1 Introduction

In a recent address, Lord Neuberger, the outgoing President of the UK Supreme Court, stressed the contributions that Jewish jurists have made to the Court since World War II.¹ To those acquainted with his biography, Neuberger’s habitual quotation from religious sources such as the Talmud, the authoritative body of Jewish tradition, and his reiteration of the fact that the English liens (the predecessor to today’s UK mortgage laws) derive from Talmudic laws of contracts should come as no surprise.² The disproportionate number of Jewish jurists who have sat on the United Kingdom’s highest judicial bench, with no less than eight serving on it from 1951 to the present day, seems to further confirm his point.³ While the general question as to why Jews excel in law and judicial matters is a perennial one, according to Lord Neuberger at least, this excellence has to do with a combination of specific and intertwined factors. These include a strong Jewish emphasis on education (which has served as a partial answer to the disadvantages of discrimination over the ages), coupled with a textual tradition of Talmudic debate on judicial and legal interpretation.⁴ Setting aside his other points, in this article, I would like to briefly delve into his lordship’s remarks concerning the impact of Talmudic learning on the biography and intellectual development of Jewish jurists. I opt to limit myself to the realm of modern international law and to focus on what I see as an additional plausible factor, which might help to explain the disproportionate role played by East-/Central-European Jewish international jurists in the drafting of some of most important international legal treaties post-World War II, such as the United Nations (UN) Charter, the 4th Geneva Convention for Civilians, and the 1951 Refugee Convention.

A cursory (and by no means exhaustive) survey of the history of such treaties reveals the Jewish disproportional representation in their drafting. Leo Pasvolsky’s drafting of the UN Charter (1942–1945);⁵ Hersch Lauterpacht’s formulation of crimes against humanity in Nuremberg’s International Military Tribunal, and his work on an International Bill of Rights (1945–1956);⁶ Raphael Lemkin’s drafting of the Genocide Convention (1948);⁷ René Cassin’s important role in the preparation and drafting of the Universal Declaration of Human Rights (1948) and the European Convention for Human Rights (1950), which later earned him the Nobel Peace Prize;⁸ Georges Cahen Salvador’s, Rabbi Georg Cohn’s and Nissim Mevorah’s drafting of the 4th Geneva Convention for Civilians and its Common Article 3 (1949);⁹ and Jacob Robinson’s, Paul Weis’ and Rabbi Isaac Lewin’s drafting of the 1951 Refugee Convention and its non-refoulement principle, and their elaboration of the 1954 Convention on Statelessness, all fall into this category.¹⁰ To claim that Jewish international jurists played a meaningful role in the making of some of the world’s most important international legal treaties would most probably be an understatement.

In attempting to answer the conundrum inherent in this disproportionality, eminent scholars such as Carole Fink, Mark Mazower, Philippe Sands and Reut Yael Paz have provided very convincing arguments as to why the Jewish participation in the making of these treaties and of modern international law in general was so significant. In brief, their arguments stress the amalgamation of Jewish emancipation during the 19th century (facilitating the entry of Jewish scholars into university law faculties) and the traumas of discrimination and persecution as a minority, which in turn triggered an enhanced Jewish will to universally defend ethno-national minorities per se as, in Fink’s words, ‘defending the rights of others’.¹¹ These explanations hold a core of ontological validity, which seems to me to be indisputable. In this article, I would like to complement them by suggesting an additional factor that intertwines with them, and which might further help to explain this ‘Jewish disproportionality’ conundrum.

Following on from Lord Neuberger’s insight into the importance of the Talmudic tradition for Jewish excellence in various legal fields, I wish to draw some specific parallels between Jewish-Talmudic law and international law. These parallels might, I feel, point to a deep and almost instinctive understanding that these Jewish jurists, most of whom received significant ‘doses’ of Jewish-Talmudic legal education during their upbringing, might have drawn upon as they participated in (and, in many cases, instigated) the making of modern international legal treaties. A glimpse at the biographies of these jurists (with the exception of Georges Cahen Salvador and Paul Weis) confirms their mastering of modern international law in East-/Central-European universities in tandem with a strong Jewish-Talmudic-law traditionalist education.

In a nutshell, my argument is that in their structural nature, international law and Jewish-Talmudic law share several fundamental similarities. Both legal systems are devoid of a permanently active and living legislator. Both primarily rely on the existence of a judiciary with interpretative faculties for their functioning. Both progress through judicial interpretation of their original legislative sources from previous eras: ‘law-making treaties’ (traités-lois) for international law, and the Torah for Jewish-Talmudic law. Furthermore, given their mutual lack of an active legislator and their consequent strong reliance on interpretative judiciaries, both systems are averse to any notion of a judicial non-liquet. Such indecision would in their courts amount to a ‘systemic cardiac arrest’, given that they have no living legislator to turn to in such extreme cases of legal deadlock.

At the philosophical level, both systems reiterate their dependence on natural law as their epistemological bedrock. For Jewish-Talmudic law this is the Torah as laid down by God: the purported creator of the universe, nature and the legal principles deriving therefrom. For international law, it is the law of nature that remains the ‘ever-present source for supplementing the voluntary law of nations, for judging its adequacy in the light of ethics and reason’.¹² As Hersch Lauterpacht has convincingly argued, Article 38(3) of the Statute of the International Court of Justice (ICJ), which stresses the ‘general principles of law recognized by civilized nations’, is the epitomic proof of modern international law’s reliance on natural-law principles.¹³ Lastly, and in contrast to domestic legal systems, both international law and Jewish-Talmudic law famously suffer from a limitation in their ability to apply measures of coercion to enforce their decisions and rulings.

