (University of Chicago Press, 1988). Table of contents, showing the structure I used, at University of Chicago Press. Diagnosis, treatment, inference, and academic knowledge are chapter 2. Audiences, settlements, and internal structure are chapter 3. Internal stratification, client differentiation, and workplace divisions of labor are chapter 5. The book won the American Sociological Association’s Sorokin Award in 1991. Abbott’s faculty page at Chicago, for the rest of the corpus
On workplace assimilation, and for Abbott’s line that the two formal arenas contradict the informal one (Abbott 1988, p. 66), see Lars E. F. Johannessen, “Workplace assimilation and professional jurisdiction,” Social Science and Medicine 201 (2018): 51-58
On jurisdiction as “the link between a profession and its work,” and on systems disturbances driving jurisdictional change, see the summary
Kasher’s credentials and position
Author biography attached to the 2005 article, giving the Schwarz-Kipp chair in professional ethics and philosophy of practice, the 1971 Hebrew University doctorate, the role as academic adviser and professor at the IDF College of National Defense, Military Ethics (1996) and its national prize, and the 1994 first IDF code
The 2000 rewrite
Forward, “In Wartime, Who Comes First — Soldiers or Civilians?“, on the 1994 version being found cumbersome, the rewrite committee, the 2000 adoption, and the changed Purity of Arms language
Halbertal’s own account of the invitation, in the opening section of “The Goldstone Illusion”
The 2005 doctrine
Kasher and Yadlin, “Military Ethics of Fighting Terror: An Israeli Perspective,” Journal of Military Ethics 4:1 (April 2005), 3-32, DOI 10.1080/15027570510014642. Abstract with the third-paradigm claim
Kasher and Yadlin, “Military Ethics of Fighting Terror: Response,” same issue, 60-70, replying to Fotion, Haydar, and Perry.
Kasher and Yadlin, “Assassination and Preventive Killing,” SAIS Review 25:1 (Winter-Spring 2005), 41-57.
Kasher and Yadlin, “Military ethics of fighting terror: Principles,” Philosophia 34:1 (2006), 75-84, which states that the doctrine was developed by a team the two of them headed at the IDF College of National Defense
The priority ranking and Muhammad Ali Khalidi’s objection
Institute for Palestine Studies on the code, the doctrine, and the evidence about field orders, with the full citation apparatus
The public arena
Margalit and Walzer, “Israel: Civilians and Combatants,” New York Review of Books 56:8, May 14, 2009
The exchange, including the reference to the Kasher and Yadlin letter answered in the June 11 issue and Avineri’s objection
Halbertal, “The Goldstone Illusion,” The New Republic, November 2009 (link above).
The lawyers
Daniel Reisner’s tenure as head of the International Law Department, 1995 to 2004: Wikipedia and Lawfare and International Institute for Counter-Terrorism
On Israel as the exception where legal advisers hold de facto veto power, with the MAG appointed by the Minister of Defense, sitting on the General Staff, and independent of the Chief of Staff on legal matters, see the Stockton Center for International Law’s International Law Studies
The target card and the tick, from a reporter given access to the unit: Washington Examiner and the same piece via JINSA
Kasher’s later complaints
Haaretz, January 17, 2024, Kasher on the Hannibal Directive and October 7
His later Haaretz column on the code having been forgotten, and the Gur Kehati and Ze’ev Erlich incident, is discussed and attacked here.
