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The Mandate System as a Messianic Alternative in the Ultra-Religious Jurisprudence of Rabbi Dr Isaac Breuer
Published online by Cambridge University Press: 21 October 2016
Abstract
Dr Rabbi Isaac Breuer, a German jurist and Jewish rabbi, represented the ultra-orthodox community in Palestine before the international committees which considered the future of the Palestine Mandate. In his work, Breuer criticised the concept of sovereignty and introduced an alternative regime for global governance of developing peoples. His unique position, as analysed in this article, can contribute to contemporary debates surrounding the role of sovereigns as trustees of humanity, sovereignty and international law and ways of promoting global peace and human welfare.
By introducing Breuer's thought, this article seeks to contribute additional sources – both Jewish and universal – to these ongoing debates. Letting these neglected voices in international legal history enrich the debate can convince us, once again, of the importance of the periphery and of peripheral voices for the development, vitality and relevance of international law.
Breuer's model replaces the notions of ‘sovereignty’ and ‘rights’ with those of internalised obligations and subservience to law and justice. Limiting any national aspirations to total sovereignty, he implored the United Nations to refrain from elevating the Jewish national home to statehood. Opposing the Zionist position, he insisted that the Mandatory power and international institutions would enable two nations to develop side by side, in what he termed ‘the state of peace’, under international trusteeship.
We carefully draw on Breuer's insights to reflect on present debates on trusteeship, sovereignty and the management of areas devastated by conflict.
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References
1 Covenant of the League of Nations (entered into force 10 January 1920) Cmd 153 (1920) League of Nations Official Journal 3, art 22; Wilde, Ralph, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press 2008) 306–07CrossRefGoogle Scholar.
2 Charter of the United Nations (entered into force 24 October 1945) 1 UNTS 16, art 76(a); Covenant of the League of Nations, ibid, preamble. For the transition from the mandate system to UN trusteeship see Wilde, ibid.
3 Charter of the United Nations (n 2) art 84.
4 United Nations, ‘Trusteeship Council’, http://www.un.org/en/mainbodies/trusteeship.
5 Benvenisti, Eyal, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 American Journal of International Law 295CrossRefGoogle Scholar.
6 Benvenisti's article inspired a conference and a topical issue in (2015) 16(2) Theoretical Inquiries in Law.
7 Covenant of the League of Nations (n 1) art 22.
8 Rivka Horwitz, ‘Introduction’ in Isaac Breuer, Tsi'yunei Derech [Roadsigns] (Mossad Harav Kook 2007) (in Hebrew); Mittleman, Alan, ‘Two Orthodox Jewish Theories of Rights: Sol Roth and Isaac Breuer’ (1991) 3 Jewish Political Studies Review 97Google Scholar; Morgenstern, Matthias, From Frankfurt to Jerusalem: Isaac Breuer and the History of the Secession Dispute in Modern Jewish Orthodoxy (Brill 2002)CrossRefGoogle Scholar; Rivka Horwitz (ed), Yitschak Breuer: I'yunim Be'Mishnato [Isaac Breuer: The Man and his Thought] (Bar Ilan 1988) (in Hebrew). All translations from Hebrew are mine.
9 His dissertation was published as Breuer, Isaac, Der Rechtsbegriff auf Grundlage der Stammlerschen Sozialphilosophie (Reuther and Reichard 1912) (in German)Google Scholar.
10 Kohler, George Y, ‘Is there a God an Sich?: Isaac Breuer on Kant's noumena ’ (2012) 36 American Jewish Studies Review 121Google Scholar (and the literature in note 1).
11 According to one version, an earlier visit to Palestine convinced him of the messianic meaning of living in Israel, seeing the fulfilment of the prophecy of Ezekiel (36:8): ‘But you, mountains of Israel, will produce branches and fruit for my people Israel, for they will soon come home’. Other accounts stress the inability to practise law, and the persecution by the Nazis.