Beyond the linguistic and polyglot competencies that their Talmudic upbringing certainly helped to nurture in these jurists, and which served them well in their later preparation of these treaties, it is the existence of these structural parallels between Jewish-Talmudic law and international law that, I believe, enhanced their suitability and competence to fulfil their important drafting duties.¹⁴ International law’s structural nature and peculiarities might have seemed somewhat alien to jurists trained in Continental European domestic legal systems with a heritage of strong enforcement and rather limited scope for judicial interpretative freedom, somewhat in contrast to English Common Law. Conversely, with its partial compliance with Talia Fischer’s notion of ‘a system of law without a centre’, international law might well have seemed intimately familiar to Jewish jurists with Talmudic backgrounds as they came to participate in the elaboration of this emergent twentieth-century legal field.¹⁵

Seeing as some of my readership might not be fully conversant with Jewish-Talmudic law and its peculiarities, I begin this article with a very brief and necessarily simplified explanation of the nucleus of Talmudic law’s 2,500-year-old unequivocal stipulation that still obligates Jews to contribute to the betterment of their non-Jewish, gentile and diasporic surroundings.¹⁶ It seems that this general obligation could have served as a general motivating principle for these orthodox Jewish jurists as they came to ‘defend the rights of others’.

I continue with an exploration of two concrete and documented instances in which the mutual features of international law and Jewish-Talmudic law dovetailed. First is the specific reliance on natural-law principles mutual to both systems. This mutuality, e.g., was explicitly called on in the drafting of the non-refoulement principle. Second, is the mutual aversion shared by both systems towards deadlocked legal dangers associated with non liquet. This aversion lay at the heart of the drafting of the UN Convention on the Declaration of Death of Missing Persons (April 1950).

The third aspect of the parallels between international law and Jewish law concerns their mutual lack of a living legislator, and their primary reliance on judicial interpretation for their progress. In this regard, I examine Hersch Lauterpacht’s characterization of international law as true law thanks to its now-existent judge, given the coming into being of the Permanent Court of International Justice (PCIJ), against strong contemporary realist criticisms from the 1930s, which refused to recognize it as law.¹⁷ I continue this exploration with Rabbi Georg Cohn’s criticism of Hans Kelsen’s Grundnorm and its aversion of judicial freedoms, and conclude with Kelsen’s own reply to Cohn, in the form of a strong toning down that the Austrian jurist undertook towards his own theory after Cohn’s death in 1956.

2 Debate over Conformity, ‘A Sharp Talmudic Mind’ and the Religious Jewish Obligation to Better One’s Non-Jewish Environment

In an address to the Israeli foreign minister, Moshe Sharett, written in 1950 during the early drafting stages of what would become the 1951 Refugee Convention, Jacob Robinson made reference to the Jewish and Talmudic background of several of the delegates who were present at the United Nations Economic and Social Council’s (UN-ECOSOC’s) drafting table:

A few words about the Jewish participation in this committee: USA was represented by Mr. Louis Henkin, who is the son of a rabbi [i.e., Yosef Eliyahu Henkin], an authority in Talmudic family law (the last issue of Talpiot carries an article by him on Agunoth), and himself an observant Jew. Formerly secretary of Supreme Court Justice Felix Frankfurter, he has a sharp Talmudic mind and was very good in drafting … the IRO [International Refugee Organization] was represented by Dr. Paul Weis (formerly with the World Jewish Congress in London) … in addition, the Jewish organizations with the so-called consultative status were also present … rabbi Dr. Lewin of Agudath Israel, and rabbi Dr. Perlzweig of the WJC [World Jewish Congress] also addressed the meeting.¹⁸

The first question to arise from this passage concerns Robinson’s reference to Louis Henkin’s ‘sharp Talmudic mind’, and what exactly he meant by this term.¹⁹ In the first instance, this probably had to do with being accustomed to and at ease with the culture of legal debate, of concurring and dissenting opinions, and of sharpening one’s own arguments through the process of legal argumentative exchange. As Professor Moshe Halbertal has succinctly put it, the Talmud’s signal trait is one of debate and disagreement (מחלוקת).²⁰ While consensus within the Talmud usually merits no more than two to three words, debate on the other hand, with its myriad of concurring and dissenting opinions, can carry on for several pages.²¹ To Robinson, therefore, Henkin’s ‘sharp Talmudic mind’ probably concerned this habituality of engaging with legal texts – something that Jewish international jurists who stemmed from religious or observant backgrounds in East-/Central Europe would have been very much accustomed to.

As Stefan Troebst has recently reiterated, modern international law’s very prosopography itself reads very much like a mitteleuropäische (Central- European) geographical survey.²² One feature that distinguished most of these Jewish international jurists concerns their hybrid educational backgrounds, which included Jewish religious teachings of Talmudic law alongside a strong ‘secular’ legal training – usually in the form of a doctorate in public international law.²³

A glimpse at the biographies of those referred to in Robinson’s above-quoted passage helps corroborate this point. Born 1881 in Lithuania, Jacob Robinson received the ‘classical’ Jewish-Talmudic upbringing and completed his doctorate in public international law from Warsaw University (1917).²⁴ Nehemiah Robinson, Jacob’s younger brother and later director of the World Jewish Congress’ (WJC’s) legal department, was born 1898 in Lithuania, received the same Talmudic upbringing as his older brother, and went on to complete his doctorate (in German) in international law and economics at the law faculty of the University of Jena (1927).²⁵ He would later head the legal department at the Institute for Jewish Affairs (IJA) of the WJC in New York, and would take an integral part in its efforts in favour of the 1948 Genocide Convention, the 1951 Refugee Convention and the 1954 Convention on Statelessness. Louis Henkin (with the ‘sharp Talmudic mind’ as the US delegate to ECOSOC’s meeting) was born in Belarus (1917), emigrated to the United States in 1923, received a Talmudic education, and enrolled for a first degree at New York’s Yeshiva University, in which a part of the compulsory curriculum was the study of the Talmud. Only later did he attend Harvard Law School. Rabbi Isaac Lewin, who represented the Jewish ultra-orthodox Agudath Israel at UN-ECOSOC’s drafting table, was the son of Poland’s chief rabbi, Aaron Lewin. Born 1906 in Lodz, Lewin received his rabbinical ordination (which unequivocally requires a full mastering of the Talmudic legal tradition and text) in 1935, and went on to complete his doctorate in international law (and, interestingly enough, in Catholic religious canon law) in Lodz in 1937. Maurice Perlzweig, who was born in Poland (to liberal-reform Jews) in 1895, is the only one on Robinson’s list who did not received a Jewish-Talmudic upbringing and who was educated not as a lawyer but rather as a humanistic scholar, graduating from Cambridge University in 1927 with a degree in Oriental and Semitic languages (Hebrew, Aramaic, Syriac and Arabic).²⁶ Nevertheless, Perlzweig was specifically sent to Cambridge by his parents because there were other Jewish scholars there who, in addition to his ‘secular’ university curriculum, could ‘together instruct [him] in what was then called “rabbinics” that is to say Talmud, Mishna, Gemara, Midrash, and later Hebrew literature’.²⁷ In short, even Perlzweig eventually came around to reading and being influenced by the Talmud in its Hebrew-Aramaic origin.

