The Legal Philosophies of Religious Zionism 1937-1967

Alexander Kaye

Submitted in partial fulfillment of the

requirements for the degree of
Doctor of Philosophy
in the Graduate School of Arts and Sciences

COLUMBIA UNIVERSITY

2013
 © 2012
Alexander Kaye
All rights reserved
 ABSTRACT

The Legal Philosophies of Religious Zionism 1937-1967

Alexander Kaye

This dissertation is an attempt to recover abandoned pathways in religious Zionist thought. It

identifies a fundamental shift in the legal philosophy of religious Zionists, demonstrating that

around the time of the establishment of the State of Israel, religious Zionists developed a new

way of thinking about the relationship between law and the state.

Before this shift took place, religious Zionist thinkers affiliated with a variety of legal and

constitutional philosophies. As shown in chapter 1, the leaders of the religious kibbutz

movement advocated a revolutionary, almost anarchic, approach to law. They (in theory, at

least,) only accepted rules that emerged spontaneously from the spirit of their religious and

national life, even if that meant departing from traditional halakha. Others had a more positive

attitude towards law but, as chapter 2 shows, differed widely regarding the role of halakha in the

constitution of the Jewish state. They covered a spectrum from, at one extreme, the call for a

complete separation between religion and state to, on the other, the call a rabbinic oversight of all

legislation. They all, however, were legal pluralists; they agreed that a single polity may have

within it a plurality of legitimate sources of legal authority and that, even in a Jewish state, other

kinds of legislation may hold authority alongside halakha.

In the late 1940s, this wide variety of legal pluralisms in the religious Zionist camp was replaced

by a new legal philosophy: legal centralism. This doctrine maintained that all legal authority in
the state must derive from a single source of authority, in this case halakha. As chapters 3 and 4

demonstrate, this shift was associated strongly with the first Ashkenazic chief rabbi of Israel,

Isaac Herzog, whose scholarly life had been dedicated in large part to portraying the sources of

Jewish law according to the image of state-centered jurisprudence that was valorized by modern

legal scholars in Britain and in Palestine. Chapters 5 and 6 make clear that Herzog was not the

only figure to adopt this position. It became so influential among religious Zionist leaders that it

molded their constitutional fantasies, determined the way they represented themselves to the

state and guided the construction of the new system of rabbinical courts.

As well as identifying the shift from legal pluralism to legal centralism, this dissertation attempts

to uncover its origins. Through a close reading of rabbinical court records, constitutional

pamphlets, speeches, journal articles and halakhic decisions, it traces trends in religious Zionist

legal philosophy to modern European jurisprudence. In particular, it demonstrates the influence

of British and German jurisprudence on the thinking of religious Zionists. It also places religious

Zionist jurisprudence in the context of the legal philosophy of other twentieth-century

nationalisms. In so doing, it sheds new light on the conflicts between religious and secular

Zionism and on the way that religious Zionists throughout the history of Israel have understood

their relationship to the law and politics of the Jewish state.

 Contents

List of Figures ................................................................................................................................. ii

Transliteration and Translation ...................................................................................................... iii

Acknowledgements ........................................................................................................................ iv

Introduction ..................................................................................................................................... 1

1. Law and Revolution on the Religious Kibbutz ......................................................................... 12

2. The Rise and Fall of Religious Zionist Legal Pluralism ........................................................... 62

3. Isaac Herzog Before Palestine ................................................................................................ 106

4. A Constitution for Israel According to the Torah ................................................................... 144

5. The Imperialism of the Chief Rabbinate ................................................................................. 189

6. Centralization of the Rabbinical Courts .................................................................................. 220

Conclusion .................................................................................................................................. 246

Bibliography ............................................................................................................................... 255

i
 List of Figures

Figure. 1: First page of a ruling from Israel’s [civil] Court of Appeals, 1959……………...…234

Figure. 2: First page of a ruling from the Rabbinical Court of Appeals, 1957…………..……234

Figure. 3: Ruling from the Jerusalem Rabbinical Court, 1938……………………….....…….235

ii
 Transliteration and Translation

Transliteration from Hebrew follows the SBL General-Purpose Style except where common

convention differs.

All translations are my own unless stated otherwise.

iii
 Acknowledgements

This dissertation could not have been written without the support of many people and

institutions.

I am indebted to my doctoral advisor, Michael Stanislawski, who has been my guide throughout

my time at Columbia and beyond. His dedication to my work and his personal example of

erudition and scholarship were crucial touchstones of my graduate career. The other members of

my dissertation committee, Elisheva Carlebach, Jeremy Dauber, Samuel Moyn and Suzanne Last

Stone, were each unfailingly generous sources of wisdom and guidance. They gave invaluable

feedback on drafts of my work and were always available to offer support and advice.

I was deeply privileged to study under Professor Yosef H. Yerushalmi in his last years at

Columbia, which also turned out to be among the last years of his life. His careful attention to

my intellectual development equipped me with lifelong lessons in what it means to be a Jewish

historian. I could do no better than to emulate his scholarship and his humanity. His loss is

keenly felt.

My doctoral work was made possible by the education I received long before arriving at

Columbia. Rabbi Dr. Yehuda Abel first taught me how to read and appreciate Jewish texts. That

education was continued under Rabbi Mordechai Friedman and the faculty of Yeshivat Har

Etzion and Rabbi Michael Rosenzweig at Rabbi Isaac Elhanan Theological Seminary. The years

iv
studying under Rabbi Dov Linzer and the faculty of Yeshivat Chovevei Torah Rabbinical School

provided me with an invaluable training in the substance of the Jewish tradition and in

techniques for interpreting its texts. Rabbi Linzer also suggested directions for my scholarly

work. I am grateful to them all.

I first engaged with the history of political thought in a serious way during my undergraduate

years at the University of Cambridge, where I was also taught to write good history. There, I

studied under Annabel Brett, Chris Clark, William Golding, Quentin Skinner and many others,

upon whose teaching I still regularly draw today. The excitement of the intellectual stimulation

of my undergraduate days is still with me. David Abulafia was my first guide in the application

of the methods of intellectual history to Jewish history and shepherded me through my

undergraduate dissertation on the thought of Isaac Abravanel and my M.Phil. dissertation on the

semikha episode of 1568 Safed with tremendous attention and care.

My dissertation owes a great debt to the many scholars who read drafts, suggested ideas and

provided all kinds of advice and guidance, including: Leora Batnitzky, Hanina Ben-Menahem,

Rabbi Shaar Yashuv Cohen, Arye Edrei, Jonathan Gribetz, Aviad Hacohen, Moshe Halbertal,

David Horowitz, Amos Israel, Bernard Jackson, Shahar Lifshitz, Assaf Likhovski, Yair

Lorberbaum, Menachem Lorberbaum, Menachem Mautner, Kenneth Moss, Yehudah Mirsky,

Douglas Morris, David Myers, David Novak, Derek Penslar, Amihai Radzyner, Lawrence

Rosen, Tamar Ross, Yaakov Ross, Alan Rubinstein, Pinchas Roth, Arieh Saposnik, Alan Segal,

Joshua Shanes, Anita Shapira, Elana Stein-Hain, Nomi Stolzenberg, Steven Wilf and Ron Zweig.

The process of writing the dissertation was facilitated enormously by a number of fellow

v
graduate students who spent hours reading and discussing drafts of my dissertation chapters with

great insight and good humor, including: Shira Kohn, Josh Teplitsky, David Weinfeld, Julie

Yanofsky-Goldstein and Jennifer Young.

My research was made possible by the expertise and devotion of the staff at a number of

archives, particularly those at the Central Zionist Archive, the Israel State Archive, the archives

of the Religious Kibbutz Movement at Kvutsat Yavneh, the personal papers of Rabbi Isaac

Herzog that were until recently housed in Hekhal Shlomo in Jerusalem, and the Religious Zionist

Archives at Mosad Ha-rav Kook in Jerusalem and at Bar-Ilan University Library. I am grateful to

the foundations and institutions that supported my work. My dissertation writing was supported

by dissertation completion fellowships from the ACLS/Mellon Foundation, the Foundation for

Jewish Culture and the Memorial Foundation for Jewish Culture. The first years of my doctoral

studies were supported by the Richard Hofstadter Faculty Fellowship of the history department

at Columbia University as well as by Columbia’s Institute for Israel and Jewish Studies. I was

also a fellow at the Cardozo Law School Center for Jewish Law and Contemporary Civilization,

where Suzanne Last Stone and Ari Mermelstein, trained me in legal theory and its applications,

which became a crucial component of my scholarly work.

Finally, I want to express my gratitude to my family. To my parents, David and Lindsey Kaye, I

of course owe everything. My intellectual growth has always been nourished by their inspiration

and enthusiasm. I want to thank my sister, Tamara, for her humor and wisdom, my grandparents

for their endless encouragement, my parents-in-law, Sally Zanger and Daniel Nadis, and my

vi
siblings-in-law, Joe and Becky, and Maya for their unflagging support. To my wife, Lynn,

nothing I could say here would possibly suffice.

vii
 1

Introduction

Afraid for his life, Éamon de Valera, former President of the Irish Republic, sought refuge with a

Zionist rabbi.

The Anglo-Irish Treaty of 1921 had created an Irish political entity that remained under British

sovereignty. Although the treaty was supported by many Irish, it was opposed by de Valera and

his fellow “anti-treatyites”, who would settle for nothing less than complete independence. This

conflict eventually erupted into a full-scale civil war during which de Valera sought shelter under

the roof of Isaac Herzog, the Chief Rabbi of Ireland. The two men, who shared an antipathy for

British imperialism, enjoyed each other’s company. Evidently, de Valera trusted Herzog to hide

him from violence. In 1937, after years of struggle, de Valera finally oversaw the enactment of

the new Constitution of Ireland and the establishment of a completely independent Irish state. In

that same year, Herzog took up the post of Ashkenazic Chief Rabbi of Palestine and began his

own work on a constitution for the Jewish state that he hoped would soon be established.

Ostensibly, Herzog’s constitutional writings have little in common with those of de Valera, or

with the legal and political discourse of any modern European state. Herzog’s writing is in the

language of the rabbis, thick with Talmudic references, halakhic arguments and quotations from

medieval jurists. In this sense, he was representative of all religious Zionists, who were not only

committed to the vision of an independent Jewish nation state, but also to the authority of the
 2

Jewish religious tradition.1 This dual commitment gave rise to tensions in many spheres,

including that of legal and political theory. A foundational principle of the modern democratic

state is that sovereignty derives from the people whose will is the source of all law. According to

traditional Jewish belief, however, law derives from the will of God as revealed at Sinai and

interpreted in the canonical texts. Religious Zionist leaders had to synthesize these two

fundamentally different worldviews, each with its own legal and political language. In the words

of Herzog, the state had to be “theocratic-democratic.”

How can a state be both theocratic and democratic? This dissertation tells the story of a

significant shift that took place in the way that religious Zionists answered that question. Pre-

modern Jewish communities had a pluralistic attitude to law, recognizing that no one institution,

not even halakha, has a monopoly on legal authority. Just as halakhic law was binding, so was

the law that originated with the lay leadership of the community and the Gentile ruler. For

decades, this pluralistic attitude was the foundation of religious Zionist articulations of a vision

of a Jewish state in which the Jewish tradition had a place, but only alongside a democratic

legislature and a secular judiciary. In the months before the state was established, however, a

different approach to law began to take hold in religious Zionist circles. Legal pluralism was

replaced by another legal philosophy, conventionally called legal centralism, which insisted that

all law and all legal authority had to be vested in one source: the state. Closely associated with

Isaac Herzog, this new philosophy slowly rose to dominance in the first few years of Israel’s

1
The term “religious Zionism” has become the conventional term for Orthodox Jewish Zionists, most of whom were
affiliated with Mizrahi or Ha-Poel Mizrahi.
 3

existence and had a tremendous impact on the shaping of religious Zionist policies and

institutions.

This shift had profound consequences for the future of the Jewish state. A pluralistic outlook

allowed religious Zionists to give the state its due while leaving room, at least in theory, for the

independent status of religious law and rabbinical courts. However, for the centralist outlook,

according to which the state was the origin of all law, to be combined with religious sensibility,

the association between religious and state law had to be far more comprehensive. This shift in

legal philosophy, then, had to be accompanied by a corresponding shift of the general attitude of

religious Zionists towards the state, an increased interest in the centralization and

bureaucratization of the rabbinate, and an enduring desire to bring the state under the umbrella of

halakha.

The following chapters lay out the evidence for this transition. They also try to explain why it

occurred. To be properly understood, religious Zionist discussions of law and constitutional

theory must be placed in the context of wider jurisprudential trends. The rabbinical idiom in

which religious Zionists wrote often belied their debt to modern European legal theory. The

unstated assumptions behind their approach to law and their vision of the shape of the

constitution was drawn, sometimes consciously and sometimes not, as much from Weimar

German and post-Victorian England as from the Talmud and Maimonides. The shift from legal

pluralism to legal centralism among religious Zionists mirrored a similar shift in the legal

philosophy of modern Europe and of nationalist movements the world over, not least among the

secular Zionist élite during the same period.

 4

My work engages with four overlapping scholarly conversations. The first regards the place of

law in the formation of modern identity and nationalist culture, and of Zionism and the State of

Israel in particular. Law is an expression of culture, embedded in an environment that it creates

and by which it is created.2 This makes it into a valuable object of historical study, capable of

shedding light on socio-political, economic and intellectual structures. This is particularly true of

constitutional law, which provides particularly important insight into political culture and civic

identity.3 Law has always played a significant role in the forging of Zionist identity. Many

Zionists considered the cultivation of a unique legal culture to be important to their nationalist

project in the same way as the creation of a modern Hebrew language.4 Law itself has both

addressed and reflected tensions and trends in Israeli society regarding the role of religion and

the place of minorities in the state, amongst a host of other existential questions about what it

means to be a “Jewish and democratic” state.5 The Supreme Court, since its early days, has been

a lightning rod for existential debates about the meaning of the state. It has been vilified in the
2
For a succinct introduction to law and culture, see: Naomi Mezey, “Law As Culture,” in Cultural Analysis,
Cultural Studies, and the Law: Moving Beyond Legal Realism, ed. Austin Sarat and Jonathan Simon (Durham, N.C.;
London: Duke University Press, 2003); Lawrence Rosen, Law as Culture: An Invitation (Princeton: Princeton
University Press, 2006).
3
See, for example, Paul W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America (New
Haven and London: Yale University Press, 1997).
4
The best book on the role of law in Mandate Palestine and in the early Zionist movement in general is: Assaf
Likhovski, Law and Identity In Mandate Palestine (Chapel Hill N.C.: University of North Carolina Press, 2006).
See also Ronen Shamir, The Colonies of Law: Colonialism, Zionism, and Law In Early Mandate Palestine
(Cambridge: Cambridge University Press, 2000). For the development of the study of Israeli legal history, see: Ron
Harris, The History of Law In a Multi-Cultural Society: Israel 1917-1967 (Aldershot: Ashgate, 2002).
5
Daphne Barak-Erez, Outlawed Pigs: Law, Religion, and Culture In Israel (Madison, Wis: University of
Wisconsin Press, 2007); Patricia J. Woods, Judicial Power and National Politics: Courts and Gender In the
Religious-Secular Conflict In Israel, SUNY Series in Israeli Studies (Albany, N.Y.: Suny Press, 2008). Israel is
defined as a Jewish and democratic state in both the UN Partition Plan of 1947 and in its Declaration of
Independence. Israel’s Basic Law: Human Dignity and Liberty (1992), a law which has constitutional status in the
Israeli legal system, explicitly refers to Israel as a “Jewish and democratic state.” See: Amnon Rubinstein, “The
Curious Case of Jewish Democracy,” Azure 41 (2010).
 5

eyes of some, while others have considered it to be a saving grace of Israel’s political culture. 6

Indeed, many, from the founding of the state until today, have invested considerable hope in the

use of a constitution as a tool to heal the rifts in Israeli society by articulating a consensus

between its various populations and interest groups.7 My analysis of the religious Zionist

approach to legal and constitutional theory will contribute to this conversation by exploring the

approach of one subset of Israeli society to these important issues.

The second conversation regards the relationship between religion and state in Israel, and the

study of religious Zionism itself. The religious response to Zionism and the relationship between

religion and the State of Israel has been analyzed from theological, political, legal and

sociological perspectives.8 Little attention, however, has been paid to the religious Zionist

attitude to law in a historical perspective. There has been a huge output of legal scholarship on

the subject under the category of Mishpat Ivri, Hebrew law. This term has had various meanings.

As discussed below, it was the name given to the movement that tried to reinvent Jewish civil

law for application in a modern Jewish polity in first half of the 20th century. Today, however,

Mishpat Ivri refers primarily to the academic study of Jewish law using the terminology and

6
Menachem Mautner, Law and the Culture of Israel (Oxford, New York: Oxford University Press, 2011); Aharon
Barak, The Judge in a Democracy (Princeton University Press, 2008).
7
For example: Yoav Artsieli, The Gavison-Medan Covenant: Main Points and Principles (Jerusalem: The Israel
Democracy Institute and Avi Chai Israel, 2004).
8
See, for example: Dov Shwartz, Faith At the Crossroads: A Theological Profile of Religious Zionism (Leiden:
Brill, 2002); Aviezer Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism (Chicago: University of
Chicago Press, 1996); Asher Cohen, Ha-talit veha-degel: ha-tsiyonut ha-datit ve-hazon medinat ha-torah bi-yeme
reshit ha-medinah (Jerusalem: Yad Yitshak Ben-Tsvi, 1998); Menahem Friedman, “The Structural Foundation for
Religio-Political Accommodation in Israel: Fallacy and Reality,” in Israel: The First Decade of Independence, ed.
Selwyn Ilan Troen and Noah Lucas (SUNY Press, 1999); Charles S. Liebman and Eliezer Don-Yehia, Religion and
Politics in Israel, Jewish political and social studies (Bloomington: Indiana University Press, 1984).
 6

methodology of modern legal studies.9 In this vein, there have been many treatments of the ways

in which Jewish law was thought to understand the modern state and its institutions.10

Methodologically, however, this research is juristic rather than historical; it generally attempts to

produce a static and internally coherent picture of the law in theory rather than to investigate the

dynamics of change or questions of causation. Similarly, there have been countless articles and

books from within religious Zionist circles that deal with the relationship between the state and

the Jewish tradition. These, too, however, are predominantly legal explorations rather than

historical investigations.11 In recent years, scholars have become more interested in a historical

analysis of this topic.12 A number of articles have been produced using extensive new archival

research.13 My work engages with this new work from the perspective of intellectual history.

9
Bernard S. Jackson, ed. Modern Research in Jewish Law, The Jewish Law Annual Supplement 1 (Leiden: Brill,
1980).
10
For example: Menachem Elon, Jewish Law: History, Sources, Principles, Philip and Muriel Berman ed., 4 vols.
(Philadelphia: Jewish Publication Society, 1994); Eliav Shochetman, Seder ha-din le-or meqorot ha-mishpat ha-ivri:
taqanot ha-diyun u-fesiqat batei ha-din ha-rabani'im be-Yisra'el, ed. Nahum Rakover, The Library of Jewish Law
(Jerusalem: The Library of Jewish Law, 1988); Eliav Shochetman, “Hakarat ha-halakha be-huqei medinat yisra'el,”
Shenaton ha-mishpat ha-ivri 16-17, no. 417-500 (1990-1991); Eliav Shochetman, “Israeli Law and Jewish Law -
Interaction and Independence: A Commentary,” Israel Law Review 24 (1990).
11
See, for example, the journals ha-Torah veha-medinah and Tehumin. On the former, see: Mark Washofsky,
“Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity,” Modern Judaism 9, no. 3 (1989).
12
Benny Porat and Aviezer Ravitzky, Mahshavot 'al demokratiah yehudit (Jerusalem: The Israel Democracy
Institute, 2010); Aviezer Ravitzky, Religion and State in Jewish Philosophy: Models of Unity, Division, Collision
and Subordination (Jerusalem: Israel Democracy Institute, 2001); Gerald J. Blidstein, “On Lay Legislation in
Halakhah: The King as Instance,” in Rabbinic and Lay Communal Authority, ed. Suzanne Last Stone (New York:
Michael Scharf Publication Trust of the Yeshiva University Press, 2006); Suzanne Last Stone, “Religion and State:
Models of Separation from within Jewish Law,” International Journal of Constitutional Law 6, no. 3&4 (2008);
Aviezer Ravitzky, Dat u-medinah ba-hagut ha-yehudit ba-me'ah ha-esrim (Jerusalem: Ha-makhon ha-yisra'eli le-
demokratiah, 2005).
13
Amihai Radzyner in particular has engaged with the archival material in a new way and has produced many
articles arising from his research. See, for example: Amihai Radzyner, “Ha-rav Uziel, rabanut Tel-Aviv-Yafo u-bet
ha-din ha-gadol le-erurim: mahazeh be-arba ma'arakhot,” Bar-Ilan Studies In Law 21, no. 1 (2004); Amihai
Radzyner, “Reshitan shel taqanot ha-diyun be-vatei din ha-rabani'im: taqanot [5]703,” Diné Israel 25 (2008);
Amihai Radzyner, “Al reshitan shel taqanot ha-diyun be-vatei din ha-rabani’im: ‘sidrei ha-mishpatim’, [5]681,”
Bar-Ilan Studies in Law 25, no. 1 (2009); Amihai Radzyner and Shuki Friedman, Huqah she-lo ketuvah ba-Torah
(Jerusalem: The Israel Democracy Institute, 2006); ibid.
 7

The third conversation is the scholarly engagement with Jewish political thought. The beginnings

of Jewish historical study in the nineteenth century tended to downplay the importance of a

distinctively Jewish approach to political thought. In the twentieth century, however, a number of

leading Jewish historians produced important works about the legal and constitutional history of

Jewish communities.14 More recently, this historical work has been complemented by an

impressive array of scholarship from the disciplines of law, political science and intellectual

history.15 This dissertation is a further contribution to the understanding of the ways in which

Jews have thought about politics and the interaction between religious law and political life.

Finally, my work is situated in the field of the history of political thought. In particular, it

engages with the study of the relationship between religion, politics and law in the modern

world. Since the early part of the twentieth century, the dominant theoretical approach to this

14
Some notable works include: Salo W. Baron, The Jewish Community: Its History and Structure to the American
Revolution, 3 vols., The Morris Loeb series (Philadelphia,: The Jewish Publication Society of America, 1942);
Yitzhak Baer, “Ha-yesodot veha-hathalot shel irgun ha-qehillah ha-yehudit be-yemei ha-benayim,” Zion 15 (1950);
Louis Finkelstein, Jewish Self-Government in the Middle Ages, 2nd ed. (New York: Jewish Theological Seminary of
America, 1964). Some more recent contributions are: David Biale, Power & Powerlessness in Jewish History: The
Jewish Tradition and the Myth of Passivity (New York: Schocken Books, 1986); Ezra Mendelsohn, On Modern
Jewish Politics (New York: Oxford University Press, 1993).
15
Much of the work from a political scientific approach was inspired by the example of Daniel Elazar. See, for
example: Daniel Judah Elazar, Kinship & Consent: The Jewish Political Tradition and its Contemporary Uses, 2nd
ed. (New Brunswick, N.J.: Transaction Publishers, 1997). See also: Menachem Lorberbaum Michael Walzer, Noam
J. Zohar, Yair Lorberbaum, The Jewish Political Tradition, vol. 1: Authority (Yale University Press, 2000); Michael
Walzer, Law, Politics, and Morality in Judaism (Princeton, N.J.: Princeton University Press, 2006). Stone,
“Religion and State: Models of Separation from within Jewish Law.” Examples of recent contributions to the field
from the perspective of intellectual history include: Ravitzky, Religion and State in Jewish Philosophy; Menachem
Lorberbaum, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought (Stanford,
Calif.: Stanford University Press, 2001).
 8

field has been that of “secularization theory,” associated most closely with Max Weber.16

According to this approach, the inevitable consequence of modernity was the demystification of

the world and the gradual disappearance of religion in the face of a worldview based on reason.

In recent years, this theory has been undermined on two fronts. First, religion, far from melting

away, has become demonstrably more prominent and has become an increasingly important

factor in political culture all over the world. Second, many scholars have demonstrated that the

structures of modern society have not abandoned religion and that archetypally modern

phenomena such as the nation state have religious ideas at their core.17 It is not just religious

ideas that have shaped modernity, however. The converse is also true: religious ideas are shaped

by their interaction with modernity.18 This dissertation is a case study in the ways in which

religious groups and their ideas are conditioned by their collision with modern conditions. It

demonstrates that even, and perhaps especially, when religious culture resists modernity, it

assimilates some of its most fundamental features.

16
Max Weber, The Protestant Ethic and the Spirit of Capitalism (New York,: Scribner, 1930). For a more recent
approach along similar lines, see: Peter L. Berger, The Sacred Canopy: Elements of a Sociological Theory of
Religion, 1st ed. (Garden City, N.Y.: Doubleday, 1967).
17
See, for example: Ernst Hartwig Kantorowicz, The King's Two Bodies: a Study in Mediaeval Political theology
(Princeton, N. J.: Princeton University Press, 1957); Carl Schmitt, Political Theology: Four Chapters on the
Concept of Sovereignty (Chicago: University of Chicago Press, 2005). Scholars have also long been aware of the
religious roots of secular Zionism. See, for example: Introduction of Arthur Hertzberg, The Zionist Idea: A
Historical Analysis and Reader (Philadelphia: Jewish Publication Society, 1997); Shmuel Almog, Jehuda Reinharz,
and Anita Shapira, eds., Zionism and Religion, The Tauber Institute for the Study of European Jewry (Hanover and
London: University Press of New England, 1998), especially the articles by Almog, Shapira and Schatzker.
18
For a recent articulation of this idea, see: Charles Taylor, A Secular Age (Cambridge, Mass.: Belknap Press of
Harvard University Press, 2007). For treatments of this phenomenon in Jewish history, see, for example: Jacob Katz,
A House Divided: Orthodoxy and Schism in Nineteenth-Century Central European Jewry (Hanover: Brandeis
University Press, 1998); Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary
Orthodoxy,” Tradition 28, no. 4 (1994); David Ellenson, After Emancipation: Jewish Religious Responses to
Modernity (Cincinnati: Hebrew Union College Press, 2004). For a contemporary case study, see: David N. Myers
and Nomi Stolzenberg, “Rethinking Secularization Theory: The Case of the Hasidic Public Square,” AJS
Perspectives (2011).
 9

My methodological allegiance is primarily to this fourth conversation, of the history of political

thought. I have received some inspiration from the “Law and Culture” movement within the

legal academy which has showcased a compelling way of speaking about culture with a special

sensitivity to the internal logic of law as a discipline.19 Fundamentally, however, my work is not

a cultural history, (“history in the ethnographic vein,”) but an intellectual history, a history of

political thought with a particular emphasis on the history of jurisprudence.20 I have tried to

model myself on the theoretical approach of the so-called “Cambridge School,” epitomized in

the work of Quentin Skinner, J.G.A. Pocock and others.21 According to this methodology, to put

it plainly and to risk oversimplification, language has different meanings in different contexts.