12 Mittleman, Alan L, Between Kant and Kabbalah: An Introduction to Isaac Breuer's Philosophy of Judaism (State University of New York 1990)Google Scholar. A detailed bibliography appears in Breuer, Isaac, Concepts of Judaism (Israel Universities Press 1974) 339Google Scholar.
13 Eliezer Schweid, ‘Medinat HaTora Bemishnato Shel Yitschak Breuer’ [‘The State of Torah in Isaac Breuer's Writings’] in Horwitz (n 8) 125, 146 (his views do not represent the Agudat Yisrael consensus).
14 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971], ICJ Rep 16, [53].
15 Wilde (n 1); regarding Palestine see UNGA Res 181(II) (29 November 1947), ‘Future Government of Palestine’, UN Doc A/RES/181(II).
16 Covenant of the League of Nations (n 1) (emphasis added).
17 International Status of South-West Africa, Advisory Opinion [1950] ICJ Rep 128, 132.
18 Breuer, Isaac, Moria: Foundations for Jewish Religious National Education (Nezach 1945) 48 (in Hebrew)Google Scholar; compare with the Introduction to Moria, and with Breuer (n 8) 111.
19 Breuer, Isaac, HaKuzari HaHadash: Derech El HaYahadut [The New Kuzari] (Isaac Breuer Foundation 2008) 364Google Scholar (in Hebrew, original in German, Der Neue Kusari: Ein Weg zum Judentum (Verlag der Rabbiner Hirsch Gesellschaft 1934)Google Scholar).
20 See in his biography, Mein Weg (first published 1946, Hebrew trans Michael Shwarz 1988) and the books detailing his historio-philosophical reading in Breuer (n 18); Isaac Breuer, Nahliel (Mossad Harav Kook 1982) (in Hebrew). See Myers, David N, Resisting History: Historicism and Its Discontents in German-Jewish Thought (Princeton University Press 2003) 136, 141CrossRefGoogle Scholar; Shafat, Shoval, ‘The Political Theology of Isaac Breuer’ in Schmidt, Christoph and Sheinfeld, Eli (eds), God Was Not Silent: Jewish Modernism and Political Theology (Van Leer Jerusalem Institute 2009) 122 (in Hebrew)Google Scholar.
21 Breuer, Isaac, ‘Die Wurzel des Krieges’ in Jüdische Monatshefte III (1916) 214–28Google Scholar.
22 Breuer (n 18) 47.
23 Breuer (n 19) 56, see also 59: nations being formed by blood.
24 Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty (first published 1922 in German, University of Chicago Press 1985)Google Scholar.
25 Greenberg, Udi E, ‘Orthodox Violence: “Critique of Violence” and Walter Benjamin's Jewish Political Theology’ (2008) 4 History of European Ideas 324, 332Google Scholar.
26 We do not know much about the interactions between Breuer and Schmitt, nor about the extent of Breuer's familiarity with Schmitt's ideas and writings: Shafat (n 20).
27 cf Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press 1998)Google Scholar; Agamben, Giorgio, State of Exception (University of Chicago Press 2005)Google Scholar.
28 Letter from the United Kingdom Foreign Secretary, Arthur James Balfour, to Baron Walter Rothschild, 2 November 1917 (The Times, 17 November 1917), incorporated (with full text) into the Treaty of Peace between the British Empire and Allied Powers and Turkey (signed 10 August 1920), art 95. This treaty was later annulled. The preamble to the British Mandate for Palestine (confirmed by the Council of the League of Nations on 24 July 1922, effective 28 September 1923, (1922) 3 League of Nations Official Journal 1007) incorporates the Declaration without citing it: Avalon Project, http://avalon.law.yale.edu/20th_century/palmanda.asp; Leonard Stein, The Balfour Declaration (Simon and Schuster 1961) 470.
29 See below, 3.1.
30 ‘A state is needed, so human interaction can be directed to serve divine justice’: Breuer (n 8) 127.
