Shalom Carmy
For as long as anyone can remember, the motto of religious Zionism has been “the land of Israel for the people of Israel according to the Torah of Israel.” For as long as anyone can remember, spokesmen for religious Zionism, rabbis, legal scholars, and politicians, have dreamt and planned a Jewish state governed by Halakhah. Alexander Kaye’s new book,The Invention of Jewish Theocracy: The Struggle for Legal Authority in Modern Israel, attempts to trace the history of this project. He is primarily concerned with the pre-State stages—the 1930s and ‘40s – although the last chapters survey the better-known history of the past fifty years. In particular he concentrates on the role of R. Isaac HaLevi Herzog, who was Ashkenazi Chief Rabbi during this period, whose position combined with his intellectual breadth make his initiatives and writings crucial.
This is an essential book even for those familiar with the subject and even for those who keep up with the Hebrew historical and legal literature. Much of the historical discussion has focused on the arguments and political maneuvering around religious legislation and the status of rabbinical courts in Israel or examined specific issues involving marriage and divorce, conversion, kashrut, and the like, or tackled broad questions such as the halakhic outlook on democracy and rights of non-Jews in a Jewish state. Kaye devotes attention to the most general problems confronting religious Zionist rabbis and leaders. Where he tries to break new theoretical ground is in raising the entire question of “Jewish theocracy,” meaning whether a Jewish state should indeed be governed by the corpus of Halakhah. His view is that theocracy was not the only live option for religious Zionists. The prevalent sense that theocracy, as a goal, is taken for granted by religious Zionism, he implies, owes much to R. Herzog’s prominence and to his awareness of contemporary legal systems, not least to the Irish Constitution, about which he was consulted during his tenure as Chief Rabbi of Ireland and as a friend of the Irish leader Eamon de Valera.
I want to explain the logic of Kaye’s argument, why it may have historical and theoretical merit, and its limitations. Kaye contrasts a centralized understanding of law and the state with what students of legal theory call “pluralism.” In a centralized system there is one ultimate authority. This is the view most of us are accustomed to; its corollary is the myth that public life and religion can be neatly separated so that neither intrudes on the other. When conflict occurs between the state and individuals or groups, it is the state that decides whether to tolerate or override their convictions. Individuals, professional associations, and religious groups can exercise freedom only within the boundaries set by the government. The state may be tolerant and intervene rarely in the lives of citizens and subjects, or it may be strongly interventionist. The modern state is very intrusive in its control of social and economic policy and inevitably pressures and marginalizes non-state bodies. Kaye quotes Zerach Warhaftig, longtime Minister of Religion, law professor, and talmid hakham:
What was perhaps possible at the end of the nineteenth century and the first years of the twentieth century, when the state was merely a political framework which did not penetrate into mens’ souls, is impossible today, when the state is becoming more and more totalitarian. . . . The time has passed when the state filled the role of a “dog,” guarding the borders, whereas social matters [and] problems of spirit and culture were left to the free initiative of society. The state today has returned to the age of absolutism.
Legal pluralism, in its various forms, admits the possibility of multiple legal systems. Take the British Raj for example. The British ruled, yet they were quite satisfied to leave local nabobs in charge of native society. At one level, the result is a relaxed centralism: it is the British who decide how much self-government to countenance; in practice, however, it means that the Indian elites remain in place.
Now, says Kaye, the “theocratic” option for religious Zionism presupposes a centralized system. There is a final authority and that authority must be Halakhah. A pluralist model would allow the state to rule in its domain while setting aside areas in which other systems can exist independently. In fact, the state of Israel adopted a form of pluralism: marriage and divorce remained under religious jurisdiction; rabbinic courts continued to function in other areas, such as civil law, for the benefit of those who wanted them. This arrangement is not without practical difficulties: from time to time, the secular government has sought to constrain the authority of the rabbinic judiciary both in family law and in civil law, based on the secular authority’s convictions, and resting on the brute fact that the rabbis exercise only the powers that the secular state confers upon them. The dual judicial system also encourages jurisdiction shopping, where attorneys try to shift their case to the court most favorable to their clients (just as American lawyers try to exploit differences in state laws in favor of their clients).