While this prosopographic sketch is by no means exhaustive, the point is essentially this: most Jewish scholars who later participated in the drafting of international legal treaties had as their educational background the usual mixture of Talmudic learning and a secular international law training. From a Jewish perspective, what is interesting here is that these jurists represented the entire rich spectrum of East- and Central-European Jewry prior to its annihilation in the Holocaust – from reform Judaism (Perlzweig), through to ‘modern orthodox’ Jews (the Robinsons) and up to the ultra-orthodox ‘Haredi’ community (Isaac Lewin). It is noteworthy that across all these Jewish strata there seemed to have been a rather wide consensus as to the mutual beneficence and perhaps even complementarity of Talmudic and secular legal trainings. This, by the way, is also true for René Cassin, who, while not an East European, received the same Jewish religious upbringing (being prepared for his bar mitzvah by his uncle, the Rabbi of Strasburg, and with his mother remaining an observant Jew her entire life), notwithstanding the fact that he chose later to distance himself from these aspects of his life.²⁸

The second, and arguably far more relevant, aspect of Robinson’s ‘Talmudic mind’ reference concerns the duty and obligation that religious Jews such as Henkin probably saw in the making of international treaties, given their participation in both worlds of Jewish and international law. In tandem with the well-merited scholarly attention that Fink and others have dedicated to examining aspects of Jewish commitments to ‘defend the rights of others’, I feel that this Jewish-Talmudic religious aspect of obligation, which has so far been overlooked by most scholarship, is worthy of further attention when trying to address the Jewish disproportionality conundrum.²⁹

The religious responsibility bestowed upon Jews to strive for the prosperity and well-being of those in their non-Jewish societal surroundings derives directly from the prophet Jeremiah’s commandment to the first Jewish exiles in Babylon (576 BC):

Now these are the words of the letter that Jeremiah the prophet sent from Jerusalem … to all the people whom Nebuchadnezzar had carried away captive to Babylon … Thus saith the Lord … Build ye houses, and dwell in them; and plant gardens, and eat their fruit … And seek the peace of the city where I have caused you to be carried away captives, and pray unto the Lord for it: for in its peace thereof shall you have peace. (Jeremiah 29:7)

For orthodox diasporic Jews, Jeremiah’s ‘letter to the exiles of Babylon’ resonates down the ages. The Jews, so long as they dwell amongst gentiles, have a religious obligation and duty to do all in their power for the betterment and flourishing of their non-Jewish surroundings. It is worth noting here that, to this day, Jewish participation in the armed forces of any diasporic country draws its theological grounding directly from this above-mentioned decree by Jeremiah. The same goes for any religious orthodox Jewish prayer rendered in favour of the security and well-being of heads of state, as in the common prayer held to this day in most orthodox synagogues for the health and security of the US president and US soldiers on active service – or the prayers for the queen’s well-being and those of her serving forces that are said in orthodox synagogues across the UK.³⁰

3 The Mutuality of Natural Law and pacta sunt servanda to Talmudic and International Legal Practice: Rabbi Isaac Lewin’s Articulation of Non-Refoulement in 1950/51

My first example of the intertwining of Jewish-Talmudic law and international law concerns the making of one of international law’s most famous provisions post-World War II – namely, the non-refoulement prohibition inscribed into Article 33 of the 1951 Refugee Convention. As I have demonstrated elsewhere, this provision, which prohibits states from returning (refouler) refugees back to places where they would be in danger was drafted in its entirety by Rabbi Isaac Lewin, whose draft text for the Article’s paragraph 1 was adopted in February 1950, and by Jacob Robinson, who negotiated and drafted this Article’s paragraph 2 in July 1951 just before the signing of the Refugee Convention’s Final Act.³¹

In his address before the UN’s Ad Hoc Committee on Statelessness, the body set up by UN-ECOSOC to begin formulating the draft text of what would become the 1951 Refugee Convention, on 2 February 1950, the ultra-orthodox Rabbi Isaac Lewin expounded the reasoning behind his draft non-refoulement text, which he proposed and which the committee eventually adopted:

Expulsion of a refugee, in the majority of cases, means prolonged agony. It is equivalent to death when he is sent back to his country of origin, and the Draft Convention rightly prohibits this act. In this way it fulfils one of the ethically unsurpassed proscriptions of Jewish law, particularly stressed by the earlier prophets. I have the impression that one of them, Amos, considered the prohibiting of sending refugees back to be [a] binding rule of international law of his time. He once said that God would never forgive Philistine Gaza and Phoenician Tyre for the crime of expelling the Jewish refugees, who had found asylum in their countries, delivering them to the enemy, the Kingdom of Edom. It is obvious that since Amos reprimanded Gaza and Tyre, which were not bound by Jewish law; for that sin – he considered their act a violation of international law. We therefore have before us a precedent for the present convention dating back to the eighth century BCE.³²

Lewin’s argument is essentially this: the prohibition of non-refoulement is universal since it is derived directly from the law of nature – that is, from what is commonly accepted by all mankind as a binding legal-moral principle: in this case, of not returning a persecuted refugee back into the hands of his or her tormentors. As Lewin clearly stated in his above-quoted address, God’s decree as laid down by a Jewish prophet (Amos) applies not only to Jews but to all humankind, Jews and non-Jews alike. International law comes into this picture as soon as one follows Lewin’s Jewish-law reading of Amos in its direct relation to the principle of pacta sunt servanda, from which he derived the idea of this being closely associated with a biblical notion of international law.³³

While Rabbi Lewin did not mention the full source of his quote from Amos, he did in fact refer to the only place in that book where Edom and Tyre were reprimanded in relation to their handling of Jewish refugees (Amos 1:9):

Thus, saith the LORD; For three transgressions of Tyre, and for four, I will not turn away the punishment thereof; because they delivered up the whole captivity to Edom and remembered not the brotherly covenant. (italics added.)