31 cf Hobbes, Thomas, Leviathan (first published 1651, Yale University Press 2010)Google Scholar.
32 ‘[A] bit of Nazism is present in each sovereign nation, each sovereign state’: Breuer (n 18) 238; cf Breuer (n 8) 146.
33 ‘Just divine justice can restrain these forces, as even democracy is not enough’: Breuer (n 18) 241; cf ibid 14–15; Breuer (n 19) 377–78.
34 Schweid (n 13).
35 Hobbes (n 31); Schmitt (n 24); ‘Sovereignty’, Encyclopædia Britannica, http://www.britannica.com/topic/sovereignty; Núñez, Jorge Emilio, ‘About the Impossibility of Absolute State Sovereignty: The Early Years’ (2014) 27 International Journal for the Semiotics of Law [Revue internationale de Sémiotique juridique] 645CrossRefGoogle Scholar.
36 ‘The nation as society carries law, and the state is the ultimate servant of the law’: Isaac Breuer, ‘Shnei Maklot HaRo'im’ [‘The Two Sticks of the Herders’] in Breuer (n 18) 123, 127.
37 ‘When a nation experiences revelation total nationality disappears. Instead, a relative nationality appears. It submits itself readily to god, then to justice and law’: Breuer (n 8) 197, 193 for strong relative nationality.
38 Deuteronomy 17: 14–20; Micha Goodman, Moses’ Final Oration (Kinneret Zmora-Bitan Dvir 2014) 63–80 (in Hebrew).
39 The decline of natural law and its replacement by positive law emphasised the self-centredness of the state; cf Breuer (n 19) 107, 285. The bureaucratic and military power of the state brought about new proportions of human suffering in both its domestic and international actions.
40 Breuer (n 18) 193.
41 ‘Since the French Revolution … the question of the rule of law between nations is constantly on the table …. [t]urning the state of power and tyranny … into a state of law and justice, that preserves its citizens rights and subsumes the relations of states that swallow each other as predators, under a supra-national and supra-governmental … these are two sides of the problem of law’: Breuer (n 8) 131 (emphasis added).
42 A treatment of Breuer's Jewish law is beyond the scope of this article: cf Breuer (n 18) 70–71.
43 Breuer (n 18) 194 preceded Kennedy in arguing that the First World War was not a break in a process of progress, but a direct continuation of the preceding processes: Kennedy, David, ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841Google Scholar.
44 Breuer (n 18) 195–97.
45 Breuer (n 8) 131–33, 199–200.
46 ibid 125–26, 200. Note that Breuer proposes to judge international law (and any legal system) through its treatment of its weakest subjects, an idea now promoted by feminist and third world critical approaches to international law.
47 Breuer (n 18) 195–96.
48 ibid 230–36.
49 Breuer, Mein Weg (n 20) 91. (‘States bowed to [so-called] law and justice only after they filled their bellies with the peace agreement … Also animals of prey love law and justice – when they are not hungry’).
50 Breuer (n 18) 30; cf therefore, ‘[t]he League of Nations is not a legal league, but a contractual one – and agreements cannot save humanity – only law and justice can’: ibid 233–36.
51 ibid 196.
52 ibid.
53 Benvenisti, Eyal, ‘The Paradoxes of Sovereigns as Trustees of Humanity: Concluding Remarks’ (2015) 16 Theoretical Inquiries in Law 535CrossRefGoogle Scholar.
54 Criddle, Evan J, ‘Three Grotian Theories of Humanitarian Intervention’ (2015) 16 Theoretical Inquiries in Law 473CrossRefGoogle Scholar; Fox-Decent, Evan and Dahlman, Ian, ‘Sovereignty as Trusteeship and Indigenous Peoples’ (2015) 16 Theoretical Inquiries in Law 507CrossRefGoogle Scholar.