To understand the statements of historical figures, it is therefore necessary to reconstruct the

meaning of the specific vocabulary and idioms that they were using. A person may directly quote

Maimonides, for example, but use his words to mean something quite different from what he

originally meant or what someone else quoting the same words may have taken them to mean.

The first stage in intellectual history, then, is “to find language as context, not text.”22 This is

achieved by piecing together the discourse in which historical statements are embedded because

the meaning of a text can only be uncovered when it is placed in a matrix of other texts to which

19
See, for example: Rosen, Law as Culture: An Invitation; Paul W. Kahn, The Cultural Study of Law:
Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999).
20
The quotation is from: Robert Darnton, The Great Cat Massacre and Other Episodes in French Cultural History
(New York: Vintage Books, 1985), 3.
21
J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition,
2 ed. (Princeton, N.J.: Princeton University Press, 2003); Quentin Skinner, Reason and Rhetoric in the Philosophy of
Hobbes (Cambridge: Cambridge University Press, 1996). On method, see especially: Quentin Skinner, Visions of
Politics, vol. 1: Regarding Method (Cambridge, U.K. ; New York: Cambridge University Press, 2002).
22
J. G. A. Pocock, “The Concept of Language and the métier d'historien: Some Considerations on Practice,” in The
Languages of Political Theory in Early-Modern Europe, ed. Anthony Robin Pagden (Cambridge: Cambridge
University Press, 1987), 21.
 10

it is implicitly or explicitly responding. My work, then, attempts to ask questions that lie behind

the ways in which the writings of religious Zionists are typically approached. Before asking how

they understood the relationship between law and the state, I ask what they meant when they said

"law" and "state." Before describing their approaches to constitutional questions, I ask how they

understood the very idea of a constitution. To do this, I try to reconstruct the matrix of the

discourse against which their writings can best be understood by paying careful attention to

references, terms, ideas and rhetorical moves that point to other texts. As already indicated, this

has led me to situate certain key writings of religious Zionists firmly in the context of modern

European jurisprudence.

The first two chapters of the dissertation argue that the rise of Herzog’s centralist vision was not

inevitable by exploring two alternative religious Zionist approaches to the state. Chapter 1

analyzes the "holy rebellion" of the religious kibbutz movement, which, though deeply dedicated

to religious ideals, was willing to implement, at least in theory, radical modifications to the

halakha to make it commensurate with a modern state. It shows how the approach of this

movement to law can only be understood by reference to particular schools of German

jurisprudence. Chapter 2 explores the long history of legal pluralism in Jewish political

thought and the ways in which many religious Zionists of very different persuasions advocated a

pluralistic approach to the state. The remaining chapters set out the rise to dominance of

Herzog's brand of legal centralism. Chapter 3 investigates the early context of Herzog's

intellectual formation against the backdrop of the modernization of English law. Chapter 4

demonstrates the ways in which he brought his early thought to bear on the formulation of a

halakhic constitution for the State of Israel and how he implemented modern legal theory in the
 11

same way as secular Zionists and the leaders of nationalist independence movements all over the

world. Chapters 5 and 6 show how Herzog's particular way of thinking about law seeped into the

structures of religious Zionist institutions and the ways in which this shaped the workings of

Israel's Chief Rabbinate and its rabbinical courts.

 12

1. Law and Revolution on the Religious Kibbutz

Our religious beliefs demand that we delve continually into the

sources of religious law and thought in order to find solutions to
questions of our existence, even if the habitual structure of
traditional Jewish living be thereby endangered.
- Moshe Una

There is no single legal philosophy of religious Zionism but rather a variety of legal

philosophies. Each one of them stems from a different idea of law and its relationship to religion

and politics. This dissertation tells the story of the rise to dominance of one kind of legal

philosophy among religious Zionists which invested great importance in the state and pushed for

centralization, allegiance to tradition and the bureaucratization of legal and religious authority.

This was not an inevitable development, however. In the years leading up to and immediately

following the establishment of the State of Israel in 1948, very different approaches to law

competed with the approach that ultimately rose to domination. This chapter tells the story of the

legal philosophy of the Religious Kibbutz Movement. It was characterized by a radical

commitment to spontaneity, a revolutionary attitude to the past and a deep suspicion of the state

and of established religious authority. Although its ideas were not always fully implemented in

practice, in the early years of the state it constituted a vital foil to the approach that eventually

came to dominate the religious Zionist establishment.

 13

The Religious Kibbutz Movement was a strange hybrid.1 In the words of one of its founders and

most prolific spokesmen, Moshe Una, “the unique character of the Religious Kibbutz Movement

was determined by three principles: religion, Jewish nationalism and Socialism.”2 These

principles were not easy to reconcile with each other, especially in the early years of the

movement, a time when many socialist Zionists repudiated religion and most religious Jews

opposed both Zionism and socialism. Nonetheless, in the aftermath of World War I, several

groups of religious youth immigrated to Palestine with a view to establishing socialist religious

communes.

The immigrants originated in two centers.3 A significant group came from Eastern Europe. They,

or their parents, had mostly grown up in Hasidic communities and been attracted to Zionist youth

movements like ha-Shomer ha-Dati, the youth wing of the religious Zionist Mizrahi

organization. Although they became mostly estranged from the religious conservatism of their

parents, they subscribed to the ideas of charismatic community and constant regeneration that

they perhaps retained from their Hassidic backgrounds. They formed a training camp called

1
There is an extensive literature about the kibbutz movement, but relatively little has been written about the
Religious kibbutzim. For the kibbutz movement in general, see: Melford E. Spiro, Kibbutz: Venture In Utopia, New,
augmented ed. (New York: Schocken Books, 1971). For a more recent treatment, see: Henry Near, The Kibbutz
Movement: A History, 2 vols., The Littman library of Jewish civilization (Oxford, New York. Washington, DC:
Published for the Littman Library by Oxford University Press, 1992). On the Religious Kibbutz Movement, see
especially Aryei Fishman, Judaism and Modernization on the Religious Kibbutz (Cambridge ; New York:
Cambridge University Press, 1992). This chapter draws extensively on his analysis and sources. See also: Yossi
Katz, “The Religious Kibbutz Movement and Its Credo, 1935-48,” Middle Eastern Studies 31, no. 2 (1995). For a
collection of writings by leading members of the movement, see: Aryei Fishman, The Religious Kibbutz Movement:
the Revival of the Jewish Religious Community (Jerusalem: Religious Section of the Youth and Hehalutz Dept. of
the Zionist Organization, 1957).
2
Moshe Unna, “The Elements of the Religious Kibbutz,” in The Religious Kibbutz Movement: the Revival of the
Jewish Religious Community, ed. Aryei Fishman (Jerusalem: Religious Section of the Youth and Hehalutz Dept. of
the Zionist Organization, 1957), 27.
3
Fishman, Judaism and Modernization on the Religious Kibbutz, 69-80; Katz, “Religious Kibbutz Movement,” 253-
5.
 14

Shahal, the acronym of one of their early leaders, Rabbi Shmuel Hayim Landau, in order to

prepare themselves for their agricultural life in Palestine. Landau was a descendent of Menahem

Mendel of Kotzk, the mid-nineteenth century Hasidic leader, and his thinking was infused with

his ancestor’s radical spiritualism. Landau died young in 1928 and became not just a founding

ideologue but also a symbol of the religious kibbutz movement as a whole. Most of the Eastern

European group immigrated to Palestine in 1930.

A larger and more established group immigrated from Germany. It emerged from the movement

known as Bahad, (an acronym of berit halutsim dati’im, the Association of Religious Pioneers,)

and became known as the Rodges group, named after their training farm in Germany.4

Acculturated to German society, they were more likely than their East European colleagues to

express themselves in the language of Western philosophy and were able to follow the example

of Christian socialists like Paul Tillich in synthesizing a religious outlook with socialist ideals.

They first immigrated to Palestine in 1929.

Upon arriving in Palestine, each of these groups affiliated with ha-Po’el ha-Mizrahi, an umbrella

organization established in 1921 to unite religious workers in towns and the countryside. Ha-

Po’el ha-Mizrahi established a number of settlements in the 1920s but none were kibbutzim.

After the influx of the ideologically motivated religious socialist youth, the Religious Kibbutz

Federation [RKF] was formed. Initially part of ha-Po’el ha-Mizrahi, it later became an

independent organization. Its focal point was the newly arrived Rodges group which formed the

first religious kibbutz in 1937. Named Tirat Tsvi [Zvi’s Fortress] after the early religious Zionist

4
For more on the religious labor Zionist movement in Germany from which the Rodges group emerged, see: Joseph
Walk, “The Torah va'Avodah Movement in Germany,” Leo Baeck Institute Yearbook 6, no. 1 (1961).
 15

leader Rabbi Zvi Hirsch Kalischer, it was established in the Bet She’an valley. This location was

chosen because it had enough space nearby in which to establish other religious kibbutzim. It

was also on the frontier of the settlement efforts of the World Zionist Organization, thereby

earning them the support of the Jewish National Fund, without which the new kibbutz would

have been untenable. Eleven further religious kibbutzim were established by 1949.

The kibbutz movement as a whole was a powerful element in the Yishuv. Tens of thousands of

people lived on kibbutzim around the time of the establishment of the state. Religious kibbutzim

had only a fraction of that number but the ideological motivation and philosophical articulation

of the members of the RKF meant that they had a disproportionate effect on the development of

Religious Zionism in Palestine and in Israel’s first decades.

At the heart of the RKF was the mission to synthesize the goals, values and modes of living of

traditional Judaism with those of socialism and Zionism. According to Ernst Simon, whom the

Rodges group, while it was still in Germany, took to be a spiritual and intellectual leader, the

ideal immigrant to Palestine was to be a “talmid hakham and halutz,” an individual who is both a

scholar of Torah and a nationalist pioneer with the revolutionary commitment to revive the

nation by returning to the land and its soil.5 Implicit in this ideology was a criticism of the

mainstream German Jewish Orthodox, which, in the view of the Rodges group, failed to connect

the Torah as a religious pursuit, with the rest of life.

5
Fishman, Judaism and Modernization on the Religious Kibbutz, 112-14.
 16

This critique of the Orthodox establishment was reinforced by reference to the concept of

Gemeinschaft, which pervaded Weimar culture and society. The term originated in the work of

the sociologist Ferdinand Tönnies in the late nineteenth century and was expanded upon by his

younger colleague, Max Weber. It was particularly popular among philosophers, youth groups,

religious leaders and politicians in the unstable years in the aftermath of World War I.6

Gemeinschaft referred to a total society in which individuals found self-realization in the organic

life of the community which took precedence over their own self-interest. It was a key idea in the

widespread romanticist critique of modernity which was attractive to Jews in many different

walks of life. 7 This included the religious Zionist youth who rejected conventional Orthodoxy

which, in their understanding, forced the Torah into a private realm associated only with ritual

and divorced from actual living. A combination of labor, Torah and Zionism provided the

opportunity to bring about “a restoration of the completeness of life to Judaism” which could

take place only in an authentic, autonomous Jewish community in the Land of Israel “since only

there can Torah encompass the entire present and, at the same time, constitute the base for our

people’s Gemeinschaft.”8 There, it was possible to bring the spirit of the Torah, not only to the

study hall, but to the entirety of the life of the community. In the words of Yeshayahu Leibowitz,

a leading thinker of ha-Po’el ha-Mizrahi:

We perceive Torah as a method, a legal structure, and a form of

life intended to encompass and define the occupational sphere, a

6
Ferdinand Tönnies, Community and Society = Gemeinschaft und Gesellschaft (Mineola, N.Y: Dover, 2002);
Weber, The Protestant Ethic and the Spirit of Capitalism.
7
Michael Brenner, The Renaissance of Jewish Culture In Weimar Germany (New Haven, Conn.: Yale University
Press, 1996), 36ff.
8
Akibah Ernst Simon, "Zum Jubilaeum von Rodges," Zion 6 (1934); Pinhas Rosenblueth, Zion 2 (1930). Quoted in:
Fishman, Judaism and Modernization on the Religious Kibbutz, 75.
 17

life of labor as well as all the problems encountered in a social

system.9
This all-encompassing mode of living, they believed, necessarily took the form of an

autonomous socialist society in the Land of Israel. There, the autonomy of the Jewish community

would enable its members to incorporate the values of the Torah into all aspects of life while the

socialism of the communes would in turn enable the perfection of each member of society.

Ultimately, the religious kibbutz was designed, according to one of its leading spokesmen, “to

order society by way of overcoming oppositions between its members and cultivating love and

brotherhood between them.”10

In short, then, the RKF combined Marxian determinism, romantic ethno-nationalism and the

charismatic spiritualism of Hasidism. It could be compared, in the words of a leading RKF

thinker, “to a Hassidic community, but in place of the Rebbe comes the idea.’11 This combination

of ideals produced an inherent tension. The movement was caught between, on the one hand, the

idealization of a utopian past and a deep faith in the power of their religious tradition to respond

to the crisis of the modern Jew and, on the other, a revolutionary urge to repudiate the

constrictive and petrified social structures of exilic Judaism in favor of a renewed ideal Judaism

on the socialist commune in the Jewish state.

9
J Leibowitz, "Zur Tarbuth Frage," Choser Bachad 1-2 (Neue Folge)(5692=1932). Quoted in: ibid., 75-6.
10
Moshe Una, “Hoq u-mishpat ba-qevutsa,” in Shutafut shel emet: kovets ma'amarim be-derakhe ha-kevutsah ha-
datit, ed. Mosheh Una (Tel Aviv: Moreshet, 1964), 133. This article was first published in the religious kibbutz
journal, Alonim, in 1946.
11
Ibid., 134.
 18

This tension manifested itself in the social and political commitments of the RKF. Despite the

close-knit nature of the kibbutz community, from its earliest days its members felt a “sense of

responsibility towards society at large”, that is to the entirety of the Yishuv and the Jewish

people, whether they were Orthodox or not.12 As such, they regarded themselves as a bridge

between the majority of the Yishuv, who were secular socialists, and the Orthodox. They hoped

ultimately to bring secular Zionists closer to tradition, and to bring Religious Zionists into

stronger partnership with the wider Yishuv. They lobbied consistently to urge ha-Po’el ha-

Mizrahi, with which they were affiliated, to join the Histadrut, the umbrella organization of

socialist Zionists. Although they never succeeded in this goal, religious kibbutzim did join local

kibbutz organizations, thereby integrating into secular Zionist society in a fairly comprehensive

way. They celebrated May Day (until World War II) as well as the Jewish festivals, and they

insisted that the principles of socialism and state-building arose from the Jewish tradition itself.

In the words of a kibbutz member who immigrated to Palestine from Romania in 1938:

As opposed to the generations preceding us, we have broadened

the framework of religion to include the various national and social
values, such as labor, building the country, language, social
equality, non-exploitation, and so forth – matters that, in our
opinion, are elements of the Torah’s outlook as a Torah of life.13

This role as self-appointed bridge builder between Orthodox and secular Zionists required a

delicate balance that was not easy to sustain, as internal debates over kibbutz policy

demonstrated. For example, in 1957 religious kibbutzim participated in a regional Hanukkah

12
E. Rosenbleuth, "The Path of Religious Youth in the Land" (1938). Quoted in: Fishman, Judaism and
Modernization on the Religious Kibbutz, 142.
13
M. Shiloah, “Religion and Tradition in the Kibbutz,” Amudim 134 (5717 (1957)): 16-17.
 19

celebration that took place on a kibbutz that raised pigs. One member complained in the RKF

journal that this was a compromise too far:

If we have reached the sad situation whereby all the good relations
with our neighbors did not prevent them from turning our valley
into a pre-eminent region for raising that impure animal, we must
ask ourselves again: What is the limit to the price that we have to
pay for good relations?
The editor of the journal responded:

Our fundamental approach is to welcome joyfully the opportunity

to meet with our neighbors… Unfortunately, there are Jews who
raise pigs and violate the Sabbath, but they are still Jews! Only
when we meet them as brothers can our neighbors feel how proper
are our ways.14
This editorial response no doubt represented the official line of the movement. It did not,

however, dissolve the tension inherent in the refusal of the RKF to choose between commitments

to religious orthodoxy on the one hand and the brotherhood of all Jews on the other.

The Legal Philosophy of the RKF

This delicate ideological hybrid of socialism, Zionism and religious Judaism led to a particular

approach to legal philosophy which was based on a general antipathy to law. This antipathy was

summarized well by Eliezer Goldman, a Jewish scholar and philosopher who was one of the few

Americans to join a religious kibbutz in the 1930s. (Alongside his philosophical studies and

university teaching, he worked in the vegetable garden of Kibbutz Sdei Eli’ahu.) In a 1964

14
S Shimshon, “How Shall we Celebrate?,” Amudim 152 (5719 (1959)): 6-8. This episode is quoted and discussed
in: Fishman, Judaism and Modernization on the Religious Kibbutz, 190. fn. 9
 20

symposium about the role of law on the religious kibbutz, Goldman opened his presentation as

follows:

In the streets of the kibbutz movement there is a disgust of

anything that emits the smell of law, especially regarding a legal
framework within kibbutz life.

This phenomenon is well established in the general kibbutz

movement. It has at least two important sources. The first is the
antinomian tradition of utopianism… Even Marx himself, who was
a utopian thinker though he would surely have protested this
appellation, described the future communist state as a state in
which political functions would be reduced to financial
management. In all utopias there is the attempt to free oneself from
law and to set society exclusively on the foundation of conscience,
good will, the voluntary basis of moral society, and so on.

The second source…is the rebellion against the halakha. Most of

the founding generation of the kibbutz movement experienced this
rebellion and its spiritual scars remain to this day. They surface in a
deep resentment… And this negative feeling is extended to all
legal formalism.15

Goldman perfectly captured the distaste of the kibbutz community, and the RKF itself, towards

law, which was based on a familiar socialist tendency to antinomianism and reinforced by a

rebellious attitude to halakha. The RKF did not advocate the abandonment of halakha; on the

contrary, the entire movement was devoted to bringing about the permeation of Jewish tradition

into every aspect of life. However, their anti-authoritarianism and revolutionary posture resulted

in a paradoxical combination of commitment to Jewish law and rebellion against it. To

understand this properly, it is necessary to explore first their attitude to law in general and then

their attitude to halakha in particular.

15
Eliezer Goldman, “Ha-yesod ha-mishpati be-haye ha-kevutzah,” in Hoq u-mishpat veha-hevrah ha-kibutsit: proti-
kol mi-mei ha-iyun sh-ne'erkhu be-Be'erot Yitshak me-yamim 25-26 (Be'erot Yitshak: 1964), 17.
 21

The ambivalence to law among the kibbutzim manifested itself in the informality of their own

governance structures. An early sociological study of Israeli communities concluded that the

kibbutzim “had no distinctly legal institution” and that their system of internal control should be

considered as “informal rather than legal.”16 The revolutionary spirit of the kibbutz members

made them reluctant to impose a system of law that would govern their communities, or to

formalize their legal relationship with the state.

This attitude equally characterized the religious kibbutzim. Precisely because of the prevailing

antipathy to the law, in 1946, Moshe Una felt the need to devote an entire article in the RKF

journal Alonim to argue for a positive approach to law and the adoption of a legal system on the

kibbutz. Una (1902-1989) was born in Germany and after studying at the University of Berlin

and the Hildesheimer Rabbinical Seminary, became a founding member of the Rodges group. He

lived on kibbutz from 1931 until his death and was a Member of Knesset for the first twenty

years of its existence. Una felt it necessary to argue publicly in favor of the benefits of law.

Many disagreed with him and resisted the creation of any kind of formal legal system. The

revolutionary, anarchic spirit, of the kibbutz, reinforced by the Germanic romanticization of the

Hassidic approach to life, militated against a formal structure of law. Una reported that some

feared that law would work against the idea of the kibbutz which was, in essence, a voluntary

collection of individuals committed to spiritual awakening and the free expression of the inner

spirit of the people. They believed that the kibbutz “is dependent in its essence on the free will of

16
Richard D. Schwartz, “Social Factors in the Development of Legal Control: A Case Study of Two Israeli
Settlements,” The Yale Law Journal 63, no. 4 (1954): 471, 76.
 22

its members and on the spiritual spark created when the will meets with the idea… [They claim

that] law will bind the will and put out the fire.’17

These antinomian members of the religious kibbutz maintained that the kibbutz should be

governed by “communal will” [da’at ha-tsibur], rather than rigid regulations.18 This phrase is

strongly, and presumably intentionally, reminiscent of Rousseau’s volonté générale, in the sense

in which it appears in his Social Contract. There, Rousseau described a small and politically

primitive society in which many laws are not required because the concord of the people allows

common sense to dictate proper behavior and all the members of the society will readily agree to

its unwritten rules:

As long as several men assembled together consider themselves as

a single body, they have only one will which is directed towards
their common preservation and general well-being. Then, all the
animating forces of the state are vigorous and simple, and its
principles are clear and luminous; it has no incompatible or
conflicting interests; the common good makes itself so manifestly
evident that only common sense is needed to discern it. …A state
thus governed needs very few laws.19

Like their secular counterparts, the religious kibbutzim were specifically designed to be small

communes whose members lived in perfect concord. If Rousseau was correct, they would

therefore need no formal legal system. This attitude was reinforced by the Marxian approach to

law that was, as Goldman pointed out in the quotation above, very pervasive on the kibbutz.

17
Una, “Hoq u-mishpat ba-qevutsa,” 135.
18
Ibid., 134.
19
Jean-Jacques Rousseau, The Social Contract and Other Later Political Writings, ed. Victor Gourevitch,
Cambridge Texts In the History of Political Thought (Cambridge, U.K. ; New York, NY, USA: Cambridge
University Press, 1997), 121.
 23

Marx thought that for the proletariat, law, like morality and religion, was perceived as nothing

more than a “bourgeois prejudice.”20 It was an example of an “ideology,” part of the

epiphenomenal superstructure laid over the substructure of real social and economic relations. In

the course of a socialist revolution, Marx believed that society would come to base itself on

economic relations only. In the utopian communist future, the state would wither away, and the

law with it.21 It was in line with this belief that many members of the kibbutz, which was

modeled on the perfect communist society of the future, rejected the imposition of a formal

system of internal governance.

Una, however, rejected this antinomian tendency. He insisted that law is required for the

sustained functioning of human society. Law does not work against the goals of the kibbutz, he

argued, but supports them:

What is, in fact, law in society? It seems possible to compare it to a

skeleton in the body of a creature. It shapes the fixed form of the
body, strengthens it and gives the powers working within it a
handle for intentioned and harmonious action.22
For Una, indeed, law was required to support the particular kind of justice towards which the

kibbutz was working:

No society, without a law which is the fruit of the spirit of its

distinct way of life, can sustain a way of life unique to itself… Law
forms society and is inextricably linked to its order of life and its

20
See, for example, Karl Marx and Friedrich Engels, The Communist Manifesto, ed. Jeffrey C. Isaac and Steven
Lukes (New Haven: Yale University Press, 2012), 83.
21
For a survey of communist theories of law, see: Hans Kelsen, The Communist Theory of Law (New York:
Praeger, 1955). See also: Leopold Pospisil, “Empiricism and the Marxist Theory of Law: A Dialectic
Contradiction,” in Festschrift für Wolfgang Fikentscher zum 70. Geburtstag, ed. Wolfgang Fikentscher and
Bernhard Grossfeld (Tübingen: Mohr Siebeck, 1998).
22
Una, “Hoq u-mishpat ba-qevutsa,” 133.
 24

outlook. Law is a function of society and activates its vital forces.

These forces will degenerate if they are not able to be activated.23

Furthermore, Una pointed out that there are practical reasons why the law is required. Whereas it

might have been possible for the kibbutz in its earliest years to survive as an anarchic society

governed by the mutual relations and goodwill of its members, this was no longer the case. The

original “personal-social foundations” of the kibbutzim had been eroded as they grew from small

families to larger communities. Indeed, “classes” had arisen within the kibbutz itself, as

distinctions arose between new and old members, or between manual laborers and others. It was

no longer feasible to sustain the community without a legal framework, however desirable this

might have been in theory. For a society to govern itself according to “communal will” rather

than formal law requires a very high level of moral discipline which was no longer fair to expect

of the kibbutz as a whole. The kibbutz, Una argued, could no longer sustain itself on its early

passions. “Human society cannot remain in the realm of enthusiasm and desire.”24 Law did not

work against the spirit of the kibbutz. On the contrary, it was required to sustain it. “[The

kibbutz] can remain true to the ideal only if it knows how to transform the flame into building

blocks and to chain the will which desires to ascend to heaven and to conquer it.”25

Una’s defence of law against his more anarchic colleagues was not based solely on these

pragmatic arguments. It was also based in part on the reading of the Jewish tradition. He

associated Marxian antinomian utopianism with the Greek tradition, according to which law only

23
Ibid.
24
Ibid., 135.
25
Ibid.
 25

became necessary with the decline of society. In particular, Una quoted Ovid’s account of the

“golden age,” a lawless utopia at the beginning of history when men were inherently good and

did not need a coercive legal regime to keep social order.26 Una contrasted this with his own

presentation of the Jewish approach to law and society in which law is not only intended to

protect against social decline but constitutes an expression of “values which are positive in

themselves.”27 Indeed, the ideal polity in the Jewish tradition, even before the Sinaitic revelation,

involved the establishment of the Seven Noahide Laws. Not for nothing are judges in the Bible

referred to as “gods” [elohim].28 They are meant to “demonstrate the qualities of God which

relate to the world and to human society in that they are tools for the legal nature of creation and

its order.”29 In other words, according to Una, law is more than a defense against human failings;

it has intrinsic value, reflecting the natural order of God’s creation.