The key words to be observed here are emphasized in the quote above. Lewin’s reference to Amos’ words ‘whole captivity’ stemmed from his reading of the original Hebrew version of these words: גלות שלמה. This translates correctly into ‘entire exiled people’.³⁴ Thus, the first major breach of natural law committed by Tyre, which amounted to a breach of both Jewish law and international law (of that time), was its execution of refoulement against refugees (in this case, Jewish ones).

Yet in this passage, Lewin also insists upon the fact that Tyre broke the tenets of international law as such, irrespective of Jewish law. In order to understand the rabbi’s claim here, one needs to look closely at Amos’ second reasoning for God’s punishment of the kingdom: that it ‘remembered not the brotherly covenant’, under the Hebrew words ברית אחים. Lewin’s reference to some early form of international law, regarding the abrogation of this ‘brotherly covenant’ and God’s reprimanding thereof, are better understood when one reads the Bible in its Hebrew original alongside the commentary provided by Rashi (Rabbi Shlomo Yitzhaki [Troyes–Mainz] died 1105), who is the foremost of all biblical commentators.³⁵ As Rashi explains, Amos’ words ‘brotherly covenant’ ברית אחים explicitly refer to the regional diplomatic treaties struck between the pagan King Hiram of Tyre and the Jewish King Solomon in Jerusalem, as mentioned in 2 Samuel 5:11, in 1 Kings 5:14–25 and also 1 Kings 9:10–16. These treaties were referred to as such since Hiram and Solomon referred to each other as ‘brothers’.

Within these treaties, and beyond the fact that non-refoulement was (according to Lewin’s reading) a general natural-law principle of ancient times, these treaties between Tyre and Jerusalem specifically stipulated the reciprocal protection of refugees of both parties when these were in the hands of the other party. Thus, by delivering its Jewish refugees to the enemy kingdom of Edom, Tyre broke what has been the absolute bedrock rule of international law since time immemorial: pacta sunt servanda. As Hans Wehberg notably explained, in the ancient world, this duty to abide by treaties that one has struck was seen as a sacred principle since the signing of treaties was most often accompanied by the reciprocal taking of oaths before the gods of the peoples whose leaders had concluded them.³⁶

To a trained East-European international jurist and Jewish-Talmudic law scholar such as Rabbi Lewin (who by 1950 was a professor at New York’s Yeshiva University), working on an international legal treaty on behalf of the UN while drawing parallels from ancient Jewish-law sources seemed entirely compatible and almost self-evident. Non-refoulement was just as much a principle of Jewish-Talmudic law as it was of international law, since both systems drew their mutual explicit revulsion vis-à-vis the turning back of refugees into the hands of their tormentors from their mutual natural-law bedrocks. And as Lewin read Amos (correctly, in the eyes of this author), the passage there simply came to highlight yet another principle that they fully shared – namely, that of pacta sunt servanda.

4 ‘Agunoth’, the UN Convention on the Declaration of Death of Missing Persons (1950) and the Dangers of Judicial Paralysis Due to Non Liquet

The second example of our parallels between international law and Jewish- Talmudic law concerns the implications inherent in their mutual lack of a living legislator and their reliance on judicial interpretation for their progression. In domestic legal systems that enjoy the benefits of a living and functioning legislator, a present judiciary and a functioning executive, the condition of a non liquet – that is, where either no law exists or where a high court of law determines that it cannot rule over a certain issue – might not be an existential problem. In the worst of cases, when all measures have been exhausted, the unresolved issue can always be turned back to the living legislator (usually by a high or constitutional court), whereby the legislator is then asked to legislate the law of the land on that given issue. The problem becomes acute within legal systems that have no living legislator, and which rest for their progress and their settling of disputes on continuous judicial interpretation of the law as laid down in bygone eras.

In such cases, if the system’s highest court cannot rule on a topic, thus declaring it a non liquet, the entire system simply goes into paralysis – a condition tantamount to a legal ‘cardiac arrest’ – given the fact that there simply is no living legislator to fall back upon. Absent a judicial-legal solution to the deadlock, the danger of a resort to force by one of the parties, and hence the complete existential breakdown of that legal system, is immanent.

This feature of the inherent dangers of non liquet is shared by both international law and Jewish-Talmudic law, given the absence of a living legislator in both these systems. It comes across rather starkly when one examines Jacob Robinson’s and the World Jewish Congress’ successful efforts, which brought about the legislation and endorsement of the UN Convention on the Declaration of Death of Missing Persons (1950) at the very same time that Robinson began his drafting of the 1951 Refugee Convention.³⁷

To be sure, both systems, International law and Jewish-Talmudic law, are quite averse to any notion of their judiciaries declaring non liquet. As Julius Stone famously observed in 1954, since its establishment the ICJ (and the PCIJ before it) had never resorted to declaring an issue before it non liquet. This resulted in a long debate between Stone and Hersch Lauterpacht concerning whether or not non liquet should be officially prohibited or not.³⁸ The closest that the ICJ has ever come to declaring non liquet was probably in its advisory opinion on the legality of the use of nuclear weapons (1996) – yet even then, the court eventually rendered down its decision (granted the parity of the judges on its bench, with the ICJ’s president casting the determining vote as primus inter pares).³⁹ A full seven decades since the establishment of the ICJ one gets a distinct feeling of obligation by its bench to render judgment, as its judges probably know all too well that declaring an international issue non liquet would most probably result in an immediate resort to force and violence by the states before it. In a very similar manner, rabbinical courts are also deeply averse to the notion of non liquet, if only because this would imply the court leaving an individual without remedy from the legal system – a condition that explicitly undermines such courts’ entire raison d’être.

Of all the areas of law with which rabbinical courts deal, probably none has been more socially delicate than that concerning women’s rights. This branch of Jewish-Talmudic law lies at the intersection of family law, the law of inheritance and property law. Tellingly, it was seen as so complicated that even Moses himself (the first of all Jewish judges in the Torah), when requested by the daughters of Zelophehad to allow them to inherit their deceased father’s lands (Numbers 27:1), was at odds with this issue and effectively declared it non liquet.⁴⁰ In a famous passage, Moses then calls upon the explicit instruction of the Almighty (i.e., the ‘living’ legislator), who then instructs him to grant the daughters their father’s property as his legitimate heirs – thus establishing the right of women to inherit and, more forcefully, to acquire land under Jewish law.