55 Schweid (n 13) based on 1 Samuel 8: 5; 12–15. cf Goodman (n 38). There is controversy in Jewish law and philosophy regarding sovereignty: Aviezer Ravitsky, Dat U'Medina Bemahshavet Yisrael [Church and State in Jewish Thought] (The Israel Democracy Institute 1998) (in Hebrew); Feuchtwanger, David M, ‘Between Theology and Politics: Two Biblical Models as a Basis for Jewish Political Thought’ (2012) 72 Daat 195 (in Hebrew)Google Scholar. Breuer seems to identify with Abravanel's critique of kings, even if he only partially accepts his preference for a self-perfecting anarchist society: Netanyahu, Benzion, Don Isaac Abravanel: Statesman and Philosopher (5th edn, Cornell University 1998) 189–94Google Scholar.
56 Breuer (n 18) 195–97.
57 Breuer (n 8) 125–27.
58 The ‘Jewish state that is the organization of the visionary will … the state has no passions … and is far from all unholiness because death does not reach it. Power and force have no value in its eyes. The vision of justice is its decisive value’: Breuer, Nahliel (n 20) 311–15.
59 Breuer (n 8) 202.
60 Mishna Avot, 6.2.
61 Breuer (n 8) 193; Myers (n 20) 146. This endurance and non-reliance on territory and sovereignty interested the Dalai-Lama and the Tibetan leadership: Kamenetz, Roger, The Jew in the Lotus: A Poet's Rediscovery of Jewish Identity in Buddhist India (Harper 1994)Google Scholar.
62 Breuer (n 18) 197.
63 In his principled opposition to using violence for national conquest, Breuer was not alone. For concurring national religious opinions, see Holzer, Eli, A Double-Edged Sword: Military Activism in the Thought of Religious Zionism (Hartman Institute 2009) (in Hebrew)Google Scholar.
64 ‘The mandate is the result of wonderful optimism. The vision of law and justice will bring eternal peace to the land of the king of peace’: Breuer (n 18) 235–36. Rabbi Dr Breuer uses the expression ‘the land of the king of peace’, ‘the king of peace’ being one of the Jewish names for God. As he also refers to it as ‘the land of the League of Nations’ (this is repeated throughout his writings, eg, Breuer (n 18) 230–36, especially 235, see also 197), the expression invokes the association that the League is the king of peace and even semi-divine. As Jewish law prohibits selling the land of Israel to non-Jews, recognising the League's authority over the land, and preferring it to Jewish sovereignty, is a significant concession. Finally, superimposing the real ownership by God on practical international ownership is a courageous religious, cultural, educational and political step.
65 Breuer (n 18) 230–36: ‘Two nations – law and justice will decide between them – and will let them live in peace and fraternity side by side. This land will be the epitome for all lands, showing the harmony of justice, and the practical force of law. … The idea was inspiring, the dream beautiful’.
66 Breuer promotes the creation of a Jewish homeland, a religious, idealistic Torah-state, and supports concentrating a significant part of the Jewish people in one location. In this sense, his solution is different from the network structure of nationality, which was another Jewish solution at that time; cf Paz, Moria, ‘States and Networks in the Formation of International Law’ (2011) 26 American University International Law Review 1241Google Scholar; Paz, Moria, ‘A Non-Territorial Ethnic-Religious Network and the Making of Human Rights Law: The Alliance Israélite Universelle’ (2010) 4 Interdisciplinary Journal of Human Rights Law 1Google Scholar.
67 Anglo-American Committee of Inquiry Report to the United States Government and His Majesty's Government in the United Kingdom, 20 April 1946, Lausanne (Switzerland), Cmd. 6808 (HMSO 1946) (especially Ch v), available at the Avalon Project, http://avalon.law.yale.edu/20th_century/angcov.asp.