This is how Israeli law evolved. It is not what R. Herzog wanted. In 1937, when the possibility of a Jewish state first came up, R. Herzog had written to R. Hayyim Ozer Grodzinski of Vilna, the influential rabbinic leader. R. Hayyim Ozer advocated a mixed pluralistic system, referring inter alia to Derashot ha-Ran 11, which adumbrated a dual system of halakhic law and secular authority. R. Herzog rejected this option for several reasons. It has been maintained that R. Hayyim Ozer could take this position precisely because he was not a Zionist, and therefore he could treat the secular powers in a Jewish state as he would any other government, fighting for what is pragmatically necessary and feasible, rather than for an ideal Jewish commonwealth. Kaye notes that other Zionist rabbis in the late ‘40s also wrote about arrangements that were achievable, given the non-religious and often anti-religious orientation of the political leadership in the Yishuv. Had R. Herzog listened to R. Hayyim Ozer, suggests Kaye, he would not have felt obligated to propose a theocratic constitution for Israel, one in which Halakhah is paramount.
The question for Kaye then is why R. Herzog expended so much energy in advocating and attempting to formulate a legal system that would adapt Halakhah and apply it to the nascent Israeli polity when that solution was neither necessary nor likely to be adopted. Despite the manifold urgent duties of the Chief Rabbinate, despite the enormous amount of time he devoted to rescue efforts during and after the Holocaust, he kept working on the “constitutional” questions, even though the bulk of his writing was not published for decades after his death. The factor Kaye identifies is an inclination in favor of a centralized legal doctrine, one in which religion and ethnicity and state are integrated. He settled for the Israeli reality of the 1950s only because it was the best one could get at that point.
Kaye’s thesis about R. Herzog’s motivation is intriguing and attractive. He refers to passages in R. Herzog’s writing that allude to British legal institutions that would have meant nothing to an audience unschooled in them; he emphasizes R. Herzog’s connection to de Valera and speculates about what they “must have” discussed. So it is possible, even probable, that R. Herzog thought about some of these questions along the lines Kaye suggests. Did these thoughts influence R. Herzog’s views? That really depends on a hypothetical—what views would R. Herzog have arrived at in the absence of the inclination towards centralization and towards national-religious integration in the spirit of de Valera’s constitution? It seems to me that his previous experience with other forms of government, and his relationship with de Valera notwithstanding, the factors supporting the “theocratic” position are so strong that R. Herzog or virtually anyone else in his situation would have reached the same conclusion. Let me explain.
Offhand, belief that the way of life upheld by Halakhah is the way of life ordained by God for the Jewish people entails that the Jewish people should adopt it in their commonwealth. Whoever advocates an alternative, in which Halakhah shares sovereignty, or is subservient to a secular jurisprudence, must justify that alternative.
Such alternatives can be justified in a variety of ways. One may claim that the ideal legal system should combine God-given law and secular human initiative. The Halakhah may describe an ideal law while the secular authority (the “king”) is more qualified to apply it in practice: Halakhah, for example, severely restricts the execution of penalties for criminal offenses, but the king’s responsibility for public order might allow punishments that would not be imposed by a rabbinic court. Civil authorities may have a better understanding of local circumstances than centralized rabbinic institutions. Or it may serve the common interest that different segments of the public, with a variety of expertise, are engaged in public activity. There are other reasons to deem division of authority desirable. I would understand the Ran’s affirmation of a dual system of law in this spirit, and note further that other Rishonim, like Rambam (following the Gemara), also speak of the king’s prerogatives coexisting with halakhic institutions. On these views, extra-halakhic legal categories can be part of the constitution of a Jewish state; they are lekhathila.