Interestingly enough, in Robinson’s passage, quoted above, as he refers to Louis Henkin’s father (Rabbi Yosef Eliyahu Henkin), he mentions him as ‘an authority in Talmudic family law’ and stresses his article on the topic of ‘Agunoth’. Thus does Robinson point to a long-standing project of securing a treaty under international law that the WJC undertook during precisely those years. This treaty would have far-reaching implications for Jews and non-Jews alike, but would carry a special remedy against cases of non liquet under rabbinical family law. It was the UN Convention on the Declaration of Death of Missing persons, which was signed and came into force in 1950.

From 1948 until its adoption, the WJC strove almost single-handedly to arrive at a convention that would compel states to issue death certificates for the victims of World War II, be they Jewish or not. While the general problems of the lack of death certificates for missing deceased persons (in terms of property rights, inheritance claims, etc.) were clearly expressed by the WJC, a somewhat unique Jewish Talmudic perspective on this problem was known, albeit not explicitly mentioned in the organization’s publications, as the problem of Agunoth.⁴¹

Under religious Jewish law, a married woman whose husband cannot be located, or whose death cannot be confirmed, is considered ‘trapped’ (‘anchored’ in the literal translation from Hebrew). Beyond the grief suffered by such a woman, a further complication arises in the illegitimacy of her children as conceived from another man so long as she remains in this ‘limbo’ situation of Aguna. The problem of Agunoth was certainly most acute after the European Jewish Holocaust, as many women who survived did not have any measure by which to determine what had happened to their husbands. In the article quoted by Robinson, Louis Henkin’s father, Rabbi Henkin, strongly debated with another Talmudic authority, Rabbi Shmuel Gerstenfeld, as to whether, during and after such tumultuous events as those of World War II, the rabbinical authorities should not in themselves strive to limit as far as possible conditions that would lead to a woman’s condition of being Aguna. Acceptance of the validity of death certificates, even if these were issued by gentile authorities rather than rabbinical ones, would prove useful in clearing the way to ‘free’ these Holocaust-surviving widowed and bereaved women, in the hope that they would rebuild their family lives and possibly still bear children alongside other spouses. This is exactly what Jacob Robinson strove for in his efforts in favour of the UN’s enactment of the Convention on the Declaration of Death of Missing Persons.⁴²

Robinson’s instigation of the UN Convention on the Declaration of Death serves as the archetypal example of his understanding of the parallels between Jewish-Talmudic law and international law. For at the heart of the matter lies Robinson’s appreciation of the dangers implicit in legal systems that cannot rely on a living legislator to resolve outstanding issues. No rabbinical court would be able to ‘free’ en masse European Jewish Holocaust-surviving women, who by the end of World War II, as Robinson began his work on this issue, amounted to well over 100,000 souls. In this sense, it was no longer this or that rabbinical court but rather the remnants of European Orthodox Judaism writ large that would have all been faced with one massive non liquet. By appealing to an existing international legislator (as in the enactment of a new treaty requiring states to issue death certificates), Robinson could rely on this international legal legislator to enact a law hitherto non-existent, so as to avoid a non liquet within the Jewish rabbinical legal sphere. During a subsequent instance, in which a few hundred Jewish women found themselves as Agunoth following the 1973 Yom Kippur War, the matter was in fact left to the Israeli rabbinical establishment to solve on a case-by-case basis – and was finally settled by none other than the great Sephardic rabbi, Ovadia Yosef.

5 Hersch Lauterpacht’s and Georg Cohn’s Defence of International Law against Its Realist Critics

Beyond the two above-mentioned examples, in which one can specifically trace instances of quoted parallels between Jewish-Talmudic law and international law in the making of international legal treaties, there exists another realm in which ‘Talmudic thinking’ – or the ‘sharp Talmudic minds’, as Robinson called them – affected international law. This second realm has more to do with international law’s ontological categorization as law in the first place.

Structurally, as famously argued by Carr during the interwar period, of the two main sources of law (custom and legislation), international law has only one source, custom, which is prone to considerable disagreement. It has no legislator but rather ‘law-making treaties’ (traités-lois), which certainly do not hold the force of legislated law in the domestic sense of its bindingness. In contrast to domestic law, which is explicitly binding also on the minority who did not approve of its instigation, traités-lois are notoriously open to the dissent of those who decide not to accede to them.⁴³ Carr even went so far as to question the existence of the so-called ‘international community’, a trend that has lived on to this day.⁴⁴

Against these scathing criticisms of international law’s ontological qualification as ‘law’, as voiced by Carr and others, two equally able intellectuals came to international law’s ‘conceptual rescue’: Hersch Lauterpacht and Rabbi Georg Cohn. Both were remarkable Jewish international jurists whose intellectual stars shone brightest during the 1930s. Both shared the now-familiar hybrid education of Talmudic learning and international legal doctorates – and, interestingly enough, both would resort to a distinctly ‘Talmudic’ rationalization in their attempts to fend off international law’s critics. Given Lauterpacht’s renown, I shall begin here with his reply to Carr’s critique.

Lauterpacht’s argument against Carr’s critique concerning international law’s lack of a legislator was quite simple: a legal system can well exist without an active legislator, but it cannot exist without a judge:

There is substance in the view that the existence of a sufficient body of clear rules of conduct is not at all essential to the existence of law, and that the decisive test is whether there exists a judge competent to decide upon disputed rights.⁴⁵

Thus, up until the establishment of the League of Nations’ Permanent Court of International Justice (PCIJ), and notwithstanding the already-existing Permanent Court of Arbitration (PCA – since 1899), Carr’s criticism might have carried weight. Yet once the world’s community of states had established its own court – and once that court was rendering judgments that, by and large, were being upheld during the interwar period – Carr’s denial of international law being ‘law’ on the grounds of its lack of a legislator was ontologically weak.