68 ‘We [the international Agudat Yisrael organization and the Jewish ultra-orthodox community in Israel] believe that our demand is the demand of international law and international justice. … The Arab-Jewish problem is not a question of international politics nor a question of power, but a question of law … only law can bring peace to this land … hopefully you will decide according to objective law what is just and enforce your decision’: Testimony before the UN Commission, 1946, cited in Horwitz (n 8) 200–08.
69 ibid 207–8: ‘I believe that this will be the role of the United Nations. If the decision is that a certain solution is just, then justice should be enforced. … enforcement of justice is not violence … . that is the (only) legitimate role of force. … We are against using force … using force will bring us all to be the victims of atomic weapons. If law and justice will not rule in this world, we are all doomed. We request to start in this land the implementation of law and justice between two peoples’.
70 ‘We [Agudat Yisrael] demand [to call it] the state of peace. The state that insists on the name of justice, and on the name of justice alone. Therefore she [Agudat Yisrael] declines using in the name of the state the name of any nation [like Israel] … The commission cancels the absolute nation state, and enables to think about a state of Justice. The people of Israel declared that it does not want to control the Arab people, therefore the name of the state also needs to separate itself from any suspicion of conquest’: Breuer (n 8) 231–32.
71 Breuer (n 19) 154–55; cf Breuer (n 8) 199–201. Breuer says that limited sovereignty is easy in the desert but difficult in a territory and state (ibid 198), especially under the influence of other people's striving for sovereignty: Mordechai Breuer, ‘People and State in Isaac Breuer's Theory’ in Horwitz (ed) (n 8) 163, 170.
72 Breuer (n 8) 196; Breuer, Mein Weg (n 20) 58–59. In a prophetic paragraph he criticises Zionism: ‘Who guarantees that Zionism won't become a small nation that will have eternal struggles and constant spilling of blood? Nationalism will taint Israel with innocent blood, as it has the English nation’: Breuer (n 19) 57, 59, Pt IV.
73 With similar motivation to Hirsch, Samson Raphael, who wrote his book (Horeb: A Philosophy of Jewish Laws and Observances (7th edn, Soncino Press 2002))Google Scholar to strengthen the belief of young people of his time and prevent their exit to reformism, Breuer wrote The New Kuzari (n 19) with Zionism in mind.
74 ‘We hope both nations will agree that law should decide … we want to start the rule of law and justice here in this land … not the power will decide what justice is, but justice will decide who can use power and for what it might be used’: Testimony before the UN Commission, 1946 (n 68) 203–08. Breuer adds ‘how difficult is it to explain this concept of statehood [to the peoples and my people alike]’.
75 Breuer, Our Grandfather (private publication 1996, on file with author) 77; Breuer (n 18) 148.
76 Benvenisti (n 53) assigns trust to the trustee, because a sovereign trustee is not to be trusted.
77 Agudat Yisrael, although probably not Breuer himself, was deeply involved in the creation of the national minorities system in Poland after the First World War. For the Jews as minority see Janowsky, Oscar Isaiah, The Jews and Minority Rights (1898–1919) (Columbia University Press 1933)CrossRefGoogle Scholar; for the influence of Breuer's peers see Grill, Tobias, ‘The Politicisation of Traditional Polish Jewry: Orthodox German Rabbis and the Founding of Agudas Ho-Ortodoksim and Dos yidishe vort in Gouvernement-General Warsaw, 1916–18’ (2009) 39 East European Jewish Affairs 227CrossRefGoogle Scholar.
78 Schweid (n 13) 143.
79 Yacov Baror, ‘Breuer the Jurist’ in Horwitz (ed) (n 8) 67, 73.
80 Breuer (n 8) 97.
81 ibid: ‘If morality reigns alone in the governance of human society, then the concept of legally achieved power has no place’.