Likewise, secular systems of law may be necessary bediavad as a concession. In the twentieth century context it may be impossible to impose Halakhah when a large part of the population or the leadership rejects the foundations of Halakhah, or when there is a dearth of competent and halakhically knowledgeable officials, or when the rabbinate and its scholarly allies are simply unprepared to apply Halakhah to novel contemporary situations.[1]
But whether a mixed system of religious and secular law is inherently desirable from the religious perspective or whether it is the best that can be attained at certain historical junctures, it is the mixed system that requires justification. That is why it seems to me that anyone in R. Herzog’s position would start from the “theocratic” Halakhah-centered default position. He might have to settle for a mixed pluralistic system under the force of circumstances, as indeed happened in the state of Israel, or he might have allowed for a large measure of secular autonomy in consonance with the Ran and similar views. But these moves would require argument; they cannot be assumed.
An additional factor must be included in the discussion. When Ran, Rambam, and their confreres speak of the king’s law, side-by-side with and sometimes diverging from, classical rabbinic Halakhah, they are writing for a society that is fundamentally committed to Halakhah and to religious norms. The monarch they envision wishes to promote, in his sphere and in his way, the same kind of welfare that the halakhic leadership aims at. The Irish constitution to which Kaye refers was the brainchild of de Valera, a controversial yet dominant statesman, himself a devout Catholic, serving a nation in which the Church wielded pervasive power. The rabbinate of the mid-twentieth century, even those sympathetic to the Zionist project, confronted a very different culture. A nominally halakhic constitution, in which Halakhah was in fact ancillary to secular national ideology, might blend in with Israeli civil religion, but it would quickly and decisively be overrun by the secular power, and both the letter and spirit of Halakhah would be marginalized and “kicked upstairs,” so to speak. This might have been tolerable to the politically and numerically weak religious communities of the 1950s, eager to support the state and anxious to be accepted by it. Many of the Orthodox Mishpat Ivri scholars hoped that any alignment of the state with halakhic content would serve as a first installment from which Halakhah could advance into broader and more substantial areas. But these pragmatic considerations could not supply an acceptable theoretical platform for Chief Rabbi Isaac Herzog or for those who thought like him.
The above should show why Kaye’s work, placing the Israeli religion and state debate within the context of legal theory, is more than a merely historical investigation. As he observes, many commentators seem to think that present conflicts are a consequence of recent developments such as the increasing tendency of religious Zionists after the Six Day War to stake out ambitious territorial positions or the growth of religious Zionist communities whose halakhic commitment parallels that of the Haredim (the Hardal phenomenon). Kaye demonstrates that the roots of the conflict go back to the pre-state and early state era, the period in which religious Zionism is generally categorized as passive in relation to the secular Mapai hegemony. The conflicts are inherent in the opposition between the absolute ambitions of the modern state and the absolute principles of religion.
The later chapters of the book bring the story up to date. At the end Kaye is skeptical about solutions to the apparent impasse. He characterizes legal pluralism as vague. More importantly, in my opinion, pluralism, however formulated, can sustain a modus vivendi but cannot broker an agreement between opposing absolutes.
I recall a 1978 conference at which mori ve-rabbi R. Aharon Lichtenstein was the rabbinical presenter on the topic of individual rights. On the one hand, he did his best to outline ways of minimizing friction between the secular majority and the Orthodox minority. On the other hand, he unambiguously asserted the huge gap between the beliefs of committed Jews, for whom the word of God carries absolute authority, and those who do not so accept the yoke of Heaven. Some participants greeted his remarks with consternation. One, however, observed that representatives of religious Zionism in dialogue tended to downplay fundamental conflict, implying that harmonious partnership was not difficult to attain with a modicum of good will. He was grateful to R. Lichtenstein for his candor. In his own way, Alexander Kaye’s informative and thoughtful book on Orthodox thought helps us understand what is at stake when the question is taken with full seriousness.
[1] It may be useful to consider an analogy from American political history where the federal structure confers a degree of independence to the individual states. This can be regarded as a good thing, enabling different areas in the country to adopt practices tailored to regional needs and values or as an opportunity for experimentation. Others may see localism as an unfortunate concession to the autonomy of states in the 1780s and at present an obstacle to centralized, uniform planning, legislation, and administration.
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