As Martti Koskenniemi pertinently noted, this of course triggered the question of ‘Who Judges?’ (Quis judicabit?), which was also picked up by international law’s bête noire, Carl Schmitt, who posed the problematic question of ‘who rules on the exception’.⁴⁶ Yet, as Lauterpacht stressed, the international community did possess clear rules as to how to nominate its judges and arbitrators, and so could certainly claim to be a system of law as such.

The other equally gifted (but now somewhat forgotten) Jewish international jurist who strove to defend international law’s ‘law-ness’ before its critics was Rabbi Georg Cohn. The director of the Danish foreign ministry’s legal division for nearly four decades, Cohn was first praised by the 1933 Nobel Peace Prize laureate Carlos Saavedra Lamas as the original 1922 author of the principle of non-recognition of territorial acquisition by force, a decade prior to its becoming known as the 1932 ‘Stimson Doctrine’ for Manchuria.⁴⁷ Himself a judge at the Permanent Court of Arbitration from 1929 onward and a world authority on the laws of neutrality, Cohn fled Nazi persecution in Denmark and crossed over to neutral Sweden with his family in a fishing boat on 2 October 1943. Following the war’s end, and as the International Committee of the Red Cross sat down to draft a new Geneva Convention for Civilians, Cohn was chosen by his Scandinavian peers to lead a bloc of ‘universalist’ countries during that treaty’s three-year drafting process (1946–1949). Within the 4th Geneva Convention for Civilians, and based on his own Holocaust experiences in Denmark, Cohn was the delegate who single-handedly drafted that treaty’s now-famous prohibition on an occupier’s transfer of their own civilian population into the foreign territory that they have forcefully conquered (4th Geneva Convention for Civilians, Article 49, paragraph 6), as well as the prohibition on the occupier applying the death penalty in militarily occupied territory (Article 68).⁴⁸ In 1948, Cohn was also elected chairman of the Commission for the Continental Shelf, following the Truman Administration’s designation of large swaths of the world’s seas around the Atlantic as pertaining to US sovereignty. During his chairmanship of this commission and until 1951, several of the key Articles of the Convention on the Continental Shelf, which was finally adopted in 1958, were set in place.

A native of Frankfurt am Main who lived almost all his life in Denmark, and a descendent from an illustrious lineage of German and Dutch rabbis, Georg Cohn was yet another Jewish international jurist who received the usual Talmudic–international-law educational hybrid. An observant Jew throughout his life, and a participator in the highest echelons of international legal circles, delivering the 1939 General Course at the Hague Academy of International Law, Cohn was a strong advocate of Lauterpacht’s view concerning the vital role of judiciaries in modern international law.⁴⁹

Upon his retirement in 1952, Cohn set out to formulate his general ideas as to how legal systems ought to operate. Taking the Talmudic principle of the freedom of the judiciary to the extreme, Cohn’s book Existentialism and Legal Science sought to restore extended judicial freedoms – albeit in a more structured manner of judicial procedure than that advocated by, for example, the Freirechtsschule theorists.⁵⁰ Human development was progressing far faster than norms could ever adapt to, so argued Cohn. By basing themselves on static norms that ‘plunge into a study of travaux préparatoires, past legislative bills and debates’, legal systems were depriving themselves of any chance of rendering good judgment. Only a judge could ‘use his decision to realize secondary aims and influence future legal decisions’.⁵¹

In short: for Cohn the problem was diachronic. Basic legal norms, as in Hans Kelsen’s Grundnorm, were all based on past laws, from which future laws needed to be derived. Yet without sufficient judicial freedoms for the judges of the day to extensively interpret the law in the light of their contemporary social views, legal systems were bound to end up in stagnation. This, in fact, is the very essence of the famous Talmudic principle as laid down in the case of ‘Akhnai’s Oven’. A short digression here to explain this issue would highlight just how much Lauterpacht and Cohn were in fact thinking of the supremacy of judicial interpretation in ‘Talmudic’ terms above and beyond any other legal source or text.

As with so many Talmudic passages, a cardinal debate concerning a fundamental issue – in this case, the interpretative faculties of judges under Jewish law – was construed around an entirely mundane and seemingly dull question as to whether a certain oven was, or was not, kosher for cooking (‘Akhnai’s oven’). Arguing against the Sanhedrin’s majority that the oven was, in fact, ritually impure, and after all measures of legal argumentation had been exhausted, Rabbi Eliezer decided, as a measure of last resort, to summon the Almighty’s divine intervention to prove the validity of his dissenting minority opinion. When he exalts that should he be correct a tree shall move from its location, and the tree does so, the majority of the rabbis react by stressing that ‘no proof can be brought from the trees’. When he then exalts that should he be correct water shall flow uphill backwards, and it does, the rabbinical majority reacts by stressing that ‘no proof can be brought from the water’. When finally Rabbi Eliezer exalts that should he be correct the Almighty himself shall render his calling, whereupon a heavenly voice cries out that in all the matters of the Halakha (Jewish Law) the Blessed One agrees with Rabbi Eliezer, Rabbi Joshua (Eliezer’s greatest rival) rises and quotes from Deuteronomy 30:12, stressing that the Torah is no longer ‘in the heaven’ (לא בשמים היא).⁵²

As Reut Yael Paz has correctly explained, the importance associated with the principles derived from ‘Akhnai’s oven’ concerning Talmudic law’s dependence on judicial due process, and the supremacy of human judicial opinion over any of the law’s written ‘dead letters’, simply cannot be overstated.⁵³ Once the case of ‘Akhnai’s oven’ made it into the Talmud, virtually all subsequent commentators and interpreters followed its stance on the supremacy of living judicial interpretation over the dead-lettered law.⁵⁴

What is missing from Paz’s account is the fact that this principle of Jewish law (‘Akhnai’s oven’) – which established judicial supremacy over any textual source in the Talmud, and which was most certainly known to rabbis who read it – was not necessarily so commonly known to the broad East-European Jewish orthodox society that might not have been as fully versed in the Talmudic text as the rabbis were. Nevertheless, this principle of judicial supremacy certainly did make it into the minds of each and every synagogue-going Jew, especially since the eighteenth-century appearance of the Torah in print. The reason for this was less Talmudic and more biblical: it appears in the bluntest of manners in Rashi’s commentary, which literally every 13-year-old bar-mitzvah boy in Jewish orthodox East/Central Europe read.⁵⁵