82 For more see Mittleman (n 8); Mittleman (n 12) last chapter.
83 Breuer's version of a regime of obligations is non-liberal, opposing human ‘rights’, even as he envisions it as non-oppressive. For Breuer, law precedes society. Therefore, there are no inherent rights of man, as there are if man precedes society. Values such as equality, liberty and ‘human rights’ are very important, but they are not rights. Obeying laws and fulfilling obligations willingly is the supreme mission – equality, and even more so fraternity, being one of the important obligations. He specifically endorses differences between men and women, Jews and non-Jews, and even free men and slaves. Women, non-Jews and slaves will accept their ‘different’ ‘roles’ voluntarily (see nn 80–81).
84 Breuer (n 8) 97–120.
85 The expression ‘trustee of civilisation’ invokes elitism and colonialist connotations. I think Breuer would agree to the expression ‘trustee of humanity’ in terms of goals and justifications, but he would add that ‘humanity’ is an amorphous entity, devoid of power, while ‘civilisation’ invokes the image of institutions and power – thus giving important roles to both expressions.
86 Benvenisti (n 5).
87 eg, which peace force has the best human rights record, which power has the best track in human intervention, etc.
88 Breuer (n 8) 195; Breuer, Nahliel (n 20) 311; Breuer (n 19) 366 and all of Pt III.
89 I think this is the kind of process envisioned by the drafters of the UN Charter (n 2). States will disarm themselves, refrain from using force and minimise their actions of self-defence only if there is a strong, effective and evidently just usage of collective power. Every such voluntary weakening would reduce the costs of the collective system, making it more effective and creating a positive feedback mechanism. However, distrust and reluctance to disarm and voluntarily weaken oneself lead to inability to act collectively, and raises the cost of each intervention. Thus, failure to initiate such a positive feedback mechanism actually initiated an opposing, negative feedback mechanism.
90 Breuer (n 18) 234–36; Breuer, Nahliel (n 20) 426–28. Breuer thought that the lack of real international law prevented education based on such law. We now know that even with a significant body of recognised and legitimate law, education can still be a problem.
91 Isaac Breuer, ‘Testimony before the Anglo-American 1937 Inquiry Commission on Palestine’ in Horwitz (ed) (n 8) 203–08.
92 See nn 69–70, 74 and accompanying text.
93 Criddle (n 54) and Fox-Decent and Dahlman (n 54) stressed this regarding the entrusted peoples. To this, I would add the need to tailor the mandates to the various trustees as well.
94 The Theoretical Inquiries in Law theme issue on trusteeship (n 6) was subtitled: ‘Historical Antecedents and Their Impact on International Law’. One could, of course, also add biblical and rabbinic sources supporting sovereignty and enriching trusteeship in other ways.
95 Breuer (n 18).
96 Oz-Salzberger, Fania, ‘The Political Thought of John Locke and the Significance of Political Hebraism: Then and Now’ in Schochet, Gordon, Oz-Salzberger, Fania and Jones, Meirav (eds), Political Hebraism: Judaic Sources in Early Modern Political Thought (Shalem Center 2008) 231Google Scholar; Jacobs, Jonathan, ‘Return to the Sources: Political Hebraism and the Making of Modern Politics’ (2006) 1 Hebraic Political Studies 328Google Scholar.
97 Janis, Mark W and Evans, Carolyn, Religion and International Law (Martinus Nijhoff 2004)CrossRefGoogle Scholar; Israel-Vleeschhouwer, Amos, ‘Engaging Religious Laws, Players and Communities: Confronting Religious Dis-Empowerment’ in Topidi, Kyriaki and Fielder, Lauren (eds), Religion as Empowerment: Global Legal Perspectives (Routledge 2016) 149–81CrossRefGoogle Scholar.
98 Jewish sources derive multiple meanings from the fact that the first human was singular, created last: ‘every human has to say – the world was created for me’ and ‘if one would say, for me the world was created – the response would be – even the mosquito was here before you’: Maimonides, Code Mishne Tora, the book of Judges, the laws of Sanhedrin 12:3.