This recourse to the Jewish tradition, however, raises questions about the real motivation for

Una’s support of a legal regime on the kibbutz. The question at stake was not the observance of

halakha but the establishment of formal structures of governance on the kibbutz. It is entirely

plausible that the religious kibbutzim could have encouraged strict adherence to Jewish religious

laws and yet still made its peace with the anarchic strain of left-wing Zionist socialism. Una’s

26
“First to be born was the Golden Age. Of its own free will, / without laws or enforcement, it did what was right
and trust prevailed. / Punishment held no terrors; no threatening edicts were published / in tablets of bronze; secure
with none to defend them, the crowd / never pleaded or cowered in fear in front of their stern-faced judges.” Ovid,
Metamorphoses: A New Verse Translation, trans. D. A. Raeburn (London: Penguin, 2004), 9. Una discussed Ovid
at: Moshe Una, “Mahut ha-yehasim ha-notzrim a"y ha-mosad shel hoq u-mishpat ba-hevrah ha-kellalit be-tokh ha-
kevutzah u-ben ha-kevutsah la-medinah,” in Hoq u-mishpat veha-hevrah ha-kibutsit: proti-kol mi-mei ha-iyun sh-
ne'erkhu be-be'erot yitshak me-yamim 25-26 (Be'erot Yitshak: 1964), 5.
27
Una, “Hoq u-mishpat ba-qevutsa,” 132.
28
See Exodus 21:6. Traditional Jewish commentaries, (Rashi, Ramban, Ibn Ezra et al,) take elohim in this verse to
refer to the judge or the court.
29
Una, “Hoq u-mishpat ba-qevutsa,” 132.
 26

claim that the Jewish tradition requires a formal legal order for all societies is persuasive to a

degree. But it would have been possible to produce an equally convincing argument for the

opposite position. Religious kibbutz members were used to mining the Jewish tradition to find

support for their way of life.30 It would surely have been possible to find Jewish sources

extolling the values of anarchic living. After all, the Garden of Eden, the biblical utopia, was

notably free of laws (except for the single law prohibiting0020eating from the tree of

knowledge.) Indeed, kabbalistic literature often portrays the necessity for law as an unfortunate

consequence of Adam’s sin. According to this tradition, in the messianic age the cosmos would

be restored to its pre-lapsarian state and law would once again become unnecessary.31

Given that traditional sources could plausibly yield very different readings of the nature and role

of law, we need to look elsewhere to uncover the background against which Una chose to oppose

the anarchic streak in the kibbutz membership. Una’s arguments, and those of his opponents, can

best be understood in the context of jurisprudential debates that were familiar to many kibbutz

members from their time in Europe, particularly in Weimar Germany.

The extent to which Una’s thoughts about law were based on German jurisprudence was made

clear in 1964, almost two decades after Una wrote his article in defense of the idea of law. In that

year, he delivered a speech which not only drew on the themes and language of German

jurisprudence but also referred explicitly to Weimar jurists in support of his position. By 1964,

30
Particular effort was expended to find precedent for the abolition of private property and the principle of social
equality in the Jewish sources. For a collection of essays on this and related topics, see: Refael Auerbach, Shim'on
Weiser, and Shemuel ’Emanuel, eds., Ha-qibuts be-halakha (Jerusalem: Kevutzat Sha'alvim, 1984), 25-194.
31
Gershom Gerhard Scholem, The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (New York:
Schocken Books, 1972), 22 ff.
 27

the debate over the role of law on the kibbutz had extended to the question of the relationship

between the kibbutz and the state. Despite the prominence of the kibbutzim in the Yishuv and the

early state period, until the 1960s there was no specific law that defined the kibbutz in the eyes

of the state.32 The kibbutz was simply considered by law to be one kind of “cooperative society”

(other cooperative societies included pension funds, consumer societies, mutual insurance groups

and so on) under the British Mandate’s Cooperative Societies Ordinance, 1933, which in turn

was based on a similar law in Imperial India, the Indian Cooperative Societies Act, 1912.33 From

the perspective of the state, however, this situation was unacceptable because a kibbutz was not

like any other society. The most important difference was that the members of the kibbutz did

not own any private property. This caused legal complications, for example, in cases in which a

member of the kibbutz would be sued for damages or pursued for the repayment of a debt

incurred prior to membership in the kibbutz. The member in a technical legal sense would own

no assets and so would be exempted from payment. But this legal situation would be incongruent

with the fact that the member would live in a house, be employed in productive labor and have

food and clothing. As a result of the incongruity between the legal status and the real situation of

kibbutz members, pressure grew for the kibbutzim to enter into a new and specially designed

legal relationship with the state.

The early 1960s was a time of intense debate within the kibbutz community over the desirability

of such a development. There remained among many a resistance to the imposition of any kind

32
For the legal structure of the kibbutz and its relationship to the state, see: J. Weisman, “The Kibbutz: Israel's
Collective Settlement,” Israel Law Review 1 (1966); Allan E. Shapiro, “Law in the Kibbutz: A Reappraisal,” Law &
Society Review 10, no. 3 (1976).
33
Weisman, “The Kibbutz,” 115.
 28

of formal law. Some members continued to see law as an undesirable side-effect of an imperfect

society:

The legal system is only intended for the pathological condition in

the relations between men and in social life in general, exactly as
the laws of medicine are intended for the pathological condition of
the body.34
In the kibbutz utopia, it was claimed, law should simply be unnecessary because “when the

relations between men are perfect, there is no need for the workings of law.”35

This question also preoccupied the religious kibbutzim. In 1964 a special symposium of the RKF

was convened to address the question of the legal status of the kibbutz.36 Una continued to hold

his earlier position that law was essential in any society. He recognized that his position

remained unpopular:

I claimed that according to the approach of the Torah, law is a

fundamental and necessary thing for every human society… I
understand that according to his words Eliezer Goldman sees
things the same way, but I have heard no [other] echo from the
community of members.37
Nonetheless, Una insisted that “we have to deal with the issue [of law] out of a desire to build

a…sustainable society.”38 A society, he said, cannot be run simply on the “spontaneous outburst

of states of soul and spirit.”39 It must be based on law.

34
Yizhak Maor in the kibbutz quarterly Niv ha-qevutzah 12, no. 2. Quoted in: Una, “Mahut Ha-Yehasim,” 4. Una’s
article was republished with minor chages as: Una, “Ha-zikah ben hoq u-mishpat ba-hevrah uva-kevutsah.”
35
Yitzhak Maor in Niv ha-qevutzah 12, no. 3, quoted in: Una, “Mahut Ha-Yehasim,” 4.
36
Hoq u-mishpat veha-hevrah ha-kibutsit: proti-kol mi-mei ha-iyun sh-ne'erkhu be-be'erot yitshak me-yamim 25-26,
(Beeerot Yitshak 1964).
37
Una, “Sikum,” 80. Reprinted in Una, “He'arot iqroni'ot le-tiqnun ha-qevutsa,” 157.
38
Una, “Mahut Ha-Yehasim,” 4.
39
Ibid.
 29

These arguments closely followed Una’s arguments of nearly two decades earlier. At this point,

however, Una augmented his position with an explicit reference to the Weimar legal scholar,

Gustav Radbruch (1878-1949):

The accepted position is that “law is the entirety of general

regulations for the shared life of men”, according to the definition
of Prof. Radbruch.40
Una took this quotation from the third edition of Radbruch’s Philosophy of Law.41 Una’s

translation of this term into Hebrew served as the beginning of his enhanced argument in favor of

the necessity of law for the kibbutz. Radbruch was a legal scholar and politician, who served as

Minister of Justice in the early Weimar period. His Philosophy of Law was received with

particular acclaim and was considered by many to be one of the most important works on legal

philosophy in the early twentieth century.42 Still, whatever the popularity of Radbruch in circles

of German legal scholars, it is of particular interest that Una chooses to quote his book more than

thirty years after its publication. Even more worthy of attention is the fact that Una apparently

expected Radbruch’s name and ideas to be recognized by an audience of religious Zionist

kibbutz members, fifteen years after his death. After all, Una refers to him simply as “Prof.

Radbruch” with no further elaboration.

40
Ibid.
41
Radbruch’s formulation in the German was: “Wir…bestimmen in diesem Sinne das Recht als den Inbegriff der
generellen Anordnunger für das menschliche Zusammenleben. [Emphasis in the original.]” Gustav Radbruch,
Rechtsphilosophie, 3 ed. (Leipzig: Quelle & Meyer, 1932), 33.
42
On the context of Radbruch’s thought and the reception of his Rechtsphilosophie, see: Hasso Hofmann, “From
Jhering to Radbruch: On the Logic of Traditional Legal Concepts to the Social Theories of Law to the Renewal of
Legal Idealism,” in A Treatise of Legal Philosophy and General Jurisprudence, ed. Enrico Pattaro, et al. (Springer
Netherlands, 2009), 48ff.
 30

Radbruch was Minister of Justice in Germany at around the time that Una was studying in the

University of Berlin, a time in which jurisprudential battles were not confined to the ivory tower

but played a significant role in national debates during a time of extreme political turbulence.

The Weimar government was plagued, almost constantly, with existential threats. It was born in

the aftermath of a disastrous war and had to constitute itself on the ruins of its predecessor, the

constitutional monarchy that had come to an end with the surrender of the Germany and the

abdication of the Kaiser. It had to deal with revolutionary threats from the communist left,

putsches from the monarchist right, hyperinflation, starvation and occupation. And as this

ongoing crisis had political, social and economic dimensions, so it had legal dimensions. Jurists

debated at every stage the basis for the validity of the constitution, its relationship to the people

and the government, and the power of the president to override it.43

These debates over legal theory were not just theoretical; they had enormous practical

consequences. The most famous example of this occurred in June 1932 when President

Hindenburg authorized a presidential decree under the emergency powers granted to him by

Article 48 of the Weimar constitution which put his Chancellor, Franz von Papen, in charge of

the State Government of Prussia. The act was eventually judged to be constitutional, but not

before fierce debate in the courts: What were the limitations on Article 48? What was the

relationship between the states and the German Federal government? Did the President or the

Reichstag’s elected officials have a greater say in government policy? Even at the time, this was

recognized as a significant moment in legal history. The decision took on more ominous

43
For the significance of jurisprudence in Weimar, and an overview of key jurists, see: Arthur J. Jacobson and
Bernhard Schlink, Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2000).
 31

overtones in hindsight as it was used to pave the way, less than a year later, for the granting of

unlimited emergency powers to the next German chancellor, Adolf Hitler.44

Most of the founding members and key ideologues of the religious kibbutz movement, including

Una, were educated in German universities during the years in which legal philosophy attained a

high degree of significance because of its association with these critical political questions. It

stands to reason that just as their intellectual positions coalesced in the crucible of Weimar social

philosophy (as with the centrality of the idea of Gemeinschaft on the religious kibbutz,) they

were also shaped against the backdrop of these heated and consequential jurisprudential debates.

This explains why the traces of these Weimar debates surfaced in the debates over the place of

law on the religious kibbutz.

Una’s reference to Weimar jurists continued further in his speech. “What is the place of law in

the life of a society?” he asked. “What is the idea that stands behind it?”45 He answered that there

are two approaches to this question arising from two schools of legal theory. He called these

schools “formalistic” and “substantive.”

The first it is possible to call a formalistic approach. It says that the

law is meant to preserve the order that a particular society has
created and determined, according to this approach, to be
appropriate for it. The measure of the value of law is its ability to
preserve the social order and nothing more. The second approach I
would call “substantive,” meaning an approach that evaluates law
based on its content. It asks whether the order that it preserves is
founded upon justice, or not. “The law must constitute a just order.

44
For an account and legal analysis of the trial, see: Peter Caldwell, Popular Sovereignty and the Crisis of German
Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Durham N.C.: Duke University Press,
1997). and David Dyzenhaus, Truth's Revenge: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (New
York: Clarendon, 1997).
45
Una, “Mahut Ha-Yehasim,” 5.
 32

In this way alone is it possible to justify the claim of being a

binding authority. From here flows the coercive power of the
law.”46

The two approaches described by Una are those of Radbruch and his contemporary Hans Kelsen.

Some contextualization is required to understand the background behind Una’s categorization of

approaches to law. These two approaches to law are two sides of a classic jurisprudential debate

that characterized German legal philosophy for half a century, and spilled over into legal

scholarship elsewhere in Europe and in America. The fundamental question at stake was the

relationship between law and morality. According to what became known as the separability

thesis, the source of law’s authority is internal to the legal system; it does not derive from an

external system of morality. This thesis stands in opposition to the theory of natural law. Natural

law theory posits that there exists a perfectly moral law, (many classical natural law theorists

presume that this law originates with God), which is accessible to human beings through their

rational faculties. It is the task of the human lawmaker to create a legal system as close as

possible to natural law. Law must strive for perfect morality and any law that is immoral

contravenes natural law and is, by definition, a bad law. Criticisms of natural law theory arose in

the very beginnings of the Enlightenment when thinkers began to argue for a distinction between

natural law and human law. Thomas Hobbes, for example, insisted that the authority of the laws

of the state is not dependent on metaphysics. Rather, it is the result of the association of human

beings who create a legal system not in order to approximate divine law but in order to preserve

peace and social order. Only in the late nineteenth and early twentieth centuries, however, did

there arise a school of jurisprudence which posited a total separation between law and morality.

46
Ibid.
 33

This was known as the theory of legal positivism and culminated in the legal philosophy of its

most celebrated proponent, Hans Kelsen.

Kelsen was, according to one contemporary, “the leader of juristic thought in central Europe.”47

He was tremendously influential and made many practical contributions to the field of law,

including the Austrian constitution and the foundations of post-World War II international law.

His greatest theoretical contribution, his Pure Theory of Law, originated in the Weimar period

and was refined over the ensuing years.48 In his description of legal positivism, Kelsen stipulated

that his aim was to produce a theory of law that was purely scientific. He wanted to strip the

study of law from all the metaphysical assumptions that were typical of the natural law theorists.

He insisted that the realm of law was separate from any other realm. The law, Kelsen argued,

cannot be determined on the basis of politics, economics or philosophy. His theory was “purified

of all political ideology and every element of natural sciences.”49 By the same token, law was

also distinct from morality. Kelsen’s approach to law distinguished sharply between fact and

values, between the “ought” of morality and the “is” of legal fact. For Kelsen, the job of the

jurist or the judge is not to determine what the law should be, but what the law actually is. The

morality of the substantive content of a law does not determine its validity. Rather, legal validity

depends entirely on the internal workings of the legal system itself and the way in which the law

was produced. All laws are produced by the authority of a higher law in the legal hierarchy. A
47
This was the view of the noted American jurist, Roscoe Pound, in: Roscoe Pound, “Fifty Years of Jurisprudence,
Part III,” Harvard Law Review 51 (1937-1938): 449.
48
Hans Kelsen, Reine Rechtslehre, 1 ed. (Berlin 1934). and Hans Kelsen, Reine Rechtslehre, 2 ed. (Berlin 1960).
Translated respectively as Hans Kelsen, Introduction To the Problems of Legal Theory: A Translation of the First
Edition of the Reine Rechtslehre or Pure Theory of Law, trans. Bonnie Litschewski Paulson and Stanley L. Paulson
(Oxford, New York: Clarendon Press ;Oxford University Press, 1992). and Hans Kelsen, Pure Theory of Law
(Union, N.J.: Lawbook Exchange, 2002).
49
Kelsen, Introduction To the Problems of Legal Theory, 1.
 34

law is valid if it is produced by a higher law. The validity of the higher law rests in turn on the

validity of a law which is higher still. To avoid the philosophical problem of infinite regression,

Kelsen posited that the apex of this hierarchy of legal validation is the Grundnorm, the Basic

Norm, which, he said, is presupposed by the entire legal system and is ultimately the source of

the validity of every law within it.50 Because, according to Kelsen’s positivism, the only legally

valid acts in the state were those that were legitimized by the system of law itself, his doctrine

worked to bolster the stability of the new and highly precarious European constitutions by

challenging the validity of unchecked political interventions on the part of the chancellor or the

landed classes.

With this context in place, Una’s analysis can be better understood. There is little doubt that the

“formalistic” approach to law that Una described, whereby “the law is meant to preserve order

that a particular society has created and determined, according to this approach, to be as

appropriate for it” was the positivism of Kelsen. This was a mode of law that Una roundly

rejected. He shunned the distinction between fact and value and rejected the separation between

law and justice. The Gemeinschaft of the kibbutz was not the place for a bureaucratic and

formalistic structure of law. If there was to be law on the kibbutz, as Una insisted there must be,

that law had to be firmly tied to the moral order and to the values that underlay kibbutz society.

This was precisely the approach of the second theory of law that Una described, the one he called

the “substantive approach.” According to this theory, the authority of law is not determined only

by the formal process of its creation but by the morality of its content. This was the approach of

Gustav Radbruch. Una had already quoted Radbruch once before in his speech, apparently

50
Kelsen, Pure Theory of Law, 55-89.
 35

assuming that his audience would know him well. Here he quoted Radbruch again, without even

mentioning his name: “The law must constitute a just order. In this way alone is it possible to

justify the claim of being a binding authority. From here flows the coercive power of the law.”51

Departing from Kelsen’s positivism, Radbruch maintained that the validity of the law should not

be determined only by the inner workings of the legal hierarchy. He did agree that legal stability

and predictability is one element of the concept law, but he added two other elements to it:

purposiveness (the decision to determine the values that law is intended to serve) and justice,

which is the “idea of law” to which law must always be striving. For Radbruch, law must always

be oriented towards the value that it is designed to uphold: justice.52 In other words, against

Kelsen’s separability thesis, Radbruch held that there is no complete separation between law and

morality, between legal fact and the values of equality and justice that the law is expected to

uphold. The relevance of the value of justice to the validity of law became even more important

after World War II. During the 1950s, some legal theorists both in Europe and America blamed

legal positivism for the rise of Hitler. Kelsen and his fellow positivists, some argued, facilitated

Hitler’s rise by divorcing law from morality. This allowed terrible acts to be carried out under

the cover of law because legal positivism had made it impossible to challenge the validity of law

on the basis of moral objections. Positivists disagreed. They maintained that their divorce of fact

from value was simply an exercise in defining the validity of law from the point of view of the

legal system, not in deciding right and wrong action. Even valid laws could be immoral, and

there were some immoral laws, including many Nazi laws, that are wrong to follow.
51
Una, “Mahut Ha-Yehasim,” 5. When the speech was published, the quotation was put in quotation marks, but no
reference was given.
52
For a fuller discussion of this point, see: Edwin W. Patterson, ed. The Legal Philosophies of Lask, Radbruch and
Dabin (Cambridge: Mass., Harvard University press, 1950), 91-3.
 36

Nonetheless, the critics of positivism argued that they had created an atmosphere in which,

because the law was the law, whether it was moral or not, judges were discouraged from

assessing laws on the basis of justice. As a result, the immoral laws of the Nazi regime were

never challenged.53 In this post-war context, Radbruch emphasized even more strongly his

differences with the positivists and the centrality of justice to the definition of law.54 Although he

continued to recognize the importance of a formalistic application of law under normal

circumstances, he attributed great significance to justice in the determination of law’s validity:

Preference is given to the positive law, duly enacted and secured

by state power as it is, even when it is unjust and fails to benefit
the people, unless its conflict with justice reaches so intolerable a
level that the statue becomes, in effect, “false law” and must
therefore yield to justice…Where there is not even an attempt at
justice…then the statute is not merely “false law”, it lacks
completely the very nature of law. For law, including positive law,
cannot be otherwise defined than as a system and an institution
whose very meaning is to serve justice.55

53
For a discussion of this debate in the terms of Kelsen and Radbruch, see: Frank Haldemann, “Gustav Radbruch vs.
Hans Kelsen: A Debate on Nazi Law,” Ratio Juris 18, no. 2 (2005). For an iteration of the debate in the American
context, see: H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4
(1958); Lon L. Fuller, “Positivism and Fidelity to Law — A Reply to Professor Hart,” Harvard Law Review 71, no.
4 (1958). The accuracy claim that positivism enabled the rise of Nazism has been challenged. Certainly, positivism
was a very influential legal theory, but it was not the only operative approach to law in Weimar Germany. Frequent
use of constitutional review and other practices of the Weimar courts indicate that they were by no means
unquestioning followers of the statute book. See: Stanley L. Paulson, “Lon L. Fuller, Gustav Radbruch, and the
"Positivist" Theses,” Law and Philosophy 13, no. 3 (1994). Besides, the greatest supporters of the Nazi regime
among jurists were often those who rejected legal positivism. Carl Schmitt, a member and strong advocate of the
Nazi party who absolutely rejected the theories of “the Jew Kelsen,” is perhaps the best example. See: Jacobson and
Schlink, Weimar: A Jurisprudence of Crisis, 282; Raphael Gross, Carl Schmitt and the Jews: The “Jewish
question,” the Holocaust, and German Legal Theory (Madison: University of Wisconsin Press, 2007). For an
overview of Nazi critiques of Kelsen’s arguments, see: Izhak Englard, “Nazi Criticism against the Normativist
Theory of Hans Kelsen: Its Intellectual Basis and Post-Modern Tendencies,” Israel Law Review 32 (1998).
54
There is some debate if Radbruch’s theory of law fundamentally changed after the war or if it just altered its
emphasis. The latter seems the most plausible. For a discussion of this question, see: Stanley L. Paulson, “Radbruch
on Unjust Laws: Competing Earlier and Later Views?,” Oxford Journal of Legal Studies 15, no. 3 (1995). For a
fuller analysis of the relationship between law and justice in Radbruch’s thought, see: Torben Spaak, “Meta-Ethics
and Legal Theory: The Case of Gustav Radbruch,” Law and Philosophy 28, no. 3 (2009).
55
Gustav Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht,” Süddeutsche Juristen-Zeitung 1 (1946).
Quoted in: Paulson, “Lon L. Fuller, Gustav Radbruch, and the "Positivist" Theses,” 317. See also: Heather
Leawoods, “Gustav Radbruch: An Extraordinary Legal Philosopher,” Journal of Law and Policy 2 (2000).
 37

Radbruch’s contention that the very meaning of law is “to serve justice” is exactly the aspect of

his legal philosophy that made it so appealing to Una in his speech of 1964. In talking further

about the second, “substantive” theory of law, Una explained that “the law has to serve the

transcendent principle of justice, even if it does not seem to fit society in all respects.”56

Therefore, law cannot be formalistically applied to society; it must arise from the ethical basis of

society itself. Una quoted Radbruch again:

The upholding of the legal order requires a unity of opinion

regarding the fundamental problems of shared life, a unity that will
be based on shared ethical principles.57

For our analysis of the attitude to law on the kibbutz, this is extremely significant. We have seen

that the religious kibbutz movement as a whole had an anarchic streak that made it suspicious of

law and legal authority. Una was one of the only voices who argued consistently for the need for

law to sustain a society. However, even Una did not argue for a positivist theory of law in which

there was no place for a discussion of morality and societal values. Rather, he advocated for a

law that was an embodiment, and a concretization, of the values of justice and equality to which

the kibbutz was dedicated. This approach to law is extremely pertinent to the way in which the

members of the kibbutz related to one particular kind of law: halakha.

The Theory of Halakha in the RKF

56
Una, “Mahut Ha-Yehasim,” 5.
57
Ibid.
 38

So far we have established that the RKF had an ambivalent attitude to law. The prevailing

sentiment among its members was that the spontaneous spirit of the kibbutz, and the values for

which it was established, should be sufficient to govern kibbutz society. Formal law was stifling,

and unfitting for the revolutionary spirit of the kibbutz. Even those few, albeit influential,

kibbutz members who argued in favor of the need for a legal system, repudiated the legal

positivism of Kelsen and his school in favor of a jurisprudence wherein law arose from, and was

consistent with, the underlying values of society. Did this jurisprudence of value-based law

affect the way the members of the RKF thought about halakha?

Surprisingly, perhaps, the answer is yes. The religious kibbutz members were all Orthodox Jews

and committed themselves to following the halakha. Religious kibbutzim had only kosher food.

Their members did not work on the Sabbath and their children received a religious education. In

fact, they hoped that the religious kibbutzim would be able to realize the halakha even more

rigorously than other Orthodox communities, particularly with regard to those laws pertaining to

agricultural life. They recognized that ‘“practical’ problems of religion are still, for most of the

Orthodox public, questions of arranging the ritual bath, kosher slaughtering, and teaching

Torah.” However, they were interested in expanding the significance of halakha by working out

“how to arrange the entire technical, economic, organizational, and theoretical complex of our

society according to the Torah.”58 Yet behind this orthodoxy, their commitment to halakha was

mediated through the same revolutionary and non-positivist jurisprudence that they brought to

bear on questions of law and governance more generally.