In his commentary on the Torah’s very last verse, this foremost of all biblical and Talmudic commentators sought to explain the power vested in Jewish judges by clarifying the meaning of the Torah’s final three words (in the original Hebrew) ‘… in the sight of all Israel’ (Deuteronomy 34:12 לעיני כל ישראל). Recalling how Moses had broken God’s own carving of the first set of the Ten Commandments tablets, Rashi set out to answer one of Judaism’s greatest theological conundrums – namely, by what right did Moses dare to break the stone-tablet Ten Commandments that God himself had crafted with his own finger (באצבע אלוהים)? Rashi’s explanation is truly astounding:

that Moses’ heart brought him to break the stone tablets before their eyes … and the Blessed One – he agreed with Moses and told him: That which you have broken – well and good that you have broken!⁵⁶

Moses holds the most basic tenet of Jewish law (if not of all humanity): the Ten Commandments, made by God himself. Yet upon his descent from Mount Sinai, as he sees the Golden Calf, he decides to break the tablets before the very eyes of the amazed Jewish people. The message is clear. The Ten Commandment’s text shall remain the same yet its application on earth shall be up to Moses, the first rabbinical sage and Judaism’s first judge. If the application of the Almighty’s most profound law requires the shattering of this very law, then the Almighty shall concur with Moses’ decision as that law’s applying judge on earth post eventum, after Moses had already taken his decision to break the tablets. The law, being eternal, was made by God. Yet its application here on earth was not his (as legislator) to control but rather was up to the judges to effectuate.⁵⁷

Back in the twentieth century, the religious Jewish Rabbi Georg Cohn and the great Hans Kelsen were well acquainted and held each other in high regard.⁵⁸ Nevertheless, given Cohn’s obvious criticism to the Grundnorm’s alleged supremacy to judicial freedom of legal interpretation, the old Viennese scholar could not remain idle on the challenge laid bare before him by his Danish rabbi peer. In a long, 26-page review of Cohn’s book, published just after the Danish jurist’s sudden premature death from illness, and in a shorter review, Kelsen set out to refute Cohn’s Talmudic belief in the complete freedom of judges.⁵⁹ Kelsen in fact held Cohn in such high regard that he reprinted a shortened version of his answer to Cohn and quoted their debate in one of the very few footnotes that he included in his expanded English edition of Pure Theory of Law, published ten years later in Berkeley.⁶⁰

Kelsen’s answer to Cohn was nothing less than brilliant. Clearly acknowledging the importance of judicial freedom, Kelsen opted to find a middle ground between the existence of eternal, universal norms and the need to accommodate change through ‘living’ judicial oversight, which he fully recognized was one of the strongest features of the Anglo-Saxon Common Law tradition. At the end of the day, so argued Kelsen, some sort of ‘middle way’ accommodation needed to be found between the judicial freedom so salient to English Common Law (and Jewish-Talmudic law, for that matter) and the European Continental tradition in which judges hardly possessed any law-making powers:

The theory that only courts create law, a theory grown upon the soil of Anglo-American common law, is just as one-sided as the theory, grown on the soil of European-Continental statutory law, that the courts do not create law at all, but only apply already created law. The latter theory amounts to the view that only general legal norms exist, the former, that only individual legal norms exist. The truth is in between.⁶¹

Kelsen was not a Talmudist like Cohn. In his world, the present legislator was just as alive as the living judge. When one considers the marvel that is the European Parliament today as a true legislator – albeit as an international one (i.e., one between nation states) – one must concede that Kelsen’s view as to the ability for change and progress with both norm and judiciary advancing hand in hand outdid Cohn’s imagination. Nevertheless, and as Matthias Jestaedt has stressed, few jurists in the twentieth century were as supportive of international law as either Kelsen or Cohn were.⁶² The difference between them lay in their divergent approaches on how best to invigorate international law’s standing. Yet at the end of the day, both scholars saw eye to eye on the vital requirement to strengthen and consolidate further the universalist powers of international law for the sake of all humankind.

6 Conclusion: Between International Law and Talmudic Law

Authors researching the history of modern international law habitually come across the disproportionate Jewish participation in the making of its treaties and, later, in these treaties’ successful interpretation. In addition to the known explanations for this phenomenon stressed in the introduction to this study, there is another aspect that might well have also contributed to this disproportionate Jewish ‘success’ in the field of international law. This is the hybrid educational background shared by many of these jurists, which dovetailed Talmudic teachings with ‘secular’ international-law doctorates. If there was a component in these Jewish jurists’ education and biographical backgrounds that might have given them an advantage in this field, it seems likely to be that which Jacob Robinson referred to, in his description of Louis Henkin’s ‘sharp Talmudic mind’. One key feature of such a ‘Talmudic mind’ might well have to do with the inherent similarities between Talmudic law and international law – which anyone who had received a Jewish-Talmudic law education would probably readily recognize.

Both systems of law are absent a dominant and living legislator in the ideal sense of this term. Both are inherently based first and foremost on judicial oversight and judicial interpretation: for Jewish-Tamudic law, this is the interpretation of the Torah; for international law, it is the interpretation of treaties struck during bygone eras. As such, both systems ‘make their law as they go along’. Both have clear deficiencies and limitations in their enforcement capacities. Both have only partial resort to coercive execution organs in order to effectuate their judgments, and implicitly rely on the collective pressure of their communities. In the majority of cases, when states decide to become pariahs, the international system’s main punishment mostly comes in the form of ‘excommunication’. Similarly, Talmudic sages could well excommunicate a member of their community. But that was pretty much as far as their coercive powers reached. Members of the Jewish community who did not care for such excommunications, such as Baruch Spinoza, were simply beyond the pale; there was little or nothing that the community could do to further effectuate its coercive judgment against protagonists such as the seventeenth-century philosopher from Amsterdam. Similarly, there is little that the international community can do today to force North Korea’s hand, other than continue its excommunication.