99 ’ [A]s soon as you eat … you will be like God who knows good and bad’ (Genesis 3, 5, JPS trans 1985); Breuer (n 18) 46. Seeing oneself as sovereign in relation to the divine creates ‘human history [that] is the history between the will of the blessed holiness and the will of (hu)man’: ibid.
100 ‘Breuer … assert(s) that neither rights nor persons precede a social reality constituted by duties and obligations seeking to ground personhood in moral relationality rather than autonomy. … [He] thereby negate[s] the modern project of ascribing rights’: Mittleman (n 12) 97.
101 Mentioned above, text to note 22; here cited in its original context: Breuer (n 18) 47. Breuer expounds on this insight, and connects it with contemporary jurisprudential and philosophical literature.
102 ibid 48, ‘Introduction’; cf Breuer (n 8) 111.
103 Remember that in Genesis (18: 25), Abraham accuses God of not doing justice. God, and therefore all authorities, kings and states, are subservient to law and accountable.
104 Wolfreys, Julian, Readings: Acts of Close Reading in Literary Theory (Edinburgh University Press 2000)Google Scholar.
105 Breuer (n 18) 49, 29. Naming is significant for Breuer (cf text accompanying n 70).
106 cf Hobbes (n 31) I, Ch 13.
107 Breuer (n 18) 29; to be more precise, they shed the blood of individuals and humanity for the state.
108 A detailed analysis of Breuer's readings is beyond the scope of this article.
109 These are two competing Jewish narratives regarding sovereignty and trusteeship. King David is presented as a philosopher-king who accepts rebuke from the prophets and is under the law. This kingdom's sovereignty collapsed and was lost. Jewish liturgy includes craving for kingship in both the selfless and serving version and the strong and sovereign version. Besides the prayer for the return of kingship, the liturgy emphasises the yearning for the direct and exclusive sovereignty of God.
110 cf ‘Geist und Epochen der Jüdischen Geschichte’, Franz Rosenzweig: Der Mensch und Sein Werk, Gesammelte Schriften, III (Martinus Nijhoff 1984) 527Google Scholar, stating that Jewish history, as opposed to that of most nations, does not start in its ‘homeland’; nor is the law revealed in it. Thus, Jewish identity did not originate in the territory of Israel; nor does it depend on living within it. Breuer agrees that Jewish identity does not depend on sovereignty and territory, but he repeatedly states the importance of the connection of Jews with the land of Israel, and the development of the Jewish community in Palestine, disagreeing with Rosenzweig's more diasporic worldview.
111 As said the tenth century Rabbi Saadia Gaon: ‘Our nation is a nation only by virtue of its Torah (law)’: Gaon, Saadia, The Book of Beliefs and Opinions (Yale University Press 1987), Pt III, Ch 7Google Scholar. In its original context it is part of the proof that the Torah is eternal. Because the Jewish people are promised eternity, and because the nation's existence depends on the Torah, ipso facto, the Torah is eternal.
112 Breuer (n 8) 197; Shafat (n 20) 124–25.
113 Breuer (n 18) 241.
114 Breuer (n 8) 129.
115 cf the role of the semi-peripheral jurist in universalising international law in Lorca, Arnulf Becker, ‘Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation’ (2010) 51 Harvard International Law Journal 475Google Scholar. Ideas, instruments or institutions from the periphery can transform the centre: Hodson, Loveday, ‘Women's Rights and the Periphery: CEDAW's Optional Protocol’ (2014) 25 European Journal of International Law 561, 567CrossRefGoogle Scholar.
116 Another factor is the German context, which certainly influenced Breuer.
117 For jurists from Jewish descent see Paz, Reut Yael, A Gateway Between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law (Martinus Nijhoff 2012)Google Scholar. For religion and international law see above (n 97); Falk, Richard A, Religion and Humane Global Governance (Palgrave 2001)CrossRefGoogle Scholar.