58
E. Goldman, “In the Light of Current Events,” Yedi’ot Ha-Qibutz Ha-Dati 91 (Av 5713/1953), 2. Quoted in:
Fishman, Judaism and Modernization on the Religious Kibbutz, 147.
 39

The RKF’s attitude to halakha was motivated by the call of their early leader, the Hassidic

pioneer Shmuel Hayim Landau, for a “holy rebellion,” a way of life that was both a rejection of

the Diaspora Judaism of their parents and at the same time a fulfillment of the underlying values

of the Torah.59 The vision was not of a life that was rebellious despite being holy, but of one that

rebellious precisely because it was holy. The motto of the RKF, torah va’avodah, [Torah and

Labor], represented a way of life that was true to the Torah and which embraced every aspect of

life. This ideology portrayed the Diaspora as a place where Judaism was concerned only with

ritual and with private life. In the new Jewish state, and particularly on the religious kibbutz,

however, the Torah would govern all aspects of society, including public life, the national

economy and modern large-scale technology. This shift was conceived as a fulfillment of the

underlying values of the Torah, its real essence. It might require a departure from the letter of the

law as it had come to be, petrified in the rabbinic study halls of the Diaspora, but it would be a

realization of the true spirit of God’s law. At the root of the project was a deep confidence in the

power of the Torah and the halakha to deal with any new situation. This confidence meant that

the RKF was willing to face the potential dangers inherent in a project that required an assault on

the traditional structures of rabbinical authority. Una put this well when writing in later years

about the attitude of the early religious kibbutz:

We saw that the conduct of observant Jewry was determined

neither by basic religious principles nor by the values of Jewish
tradition. We noticed that contemporary Jewish life was molded
neither by the rules of the Halakha nor by the moral demands of
Judaism. We were not satisfied by a religion which puts a premium
on the mere preservation of that which already exists. It was our
intention to revive within our own pattern of living those eternal

59
See the brief introduction to Landau in: Hertzberg, The Zionist Idea: A Historical Analysis and Reader, 432-38.
For an extended discussion of this strain in religious Zionism, see: Fishman, Judaism and Modernization on the
Religious Kibbutz, passim. For a biography and a selection of Landau’s writings, see: Haya Frumer, ed. Shahal -
Holem Halom (Jerusalem: Erez, 2008).
 40

values which exist in the panorama of the Jewish past and present.
This was the inspiration of our religious approach.

…What did we hope to achieve when we declared that we demand

more than the religious heritage and tradition handed down to us
from the past? The answer we gave was that religion and all that it
implies must serve as a basis for life in all its spheres, and if the
Jewish religion is truly the vital force of the Jewish community, it
must perforce be capable of solving and interpreting all problems
confronting every generation and community. We challenged the
so-called religious approach which tries to ignore questions created
by everyday life, and never attempts to offer guidance and
clarification to contemporary problems. Our religious beliefs
demand that we delve continually into the sources of religious law
and thought in order to find solutions to questions of our existence,
even if the habitual structure of traditional Jewish living be thereby
endangered.60

Even at the time, Una realized that this outlook might require a departure from some of the

specific norms of the halakha as it was conventionally practiced by Orthodox Jews. But this was

a casualty worth sustaining for the sake of deeper values of the tradition:

We assumed the authority to determine…practices even though

they were not always in accord with what is written in the Shulhan
Arukh… We did this… because of our religious feeling …that a
community is able to withstand the violation of an accepted
religious practice… Only this can we explain to ourselves how we
have dared to touch areas which, from the formal point of view, we
were unqualified to touch.61
There was a general feeling on the religious kibbutz that the way of applying the halakha to the

entirety of modern life required a willingness to adopt a particular mode of legal interpretation.

Rather than hesitant and conservative extrapolation from precedents in recent generations, a

more aggressive and self-confident kind of interpretation was needed that recognized the

legitimacy of the goal of the kibbutz community in its new circumstances. According to one

60
Unna, “The Elements of the Religious Kibbutz,” 28-9.
61
From the protocol of the Fifth RKF Council in 1951. Quoted in: Fishman, Judaism and Modernization on the
Religious Kibbutz, 152.
 41

formulation of a kibbutz member in the 1930s, “every generation finds in Torah possibilities of

application that were not, and could not have been, apparent in former generations, although the

potential for those possibilities was contained therein.”62 In effect, kibbutz society was a halakhic

experiment designed to create the conditions by which the halakha could be modified and

updated for the modern age:

We of the RKF have taken it upon ourselves to create a

consolidated community that will conduct a directed experiment or
a series of directed experiments so as to realize a Torah society
under condition of the present… Our goal is to create a halakhic
society in the actual conditions of our times. Our method is to
create special conditions – kibbutz conditions – which will make
this directed experiment possible.63
Crucially, the changes in law were to follow the life of the community, not theoretical legal

deliberation. “We must redeem the Torah by our own efforts.”64

Evidently, the anti-positivism so prominent in the approach of the RKF to law in general was

equally important in their approach to the jurisprudence of halakha. A major element of the

RKF’s attitude was the recognition that halakha had gaps and needed to evolve in order to be

able to deal with the new circumstances of Jewish nation-building. This in itself was an

inherently anti-positivist claim. An important feature of Kelsen’s positivism was the assertion

that it is meaningless to speak of gaps in the law. This is because the existence of gaps can only

be evaluated on the basis of values which are external to the legal system, whereas Kelsen, as we

62
The quotation is from Pinhas (Eric) Rosenblueth from 1938. Quoted in: ibid., 95.
63
E. Goldman, “Traditional or Scientific Education for Our Children?” Alonim (Tishrei 5704/1943), 4. Quoted in:
ibid., 99.
64
J Leibowitz, “Zur Tarbuth Frage,” Choser Bachad 1-2 (Neue Folge) (5692=1932). Quoted in: Fishman, Judaism
and Modernization on the Religious Kibbutz, 75.
 42

have seen, insisted on a complete separation of the law as it is from any external system of

values. Unlike Kelsen, RKF members did evaluate halakha on its ability to deal with “reality.”

In a 1957 article about the kibbutz mode of halakhic interpretation, Simha Friedman, who had

attended the University of Berlin at around the time that Kelsen was a professor in the University

of Cologne, expressed clearly the belief that halakha had to respond to a reality beyond the

boundaries of its own internal system:

Reality is never static: it is continually undergoing change. But

whereas the reality of Jewish social life in previous generations
changed sometimes gradually and sometimes rapidly, the new
Jewish society that has come into being in the Land of Israel is of a
very dynamic character, and it is changing with unprecedented
rapidity. Furthermore, the Jewish national movement has led to a
preoccupation with certain aspects of economic and social life with
which halakha has not concerned itself for many generations; for
example, the fact that there are now Jewish farmers tilling the soil
of the Land of Israel. How, then, can Jews live in accordance with
religious law when they are constantly being faced with situations
which were not formulated in halakha?65

In this passage, Friedman placed himself in tension with Kelsen’s positivism by stating that

halakha has to respond to values outside of its own system. A careful reading of the example that

Friedman used to illustrate his point indicates that he had German positivism in mind:

Let us illustrate this problem with an example taken from a totally

different context – that of secular law. When electricity was first
installed in Prussia, some time towards the close of the last
century, a case was brought against a man for leading a wire from
the main cable to his house. The prosecution charged him with the

65
Simha Friedman, “The Extension of the Scope of Halakhah,” in The Religious Kibbutz Movement: The Revival of
the Jewish Religious Community, ed. Aryei Fishman (Jerusalem: Religious Section of the Youth and Hehalutz Dept.
of the Zionist Organization, 1957), 38. This article was based on a speech originally delivered by Friedman in the
Jerusalem Community Center in 1954. In 1957, the same year as its publication in English, it was published in
Hebrew in the religious kibbutz journal Amudim. The translation here is based on the English version and the page
numbers also refer to it.
 43

theft of public property. In defense he pleaded that his action did

not constitute theft, since theft, under Prussian law, was defined as
Entwendung von Gegenständen, i.e. the actual removal of physical
objects, whereas in this respect electricity was not an “object.” The
court upheld the plea and discharged the accused. The logical
implication of the court’s action was that the law was found
wanting, and that it required alteration to meet the changed
conditions brought about by technological progress. Here we have
a phenomenon common to every type of law: no law can be so
drafted as to provide for every future contingency. This applies
also to the formulation of the laws contained in the Torah.66

The Prussian case of the theft of electricity to which Friedman referred was an important case in

Prussian law. It was scarcely a current example, however, as it had taken place more than a

decade before Friedman was even born, in a judicial system that no longer existed.67 Of all the

examples Friedman could have used to prove his point, why did he resort to one that was so

remote, geographically and chronologically, from the current circumstances of his readers? And

how did Friedman have such intimate knowledge, down to the precise legal formulation in the

original German, of the Prussian judge’s ruling?

It is most likely Friedman encountered this case during the Weimar period when he was a student

at the Hildesheimer rabbinical seminary in Berlin and later at the University of Berlin. It was, in

fact, the exact example used by Kelsen to address the question of legal gaps.68 Significantly,

however, Friedman used the same example in exactly the opposite way from Kelsen. Kelsen

66
Ibid., 39.
67
Entscheidungen des Reichsgerichts in Strafsachen = Decisions of the German Imperial Supreme Court in
Criminal Matters, 29, 111.
68
See: Kelsen, Pure Theory of Law, 246. Pure Theory of Law was published in 1960, after Friedman’s article was
published, but it seems that Kelsen had been using this Prussian case as an example for some decades beforehand.
He certainly referred to it as early as 1933, as it was mentioned in an article of that year. See: Josef L. Kunz, “The
Vienna School and International Law,” New York University Law Quarterly Review 11 (1933).
 44

used the Prussian case in the course of his argument that it is nonsensical to talk of gaps in the

law. He argued that the judges were entirely correct to acquit the accused and that the case in no

way indicated that the law had any gaps because gaps can only be judged on the basis of values

external to the legal system:

The judgment, according to which the lack of a legal norm of a

certain content is inequitable or unjust, represents a very subjective
value judgment which in no way excludes an opposite value
judgment.69
The legal order, according to Kelsen, is entirely self-contained. “The legal order permits the

behavior of an individual when the legal order does not obligate the individual to behave

otherwise.”70 In other words, there can by definition be no gap in the law. If is something is not

prohibited by the law, it is permitted by it.

Friedman, on the other hand, used exactly the same case to prove the opposite point. According

to him, the acquittal of the accused indicated that “The law was found wanting, and that it

required alteration to meet the changed conditions brought about by technological progress.”

Friedman must have been aware of Kelsen’s argument from decades earlier. Why else would he

have chosen a nineteenth-century Prussian case to prove his point? He engaged with it by

employing Kelsen’s own example to subvert his argument. I demonstrated above that Moshe

Una, in his discussion of general jurisprudence, was deeply engaged with German legal theory of

the Weimar period, and argued strongly against the positivism of Kelsen and his school. In this

article, Friedman argues against legal positivism in the halakhic context. Once again, German

69
Kelsen, Pure Theory of Law, 247.
70
Ibid., 246.
 45

legal theory forms the backdrop to the discussion on the kibbutz and once again legal positivism

represents the position which the RKF opposed.

Halakhic Reasoning and Rabbinic Authority

Just as the RKF rejected the positivist mode of halakhic interpretation, they were deeply

skeptical of rabbinical authority. To some degree, this skepticism was a reflection of the anarchic

streak in kibbutz life in general. But it also reveals something deeper about the approach to law

and halakha in the RKF.

The RKF did not often refer halakhic questions to rabbis. They allowed halakha to evolve in the

lived circumstances of the kibbutz. Despite the fact that many of the leaders of the kibbutz

movement had the scholarship that would have enabled them to acquire a rabbinic qualification,

(the pages of the kibbutz journals frequently featured debates over points of halakha, as we will

see below,) the formal role of the rabbi was very limited on the kibbutz.

There were occasions on which the RKF consulted with rabbis. Many kibbutzim, for example,

implemented a method for milking cows on the Sabbath (which is forbidden when done actively,

by hand,) that used an automatic milking machine. The machine was designed in consultation

with Rabbi Avraham Yeshayah Karelitz, the ultra-Orthodox leader known as the Hazon Ish, and
 46

with Rabbi Herzog.71 On the whole, however, the members of the RKF were suspicious of

rabbinical authority and skeptical of the ability of rabbis to address the religious needs of the

people. They were reluctant to appoint rabbis over its kibbutzim who were not themselves

kibbutz members. There was therefore an acknowledgment of the “difficulty of finding someone

appropriate for the kibbutz who could serve as a halakhic advisor and spiritual guide.”72 Most

Orthodox rabbis, the kibbutz members felt, did not share the revolutionary attitude of the RKF.

As a general matter, they considered rabbis to be halakhically and socially conservative. They

preferred to avoid halakhic questions for fear of having to make a change. The ultra-orthodox

refrain of “the new is forbidden by the Torah” was the typical rabbinical response and this was

resisted by the RKF.

[Rabbis would] tend to answer a questioner who saw the need to

break new ground in halakha because of changing circumstances:
‘Better not to do it.’ In addition [they were] suspicious of those
who were ready to contend with new circumstances as if they had a
‘lenient’ approach to halakha.73
This was echoed in the complaint of another leader of the RKF, Tsuriel Admanit (1915-1973),

who like Una had been educated in Berlin and immigrated to Palestine in 1937, joining the

Rodges group.

…Nor could we accept the advice of that rabbi who, when

approached on this problem, replied that it would be advisable to

71
See: Auerbach, Weiser, and ’Emanuel, Ha-qibuts be-halakha, esp. pp. 214-5. Significantly, perhaps, the solution
seems first to have been used on Kibbutz Hafets Hayim, a religious kibbutz that was founded not by members of ha-
Po’el ha-Mizrahi but by members of the ultra-Orthodox party Po’alei Agudat Yisra’el.
72
Moshe Una, Ha-qehilah ha-hadashah: iyunim be-mishnah ha-kevutsah ha-datit: asupat ma'amarim 1940-1983
(Tel Aviv: ha-Qibuts ha-me'uhad, 1984), 63.
73
Ibid.
 47

forgo any economic activity that entails even the possibility of

Shabbat desecration and seek other work.74
This was not way of a kibbutz society committed to a full national life in the Land of Israel. As

Simha Friedman put it: “Our rabbis have not been touched by any revolution; they are unfamiliar

with national life, and lack a perspective of statehood.”75

Given this, it is surprising that even Friedman himself explicitly argued that rabbinical halakhic

decisions do need to be obeyed:

If the competent authorities make a ruling based on the

interpretation of Halakha, we will under no circumstances
contravene it. for we realize that even if there is room for
differences of opinion with regard to Halakha, there has to be a
recognized body to make decisions and an instant at which such
decisions become operative. As in the case of every law once a
decision has been taken it must not be flouted. Here we find
ourselves accepting the Socratic principle that the law is binding
even when it is not convenient. Laws cannot be obeyed only as
long as they suit one; otherwise they cease to be laws.76
This is not, however, a typical traditional call for obedience to rabbinical authority. The reason

Friedman gives here for obedience to the rabbis is telling. Classical Orthodox arguments in favor

of rabbinical authority tend to draw on teachings like the biblical exhortation that “you shall not

diverge from what they tell you, to the right or to the left.”77 Alternatively, they attribute the

authority of the rabbis to their greater scholarship or religious standing. Friedman used neither

argument, appealing instead to the pragmatic value of legal predictability. He ignored the

74
Tsuriel Admanit, “On the Religious Significance of the Commnunity,” in The Religious Kibbutz Movement: The
Revival of the Jewish Religious Community, ed. Aryei Fishman (Jerusalem: Religious Section of the Youth and
Hehalutz Dept. of the Zionist Organization, 1957), 32.
75
From the protocol of the Meeting of the Central Religious Committee, Dec 12 1946. Quoted in: Fishman, Judaism
and Modernization on the Religious Kibbutz, 149.
76
Friedman, “The Extension of the Scope of Halakhah,” 39.
77
Deuteronomy 17:11
 48

religious veneer of rabbinical authority and pointed instead to their role as duly authorized

participants in the legal hierarchy. He appealed not to the Talmud or to any Jewish source, but to

the “Socratic principle,” (he was presumably thinking of Plato’s Crito, in which Socrates obeys

the law even at the cost of his own life,) that a properly authorized law is binding.

It was entirely consistent for Friedman, therefore, and the RKF in general, to submit to rabbinical

authority only when they deemed it necessary to retain the integrity of their religious lives. On

other occasions, Friedman had no qualms about arguing that certain issues fell outside of the

purview of rabbinic authority. A primary example of this was the debate over women’s military

service. Most religious parties, including the two chief rabbis, Herzog and Uziel, opposed the

conscription of women into any kind of national service.78 Ben-Gurion and the secular parties,

however, insisted upon it. The disagreement was so severe that it helped to bring about the

dissolution of the government in late 1952.79 The RKF, almost alone in the religious sector of

Israeli Jews, supported the drafting of women into national service. Their justification for simply

ignoring rabbinical ruling on this matter was, according to Friedman, that the matter fell outside

of the realm of rabbinic justiciability. It was a matter of public policy, not of halakha.

As long as the Chief Rabbi did not state that the prohibition was
based upon Halakha, we could not regard his decision as being
more than the expression of a certain point of view on a matter of
public interest. And on matters of public interest we had just as
much right to voice opinions as he.80

78
See Herzog’s position paper on the National Service Law for Women in the Israel State Archives RG
72.102/P4251/8.
79
Zerah Warhaftig, Huqah le-Yisra'el: dat u-medinah (Jerusalem: "Mesilot" ha-merkaz ha-olami shel ha-mizrahi,
ha-po'el ha-mizrahi, 1988), 222-61.
80
Friedman, “The Extension of the Scope of Halakhah,” 50.
 49

Because the chief rabbis did not claim that their ruling was made on halakhic grounds, Friedman

believed that this was a matter of public policy and not of halakha and that therefore no

submission to rabbinical authority was necessary.

The skepticism of the RKF regarding rabbinical authority should not be mistaken for a

dismissive attitude to the halakha more generally. The goal of the RKF was not to bypass

halakha but to update it for the purposes of modern living in the sovereign Jewish state. In doing

so, however, they placed a great emphasis on what they considered to be authenticity in halakhic

reasoning. In particular, they disdained the use of two halakhic mechanisms: legal fiction and the

involvement of Gentiles. One halakhic decision in which both of these mechanisms had been

used was the “permission by sale” [heter mekhirah] that was used to address the problem of the

Sabbatical year. According to the Torah, farming is forbidden in the Land of Israel during every

seventh year, the sabbatical year. During the years of the turn of the twentieth century, it was

apparent that observing the letter of the law would have been disastrous for the Jewish

community of Palestine. Although food for the year could be acquired from Gentile farmers,

Jewish agricultural communities would be destroyed if they received no income for the entire

year. Famously, Rabbi Kook exploited a detail of the law of the sabbatical year that required

farming to cease on any Jewish-owned land in the Land of Israel. He therefore allowed Jewish

farmers to notionally sell their land to a Gentile, for a nominal sum, during the course of the

sabbatical year. The land could then be farmed, even by Jewish farmers, and the food thereby

produced could be sold to and eaten by Jews. The procedure was similar to the old practice of

Jewish merchants, who owned a large stock of grain-based produce, selling their stock to

Gentiles for the Passover holiday rather than destroying it. The ruling of Rabbi Kook was
 50

tremendously controversial and gave rise to a series of fierce polemics.81 It remained, however, a

popular and inventive ruling that was considered indispensable for the sustainable livelihood of

Jewish farmers who wished to abide by the halakha.

Rulings of this kind were deeply unpopular within the RKF. Its members were very reluctant to

rely on legal fictions which seemed like an inauthentic way to approach halakha. One kibbutz

member spoke of these kinds of legal fiction as “dangerous permissions” that relied on sophistry

which created a “juridic-formalistic situation” and divorced genuine intention from legal

action.82 This seemed to go against the entire ethos of the kibbutz which was dedicated to a

revival of a “total Jewish society, possessing its own organic political-economic substructure,

existing by its own power and discharging the functions necessary for it to live and flourish.” 83

In this context, halakha was expected to “unfold its potentialities.”84 The use of legal fictions

“indicated that the people of Israel are not leading an independent life, but are subject to an alien

life-order, inasmuch as the people ceases to create its own life…an antagonism is created

between Torah and life.”85

This alienation was doubly apparent when the legal fiction required the help of a Gentile. This

was a sure indication that the halakha as it existed did not allow for a fully independent Jewish

81
Arye Edrei, “From Orthodoxy to Religious Zionism: Rabbi Kook and Sabbatical Year Polemic,” Diné Israel 26-
27 (2009-2010).
82
Eliezer Goldman, “Ha-halakha veha-medinah,” in Mehqarim ve-iyunim: hagut yehudit be-avar uva-hoveh, ed.
Daniel Statman and Abraham Sagi (Jerusalem: Magnes Press, 1996), 418-20.
83
Fishman, The Religious Kibbutz Movement, 12.
84
Ibid.
85
Yosef Lutvak, “On the Direction of the Religious Farm Economy,” Qevutsatenu 18 Shevat (5697=1937): 2.
Quoted in: Fishman, Judaism and Modernization on the Religious Kibbutz, 95.
 51

society and that Jews were reliant on Gentiles just as they had been in the exile. Displaying a

clear debt to Kant’s categorical imperative, Simha Friedman insisted that a halakhic solution to

any modern question must have “universal application.” An independent Torah-based Jewish

society could not rely on the activity of non-religious Jews or of Gentiles.

We have now in Israel a sovereign community which has the duty

of upholding halakha. Thus, …[we should] bear in mind the
question: “How would I act if I were responsible for the life of the
community as a whole, and not just an individual of a member of a
small sect?” …[The solution must be applicable to] the entire
complex of modern economic and industrial life, of the army, the
public administration, and so on.86
The reliance on Gentiles, then, was “to the detriment of our independent existence as a nation.”87

Kibbutz Halakha in Practice

The practical application of halakha on kibbutz did not always fully express the revolutionary

halakhic philosophy of the leaders of the RFK. The tensions between two conflicting

commitments of the RKF – its dedication to the Orthodox tradition and to halakhic precedent on

the one hand and its attempt to create a new, fuller Jewish life even at the cost of a commitment

to precedent on the other – often surfaced in debates about the application of halakhic norms to

daily life. When talking about their approach to the Jewish tradition in the abstract, the leaders of

the kibbutz were quite revolutionary and repudiated legal positivism with regard to law in

general and with regard to halakha in particular. When it came to certain practical questions,

86
Friedman, “The Extension of the Scope of Halakhah,” 47-8.
87
Ibid., 48.
 52

however, the radicalism was tempered. The kind of legal positivism against which they argued so

forcefully often became a touchstone in practical halakhic decisions.

One burning question for the RKF was how to deal with a bekhor, the firstborn male offspring of

a kosher animal. An overview of a rather intricate area of halakha is required in order to

understand the debate on the kibbutz. According to halakha, the firstborn of a kosher animal is

holy. This means that it cannot be put to work or used in any way and must instead be given to a

priest who sacrifices the animal in the Temple of Jerusalem and eats its meat. A different law

applies when the bekhor is blemished, because such an animal may not be sacrificed in the

Temple. In this case, the bekhor is still given to the priest but the priest may then slaughter the

animal, even outside the Temple, and eat the meat. After the destruction of the Temple, the

procedure was modified somewhat. The law of a blemished bekhor is unaffected; it is still given

to the priest, slaughtered and eaten. What of an unblemished bekhor, which is still holy and must

therefore be given to a priest but cannot be sacrificed because the Temple no longer stands? The

priest must protect the animal without deriving any benefit from it. In the unlikely event that it

happens to develop a blemish of its own accord, it may then be slaughtered and eaten. If a

blemish does not develop, it is protected at the priest’s expense until its natural death. Because of

the undue burden this put on priests, the practice developed to exploit a detail in the law. A

bekhor is holy only if it belongs exclusively to a Jew. It was therefore recommended that when a

kosher animal is about to give birth for the first time, the Jewish owner should sell part of the

birthing animal to a Gentile who thereby becomes a partner not only in the ownership of the
 53

mother but also of the firstborn animal which therefore never becomes a holy bekhor and may be

treated exactly like any other animal.88

This law presented difficulties to the RKF. As agricultural societies with limited resources, they

relied on being able to use all of the animals born on the kibbutz. It would have been

prohibitively expensive to bear the cost of feeding and looking after every bekhor without the

ability to reap any benefit from it. The common solution to this problem, however, i.e. entering

into joint ownership with Gentiles, offended the sensibilities of the kibbutz in two ways. It both

depended on a legal fiction and required the reliance on Gentiles. In the absence of an

alternative, however, this is what they generally did.

In 1952, a kibbutz member called Meir Or (1911-1975) took issue with this practice. Or was

born in Latvia and educated in a yeshiva in Riga. A Zionist from his youth and a member of the

Shahal group, he immigrated to Palestine in 1933 and joined Kibbutz Tirat Tsvi in 1937.89 In the

RKF journal, Yedi’ot ha-Kibbutz ha-Dati, Or challenged the current halakhic practice with

regard to the bekhor:

It is logical that someone whose approach to religion is in the

mode of “it is an edict from God and you have no authority to
question it” will use legal moves like this without concern because
it is natural for people to use edicts as loopholes. But one who
seeks the reason for the commandment[s], which were given to
realize certain ideas and ideals … will stay away from a legal
move that, so to speak, deceives God by creating a fictitious
ownership of a Gentile over the property of a Jew. And if, with
difficulty, it is possible to understand an approach like this at a
time that we were living among the Gentiles and subordinate to
88
For further elaboration of the law of bekhor, see Meir Bar-Ilan and Shlomo Yosef Zevin, Entsiklopedia talmudit
le-inyane halakha (Jerusalem 1947-), vol. 3, 283-99.
89
Many of his writings are collected in: Meir Or, Or ha-meir (Tirat Tsvi: Tirat Tsvi, 1987).
 54

foreign rule, it is totally impossible to accept this approach in the

free state of Israel which is not subordinate in theory or in
practice.90
Or emphasized the ways in which the current practice went against the spirit of the RKF’s

approach to halakha. His argument was couched in a criticism of legal positivism. From the

positivist outlook, Or noted, there is no objection to the resort to legal fiction because according

to the separability thesis which distinguishes between law and values, the law is the law and the

reasons for it are irrelevant to the judicial process. For the RKF, however, which rejected

positivism and understood law in terms of the “ideas and ideals” that lay behind it, reliance on

such a loophole was unacceptable.