Arguably, the single most important similarity between Talmudic law and international law concerns the role of judges in both systems, and the collective respectful meaning associated with their verdicts. In his 1958 Recueil des Cours on the UN’s changing nature, Jacob Robinson was ambivalent as to where the UN was heading, ‘from rule of law- to the rule of majority’.⁶³ His general approach to the UN was, in his own words, ‘an affirmative one’.⁶⁴ Yet what seemed to him the most alarming phenomenon threatening this institution’s future was the possible decline in the ICJ’s stature. Concerning the UN’s decision not to refer the problem of the treatment of people of Indian origin in South Africa (beginning 1946) to the ICJ’s adjudication, Robinson wrote,

it is disturbing … that a case like this, which comes so fittingly under … the Statute of the Court, and is a classic example of a justiciable case, should not have been turned over to the International Court of Justice. All the friends of the rule of law have observed with great anxiety a tendency to boycott the Court and virtually put it out of business.⁶⁵

To a Talmudic thinker such as Robinson, the fact that judgments might not always be applied was not entirely extraordinary. Legal systems such as international law or Talmudic law, which rested heavily on public consent, could survive some limitations to the effectuation of their judgments. What these systems could not stand was the total non-involvement of their judges in their daily functions.

One of the most intriguing aspects which certainly merits further research, concerns the distinct difference between the East-European orthodox jurists whose work I have examined in this article and their German-Jewish, stringently secularist peers from this period. Interestingly, while the Jewish orthodox East-European jurists such as Robinson, Lewin, Henkin and Lauterpacht tended to take a strong moralist/natural-law approach to international law, their German-Jewish secular peers such as Herman Kantorowicz, Erich Kaufmann, Hans Morgenthau and Leo Strauss were all far more inclined towards realism. In the cases of Morgentahu, Kaufmann and probably Strauss, that realism almost bordered upon naked Machiavellianism.⁶⁶ One should immediately ponder what lies at the heart of this difference. Did the Jewish-Talmudic background of the former group influence their more moralist approach to international law? Might the absence of a religious orthodox upbringing and the stern focus on a ‘classical’ Western-European Enlightenment-based education that the latter, Germanic group received have something to do with its tendency towards realistic and a-moralistic readings of international law? Richard Tuck’s accreditation of Leo Strauss for his understanding of international law’s ‘minimalist’, sceptic, a-moral, and non-religious reading of Grotius certainly comes to mind here.⁶⁷

The moralist approach to international law of the East-European Talmudic jurists was not limited to the examples that I have cited here. Jacob Robinson’s Jewish-Talmudic-law approach to international law and its moralistic overtones were even applied towards Palestinian refugees stemming from Israel’s 1948–1949 existential war of independence (the Palestinian Nakba). In their top-secret planned compensation scheme for Palestinian refugees’ material assets left behind in Israel, Jacob Robinson and Israeli Foreign Minister Moshe Sharett used Jewish-Talmudic law phrases such as ‘and these sheep how have they sinned’ with regard to Palestinian civilians (2 Samuel 24:17) in clear reference to Rabbi David Zvi Hoffmann’s formulation of the requirements of the Talmudic law of torts.⁶⁸

Notwithstanding the fact that Lewin, Robinson, Henkin, Lauterpacht and probably many others did indeed possess ‘sharp Talmudic minds’, which might have made them more attuned towards international law’s systemic peculiarities, there remains a set of methodological and substantive challenges that still need to be addressed if one is to arrive at a fuller picture concerning the Jewish-disproportionality conundrum. At the end of the day, one still needs to explain the disproportionate contribution of Jews who were outright secular (and not Talmudic at all) and yet who still made a huge contribution to international law – as in the cases of Georges Cahen Salvador’s and Nissim Mevorah’s making of the 4th Geneva Convention’s Common Article 3, which is the epitome of a moralist clause in one of the most humanitarian of international treaties ever struck.⁶⁹

Last but not least, there remains the realm of new research into the thinking of orthodox (and even ultra-orthodox) Jewish rabbis who, during the twentieth century, argued in favour of the universality of international law and of the need for religious Jews to actively engage in it, and even to mobilize in its favour for the sake of all humankind, and who actively called on their own Jewish orthodox and ultra-orthodox communities to do so. The recently published, commendable studies by Vleeschhouwer and Bezalel-Horev serve as eye-openers with regard to the inherent potential of faith-based communities to serve as supporters and upholders of international legal ideals.⁷⁰

Of all the Talmudic sources that might have influenced Robinson, Lewin, Cohn, Henkin, Lauterpacht and their other Jewish orthodox peers towards making their disproportionate contributions to modern international law, probably none was as influential as the obligation set forth in Jeremiah’s decree:

And seek the peace of the city where I have caused you to be carried away captives, and pray unto the Lord for it: for in its peace thereof shall you have peace (Jeremiah 29:7).

To them, and many others (Raphael Lemkin, René Cassin, Egon Schwelb – and the list goes on), the single most important impetus towards making a contribution to international law was probably this Talmudic duty on Jews who received a religious upbringing: to better the lives and places where they lived. As Shabtai Rosenne explained, it was first and foremost Jacob Robinson who stressed that once Israel had become a member of the UN in 1949 it had a duty to contribute to the universalist efforts of international law via the work of international organizations, and that its delegation at the UN

should make every effort to take part in all the UN’s activities and make them a contribution based on intrinsic quality, not on mere political power, a twentieth century projection of the Prophet Zachariah’s ‘Not by might nor by power, but by My spirit’ (Zachariah 4:6) into the harshness of international politics.⁷¹

It seems that one mutual ‘lowest common denominator’ between the secular German speaking jurists such as Kelsen, and the East-European orthodox ‘Talmudic’ ones such as Robinson, was probably their striving towards bettering the world via the application of universalist international legal principles. If there is any one mutual factor of that elusive measure of ‘Jewishness’ which one can pinpoint, it seems (to the author of these lines) to be this psychological-moral desire, of making the world a better place. Secular jurists such as Kelsen might have drawn their references towards this goal from Immanuel Kant’s Perpetual Peace (1795). Talmudic jurists such as Robinson might have opted for Jewish-law’s ancient principle of Tikun-Olam (‘the world’s betterment’).⁷² This mutual psychological-moral drive they shared probably also stemmed from their personal negative biographical experiences of discrimination and persecution. Yet their instinct towards the world’s improvement, is an ancient Jewish one, and has impacted the thinking of Jewish people at least since Jeremiah wrote his letter to the Jewish exiles of Babylon back in 576 BC.