118 Amos Israel-Vleeschhouwer, The Attitudes of Jewish Law towards International Law: Analyzing the Jewish Legal Materials and Processes, PhD thesis, Tel Aviv University, 2012, Ch 1; Israel-Vleeschhouwer, Amos and Bezalel-Horev, Dafna, ‘The Redemption of Man, Israel and the World: Local Leadership and Transnational Legal Views of Rabbi Chalfon Moshe HaCohen from Gerba’ (2013) 29 Dinei Israel 217 (in Hebrew)Google Scholar; Israel-Vleeschhouwer, Amos and Rothberg, Shaya, ‘International Law, the State and Man in the Philosophy and Psika (Jewish Legal Decisions) of Rabbi Hayim Hirschenson’ in HaCohen, Aviad, Ben-Yitshak, Elishai and Vinizky, Hagai (eds), Tehilat Olam: Principles in Jewish Laws of State (forthcoming 2016) (in Hebrew)Google Scholar.
119 Those on the periphery do not suffer from the endowment effect. It is easier to see the advantages of limited sovereignty from the position of no sovereignty than from a position of power. That is, it is easier to agree to restrict oneself if by this, you gain power and recognition, than to give up power and endanger your status by restricting your existing sovereignty: Kahneman, Daniel, Knetsch, Jack L and Thaler, Richard H, ‘Experimental Tests of the Endowment Effect and the Coase Theorem’ (1990) 98 Journal of Political Economy 1325CrossRefGoogle Scholar.
120 Babylonian Talmud, Shabbat 31a.
121 This basic jurisprudential insight was revealed in the Jewish traditional text (ibid) through the question of a non-Jew, answered by a Jew who came from the periphery (Babel) to the Jewish centre in Palestine (see, eg, Babylonian Talmud, Yoma 35b.).
122 EC Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (December 1991) (1993) 4 European Journal of International Law 72.
123 UN Charter (n 2) art 4(1).
124 The recognition of states also became a question of norms and law, not simply a question of policy: Rich, Roland, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’ (1993) 4 European Journal of International Law 36CrossRefGoogle Scholar.
125 EC Declaration (n 122) (emphasis added).
126 Bogdanor, Vernon, The New British Constitution (Hart 2009) 57Google Scholar.
127 For the concept of soft power see Nye, Joseph S, Soft Power: The Means to Success in World Politics (PublicAffairs 2004)Google Scholar.
128 cf Benvenisti (n 5).
129 UNSC Res 2118 (27 September 2013), UN Doc S/RES/2118; and UNSC Res 2235 (7 August 2015), UN Doc S/RES/2235; Vladimir V Putin, ‘A Plea for Caution from Russia’, The New York Times, 11 September 2013, http://www.nytimes.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html?_r=0; Julian Borger and Patrick Wintour, ‘Russia Calls on Syria to Hand Over Chemical Weapons’, The Guardian, 9 September 2013, https:// www.theguardian.com/world/2013/sep/09/russia-syria-hand-over-chemical-weapons.
130 Some of these processes are already happening in states like the Netherlands. Serving international justice and humanitarian needs is portrayed as one of the three goals and responsibilities of the army, https:// www.rijksoverheid.nl/ministeries/ministerie-van-defensie.
131 Mohamed, Saira, ‘From Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council’ (2005) 105 Columbia Law Review 809Google Scholar; Paul Kennedy, ‘UN Trusteeship Council Could Finally Find a Role in Postwar Iraq’, Global Policy Forum, 9 May 2013, https:// www.globalpolicy.org/component/content/article/168-general/34794.html; ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’, December 2001, 43, http://responsibilitytoprotect.org/ICISS%20Report.pdf; Lou Pingeot and Wolfgang Obenland, ‘In Whose Name? A Critical View on the Responsibility to Protect’, May 2014, https:// www.globalpolicy.org/images/pdfs/images/pdfs/In_whose_name_web.pdf.
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