As a result, Or suggested a different solution based on the precedent of the halakha concerning a

first-born donkey. A donkey, not being kosher, could never be sacrificed in the Temple. Even in

Temple times, therefore, the practice was to transfer the sanctity of a first-born donkey onto a

kosher animal, or onto money, that would be given to a priest. This was a process known as

“redemption.” Given, Or said, that today, in the absence of the Temple, kosher animals can no

more be sacrificed than non-kosher ones, perhaps kosher animals should also be “redeemed,”

their sanctity transferred so that the animal could be used. He even suggested that a prayer be

made in place of the sacrifice. Or recognized that his suggestion would “raise the question of

how to overcome a clear law.” He felt, however, that the exigencies of the time called for

decisive action to overturn explicit law. In Or’s words, “It makes sense in certain circumstances

to permit the forbidden as an emergency ruling.”91 The suggestion followed the spirit of the

RKF’s attitude to halakha that we elaborated above. It avoided dependence on Gentiles and
90
Meir Or, “Al ha-gisha ha-formalit le-qiyum mitsvot,” Yedi'ot ha-Qibuts ha-Dati 81 (1952): 2.
91
Ibid., 14.
 55

rejected the use of legal fiction. Furthermore, it was predicated on the basis that because the

reality of Jewish life in its sovereign state was different from that of previous generations, it

should be permitted to alter the letter of the law in order to observe its spirit. It is highly

reminiscent, for example, of Una’s statement, one year previously, that the RKF had sometimes

found it necessary to make changes in religious practice for the sake of forming their new

religious society:

A community is able to withstand the violation of an accepted

religious practice… Only with this can we explain to ourselves
how we have dared to touch areas which, from the formal point of
view, we were unqualified to touch.92

Despite its apparent consistency with the halakhic philosophy of the RKF, Or’s suggestion was

met with a scathing counterattack in a number of articles, which not only disagreed with his

opinion but claimed that it should never have been published in the first place. The editor of the

journal published the responses and a brief closing remark from Or, before closing down the

discussion with the following remark: “We do not see Yed’iot ha-Kibbutz ha-Dati as an

appropriate stage for the clarification of matters like these and we hereby close the debate.”93

The common claim of the attacks against Or was that his rejection of legal positivism had gone

too far. Despite the frequent claims among RKF thinkers that the law should not be seen as a

mechanistic system with no relation to external values, Or’s opponents insisted that there yet

remained a technical legal procedure that could not be overlooked entirely. The practice of

analyzing the purpose behind the commandments was valuable, but it should not be used to

92
From the protocol of the Fifth RKF Council in 1951. Quoted in: Fishman, Judaism and Modernization on the
Religious Kibbutz, 152.
93
“Pidyon bekhor,” Yedi'ot ha-Qibuts ha-Dati 83 (1952): 4.
 56

subvert the law entirely. As Eliezer Goldman put it in a footnote to Or’s original article, “the

search for the goal of the commandment … does not justify ignoring halakhic categories.”94 In

this spirit, Eliezer Rosenthal, the rabbi of Kibbutz Yavneh, bombarded Or with pages of

examples of legal precedent that contradicted Or’s suggestion.95

Other respondents took a more nuanced approach. A. Ron wrote an article that aimed to defend

the current halakhic practice by re-examining the whole nature of legal fictions. All definitions,

he argued, draw their meaning from their context. The terms in the fields of aesthetics and justice

all have their own definitions. The same goes for legal definitions which must be understood

purely on the basis of their legal context. If an acquisition is deemed valid by the law, it makes

no sense to claim that the acquisition is fictional. The partial acquisition of a birthing animal by a

Gentile, he wrote,

…[is a] real idea in the legal context, and its reality flows only
from the law. Therefore there is no meaning to the phrase
“fictitious sale” in the judicial sphere. Every sale that the law
recognizes is real.96
Here Ron executed two Kelsenian moves: he established the total autonomy of the legal sphere

and he maintained that the validity of the law flows from within the law and not from any

external measure. From this perspective, it makes no sense to call a sale “fictional”. If the law

recognizes a sale, it is a legal sale.

94
Or, “Al ha-gisha ha-formalit le-qiyum mitsvot,” 3.
95
“Pidyon bekhor.”
96
Ibid., 4.
 57

In response to this very severe criticism, Or backtracked. In a short article, he claimed that his

suggestion was only intended as a concession to the inability of his contemporaries really to

understand the halakha as it stood, without a psychological justification from outside the law.

Given the choice, he argued,

between losing the commandment and retaining a remembrance of

the commandment which maintains its ethical basis even if it is
against the details of the halakha, in my opinion we have to choose
the second way.97

Notwithstanding this re-casting of his position, Or’s original suggestion contained no indication

that it was a post facto concession. In reality, Or and his opponents were arguing right past each

other. Their debate was a fundamental disagreement over the nature of law itself. Along the lines

of many theoretical statements by his colleagues in the RKF, Or was advocating a radical legal

change on the basis of an appeal to extra-statutory values. However, for most kibbutz members,

even those who had previously espoused similar ideas in theory, the practice was too radical to

adopt. They fought against him with exactly the arguments they had previously repudiated, by

limiting the appeal of the law to values beyond the statutes themselves.

A similar exchange took place in 1957. This time the legal issue rested on the four species that

are “taken” on the festival of Sukkot. Jewish law requires the person taking the four species to be

their exclusive owner. This raised a special problem for the RKF because kibbutzim did not

allow their members to own private property. How, then, could they own the four species in

order to fulfill the law?

97
Ibid., 14.
 58

A helpful way into the problem was found in a medieval precedent. According to a Talmudic

story, an etrog (one of the four species) was once bought by four people in partnership. Because

the user of the etrog needs to own it completely for ritual use, medieval rabbis assumed that as

each one of the four used the etrog, the other three implicitly granted him ownership for the

duration of his time of use.98 Some thought the precedent was not helpful for the RKF. One

contributor argued that it would be better for every man on kibbutz to own his own etrog,

especially considering that the etrog is a symbol of the agricultural settlement of the Land of

Israel, a key ideological goal of the RKF. Furthermore, he argued, actual ownership is more

attractive than the use of complicated legal transactions because people in general “do not have

juridical knowledge and an understanding of abstract legal ideas” and would therefore be unable

to understand this intricate procedure.99 Another advocated embracing the legal fiction of

presumed transfer of ownership between the etrog owners because it embodied another ideal of

the kibbutz: that “individual and communal property coincide.”100

Although each of these positions made reference to the values of the kibbutz (the settlement of

the land of Israel and the coincidence of communal and private property), neither of them

suggested that these values should have any serious impact on the way that the halakha operates.

Each one of them ended up advocating a very conventional halakhic position. In a sense this is

startling. The very notion of the four species being privately owned, through legal fiction or

otherwise, surely contravened the very basis of the socio-economic life of the kibbutz. Once

again, it was left to Meir Or to adopt an uncompromising position. Or claimed that even if the

98
Sukkah 41b and Rosh ad loc.
99
Auerbach, Weiser, and ’Emanuel, Ha-qibuts be-halakha, 116.
100
Ibid., 118.
 59

etrog is bought with collective funds, it can never become the property of an individual member

of the kibbutz. The collective is not able to give the etrog to an individual member as a gift

because there is simply no private property allowed; the collective has no power to give the

etrog, even temporarily, into the property of an individual. He stated this in the starkest terms:

There is no possibility whatsoever within the framework of the

kibbutz to fulfill those commandments which require private
property for their fulfillment.101

Or then offered his own solutions. He first suggested a technical way out of the problem,

whereby some of the property that members bring into the kibbutz upon joining could be placed

into a fund for the future purchase of the four species for individual members. But, clearly

concerned about the ideological shortcomings of that suggestion, he made a more radical one:

To avoid “legal sophistry” there is perhaps one possibility: to

establish that the halakhic emphasis on private ownership for the
fulfillment of certain commandments only applies in a regime in
which possessions are defined as private, meaning in a regime of
private property. But in the regime of the kibbutz, where property
is not the private possession of the members but the possession of
the community, one may fulfill one’s obligation of the
commandments also with communal property like this.102
In other words, Or argued that rather than finding a way to satisfy both the statutes of the halakha

and the structure of the kibbutz, the halakha should change to fit its new social circumstances. In

the new kibbutz regime, perhaps the four species no longer need to be privately owned.

Given the hostile reception of Or’s suggestion about bekhor only five years earlier, it will come

as no surprise that his suggestion was ignored here, too. The religious kibbutzim continued to

101
Ibid., 124.
102
Ibid.
 60

operate on the assumption that the four species had to be privately owned. Indeed, the rules of

the kibbutz movement were subsequently changed to allow kibbutz members to own private

property in those few circumstance that it is required for religious purposes.103 Once again legal

positivism prevailed. The statutory law resisted challenges that appealed to values that lay

outside it.

Both these examples demonstrate that even as the religious kibbutzim struggled to apply halakha

to their unprecedented socio-political conditions of communal frontier living, their approach to

law remained in some ways conventional. Even as they expressed distaste for traditional legal

tools like legal fiction and the reliance on Gentile involvement, they maintained fidelity to the

structures and statutes of the law they had received.

In this sense, the RKF failed in its stated goals. Whereas its early ideologues spoke boldly about

“holy rebellion,” the actual activity of the religious kibbutzim often rejected rebellion in the

name of the holy. Legal fictions and sales to Gentiles remained fixtures of kibbutz life. While

skeptical of rabbinical authority, the RKF was keen to preserve its ties with the Orthodox

establishment and the attempt at halakhic interpretation was in effect abandoned. As one RKF

member put it as early as 1942:

Seeing the great danger of a diminishing of the stature of halakha,

we are forced against our will into a position of defence and
protection of the framework of halakha…into an alliance with the
conservative elements within the people, although we feel closer in
spirit to the innovative and revolutionary elements.104

103
See footnote at: ibid., 121.
104
S. Schechter, "On Our Religious Condition," Alonim Shevat (5702=1942): 3-4. Quoted in: Fishman, Judaism and
Modernization on the Religious Kibbutz, 156.
 61

In a retrospective published in the RKF journal in 1959, the same point was once again made:

We have not made progress towards the goal to which we aspire,

regeneration of our Torah, and finding solutions for the questions
that come up again and again... We even adhere strictly to customs
sanctified by previous generations, without knowing how to
sanctify our own life-patterns.105

The legal and religious philosophy of the RKF constituted a serious challenge to the more

conservative approaches to law that characterized the mainstream of religious Zionism. Given

the later rise to dominance among religious Zionists of a completely different legal philosophy,

which emphasized the centralized state and positivist interpretation of the law, this study of the

early ideology of the RKF reminds us of the contingency of history and the availability of

alternative approaches. The failure to pursue their legal ideology in practice was not unique to

the RKF. Other religious Zionists who did not subscribe to the radical doctrines of the RKF also

failed in their attempts to implement their ideas about law and halakha in the context of the new

state. We turn now to an investigation of the widespread commitment to legal pluralism amongst

even more conservative religious Zionists and to the beginnings of its eventual demise under the

powerful new centralism of the Chief Rabbinate.

105
S. Aptrot, "Opening Address," Amudim 159 (5720=1959): 5. Quoted in: ibid., 157.
 62

2. The Rise and Fall of Religious Zionist Legal Pluralism

Religious and political power have been separated from each other
… throughout the course of Jewish history.
- Shimon Federbusch

The main concern of the religious kibbutzim, as described in Chapter 1, was how to think about

Jewish law in the radically new environment of the religious socialist commune. As the founding

of the state drew nearer, however, a more fundamental challenge posed itself to religious Zionist

leaders: the democratic nature of the modern state. It was self-understood that the new Jewish

state would be democratic. The majority of its Jewish citizens were secular or even anti-religious

Zionists who were committed to democracy. Indeed, the United Nations itself required the new

Jewish state to have a democratic constitution, to elect a legislative body by universal suffrage

and not to allow political, civil, or any other discrimination against any person.1 This was well

understood by religious Zionist leaders, but it posed a serious challenge to their commitment to a

synthesis of nationalism and religion. Halakha, after all, discriminates in numerous areas of the

law between men and women, as well as between Jews and Gentiles. Of particular concern in the

realm of constitutional law were the halakhic impediments to Gentiles or women being

appointed to the judiciary, or even giving evidence in court. The egalitarian principles of

democratic politics therefore posed a special challenge to religious Zionists who had to imagine a

state in which women, Gentiles and non-religious Jews could hold positions of power that was

also compatible with their understanding of the Jewish tradition. Could the halakha be

1
United Nations General Assembly Resolution 181.
 63

accommodated to a Jewish state in which a woman could be president and an Arab Muslim a

judge?

This chapter deals with two distinct methodologies that were mobilized to address these

questions, based on two distinct approaches to the theory of law: pluralism and centralism. Legal

centralism is a state-centered way of thinking about law. It posits that all law within the state

derives from the authority of the state and that each state has one centralized legal system into

which all law within its boundaries has to fit. Legal pluralism, on the other hand, recognizes that

even within a single political unit like the state there may be a number of overlapping legal

regimes, each with its own rules, procedures and sources of authority.

This chapter shows that in the years before the founding of the State of Israel, most religious

Zionist thinkers adopted a pluralistic approach to law when laying out their vision of the

relationship between halakha and politics. They felt that distinguishing the law of the state from

halakha was a crucial for a Jewish state to be viable. They were supported in this position by

generations of precedent. Legal pluralism had been the favored approach to law of major Jewish

thinkers and leaders for most of Jewish history. The end of this chapter will introduce the

challenge to Jewish legal pluralism spearheaded by Isaac Herzog, the chief rabbi. This will set

the scene for the remaining chapters which will describe, and try to explain, the process by which

Herzog’s position eventually eclipsed legal pluralism in religious Zionist circles.

The early popularity of the pluralist position is indicated by the way in which even Herzog, who

unrelentingly resisted it, acknowledged that it would have been the easiest way to address the
 64

challenges of religious Zionism, entailing the smallest change to the halakha and its institutions.

In the midst of a lengthy tract outlining his intricate suggestions for making Jewish inheritance

law more egalitarian, Herzog makes the following comment:

Before I labor to find a fitting solution for the accommodation of

Torah law to a democratic regime, especially in a state of the Jews,
I see that there are those who ask: Why all this trouble? Surely one
of the later medieval jurists, the Ran, of blessed memory, made
light of this whole thing. In his sermons, the Ran claims that there
are two types of laws in Jew[ish society]: the law of the Torah and
the law of the state or the king’s law.2

Known as “the Ran,” Nissim of Gerona (?1310–?1375) was a medieval Talmudic commentator

and legal scholar. In his Eleventh Sermon, he articulatied a comprehensive constitutional theory

which posited that the ideal Jewish polity has a dualistic legal regime comprising the Law of the

Torah, i.e. halakha, on the one hand, and the “king’s law” on the other.3 He noted that “every

nation needs some form of political organization,” and yet halakha is deficient in its ability to

govern a state.4 The halakhic punishment for theft, for example, requires the thief simply to

return the stolen object and to pay a fine of the same value, which is scarcely a deterrent,

especially for people of means. It would be, furthermore, extremely difficult to convict someone

of a crime in a halakhic court. A halakhic conviction would require two eye-witnesses to the

crime and that the accused be warned of the punishment for the crime immediately before

carrying it out. According to the Ran, halakha is a perfectly just law but it is not effective for

keeping social order. Indeed, he wrote, “some of the laws and procedures of the [Gentile] nations
2
Isaac Herzog, Tehuqah le-Yisra'el al-pi ha-torah, ed. Itamar Warhaftig, 3 vols., vol. 2 (Jerusalem: Mosad ha-rav
Kook and Yad ha-rav Herzog, 1989), 74-5.
3
Nissim ben Reuben Gerondi, Derashot ha-Ran ha-shalem, ed. Leon A. Feldman and Mordekhai Leyb
Katzelenbogen (Jerusalem: Mosad ha-rav Kook, 2003). For a partial translation, see: Michael Walzer, The Jewish
Political Tradition, 1: Authority, 156-61.
4
Michael Walzer, The Jewish Political Tradition, 1: Authority, 156.
 65

may be more effective in enhancing political order than some of the Torah’s laws.”5 In the

Jewish polity, the Ran believed that there should be courts run by religious judges according to

the laws and procedures of halakha. But these courts would not be intended for the practical

running of a state. Their value would be exclusively religious and metaphysical:

[Unlike] the nomoi of the nations of the world, the laws and
commandments of our Torah… include commandments that are
ultimately not concerned with political order. Rather their effect is
to adduce the appearance of the divine effluence within our nation
and [to make it] cleave unto us.6
Because the laws of the Torah do not achieve the necessary political ordering, that task is left to

a parallel legal regime which was originally associated with the king. Since Biblical times, the

Ran maintained, Jewish kings and their governments enacted and enforced legislation designed

to keep social and political order in the state. After the end of the monarchy in Israel, in the

absence of a king, the “king’s law” remained in force under the authority of other kinds of

political leaders. Sometimes these happened to be rabbis but even in that case they did not

preside over the “king’s law” based upon their halakhic authority but in their role as political

leader. For the Ran, while it is the job of rabbinical courts to draw down metaphysical benefits of

halakhic law, the laws that run the Jewish polity in practice derived from the king or other

political leaders.7

5
Ibid., 158.
6
Ibid., 157-8.
7
This is the most widespread modern interpretation of Gerondi’s sermon. See: Stone, “Religion and State: Models
of Separation from within Jewish Law.”; Suzanne Last Stone, “Law Without Nation? The Ongoing Jewish
Discussion,” in Law Without Nations, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford,
Calif.: Stanford University Press, 2011). Another interpretation reads Gerondi’s sermon as a prototype of the
doctrine of the separation of powers. See: Warren Zev Harvey, “Liberal Democratic Themes In Nissim of Girona,”
in Studies in Medieval Jewish History and Literature III, ed. Isadore Twerski and Jay M. Harris (Cambridge, MA.:
Harvard University Press, 2000). See also Blidstein, “On Lay Legislation in Halakhah: The King as Instance,” 8.
The debate over the original meaning of Ran’s sermon, while interesting, is tangential to our discussion because all
of the religious Zionists discussed here understood Gerondi according to the interpretation summarized above.
 66

Hayyim Ozer Grodzinski

In the context of the State of Israel, a constitutional outlook like the Ran’s solved many problems

for religious Zionists. To make halakha commensurate with a democratic regime and to give it

the tools to govern a modern state would entail a significant re-working of traditional law.

According to the Ran’s model, however, rabbinical courts could continue to run according to

traditional Jewish law as a religious enterprise while the real government of the state could be

left to the political authorities, which could build a legislature and judiciary on the model of the

“king’s laws.”

This was indeed the solution suggested by Rabbi Hayyim Ozer Grodzinski (1863-1940), a deeply

respected leader of Lithuanian Jewry. He offered the suggestion to Herzog who had turned to

him for advice shortly after he took up the post of Chief Rabbi of Palestine. In Herzog’s words:

After the Peel Commission,8 when we were faced by the partition

plan and the founding of a Jewish State, I corresponded with the
great Rabbi Hayyim Ozer Grodzinski, suggesting ways to
overcome the difficulty confronting us in the matter of public
appointments of Gentiles [to positions of political authority] …In
his reply he alluded to the above-mentioned sermon of Ran of
blessed memory.9

8
The Palestine Royal Commission under Lord Peel, which issued a report in 1937 advocating the partition of
Palestine. It was not ultimately implemented. Ten years later, the United Nations recommended a similar plan after
which Israel declared independence.
9
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 2, 75. This translation follows that in Michael Walzer, The Jewish
Political Tradition, 1: Authority, 474-5. A letter from Grodzinski to Herzog, published at Herzog, Tehuqah le-
Yisra'el al-pi ha-torah, 2, 75 fn. 10., contains the suggestion of Grodzinski to which Herzog referred. See also: ibid.,
1: 31 fn. 19. Grodzinski’s suggestion was as follows:

In regard to furnishing a constitution for the rule of Torah in the Hebrew state:
regarding [civil] law, this is truly a difficult mater in need of much reflection.
My initial thought is perhaps to arrange matters so that the judges in cases of
 67

Herzog, though, was quite unwilling to accept Grodzinski’s advice:

I replied that in my view this is not an acceptable solution, but

received no further response. I maintain my position that it is
inconceivable that the laws of the Torah should allow for two
parallel authorities.10

Some scholars have suggested that Grodzinski was able to make such a suggestion only because,

being firmly anti-Zionist, he did not invest as much significance in the idea of a Jewish state as

Herzog did. According to this understanding, the resort to the Ran’s constitutional model was

used by Grodzinski as a way of bifurcating between the state and religion and thereby preserving

a pristine realm of Jewish law to remain undisturbed by the challenges of modern society. Thus,

one scholar of Jewish law has argued:

It does not require much guesswork to discern the motivations

behind Grodzinski’s response. Grodzinski was opposed to the
state’s creation altogether. For him, Zionism was blasphemy, the
human forcing of a messianic ideal and, potentially, idolatry — the
setting up of an alternative sovereign. He wished to protect the
garden of religious halakha from any state but especially a Jewish
state, by separating the two at the outset. Herzog, by contrast,
dreamt of reviving Jewish law as a religio-national law by
developing the nascent democratic strains within it. All sorts of
questions relating to affairs of state had barely been addressed by

civil disputes [‫ ]ממונות‬between two Israelites would be rabbis whose summons

and judgment would be recognized by law. Cases between a Jew and a non-Jew
would be adjudicated according to the general [non-Jewish] law. Concerning
theft and robbery and criminal law in general, it appears to follow from the
responsum [sic] of Ran that there was a separate [system of] royal law alongside
the rabbinical court administering Torah law. For it would truly impair the order
of the polity if a thief would be exempted [from further punishment] by paying
double… You must necessarily concede that in such cases on must enact
ordinances from the polity.

This translation is based on that at: Michael Walzer, The Jewish Political Tradition, 1: Authority, 475.
10
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 2, 75. This translation is from: Michael Walzer, The Jewish Political
Tradition, 1: Authority, 475.
 68

the tradition… Nonetheless, Herzog thought it would be possible

to develop the sources from within.11

This interpretation, though, sheds light on only one aspect of the Herzog-Grodzinski debate. This

chapter will show that Grodzinksi was not the only contemporary of Herzog who recommended

the implementation of a version of the Ran’s constitutional order in the State of Israel. Many

Jewish thinkers who were as committed to Zionism as Herzog made suggestions similar to

Grodzinski’s. In fact, as I hope to show, these suggestions grew far more naturally out of the

Jewish political tradition than Herzog’s alternative suggestions. Ultimately, it will be necessary

to show not why some religious Zionists agreed with Grodzinski but why Herzog persisted in

rejecting his position.

Legal Pluralism and the Jewish Political Tradition

The study of legal pluralism begin in earnest in the 1980s. According to John Griffiths, in his

foundational study, the “liberal hegemony” regnant in the West has led to the almost universal

adoption of a particular approach to law and politics that Griffiths called “legal centralism.”12

According to legal centralism,

[L]aw is and should be the law of the state, uniform for all persons,
exclusive of all other law, and administered by a single set of state
institutions. To the extent that other, lesser normative orderings,
such as the church, the family, the voluntary association and the
economic organization exist, they ought to be and in fact are
hierarchically subordinate to the law and institutions of the state…
11
Stone, “Religion and State: Models of Separation from within Jewish Law,” 641.
12
J. Griffiths, “What is Legal Pluralism?,” Journal of Legal Pluralism 24 (1986).
 69

In the legal centralist conception, law is an exclusive, systematic

and unified hierarchical ordering of normative propositions.13
In practice, however, Griffiths argued, real socio-political relations do not conform to this notion

of legal centralism. In fact, any political unit has within it any number of overlapping and often

competing normative regimes with their own rules and their own sources of authority, often

distinct from the state, that exert claims on individuals:

A situation of legal pluralism – the omnipresent, normal situation

in human society – is one in which law and legal institutions are
not all subsumable within one ‘system’ but have their sources in
the self-regulatory activists of all the multifarious social fields
present, activities which may support, complement, ignore, or
frustrate one another, so that the ‘law’ which is actually effective
on the ‘ground flow’ of society is the result of an enormously
complex and usually in practice unpredictable patterns of
competition interaction, negotiation, isolationism, and the like.14
In short, “legal pluralism is the fact. Legal centralism is myth, an idea, a claim, an illusion.”15

If the presence of many overlapping legal regimes with independent sources of authority

characterizes the modern state, it was even more apparent in the pre-modern polity. One scholar

has summarized the various legal regimes in the pre-modern European context:

The mid-to-late medieval period was characterized by a

remarkable jumble of different sorts of law and institutions,
occupying the same space, sometimes conflicting, sometimes
complementary, and typically lacking any overarching hierarchy or
organization. These forms of law included local customs (often in
several versions, usually unwritten); general Germanic customary
law (in code form); feudal law (mostly unwritten); the law
merchant or lex mercatoria — commercial law and customs

13
Ibid., 3.
14
Ibid., 39.
15
Ibid., 4. For an overview of the historiography and some of the philosophical debates around legal pluralism, see:
Brian Z. Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global,” Sydney Law Review 30
(2007). For an survey of some of the current uses of legal pluralism discourse in contemporary historiography, see:
Lauren Benton, “Historical Perspectives on Legal Pluralism,” Hague Jorunal on the Rule of Law 3 (2011).
 70

followed by merchants; canon law of the Roman Catholic Church;

and the revived Roman law developed in the universities. Various
types of courts or judicial forums coexisted: manorial courts;
municipal courts; merchant courts; guild courts; church courts and
royal courts.16

This picture of legal pluralism equally characterizes pre-modern Jewish communities. Jews and

their communities were governed by halakha which pertained to civil, tort and criminal law as

well as ritual law such as the Sabbath and dietary laws. The authority for the halakhic regime

derived from the divine revelation on Sinai and its transmission and interpretation by authorized

rabbis and scholars. However, Jews also recognized that they were simultaneously subordinate to

other legal regimes. Alongside their commitment to the halakha, they were governed by Gentile

political authorities – kings, emperors and nobles – who laid their own normative claims on the

Jewish community. Jews submitted themselves to the authority of these Gentile legal regimes not

only out of the fear of coercive force or the need for protection, but also out of a principled

obedience to governmental legal authority.17 There was an understanding that without laws and

government, there would be no social order. An early rabbinic source taught: “Pray for the

welfare of the monarchy, for without fear of it people would swallow each other alive.”18 Over

time, there developed a principle of dina de-malkhuta dina, “the law of the land is the law,”

which articulated the acceptance of Jewish communities of the binding authority of the laws of

16
Tamanaha, “Understanding Legal Pluralism,” 377.
17
For a study of the relationship between Jewish communities and kings, see: Salo W. Baron, “‘Plenitude of
Apostolic Powers’ and Medieval ‘Jewish Serfdom’,” in Ancient and Medieval Jewish History: Essays by Salo
Wittemayer Baron, ed. Leon Feldman (New Brunswick, N.J: Rutgers University Press, 1972); Salo W. Baron, A
Social and Religious History of the Jews, 18 vols. (New York: Jewish Publication Society, 1952-1983). vol. 4, 36-43
and vol. 9, 135-92; Yosef Hayim Yerushalmi, ‘Servants of Kings and Not Servants of Servants’: Some Aspects of the
Political History of the Jews, The Tenenbaum Family Lecture Series in Judaic Studies (Atlanta, Ga.: Tam Institute
for Jewish Studies, Emory University, 2005); Yosef Hayim Yerushalmi, The Lisbon Massacre of 1506 and the
Royal Image In the Shebet Yehudah (Cincinnati: Hebrew Union College-Jewish Institute of Religion, 1976).
18
Mishnah Avot 3:2.
 71

Gentile governments.19 Certainly, there were limits on the obligation to obey the law of the land;

it was not to be followed if it openly contravened ritual aspect of halakha, for example.20 On the

whole, however, Gentile kings and other political leaders had to be obeyed. The law of the land

was not incorporated into halakha; it remained outside of it. Its source was with the Gentile

government, not Sinaitic revelation. And it was adjudicated by governmental institutions, not

rabbinical courts. It was, then, not part of halakha, but an independent parallel legal regime that

was recognized as authoritative in the Jewish tradition.

In addition to the halakha and the law of the land, there was yet another parallel legal regime that

governed Jewish communities: the political authority of the community leadership itself. In

around the 10th century there emerged the kehilla or kahal as “an autonomous body that fulfilled

internal political functions in all areas of communal life.”21 The leaders of the kehilla , often

called the tuvei ha-ir, the “good men of the city,” were powerful communal lay-leaders who

served alongside the rabbinical authorities. The historical origins of Jewish political authority are

very old, stretching back earlier than Talmudic times.22 Almost all religious leaders in the middle

19
The principle of dina de-malkhuta dina is attributed in several places in the Talmud to Samuel, a Jewish leader of
the third century.
20
For a thorough examination of the principle in Jewish law and history, see: Shmuel Shilo, Dina de-malkhuta dina
(Jerusalem: Defus akademi bi-Yerushalayim, 1974).
21
Menachem Elon, “On Power and Authority: The Halakhic Stance of the Traditional Community and Its
Contermporary Implications,” in Kinship & Consent: The Jewish Political Tradition and its Contemporary Uses, ed.
Daniel Judah Elazar (New Brunswick, N.J.: Transaction Publishers, 1997), 294. See also: Daniel J. Elazar, “The
Kehillah,” in Kinship & Consent: The Jewish Political Tradition and its Contemporary Uses, ed. Daniel Judah
Elazar (New Brunswick, N.J.: Transaction Publishers, 1997).
22
Yitzhak Baer placed the origins of the kehilla in the Talmudic period or earlier. Others have argued that the dual
political-religious leadership of Jewish communities was structurally evident in the institutions of monarchy and
priesthood in the Bible. See: Baer, “Ha-yesodot veha-hathalot shel irgun ha-qehillah ha-yehudit be-yemei ha-
benayim.” See also: Michael Walzer, The Jewish Political Tradition, 1: Authority; Stuart A. Cohen, “The Concept
of the Three Ketarim: Their Place in Jewish Political Thought and Implications for Studying Jewish Constitutional
Theory,” in Kinship & Consent: The Jewish Political Tradition and its Contemporary Uses, ed. Daniel Judah Elazar
(New Brunswick, N.J.: Transaction Publishers, 1997); Bernard Susser and Eliezer Don-Yehiya, “Prolegomena to
 72

ages recognized the authority of the leaders of the kehilla to enact binding legislation and to tax

its members. Extensive communal legislation known as taqanot ha-kahal comprised the public

and administrative law which effectively governed Jewish communities.23

There was an ongoing debate among medieval Jewish jurists about the theoretical basis for

communal authority. They grappled with the question of why a small group of communal leaders

should be allowed to extract money and impose regulations on individuals without their

consent.24 Some suggested that the tuvei ha-ir drew their authority from the fact that they

represented all individuals in the community, although that begged the question of how they held

authority over individuals who refused to recognize their authority. Others posited that they were

a kind of court and in that capacity wielded the extraordinary powers of judges to extract

property from others. Others suggested that there was a herem, a vow, implicitly taken by all

members of the kehilla to obey their leaders. Still others believed that the political authority of

the kehilla was inherited from the authority of the ancient kings of Israel.25 In any case, the

political and legal authority of the tuvei ha-ir was distinct from both that of the rabbis and that of

the Gentile government. It was the product of neither the word of God and its rabbinical

interpretation nor the power of the Gentile king. It was drawn from a different source of

Jewish Political Theory,” in Kinship & Consent: The Jewish Political Tradition and its Contemporary Uses, ed.
Daniel Judah Elazar (New Brunswick, N.J.: Transaction Publishers, 1997).
23
For a historical overview of this communal legislation, see: Finkelstein, Jewish Self-Government in the Middle
Ages.
24
This is a question that lies at the foundation of all political theory. Social contract theory is the most commonly
suggested foundation for political authority in the modern period.
25
For a survey of these different suggestions by medieval authorities, see: Gerald J. Blidstein, “Individual and
Community in the Middle Ages: Halakhic Theory,” in Kinship & Consent: The Jewish Political Tradition and its
Contemporary Uses, ed. Daniel Judah Elazar (New Brunswick, N.J.: Transaction Publishers, 1997).
 73

authority and ran in parallel to those other systems. Halakha was most certainly not the only

legal regime in the pre-modern Jewish community.

According to a recent study on medieval Jewish political theory “these two types of legislation

[halakhic and communal] represent two distinct spheres of authority each generating different

rules of action.”26 The relationship between these spheres was not always peaceful; they did,

occasionally, clash.27 The political authority of the kehilla was, however, generally embraced by

the rabbis who recognized that halakha was incapable of ruling the polity alone. As one example

of many, this is a comment of Rabbi Shlomo ben Adret (Rashba; 1235-1310) in his approval of

the workings of a non-rabbinical court operating according to non-halakhic procedure:

If the communal leaders find the witnesses trustworthy, they are

permitted to impose monetary fines or corporal punishment as they
see fit. Society is thereby sustained. For if you were to restrict
everything to the laws stipulated in the Torah and punish only in
accordance with the Torah’s penal code in cases of assault and the
like, the worlds would be destroyed, because we would require two
witnesses and proper warning.28
Above, we examined the constitutional vision of the Ran, which espoused:

the radical autonomy of politics. According to Gerondi, the policy

governed by the Torah will have two legal systems operating side
by side; royal law, ensuring social order, and Torah law, ensuring
the “divine” standards of the polity.29

26
Lorberbaum, Politics and the Limits of Law, 117.
27
For discussions of the relationship between lay and rabbinical leadership in practice, see, among many others:
Avraham Grossman, “Yahasam shel hakhmei Ashkenaz ha-rishonim el shilton ha-qahal,” Shenaton ha-Mishpat ha-
Ivri 2 (1975); Edward Fram, Ideals Face Reality: Jewish Law and Life In Poland, 1550-1655 (Cincinnati: Hebrew
Union College Press, 1997); Jay Berkovitz, “Crisis and Authority In Early Modern Ashkenaz,” Jewish History 26,
no. 1 (2012).
28
Rashba, Responsa, 3:393. This translation is based on that in Michael Walzer, The Jewish Political Tradition, 1:
Authority, 402.
29
Lorberbaum, Politics and the Limits of Law, 93.
 74

We have seen, however, that the Ran was not alone in this. Our survey of legal pluralism in the

pre-modern Jewish community demonstrates that the Ran may have been the most extreme

proponent of legal pluralism, or the thinker who wrote most extensively about it. But his opinion

was merely one more version of a universal acceptance of a plurality of legal regimes, sometimes

with conflicting procedures and regulations, all governing the Jewish community in parallel.

Grodzinski drew upon this deep history of Jewish legal pluralism in his suggestion for a

sovereign Jewish state. When Herzog dismissed the suggestion, rejecting legal pluralism for

legal centralism, he was also dismissing an ancient model of Jewish political arrangement. As

mentioned above, it has been suggested that the root of the Herzog-Grodzinski debate was their

difference over the value of Zionism. We will now see, however, that legal pluralism was seen as

the key to the legal-political arrangement in the Land of Israel by many other Jewish thinkers

who also embraced Zionism. Before the 1950s, Herzog’s legal centralism was the exception.

Reuven Margulies

An early treatment of the constitution of a Jewish state from a religious Zionist perspective came

from the pen of Reuven Margulies (1889-1971). Born in Lwow, Margulies was a rabbinical

scholar who moved to Palestine in 1935 and wrote prolifically on Jewish law and thought. He

dealt with the question of religion and law in a Jewish State in a 1922 work called “Courts of
 75

Law in the Land of Israel.”30 Margulies’ approach in this work indicates that even among

modern religious Zionists, legal pluralism was considered the constitutional norm.

At the beginning of his work, Margulies immediately made both his religious and his Zionist

commitments clear. In that time, he wrote, the years following the Balfour Declaration:

Higher providence has placed this generation at a time of great

value and consequence, a time of laying the foundation stone for
Hebrew life in the land of Israel upon which the Israelite people
will develop as it arises from the dust of exile … A voice has gone
out from the mountain of the Lord calling to all upright people to
help build the land and create a spiritual center for Israel and its
Torah. To this giant task it is required of Knesset Israel that all its
children will be builders, some with money, some with Torah.
Together they will lay the economic and spiritual foundation
stones.31
He was clearly, then, dedicated to both the building of a Zionist state and also the primacy of the

Torah and traditional Judaism in that state. The constitutional ordering of the Jewish state could

not be left to laws and politics taken from other peoples:

We cannot choose for ourselves a political program according to

the processes of other lands and their laws because all our ways of
life are one unique package according to the laws of the Torah.32

Margulies, however, recognized the potential problems in this outlook. The Jewish tradition had

not dealt with national sovereignty for centuries. So much so that “any institution founded to

correlate to the spirit of the Torah and Judaism is like a new creation ex nihilo.”33 Margulies also

30
Reuven Margulies, Tal tehi'ah (Lwow 1922).
31
Ibid., 39.
32
Ibid., 41.
33
Ibid.
 76

noted that halakha as a legal system is deficient in its ability to deal with the realities of a

national polity. For one thing, it has no workable criminal law:

[The Torah is missing] an important lawbook in an area which is

important and urgent for sustaining society. We know today [in the
modern state]…in addition to the civil law there is also a lawbook
especially for criminal law [onshim].34
Margulies recognized, exactly as Rashba, the Ran and many others before him, that halakha does

not have a rigorous criminal law sufficient for deterring and dealing with criminals.

He also noted the presence of non-Jews in Palestine and the necessity of creating a social order

that could accommodate in an egalitarian way the members of all religions.

We have to take account of the fact that even when the percentage
of Jews in the land of Israel increases, we will not be there a
people dwelling alone35…There will be members of three religions
living there. Therefore we, who request minority law in all the
lands of the Diaspora and who have to set an example to the
nations about the extension of the rights of another people who
lives in our land, we have to take account also of their opinions.36
This meant that the discriminatory elements of halakha made it unsuitable for governing a polity

with Jews and Gentiles living side by side:

Let’s assume that the government of the land has already been
transferred to us and we have to appoint judges. Will we not
appoint Gentiles because they are invalid witnesses? And what of
their testimony? Will the law of the land distinguish between
residents?37

34
Ibid., 43.
35
This is a paraphrase of Numbers 23:9.
36
Margulies, Tal tehi'ah, 41.
37
Ibid.
 77

Margulies addressed these issues by way of his own historical reconstruction of the

constitutional history of the Jewish people. His emphasis was on legal pluralism and the presence

of political authority that was distinct from the halakha even as it was condoned by God.

Initially, he wrote, before the age of monarchy, the Judges ruled in Israel. In this period, there

was chaos “because the laws of the sages of Torah… could not alone govern social life. Then

they asked for a king who would stand the earth on justice.”38 Kings had the power to rule

differently from the halakha: “When the Torah permitted the appointment of the king who has in

his power the strength of rulers like all the nations, it gave him through this also an unlimited

power of legislation.”39 This power was not only vested in kings but passed to every “leader

[‫ ]נשיא‬of the people.”40 This political authority continued to the present:

From this historical investigation we learn that the Torah

authorized the current leader of the people to make governmental
institutions in the land to run national courts which punish on the
authority of the government.41

So for Margulies, a non-halakhic legal regime had existed throughout Jewish history. What was

the relationship between this regime and the halakha? He argued that the difference between the

halakhic courts and kings or political leaders was that halakhic courts ruled on the basis of fixed

law and kings could rule on the basis of their discretion in the moment. This explained why very

few of the kings’ laws have survived. They were not intended to be a fixed legal code but rather

laws for the moment to deal justice in particular circumstances. Margulies, then, distinguished

38
Ibid., 42.
39
Ibid., 45.
40
Ibid., 47.
41
Ibid., 51.
 78

between two kinds of law. One, halakha, is a rigid law with fixed procedures which operates

according to pure normativity without concern for the judicial discretion that might be required

in particular circumstances. The other, the law of the king or communal leader, is a fluid law

intended to soften the rigidity of the halakha by operating with discretion in the particular

moment.

For Margulies, the king’s law would be the basis of the constitutional regime of a Jewish state

with one small modification. Courts which operated purely by the discretion of the ruler lacked

legal predictability. The modern equivalent of the king’s law, the government of a contemporary

Jewish state would have to establish clear laws:

We have also seen the problems that arise from the lack of an
authorized book of laws... Therefore today when we have to set up
these urgent institutions for political life, the head court has the
obligation to set up… a clear law in a logical order. And it is
understood that these laws will not be the evil laws of Rome but
laws of Israel which have the spirit of righteousness and ethics of
ancient Israel and its Torah and these Torah laws will be the state
laws in the land of the Hebrews.42
The outcome, in other words, is a national law that is not based on the halakha but is nonetheless

approved by the tradition and can be seen as a specifically Jewish law which is distinct from the

laws of other nations. Areas of law with a ritual aspect such as marriage and divorce would

remain under the purview of the halakha proper. But other areas of law would fall under the

control of the government and would not be dependent on halakha or rabbinic authority. This

satisfied Margulies’ Jewish nationalism as well as his commitment to the Torah and it also

allowed him to imagine a legal-political regime that was consistent with the Jewish tradition

without discriminating against Gentiles :

42
Ibid.
 79

It is in the power of the head of state to enact a general law that

every resident who is presumed to be honest may testify, and that
one who knows the laws may judge. And this state law is
authorized by the authority that the Torah gave to the head of state
to enact whatever he thinks will be for the benefit of the State.43

This was exactly the kind of argument Grodzinksi made in 1937, which was utterly rejected by

Herzog. Here, however, it was advocated by a committed Zionist. Indeed, Herzog was aware of

Margulies’ argument but he rejected that too.44 In his comments about Margulies, Herzog noted

that “we are not dealing here with historical research and anyway it will not help us.”45 Herzog

therefore implicitly acknowledged that Margulies had described the Jewish political tradition

accurately from a historical perspective but nevertheless took a different approach with regard to

the Jewish state. Herzog continued:

From the perspective of halakha only the authorized sources of

Torah law may enter discussion and according to them there is no
basis for this suggestion of a double system of justice or two
parallel authorities.46
If governing were left to political authorities and taken out of the hands of the rabbis, Herzog

claimed, then “the Sanhedrin descends into being a kind of legal researcher and this makes no

sense.”47 For Herzog, the king in the Israelite constitution had powers limited to the

extraordinary situation of punishing a criminal who was blatantly guilty but happened to escape

conviction under the halakhic system. However, he insisted, “this does not mean that the

43
Ibid.
44
Herzog referred directly to a section of Margulies’ Tal tehi’ah: “I came upon a pamphlet written by a great and
famous rabbi called ‘Courts of Law in the Land of Israel,’ that appeared some years ago, the fruit of the enthusiasm
born by the Balfour Declaration and the subsequent appointment of Herbert Samuel.” Herzog, Tehuqah le-Yisra'el
al-pi ha-torah, 2, 75.
45
Ibid., 76.
46
Ibid.
47
Ibid.
 80

monarchy in Israel had its own law, not according to the Torah according to which it judged and

according to which it appointed judges and approved witnesses.”48 Margulies the Zionist

proposed a solution very similar to that of Grodzinski the anti-Zionist. Herzog, while implicitly

recognizing the grounding of their solutions in Jewish history, rejected them both.

Shimon Federbusch

Margulies advocated the use of the king’s law in the modern Jewish state over twenty years

before the state of Israel was established. One might have thought that his particular legal and

political philosophy could belong only to a period without the immediacy and urgency that the

establishment of the state imposed upon those who would ultimately design its constitutional

structure. This was not the case, however. A similar approach was taken by religious Zionists in

Israel and outside of it in the late 1940s. Given the deep resonance of legal pluralism with

constitutional precedents throughout Jewish history, this is unsurprising. We turn first to the

United States.

Shimon Federbusch was a religious Zionist leader from Galicia who from 1940 lived in New

York. In 1952 he published Mishpat ha-melukhah be-Yisra’el, an attempt to outline a

constitutional framework for the Jewish state based on traditional sources.49 For Federbusch too,

state legislation was legitimate because it derived its authority from the ancient category of the

48
Ibid.
49
Shim'on Federbusch, Mishpat ha-melukhah be-Yisra'el (Jerusalem: Mosad ha-rav Kook, 1952).
 81

“king’s law” about which the Ran had written so extensively. For Federbusch, “Every law of a

state institution today, has the force of the King’s Law in its time.”50 To lend authority to this

opinion, Federbusch quoted a comment by the great leader of religious Zionism, Rabbi Abraham

Isaac Kook, who had written years earlier:

It seems to me that when there is no king, since the king’s laws

relate to the general state of the nation, the rights of these laws
return to the hands of the nation in its generality.51
In other words, Kook had said, in the absence of a king, the governmental authority resides in the

entire people. This comment was repeatedly quoted by those who, like Federbusch, wanted to

find traditional precedent for the legitimacy of the laws of the modern state of Israel.

Federbusch, however, did not stop there. He went beyond this simple comparison of the king of

old with the government of today. He insisted that a democratic outlook with its emphasis on

equality and freedom is not only commensurate with the Jewish tradition, but is a fundamental

component of its legal and political theory. Jewish political theory, Federbusch declared, begins

with the premise that all people are created equal under God. One striking passage reveals the

full extent of his self-conscious awareness of his intellectual environment. Writing, we must not

forget, in Hebrew, he appealed to de Tocqueville in a comparison of the egalitarianism of

America with that of the Jewish tradition:

The democratic order in America has its source in the lack of

social divisions of the first immigrants. ‘The immigrants who
founded America,” emphasizes Tocqueville, “all belonged to one
class. In this society there were no lords, no commoners, no rich
and no poor.” Because of this, they laid the foundation for a
democracy with no class distinctions. So with the Jews, the Torah
emphasizes that they were formed in the house of bondage in order
50
Ibid., 50.
51
Abraham Isaac Kook, Mishpat kohen, 2 ed. (Jerusalem: Mosad ha-rav Kook, 1966). 144:14
 82

to stress the total social equality of all parts of the people and in
order thereby to argue from this for the justice of the legal and
financial equality of every individual, including aliens and
foreigners.52
This insistence on the inherent equality of all people in society is underlined by Federbusch’s

emphasis on another element of democratic theory: that all people are fundamentally free. This

means that the only legitimate laws or social orders are those that have been accepted freely.

This applies not only to human laws even to those of God:

The democratic spirit in Israel is clearly apparent in the essence of

the covenant between the Jews and God…. The idea of the
covenant is that Israel did not accept the entirety of religious and
political legislation out of duress or coercion but out of goodwill,
by free choice on the basis of a contract undertaken with the people
on the basis of democratic agreement.53
If this is true of the relationship between the people and God, it is certainly true of human leaders

of Jewish society whose authority, argued Federbusch, depends entirely on the consent of the

governed.54

Federbusch embraced democratic ideals even further in his discussion of the relationship

between religion and state. Perhaps influenced by the Jeffersonian mode of American politics,

Federbusch presented a narrative of Jewish history in which “religious and political power have

been separated from each other not just in theory in Jewish philosophy but also in practice in the

course of Jewish history.”55 He remained, of course, deeply committed to the halakhic system

and traditional values. He argued, however, that religion’s role in the state is as a persuasive

52
Federbusch, Mishpat ha-melukhah be-Yisra'el, 32.
53
Ibid., 33.
54
Ibid., 35.
55
Ibid., 27.
 83

moral force. Halakha does not have, and is not intended to have, coercive force. Religious

institutions, he wrote, should be strong in order to have a positive role in society and to avoid the

state interfering with private religious practice. The state, however, should have no role in

enforcing religious laws.56 Halakha is, on the whole, left to voluntaristic religious communities

while political government is left to the state and its machinery.57

Federbusch went even further than Margulies in his approach to the potential tensions between

the state and the Jewish tradition. Margulies had relaxed the tensions; Federbusch subverted

them entirely. By holding up equality and freedom as fundamental principles of the Jewish

tradition, he constructed a worldview wherein Judaism and the modern democratic state both

aimed at the same goal. Furthermore, by locating the separation of religion and state firmly

within the Jewish tradition, he created room for the state to act according to the principles of

democracy without running into any resistance from halakha. Federbusch was clearly a relatively

modern thinker, who was familiar with modern political ideas. We turn now to a contemporary

writer with a very different profile.

Eliezer Waldenberg

56
Ibid., 28-9.
57
In the rest of his book, Federbusch applies these theories to minority rights, criminal law, workers’ rights, military
law, and many other issues. There is sometimes a tension between his vision of a rather paternalistic state and his
insistence on personal liberty, and between his doctrine of separation of church and state and his belief in religion as
a moral presence in society. For an overview of Federbusch’s book, see: Alan Mittleman, The Scepter Shall Not
Depart From Judah: Perspectives On the Persistence of the Political In Judaism (Lanham, MD: Lexington Books,
2000). Chapter 8, “The Constitution of a Jewish State: The Thought of R. Shimon Federbush”
 84

Eliezer Waldenberg (191758-2006) was born in Jerusalem and served for most of his life as a

rabbi on the rabbinical courts of Tel Aviv and later Jerusalem. He was best known for his work

as the rabbi of Sha’arei Tsedek hospital in Jerusalem. In that post, he wrote many responsa

regarding medical ethics which were collected, along with his rulings on other matters in his

Tsits Eliezer. He made his own contribution to the question of the relationship between halakha

and modern Jewish sovereignty in a three-volume work called Hilkhot medinah published in

1952-5.59 The work includes a discussion of the general theory of Jewish statehood and its

practical and mystical elements as well as many chapters on specific questions such as proper

halakhic behavior during a military exercise, and whether it is acceptable to elect Gentiles to

public office in Israel.

Waldenberg’s treatment of the Jewish political tradition and his suggestions for the state of Israel

deserve our attention because they highlight the central place of legal pluralism in the Jewish

canon. I showed above how helpful the notion of legal pluralism was for Shimon Federbusch,

who employed it in his defense of a highly modern (and highly American) model of a Jewish

state in which religion and politics were kept firmly apart. Had Federbusch and people like him

been the only modern Jewish halakhists to grant legal pluralism such a central role, we could be

forgiven for wondering if it was simply a strand of the Jewish tradition that was exploited by

more modern interpreters for their own ends. Waldenberg, however, was a far more traditional

thinker, confirmed in his ultra-Orthodoxy. The fact that Waldenberg’s treatment of Jewish

politics also relied heavily on the notion of legal pluralism underscores its centrality in the

58
Encyclopaedia Judaica 1st ed. has 1917; 2nd ed. has 1912. Other sources have 1915.
59
Eliezer Waldenberg, Hilkhot medinah, 3 vols. (Jerusalem 1952-5).
 85

Jewish tradition and raises even more sharply the question of why Herzog was so dismissive of

it.

Hilkhot Medinah is not a very systematic work and contains a number of statements that are in

tension with each other. It is possible, though, to determine Waldenberg’s general approach to

law and politics in the Jewish tradition. Waldenberg had a very metaphysical approach to Jewish

law. In his view, Jewish civil law no less than ritual law engendered a relationship with the

divine:

[There is no difference between] laws regarding God and laws

between one person and another. They all recognize the central
supernal point from which the Torah and the teaching of law goes
out to the entire world.60

Against Margulies, (and the Ran,) Waldenberg maintained that halakha in principle was capable

of governing a state and that “the written and oral Torah have the capacity to solve all the

institutional and political problems for the enlightenment and success of the foundation of the

state.”61 Nevertheless, he also recognized that alongside halakha there had always been a

political authority that was responsible for governing the polity and that the authority of the

governing power was not identical to that of halakha. The authority of halakha was rooted in the

Sinaitic revelation. Political power, however preceded revelation. Waldenberg quoted with

approval the opinion of Moses Sofer (1762–1839,) a founding leader of ultra-Orthodoxy, that the

60
Ibid., vol. 1 p. 12.
61
Ibid., vol. 1 p. 6.
 86

authority to govern is based on a kind of natural law with its roots in the nature of human

society:

Even if the Torah had not been given, before the giving of the
Torah there were laws and mores for everyone. Every king would
keep the land in justice.62

A distinct legal regime parallel with the halakhic system is necessary, asserted Waldenberg, in a

theme by now very familiar to us, because halakha does not adequately cover all aspects of legal

governance. It has laws covering theft and torts, to be sure, but there is no punishment, for

example, for damage to property that does not entail a physical change to the damaged object. 63

The fact that halakha, as revealed on Sinai, did not cover every aspect of social order is not

surprising. Again following Moses Sofer, Waldenberg pointed out that no legal regime, not even

halakha, could legislate for all future circumstances. The Torah sets out the general rules and

principles and it is the responsibility of leaders in each generation to produce particular laws for

their own time. Thus the Torah gives authority to the governing power to enact the necessary

regulations as long as they do not contravene the laws of the Torah. These laws “take on binding

governmental force.”64

Waldenberg clearly believed that the legal regimes of the king and of halakha have different

rules and procedures. For example, he explained, a Sanhedrin may not pardon someone that it

has convicted of a capital crime. A king, however, may pardon the convict. In Waldenberg’s

62
Ibid., vol. 1 p. 175. The original source is in the Repsonsa of Hatam Sofer, Orah Hayyim 208.
63
Ibid.
64
Ibid., vol. 1 p. 252.
 87

view, this is because the king and the Sanhedrin make their convictions on the basis of different

authorities and therefore follow different legal procedures:

When the Sanhedrin has sentenced [a convict] to death…it is the

Torah which sentenced him to death and therefore the Sanhedrin
does not have the power to reverse [the sentence] and to pardon,
for they have no ability to pardon a law of the Torah. But when the
king sentences a capital case, it is by his own royal power and not
by the law of the Torah. …The Torah gave the authority to the king
to sentence differently from the law of the Torah… Therefore,
since it is he himself who sentenced [the convict] to death, he has
the power to reverse the sentence and to pardon him according to
the principle of “the mouth that forbade is the mouth that
permitted.”65

This legal pluralism, Waldenberg suggested, was the key to making sense of the contemporary

State of Israel. He quoted the same responsum of Rabbi Kook as Federbusch, where Kook had

stated that the political authority originally vested in the king has, since the demise of the

monarchy, devolved back upon the people and that all leaders of the Jewish people have the

authority to make and enforce new legislation. Although Kook, like the Ran, located the original

source of this authority in the monarchy, Waldenberg was ultimately agnostic as to the source of

contemporary political authority. It may either, he wrote, derive from the monarchy, or from the

natural principles of judicial authority, or from the very nature of communal rule.66 Whatever

the reason for it, all leaders have this authority. Waldenberg attributed great significance to the

sovereign state of Israel. If communities in the medieval period, were invested with political

authority independent of halakha, then the State of Israel most certainly possesses this authority:

If the heads of the kehillot in exile had this power, who were only
representatives of one kehilla, how much more so where there is
full authority for the representatives of the entire people here in our
65
Ibid., vol. 1 p. 170.
66
Ibid., vol. 1 p. 175.
 88

land when they have gathered together in the Knesset building to

consult on the way that they should go for the good of the people
and the state, to enact excellent legislation for the state that is not
opposed to the Torah, when the drafts of that [legislation] will be
approved by the majority and fixed as the law of the people.67

For Waldenberg, then, the political authorities of the state of Israel have the power to legislate

any necessary laws that do not contradict the laws of the Torah. Such laws would have full

authority even though they would not be founded on the authority of halakha.68 It is important to

make clear that despite this recognition of non-halakhic legal authority, Waldenberg was quite a

conservative thinker who advocated a high degree of rabbinical involvement in the workings of

the state. He was aware of Margulies’ recommendations from three decades earlier and was

unsatisfied by them, perhaps because they left too much room for the state authorities to act

independently from rabbinic authorities.69 Within the general framework of legal pluralism, he

believed that halakha took precedence over other legal regimes in the polity.70 For Waldenberg,

rabbis and their institutions had to be part of the government and in fact had to be the most

important institutions in the state.

It was always the case that Torah and politics… went arm in arm
together and the Torah establishment is an inseparable part of the
institutions of the state. It was furthermore placed at the head of

67
Ibid., vol. 1 p. 259.
68
Significantly, Waldenberg terms this kind of legal power “statist authority” [‫]סמכותי ממלכתי‬. See: ibid., vol. 1 p.
259, 56 and vol. 3 p.19. There are many other words he could have used to mean “political” (medini, or memshalti,
for example). The word mamlakhti is a neologism that was coined not by rabbis but by secular Zionists to describe a
particular ideology, closely associated with Ben Gurion, that represented the investment of national sovereignty in
strong and centralized institutions of state. See: Nir Kedar, “Ben-Gurion's Mamlakhtiyut: Etymological and
Theoretical Roots,” Israel Studies 7, no. 3 (2002).
69
Waldenberg, Hilkhot medinah, vol. 1 p. 254.
70
Ibid., vol. 1 p. 190.
 89

[political] leadership and all institutions operated in its

framework.71
Waldenberg also believed that political leaders who were authorized to make legislation had

themselves to be well educated in the Torah.72 Even then, they could legislate only under

rabbinical supervision so as to ensure that their new laws were compatible with halakha:

The legislation of state and criminal law is placed under the strict
supervision of a great Torah sage who deeply scrutinizes every
aspect of state law based on the Torah and decides whether it is
against the laws of the true God before he will authorize it.73

Waldenberg’s prioritizing of rabbinical authority over that of political leadership is further

revealed in an apparently unassuming comment:

The sages of Torah were always among those who stood at the
head of the people in order to introduce proper social order to the
people and to prevent a situation of people swallowing each other
alive.74
Waldenberg here paraphrased and implicitly subverted the rabbinical teaching: “Pray for the

peace of the kingdom, for were it not for fear of it, people would swallow each other alive.”75 In

the original, it is the kingdom, i.e. the political authorities, (more precisely, Gentile political

authorities,) who are credited with the maintenance of order and are charged with preventing

social disintegration. In Waldenberg’s paraphrase, however, this becomes the role of the rabbis.

This literary usurpation by the rabbis of government authority echoes the central role that

Waldenberg laid out for rabbinical institutions in the State of Israel.

71
Ibid., vol. 1 p. 261. See also ibid., vol. 1 p. 10-11.
72
Ibid., vol. 1 p. 265.
73
Ibid., vol. 1 p. 261.
74
Ibid., vol. 3 p. 3.
75
Mishnah Avot 3:2.
 90

Waldenberg shared with Shimon Federbusch the basic framework of legal pluralism but he

emphatically opposed the separation of religion and state that Federbusch championed.

Federbusch’s Mishpat ha-melukhah was published in 1952, the same year as the first volume of

Waldenberg’s Hilkhot Medinah. The third volume, published three years later, contained a shift

in emphasis. It opened with an implicit response to Federbusch and others like him, criticizing

“the vain teaching of the separation of the religious authority from

the political and of the separation between the judicial system of
the state and its laws and the religious judicial system.”
This position, Waldenberg insisted, is wrong even when it is held by people who “pretend to be

acting in interests of the Torah.”76 He continued to endorse the existence of a political legal

authority distinct from halakha. The Jewish tradition, he wrote, knows of “two houses: the house

of Torah on the one hand and the house of kingship on the other.” Underlying this division,

though, was a unity: “[The houses] are, in truth, one… There was peace between them and each

one stood in firm connection with the other - an unbreakable bond.”77 This change in emphasis

was accompanied by a substantive change in his constitutional vision. Earlier, Waldenberg had

allowed for the legislative independence of the kingship or its modern equivalent, albeit under

the supervision of the rabbis. In the later volume, however, he promoted the rabbinic authority to

a position of far greater prominence in the way he described a Jewish constitution:

The house of Torah would serve as the legislative house of the

house of kingship in all matters of leadership of the state, and the
Torah and its laws encompassed the entire life of the people and
the state like a crimson thread.78

76
Waldenberg, Hilkhot medinah, vol. 3 p. 1-2.
77
Ibid., vol. 3 p. 3.
78
Ibid.
 91

Notwithstanding this change in emphasis, however, Waldenberg remained committed to his

position that legal pluralism was the appropriate constitutional structure for a Jewish state, as it

had always been in the past. Despite his differences with Margulies and Federbusch, he agreed

with them on that point.

Shlomo Gorontchik

The thinkers surveyed so far were content to restrict themselves primarily to the theoretical realm

or a discussion of general policy. Rabbi Shlomo Gorontchik (1918-1994) translated the

framework of legal pluralism into a more practical vision of judicial institutions for the new

Jewish state. Gorontchik was born in Zambrów and immigrated with his parents to Palestine at

the age of seven. He served in the Haganah and was appointed by the chief rabbinate to be the

chaplain of the newly constituted Israel Defense Force, later becoming its chief rabbi. In 1972,

having changed his name to Goren, he was elected to the position of Ashkenazic Chief Rabbi of

Israel. When the state was established, Gorontchik was barely thirty years old. Only weeks

before the Declaration of Independence, the young Gorontchik offered his own constitutional

proposition for Israel in the journal Ha-tsofeh.79

79
Shlomo [Goren] Gorontchik, “Huqah toranit ketzad?,” in Tehuqah le-Yisra'el al-pi ha-torah Vol. 1, ed. Itamar
Warhaftig (Jerusalem: Mosad ha-rav Kook and Yad ha-rav Herzog, 1989), 148. The article was first published in
three parts 1948 in Ha-tsofeh on 19 Shevat (30 January,) 3 Adar I (13 February) and 17 Adar I (27 February.)
Gorontchik remained interested in Jewish political theory. In 1966-8, he taught a series of courses on the subject in
the Tekhnion University in Haifa. Those lectures spell out in greater specificity his understanding of Jewish legal
pluralism. See: Shlomo Goren, Torat ha-filosofia: leket hartsaot be-filosofia yehudit (Jerusalem: Ha-idra raba,
1998).
 92

Like many before him, Gorontchik believed that it would be impossible to base a constitution

solely on halakha because:

The halakha of judges and witnesses will impinge on the rights of

minorities, women and others and will arouse a strong opposition
both from the secular population of the Yishuv and from the
United Nations. The Torah constitution disqualifies sinners and, it
goes without saying, Gentiles, from being judges or witnesses. It
disqualifies women from testifying, except in certain
circumstances. These difficulties almost preclude the practical
possibility of a full Torah constitution for the ordering of the new
courts.80

Gorontchik’s solution was not to change the procedures of halakhic courts, but to establish an

entirely new judicial and legislative system parallel to that of the halakha. He wanted to provide,

from within the Jewish tradition, “the legal and practical possibility of establishing a new court,

according to the Torah in the Jewish state, for full equal rights, so that all parts of the population

may be appointed as judges and to be accepted as witnesses.”81 This new court would judge both

civil and criminal matters. Citing the long tradition of extra-halakhic communal legislation,

Gorontchik wrote that “the community is able to enact legislation…according to the discretion of

the judges or legislators for the sake of public order.”82

Critical for our discussion is the way in which Gorontchik’s position is founded on a pluralistic

jurisprudence. Gorontchik emphasized that the new court system he was proposing would not

replace, but would run in parallel to halakhic court system. Each court system would operate

according to different laws and procedures and draw their authority from different sources.

80
Gorontchik, “Huqah Toranit Ketzad?,” 146.
81
Ibid., 149.
82
Ibid., 147.
 93

Rabbinical judges would judge according to halakha. Judges in the other courts would judge

according to a different law, a new civil code distinct from halakha. The courts would even be

differentiated by their names:

The new courts… will not be considered full Torah courts [ ‫דין‬-‫בתי‬
‫ ]תורניים‬but rather courts [‫ ]בתי משפט‬that have received their legal
authority from the power of public consent… These courts will not
have the name “Torah court” because their Torah authority comes
from the community, and not direct[ly from the Torah], and by this
authority even those disqualified from judging or giving testimony
will be qualified [in those courts.]83

As precedent for his proposal, Gorontchik turned to a Talmudic passage which mentions “Syrian

Courts” [‫]ערכאות שבסוריא‬.84 The context of the passage in the Babylonian Talmud indicates that

these were Jewish courts that were distinct from regular rabbinical courts: “They taught [the

teaching mentioned in the passage] with regard to Syrian courts and not with regard to

experts.”85 To drive home his point that these courts did not rule according to halakha, Goren

quoted also a lesser-known parallel passage in the Palestinian Talmud that makes the distinction

between these courts and halakhic courts more explicit: “They said [the teaching] with regard to

Syrian courts and not with regard to Torah law.”86 To clarify the nature of the courts, Gorontchik

then examined several medieval commentaries before concluding:

The “Syrian Courts” were permanent courts [‫ ]בתי משפט‬of Jews for
civil law and similar matters. The power of their authority was
derived from the general consent of the community. They judged
cases according to their “reasoned discretion” [‫ ]אומד דעתם‬and not

83
Ibid., 149.
84
In the Talmud, ”Syria” generally refers to the area of the Roman Empire North and East of the Land of Israel.
85
BT Sanhedrin 23a.
86
PT Sanhedrin 3:2.
 94

according to the law of the Torah because they were not

knowledgeable in Torah law.87
Gorontchik’s supported his interpretation with the words of Menahem Meiri, a 13th century

Provençal rabbi. He wrote that the judges of the Syrian Courts

were not fluent in Torah law but judged according to their

reasoned discretion and statutes and mores… And if all the people
of the land accepted them in this way, then I say that there is no
claim [against their validity.]88

Gorontchik conceded that some interpreters said explicitly that such a court is only valid in a

situation where no experts in Torah law are available so this is the only option for establishing

justice. Such an interpretation obviously limited the applicability of this precedent to Israel

where rabbis were in no short supply. Other interpreters, however, including Meiri and Moses

Isserles (1520-1572), held that such courts may operate even in the presence of a Torah scholar.

Following their position, Gorontchik concluded that his analysis of the Syrian Courts was ample

precedent for non-rabbinical courts that judged according to non-halakhic rules:

So we have clarified two fundamental matters… 1) Courts of this

type are not connected to any Torah courts but rather are permitted
to establish special laws to judge “according to their reasoned
discretion and statutes and mores.” 2) It is possible and lawful to
establish [such courts] on a state-wide political [‫ארצי‬-‫ ]מדיני‬basis
“if all the people of the land accept them.”89

87
Gorontchik, “Huqah Toranit Ketzad?,” 150.
88
Ibid., 151. This is the consensus of most traditional commentaries. One modern scholar has suggested that these
courts were under the auspices of the Roman Empire, but were run by Jews and were expected to judge by Jewish
law. Saul Lieberman, “Achievements and Aspirations of Modern Jewish Scholarship,” Proceedings of the American
Academy for Jewish Research 46-47 (1979): 375. It seems likely, however, that although their Jewish judges were
sometimes familiar with Jewish law, or were willing to consult with rabbis, they were often ignorant of Jewish law
and judged by precedent or common sense. See: Gedalyahu Alon, Mehkarim be-toldot Yisra'el, 2 vols. (Tel Aviv:
ha-Qibuts ha-Me'uhad, 1957-8). vol. 2 p. 30
89
Gorontchik, “Huqah Toranit Ketzad?,” 151.
 95

Gorontchik then turned to a question that many asked before him: If there a Jewish state would

have a court system that is independent from rabbinical law and authority, what would become

of the laws of the Torah? Would they be completely replaced? After acknowledging the

seriousness of the question, Gorontchik turned it on its head. Legal pluralism may put the

primacy of halakha at risk. But halakha is incapable of ruling a polity alone. A non-halakhic

system is therefore necessary for the proper functioning of a Jewish state:

One has to ask if a fastidious and exact dominion of all the laws of
the Torah in the life of the state, as they relate to corporal and
financial punishments and to criminal transgressions and the like,
without any supplement of statutes and mores and special
legislation by virtue of communal will, can support private and
public order in the state.90
Gorontchik quoted from the Rashba and the Ran, who were discussed above, to support his

position that a Jewish state requires non-halakhic law and courts to maintain proper order. He

then referred to the same statement of Rabbi Kook quoted by both Waldenberg and Federbusch,

in which Kook discusses the political authority that resides in the people as a whole. In short,

Gorontchik continued, the exercise of non-halakhic legal authority is necessary to enact laws by

which the state can be run without offending the rights of any of the minorities among the

population.91

Gorontchik concluded by summarizing his vision:

In the Jewish state that is about to be established with the help of

God, we therefore are required to establish a dual system of courts.
The first will comprise a network of rabbinical courts based fully
on the Torah [‫]בתי דין תורניים מלאים‬, in which all the laws of the
Torah will have force… The second system of courts will comprise

90
Ibid.
91
Gorontchik discussed the status of Gentiles in the state in greater detail at: ibid., 152-55.. I touch on this aspect of
his constitutional thinking in: Alexander Kaye, “Democratic Themes in Religious Zionism,” Shofar (Forthcoming).
 96

civil courts [‫]בתי משפט‬, in which a special civil code, in

accordance with international law, will be followed, with care that
it will not contravene the laws of the Torah.92
He noted that in such a dual system, there will need to be rules about which court system would

have jurisdiction in which cases. Without discussing the matter in full detail, he suggested that

generally speaking the parties in a case should have the choice of which system to use. In the

case of a disagreement between them, if all parties are Jewish the default should be the rabbinical

court but if any party is Gentile, the default should be the civil court.

In sum, Gorontchik’s was a striking constitutional proposal from the heart of the religious

Zionist camp that would , under certain circumstances, allow for a Jew in a Jewish state to be

judged according to a secular law by a Gentile judge. It must be emphasized that his proposal

was not rooted in some kind of laissez-faire legal relativism or a lack of commitment to the

halakhic system. On the contrary, his ultimate intention was to devise a practical strategy “to

fight to instill the spirit of the Torah and its laws into the state until it is seen as the path to

complete redemption.”93 He in fact considered one of the advantages of his parallel system that

the halakhic courts would be protected from too jarring a change in order to “safeguard the purity

of the Torah law.”94 Gorontchik’s pluralism allowed the halakhic system to remain almost

untouched because the existence of civil courts would insulate the rabbinical courts from

concessions to modern rights and egalitarianism.

92
Gorontchik, “Huqah Toranit Ketzad?,” 156.
93
Ibid., 146.
94
Ibid., 156.
 97

At the same time, Gorontchik, unlike Grodzinski, was an unapologetic Zionist. He was deeply

invested in the theological and eschatological significance of the establishment of the State of

Israel. He ended his articles with a kind of Religious Zionist prayer which make clear his

differences with those like Grodzinski, who denied that the Zionist enterprise had any messianic

significance:

Religious Judaism bears the responsibility at this time of the great

and holy task to work on a detailed Torah constitution for the State
of Israel that is gradually being established. In this way the path
will be paved for the return of the crown of the Torah to its former
glory, for the establishment of the Sanhedrin and for the complete
redemption.95

Isaac Herzog had opposed Grodzinski’s idea of a parallel judicial system in the late 1930s and he

similarly opposed Gorontchik’s plan in the late 1940s. Chapters three and four will investigate

Herzog’s own constitutional thinking in depth. At this stage, however, it makes sense to outline

his own rebuttal of Gorontchik.96 Herzog was deeply opposed to the idea of a dual judicial

system. His ambition was that the state as a whole should base its law on the halakha and that the

state’s judiciary be unified in a single structure. As will be discussed in detail in chapter 4,

Herzog acknowledged the claim of Jewish thinkers from the medieval period to his own day that

an unmodified halakha did not have the capacity to govern a national polity. He also agreed with

Gorontchik that for halakha to have a role in the modern state – for it to be both effective and

accepted by all – it would need to be modified. Laws of procedure would have to make room for

female and Gentile witnesses and the laws of inheritance would have to become more

95
Ibid.
96
Isaac Herzog, “Be-qesher le-ma'amarav ha-hashuvim shel ha-rav R. Shlomo Gorontshik beha-tzofe,” in Tehuqah
le-Yisra'el al-pi ha-torah Vol. 1, ed. Itamar Warhaftig (Jerusalem: Mosad ha-rav Kook and Yad ha-rav Herzog,
1989).
 98

egalitarian. Herzog’s approach, however, was not to allow for a parallel system of non-halakhic

courts, but to introduce supplementary regulations into the halakhic system itself. Herzog’s

approach will be analyzed in greater depth in due course. At this stage, the salient point to stress

is that Herzog utterly rejected legal pluralism as a way to structure the Jewish state and

championed instead a legal centralism whereby the state would not make room for an alternative,

halakhic, legal regime within its borders but would incorporate halakha into its unified

centralized structure:

Our main ambition is that the constitution should include a clause

that lays down that the law in the state is based on the Torah.97

Of particular significance is not only the fact that Herzog rebutted Gorontchik’s plan but the

methodology he uses to make his argument. In his extended essay, Herzog undertook close

reading of countless canonical authorities and made reference to many more. His writing is

rigorous and persuasive. Still, Herzog, perhaps more than usual, relied also on rhetorical, rather

than analytical moves. His comments, and his deviation from a purely textual rebuttal of

Gorontchik, give the impression that his disagreements with Gorontchik were based less on a

conflict over the reading of authoritative texts and more on a matter of a priori ideology; a

fundamentally different approach to law in general that made it impossible for him to accept a

pluralistic jurisprudence, however much legal pluralism arose from the Jewish sources.

At times, Herzog’s rebuttal descended into an attack on Gorontchik over minor semantic points.

Gorontchik had said, for example, that under his proposal the civil courts would be governed by

97
Ibid., 174.
 99

“a special civil code, in accordance with international law.”98 He meant that his system was

intended to address the requirement of the UN for all of Israel’s citizens to be equal under the

law, a requirement that Herzog was equally concerned to address. Herzog’s response, however,

rather than engaging with any substantive point, merely picked holes in Gorontchik’s

formulation:

Firstly, international law is only applicable to international matters

and does not involve itself with the internal law of any state.
Secondly, if he is referring to paragraph 4 of the decision of the
United Nations “that there be no discrimination in the state on the
basis of race, religion or sex,”99 then if this is applied to family law
then we will God forbid be required to carry out civil marriages
that do not distinguish at all on the basis of sex and religion so that,
God forbid, mixed marriages between Jews and Gentiles will have
legal force…
However, we have a basis to interpret this decision in a way that
will not lead to such a situation. For in another paragraph it says
that “religious courts should remain as they are,”100 meaning that
the authority in personal law will not be taken from [the rabbinical
courts].101
Herzog’s comments are quite sound in their legal interpretation but, other than the pedantic note

about Gorontchik’s misuse of the term “international law,” they have little to do with

Gorontchik’s proposal. Gorontchik agreed with Herzog that rabbinical courts should continue to

operate on the basis of halakhic law. And he agreed that the rabbinical courts would not have to

alter their approach to laws of personal status. Herzog’s choice to grapple with this straw man

98
Gorontchik, “Huqah Toranit Ketzad?,” 156.
99
Herzog is presumably referring to Part I.C.2. of UN Resolution 181: “No discrimination of any kind shall be made
between the inhabitants on the ground of race, religion, language or sex.”
100
See ibid.: “The family law and personal status of the various minorities and their religious interests, including
endowments, shall be respected.”
101
Herzog, “Be-qesher le-ma'amarav,” 174.
 100

gives the impression that he not only disagreed with Gorontchik but was impatient with his

position arising from an a priori aversion to it.

This impression is reinforced with Herzog’s argument that the parallel judicial system proposed

by Gorontchik would cause an assault on the primacy of the halakha. Gorontchik had written that

under his proposal care would have to be taken to make sure that the laws of the civil courts were

“not against the laws of the Torah.” Herzog pounced on this phrase. How, he asked, could the

civil courts possibly avoid contravening the laws of the Torah?

Surely there are very few laws that the Torah does not already
cover. If so, is it not the case that in any case that is not judged
according to the Torah, the verdict will be against the Torah?102

On the face of it, Herzog’s critique is sound. Gorontchik had proposed that the civil courts judge

cases according to specially written non-halakhic legislation. The halakha, however, already has

laws that cover theft, murder, embezzlement, contracts etc. According to Herzog, legislation

covering any of these areas of law would by definition contravene the pre-existing halakha. Does

this not make nonsense of Gorontchik’s plan to have a parallel judicial system that nonetheless

does not contravene halakha?

In fact, however, Herzog’s critique is less devastating than it first appears because it is not a

critique of Gorontchik alone, but of any Jewish legal pluralism. As Herzog was no doubt aware,

halakhists had for centuries grappled with the problem of what it means that Jews are required to

obey the law of the land only if it does not contravene halakha. If halakha covers all areas of life

102
Ibid., 175.
 101

then surely almost all law clashes with halakha in some fashion. Historically, this question had

been answered in various ways. The most common approach was to draw a distinction between

ritual and civil areas of law and to hold, for example, that the law of the land must be obeyed

when it comes to contract law but not if it requires Jews to work on the Sabbath.103 Others took a

more minimal view of the role of communal law and reduced its validity only to those areas with

which the halakha does not deal at all.104 Either way, however, Herzog’s critique of Gorontchik

was no less a critique of centuries of precedent, to which many thinkers had already offered

answers.

Herzog also addressed the historical precedents that Gorontchik had marshaled for his case,

particularly that of the “Syrian courts.” He was very resistant to the notion that a Jewish court

could judge by a law other than the halakha. He initially tried to prove that the “Syrian courts” in

fact did judge by halakha and that their unique feature was that the judges were not experts in

halakha and had to consult with Torah scholars. Ultimately, though, because one “must follow

the interpretation of the commentators,” he reluctantly conceded that they judged not by halakha

but by some other system of law.105 Still, Herzog posited, this was a function of particular

historical circumstances: in the absence of Torah sages, relying on a lay-led Jewish court was the
103
See Elon, Jewish Law: History, Sources, Principles, 1, 132-37 and 2, 707-12. For a classic example of this
distinction, see the statement of the Ribash in 14th century Spain, in his Responsa 305 quoted in: ibid., 2, 708.:

If a community enacted that legal documents accepted in non-Jewish courts [but

invalid in Jewish courts] are as fully valid for us as they are for non-Jews under
their law…the community certainly may legislate on such matters, as these are
conditions involving civil law and it is as if every single individual in the
community so stipulated an undertook for himself… Nevertheless, the
community may not enact legislation that involves condoning usury, since usury
is prohibited by the Torah even when the debtor pays it voluntarily.
104
Herzog referred to one proponent of this latter view – Siftei Kohen on Hoshen Mishpat 73:14 – at: Herzog, “Be-
qesher le-ma'amarav,” 175.
105
Ibid., 163.
 102

only way to avoid resorting to Gentile courts, which was entirely forbidden. This historical

precedent was therefore inapplicable to the new state of Israel where Torah scholars were

abundant. True, many Israeli judges were not yet familiar with the halakhic system, but they

could learn it. Most fundamentally, it was unthinkable to Herzog that a sovereign Jewish state in

the Land of Israel could have a legal system that was not based on halakha:

With regard to a Jewish settlement in Syria which is not in any

case part of the Biblical Land of Israel… it is at least possible to
imagine a circumstance like this [where Jewish courts do not judge
by halakha]. But in the Jewish state in the Holy Land, which is the
only place where our law could be established and enforced with
state power, if a [non-halakhic] justice system like this is
established, it seems to me, God forbid, like writing a divorce for
the Torah and raising a hand against the law of Moses.106

So much for historical precedent. What about the theoretical work of the Ran and his comments

about the need for a “king’s law” alongside halakha? Herzog had already dismissed the approach

of the Ran in his rejection of Grodzinski’s opinion and he expanded on that position in his

rebuttal of Gorontchik. Herzog first questioned the authorship of the Ran’s Eleventh Sermon,

presumably to diminish its authority by distancing it from such an authoritative medieval

jurist.107 He conceded, though, that it must nevertheless have been written by a competent jurist.

Herzog pointed out, however, that whoever wrote the piece “did not bring proofs from the

Talmud.”108 Besides, he insisted that the Ran’s approach was both impractical and nonsensical.

If, as the Ran maintained, the halakhic system was incapable of governing and the system of the

king’s law was necessary for real government, why have the rabbinical courts in the first place?

106
Ibid., 163-64.
107
At the time of Herzog’s writing, the authorship of the sermon was under question. It has since been demonstrated
beyond doubt that Gerondi was the author.
108
Herzog, “Be-qesher le-ma'amarav,” 167.
 103

What was the point of having two legal systems with overlapping jurisdictions, one of which was

effective and the other ineffective? Surely the Ran’s constitutional vision would make the

halakha and its courts entirely redundant. “At the end of the day,” Herzog claimed, “it is very

difficult to build a fixed structure on these words of the Ran.”109

For Herzog to claim that halakha alone is sufficient to govern a state without any resort to the

king’s law or communal legislation, he had to explain the deficiencies in the halakhic system.

Even Herzog agreed that halakha as it had developed made it too difficult to convict and punish

criminals in the context of the modern state. He speculated that in ancient times halakha was

sufficient because Jews were simply more ethical. Because society was more ethical, more

restrictive procedures regarding witnesses and the relative lack of punitive measures did not

impede the ability of the halakha to keep order.110 In time, the ethics of the people declined and

changes to halakha were required. Crucially for Herzog’s position, he claimed that these changes

were not made on the authority of the “king’s law” as Gorontchik had claimed. Rather, they were

brought about by rabbinic enactments within the halakhic system itself and so did not draw their

authority from an external source.111 For Herzog the very fact that halakha has the ability to

respond to changing circumstances was itself a further argument that the “king’s law” must not

be as expansive as the Ran and Gorontchik claim. If halakha itself has the internal resources to

meet new circumstances, then “king’s law” is redundant. While the traditional sources did not

allow him totally to disregard the category of “king’s law”, Herzog vastly limited its application

109
Ibid., 166-7.
110
Ibid., 169.
111
Ibid.. See also Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 53, 80-1.
 104

to the rare occasion on which a murderer escapes proper punishment in rabbinical courts. Only

then is “king’s law” employed to execute true justice.

Herzog, then, rejected Gorontchik position from a platform of legal centralism. For Herzog the

idea of a plural legal regime was simply unthinkable. His criticism of the legal pluralism of the

Ran, Gorontchik and others goes beyond textual arguments to an appeal to common sense.

Elsewhere, Herzog wrote: “It is impossible that in the days of the rule of the Torah there were

among the Jews and in Israel two legal authorities which were unrelated to each other.”112 For a

legal pluralist, the existence of two legal authorities would in fact be possible, even likely. It was

only Herzog’s a priori commitment to a centralist definition of law that made it “impossible.”

Herzog simply refused to accept that there were ever “two authorities, a Torah bet din authority

and a bet din by the power of the king, two authorities ruling as one.”113 This is legal centralism

par excellence.

Herzog’s legal centralism requires an explanation. The brief outline of Jewish political thought in

this chapter makes it clear that legal pluralism had been the norm, both in theory and in practice,

throughout Jewish history.114 Indeed, legal pluralism was the way that most religious Zionists, in

the earliest years of the State of Israel, attempted to map out a vision for the state. This was true

even for the quite different thinkers surveyed above. Grodzinksi was a conservative anti-Zionist

112
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 55.
113
Herzog, “Be-qesher le-ma'amarav,” 169.
114
Menachem Lorberbaum has argued persuasively that Jewish political thought has always left room outside of
halakha for an independent realm of politics. “The central question of Jewish political theory should not be whether
to choose a secular or theocratic state but instead how to draw the line between the secular and the sacred.”
Lorberbaum, Politics and the Limits of Law, 156.
 105

whereas Gorontchik was a Zionist with a bold eschatological outlook; Federbusch had a radically

Western approach to the religion-state divide whereas Waldenberg thought that rabbis had to

oversee all legislative activity of the state. Yet despite their diverse viewpoints, they all agreed

that legal pluralism was an authentically Jewish and pragmatic way to address the challenges

ahead. Given this, why was Herzog so consistently and emphatically opposed to this position?

Furthermore, why was the pluralistic approach to law gradually sidelined by the religious Zionist

movement in the early 1950s and eventually dominated by the legal centralism of Herzog and

others? To answer these questions, it is first necessary to understand the place of Herzog’s own

legal thinking in the context of European jurisprudence. It is to this context that we now turn.
 106

3. Isaac Herzog Before Palestine

The world’s jurists … may yet come to realize that the utter
neglect of Jewish law on the part of students of law, and of
cultured persons generally, had meant a serious loss to the cultural
progress of humanity.
- Isaac Herzog

Yitshak Isaac ha-Levi Herzog was born in Łomża, Poland, in 1888.1 When Herzog was nine

years old, his family relocated to Leeds, England so that his father, Yoel, also a rabbi, could take

up a rabbinical position there. Isaac Herzog was by all accounts a prodigious student. He

received an extensive education in traditional Torah scholarship and, even as a young man in

England, corresponded with seasoned rabbinical scholars in Eastern Europe who were deeply

impressed with his erudition. In 1908 he was formally ordained by three leading rabbis in

Eastern Europe, Yaakov Dov Vilovski of Slotzk, Yosef Skuper of Slonim and Meir Simha of

Dvinsk.2

Herzog’s father instilled in him rabbinic aspirations and a commitment to Zionism. One of the

earliest memories he related was of his father’s dedication to Zionism in the face of severe

opposition:

1
There is no comprehensive biography of Herzog. A somewhat hagiographic, but nonetheless useful, biographical
essay is: Sha'ul Meizlish, “Toldot ha-rav Herzog,” in Masu'ah le-Yitshak, ed. Shulamit Eliash, Itamar Warhaftig, and
Uri Desberg (Jerusalem: Yad ha-rav Herzog; Mekhon Ha-Entsiklopediah Ha-Talmudit; Mekhon Ha-Talmud Ha-
Yisraeli Ha-Shalem, 2008).
2
Ibid., 14. Herzog’s correspondence with Vilovski and Meir Simha of Dvinsk is appended to his books,
respectively, Or ha-Yashar (London, 1921) and Imrei Yo’el (London, 1921).
 107

[In the Shas and Magen Avraham Synagogue] my father, his

memory be blessed, delivered his sermon on Hibat Zion and the
settlement of the Land of Israel. In the town a ruckus broke out
because several of the zealots strongly opposed the Hovevei Zion
movement and they locked the shutters around the platform of the
holy ark. The community broke the lock and father, his memory be
blessed, delivered his sermon, which made an immense impression
on the hundreds of listeners who crowded in. From that evening
the love of Zion begin to burn in me – an eternal flame that will
never be extinguished – and I began to plan for my immigration to
the Land of Israel.3

Alongside his traditional religious training, Herzog also pursued an extensive general education.

In 1909 he received a BA from the University of London, where he concentrated on mathematics

and Classical and Semitic ancient languages. In 1912 he received an MA in ancient languages

from the same institution. In the same year the family once again relocated to follow Yoel

Herzog’s rabbinical career, this time to Paris, where Isaac received another MA from the

Sorbonne. He later returned to the University of London where he received a doctorate in marine

biology in 1914. His dissertation, Hebrew Porphyrology was a scientific and historical

investigation of tekhelet, the blue dye used for ritual purposes by ancient Jews.4

In 1916 Herzog moved to Ireland and took up the post of rabbi of Belfast before moving in 1919

to Dublin. Ireland at the time was in the throes of a war with the British which concluded with

the Anglo-Irish Treaty of 1922, establishing the Irish Free State as a political entity independent

of the United Kingdom, although still under the sovereignty of the British monarch. After the

3
Quoted in: ibid., 13. The author does not provide a reference for passage.
4
Herzog’s original dissertation was recently published along with other essays and scholarly apparatus in: Isaac
Herzog, The Royal Purple and the Biblical Blue: Argaman and Tekhelet: The Study of Chief Rabbi Dr. Isaac Herzog
on the Dye Industries in Ancient Israel and Recent Scientific Contributions, ed. Ehud Spanier (Jerusalem: Keter,
1987).
 108

war, Herzog officially became the chief rabbi of Ireland. He remained in that post until 1937. In

that year, a new constitution established the Irish Free State as Éire, The Republic of Ireland. The

constitution, composed under the auspices of Éamon de Valera made Ireland into an entirely

independent country for the first time. De Valera, a friend of Herzog’s, consulted him about the

constitution, particularly about its provisions for religious minorities like Protestants and Jews. A

few months later, Herzog took up his post as the Ashkenazic Chief Rabbi of Israel.

Herzog was a committed and energetic leader of the Jewish community of Ireland. He repeatedly

spoke out, in the press and in private communications with political and religious leaders, against

anti-Semitism and Nazi sympathizers within Ireland.5 He defended kosher slaughtering methods

before the Irish parliament and delivered public lectures on Judaism and Zionism. His lecture,

“The Hebrew language, its Position and Revival,” for example, aired on Irish radio in 1934.6 The

most significant focus of his political activism was perhaps his fight to raise immigration quotas

for Jews fleeing Nazi Europe. He dedicated himself to this task while still in Ireland and

continued to pursue it after his move to Palestine.7

Aside from his political activity, Herzog produced a steady scholarly output. Like many rabbis of

his stature, he wrote halakhic responsa, sermons and Talmudic commentary and novellae.8 He

5
Dermot Keogh, Jews in Twentieth Century Ireland: Refugees, Anti-Semitism and the Holocaust (Cork: Cork
University Press, 1998), 98, 107-8.
6
"Radio Programmes," Irish Press, 27 November 1934.
7
Shulamit Eliash, “Po'alo shel ha-rav Herzog be-inyanei hatzala,” in Masu'ah Le-Yitzhak, ed. Shulamit Eliash,
Itamar Warhaftig, and Uri Desberg (Jerusalem: Yad ha-rav Herzog; mekhon ha-entsiklopediah ha-talmudit; mekhon
ha-talmud ha-yisra'eli ha-shalem, 2008); Shulamit Eliash, The Harp and the Shield of David: Ireland, Zionism and
the State of Israel, Israeli History, Politics and Society (London ; New York: Routledge, 2007), 49-70.
8
His most significant halakhic writings are his collections of responsa Isaac Herzog, Shu"t hekhal yitshak
(Jerusalem 1960-72); Isaac Herzog, Pesaqim u-ketavim, ed. Shlomo Shapira, 9 vols. (Jerusalem: Mosad ha-rav
 109

also wrote many articles about Jewish thought and law for non-specialist audiences.9 They were

published in Jewish publications such as London’s Jewish Chronicle and Jewish Forum, a

journal for Orthodox Jews published in New York.10 Many of his articles concentrated on

matters of Jewish jurisprudence and legal history, (such as his four-part article, “The

Administration of Justice in Ancient Israel”,) on the relationship between Jewish tradition and

science, (such as his three-part “The Talmud as a Source for the History of Ancient Science”,) or

the relationship between Judaism and other civilizations, (such as his three-part “The Attitude of

the Ancient Palestinian Teachers of the Torah towards Greek Culture”.) 11 He also wrote a

number of articles about Jewish law which, considering the journals in which they were

published, seem to have been primarily intended for a Gentile audience.12 This period of

Herzog’s scholarship culminated in the late 1930s with the publication of two volumes of his

magnum opus, Main Institutions of Jewish Law.13 These works display Herzog’s mastery of the

Jewish canon as well as his deep familiarity with non-Jewish sources and scholarship, both

ancient and modern.

Kook, Yad ha-rav Herzog 1989-1991). For a full bibliography, see: Shmuel Katz, “Bibliografia le-kitvei hgry"Y
Herzog zts"l,” in Masu'ah le-Yitshak, ed. Shulamit Eliash, Itamar Warhaftig, and Uri Desberg (Jerusalem: Yad ha-
rav Herzog; Mekhon Ha-Entsiklopediah Ha-Talmudit; Mekhon Ha-Talmud Ha-Yisraeli Ha-Shalem, 2008).
9
Many of his English-language articles were collected into a volume overseen by his son: Isaac Herzog, Judaism:
Law and Ethics (London: Soncino Press, 1974).
10
On the Jewish Forum, see: Ira Robinson and Maxine Jacobson, “‘When Orthodoxy Was Not As Chic As It Is
Today’: The Jewish Forum and American Modern Orthodoxy,” Modern Judaism 31, no. 3 (2011).
11
These articles were all republished in: Herzog, Judaism: Law and Ethics.
12
For example: Isaac Herzog, “The Sources of Jewish Law,” Temple Law Quarterly 5 (1930-1); Isaac Herzog,
“Possession in Jewish Law Part III,” Temple Law Quarterly 5 (1930-1); Isaac Herzog, “Possession in Jewish Law
Part II,” Temple Law Quarterly 5 (1930-1); Isaac Herzog, “Possession in Jewish Law [Part I],” Temple Law
Quarterly 4 (1929-30); Isaac Herzog, “John Selden and Jewish Law,” Journal of Comparative Legislation and
International Law 13, no. 4 (1931); Isaac Herzog, “Moral Rights and Duties in Jewish Law,” Juridical Review 41
(1929); Isaac Herzog, “The Assignment of Rights in Jewish Law,” Juridical Review 43 (1931); Isaac Herzog,
“Legacies to Creditors and Satisfaction of Debt in Jewish Law,” Temple Law Quaterly 6 (1931).
13
Isaac Herzog, The Main Institutions of Jewish Law, vol. 1: The Law of Property (London: Soncino Press, 1936);
Isaac Herzog, The Main Institutions of Jewish Law, vol. 2: The Law of Obligations (London: Soncino Press, 1939).
 110

In order to understand Herzog’s works properly, it is necessary first to explore the intellectual

contexts in which they unfolded. Such contextualization attunes us to his interlocutors and to

significant themes in his work and allows us to situate his later writings about the Israeli

Constitution in relation to his earlier writings. It also provides the background required to

approach the puzzle at the core of this dissertation: Why, given the justified popularity of legal

pluralism among religious Zionists, did Herzog fight so strongly against it? Herzog’s legal and

constitutional writings are best considered in the context of two jurisprudential ideas that were

particularly popular in the first half of the twentieth century: legal positivism and legal evolution.

Legal Positivism

Legal positivism is a jurisprudential doctrine that arose in England in the early nineteenth

century and slowly came to dominate legal philosophy not only in England, but also in Europe

and America. Even after many assaults on its central theories from legal realists, feminists,

pluralists and others, it remains even today “by far the biggest camp in legal theory.”14

Positivism, especially before the second half of the twentieth century, had two major

components. The first was what became known as the “separability thesis”; the second was the

impulse for legal reform on scientific principles.

14
David Dyzenhaus, “Positivism's Stagnant Research Programme,” Oxford Journal of Legal Studies 20, no. 4
(2000): 719. See also: Brian Z. Tamanaha, “The Contemporary Relevance of Legal Positivism,” Australian Journal
of Legal Philosophy 32 (2007): 1.
 111

The separability thesis was derived from David Hume’s distinction between the descriptive and

the prescriptive, the “ought” and the “is”.15 It postulated that it is possible to separate between

law and morality. Natural law theories, which had dominated pre-Reformation Europe, held that

law derived from a natural morality. Positivists, by contrast, insisted that there was a difference

between law and morality and that the job of a legal philosopher was to analyze law as it is, not

as it should be.16 In the words of one of the earliest of legal positivists, writing in 1832:

The existence of law is one thing; its merit and demerit another.
Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry.17
To achieve this philosophical distinction, legal positivists had to devise a sound theory of law

that was independent from morality. The earliest attempt came from Jeremy Bentham and his

younger contemporary John Austin.18 It was predicated on the relationship between law and

sovereignty.19 They devised the “command theory” of law whereby law is a command of a

sovereign, backed by threat of force.20 This theory was later criticized on several grounds, but the

association of law with the sovereign state remained a fundamental component of legal

positivism.21 In the 1930s and 1940s, when Herzog was focusing in earnest on the constitutional

15
See especially: David Hume, A Treatise of Human Nature, ed. David Fate Norton and Mary J. Norton (Oxford,
New York: Oxford University Press, 2001), 302.
16
Reginald Walter Michael Dias, Jurisprudence, 4th ed. (London: Butterworth, 1976), 453.
17
John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble, Cambridge Texts In the History
of Political Thought (Cambridge ; New York, NY: Cambridge University Press, 1995), 157.
18
To the best of my knowledge, Austin and Bentham never used the term “legal positivism” but the jurisprudential
literature generally includes considers them positivists and I have adopted that convention, despite the slight
anachronism.
19
Dias, Jurisprudence, 459.
20
Austin, The Province of Jurisprudence Determined, Lecture 1.
21
In Anglo-American jurisprudence, the most prominent critique of legal positivism, (which nonetheless agreed
with it in several important respects,) came in 1961 in: H. L. A. Hart, The Concept of Law, 2 ed. (Oxford, New
York: Clarendon Press; Oxford University Press, 1994). Hart pointed out that the command theory of law did not,
for example, adequately describe laws giving power to public officials, or international law. Hart, however, did not
 112

theory of a modern Jewish state the most influential version of legal positivism was that of Hans

Kelsen, who was discussed in brief in chapter 1, for whom all law derived its validity from the

state’s constitutional hierarchy.22

So the first component of legal positivism from Bentham to Kelsen and beyond was that the

validity of law derived from the state and that all valid law was part of a single normative

system. The second component, especially in its early days, was it scientific and reforming

impulse. Just as positivism in the social sciences sought to study society with scientific methods,

legal positivism aimed to place the study of law on a rigorous scientific footing. For Jeremy

Bentham, a critical early figure in positivism, the scientific study of law was the first step in a

comprehensive project of legal reform.23 In Bentham’s time, English law was a disorganized

amalgam of laws overlapping systems, each with different historical roots. In addition to the

ecclesiastical courts and courts of the admiralty, there were also courts of common law and

chancery courts. Chancery courts had begun in the middle ages as a mechanism for the Lord

Chancellor to impose more equitable solutions in cases where the common law fell short of

justice. By the nineteenth century, however, chancery and common law had each developed into

fully independent systems which had virtually co-extensive jurisdictions and competed for

business.24 This state of affairs was widely considered to be deeply unsatisfactory. English law

intend to dismantle the entire theory of positivism but rather to place it on firmer theoretical footing. This is the
function of his “Rule of Recognition.”
22
For an overview of British and Kelsenian legal positivism, see: Dias, Jurisprudence, Chapters 15-16.
23
Morton Horowitz argues that there is a distinction between Bentham, whose legal positivism led naturally to a
project of reform, and John Austin who neutralized this aspect of positivism and used it as part of a more
conservative political project. Morton J. Horowitz, “Why is Anglo-American Jurispridence Unhistorical?,” Oxford
Journal of Legal Studies 17, no. 4 (1997).
24
A. H. Manchester, A Modern Legal History of England and Wales 1750-1950 (London: Butterworths, 1980),
passim., especially pp. 126-9.
 113

was convoluted, expensive and difficult to use. The Chancery courts were particularly vilified,

especially by reformers like Bentham, who called its procedures “a volume of notorious lies.”25

He wanted to reform all of English law to produce a systematic, scientific, legal code. His legal

positivism was to be a first step in the modernization of English law.

It was not just Bentham who was frustrated with the state of English law. Two special

parliamentary commissions were instituted in the early 1850s to report on the consequences of

the existence of a plurality of court systems in the state. They noted in particular the legal chaos

that could ensue from the fact that the different systems were liable to produce different answers

to the same legal question. Already in the previous century, William Blackstone, who was in

many ways a great admirer of English law, conceded that:

It seems the height of judicial absurdity, that in the same cause

[sic] between the same parties, in the examination of the same
facts, a discovery by the oath of the parties should be permitted on
one side of Westminster Hall, and denied on the other.26
The parliamentary commissions recognized that the problems arising from “the system of several

distinct courts proceeding on distinct and in some cases on antagonistic principles, are extensive

and deep-rooted.”27 As a result, a series of far-reaching reforms were enacted, primarily in 1867-

73, culminating in the Supreme Court of Judicature Act (1873), but in effect continuing until the

end of the century. Under the reforms, all the courts systems in England were unified into a

single legal system with the same rules of legal procedure. The reforms were so far-reaching that

25
Jeremy Bentham, “An Introductory View of the Rationale of Evidence for the Use of Nonlawyers As Well As
Lawyers,” in The Works of Jeremy Bentham with an Outline of his Opinions on the Principal Subjects Discussed in
his Works, ed. John Bowring (Edinburgh: W. Tait, 1843), 43.
26
William Blackstone, Commentaries on the Laws of England, 5th ed., 4 vols. (Oxford: Clarendon Press, printed for
William Strahan, Thomas Cadell, and Daniel Prince, 1773), Vol. 3, p. 382.
27
This was the conclusion of the First Report of the Chancery Commission of 1852. Quoted in: Manchester, A
Modern Legal History of England and Wales 1750-1950, 127.
 114

Walter Bagehot considered them to have ushered in a “new Constitution… a change not of

particular details but of pervading spirit.”28 The reforms were popular; criticisms were generally

limited to claims that they were not as effective as they should have been, rather than disagreeing

with the need for unifying the legal system.29 By Herzog’s time, it was universally recognized

that the shift from a pluralistic to a centralized monistic legal system in England had been

necessary and welcome. The impulse of legal positivism to move towards a rational, scientific,

codified system of law had been adopted by virtually the entire legal establishment of Great

Britain.

Herzog’s positions often arise from his embeddedness within a jurisprudential discourse in which

legal positivism was entirely dominant and in which any other system of legal organization was

deemed inferior at best. He consistently, from the 1920s to the end of his life, portrayed halakha

in positivist terms. Even before analyzing his writings in greater detail, it is clear that the legal

pluralism of Gorontchik and the other thinkers surveyed in chapter 2 was incommensurate with

positivism. The existence of two parallel legal systems (“several distinct courts,” in the language

of the parliamentary commissions,) within a single state is entirely inconsistent with the basic

assumptions of legal positivism and the great value placed on simplicity, predictability and order

in a nation’s legal regime. In short, legal centralism was a natural corollary of legal positivism

and legal pluralism was foreign to both doctrines.

28
Walter Bagehot, The English constitution, ed. Paul Smith (New York: Cambridge University Press, 2001), 194.
29
Manchester, A Modern Legal History of England and Wales 1750-1950, 175ff.
 115

On one occasion, Herzog explicitly connected his disapproval of legal pluralism with the history

of pre-Reform Britain. To Hayyim Ozer Grodzinski’s suggestion that there be “a separate

[system of] royal law alongside the rabbinical court administering Torah law,” (discussed above,

on p. 66,) Herzog had responded as follows:

I maintain my position that it is inconceivable that the laws of the

Torah should allow for two parallel authorities – like the courts of
law and the courts of equity, the latter stemming from the authority
of royal law, that operated in the past in England.30
Given the background of British legal reform, Herzog’s reference to “the courts of law and the

courts of equity” is clearly more than just an analogy. Most readers of Herzog’s Hebrew prose

would have been quite unfamiliar with nineteenth century English legal history. Herzog’s

analogy is best read not as illustration but as explanation. He was referring to the fact that in

England there had been distinct courts, each with its own procedure and laws and that this

system had resulted in widely derided chaos. Herzog could not tolerate the possibility that the

Torah, a perfect and divine law, could only be useful in practice if it were based on a system that

had become so unsuccessful in England. The legal pluralism that many Jewish thinkers

considered to be a natural and viable system of law was “inconceivable” to Herzog because his

approach to the organization of law and its institutions was colored by the domination of legal

centralism and positivism in Britain and in Europe in general.

Legal Evolution

30
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 2, 75. This translation is from: Michael Walzer, The Jewish Political
Tradition, 1: Authority, 475.
 116

Another context necessary to understand Herzog’s writing is the discourse of legal evolution.

There was a widespread belief among British and European thinkers in the nineteenth and the

first half of the twentieth centuries that religious law was intrinsically inferior to modern secular

European law. Religious law was imagined as violent, tribal, disorganized and un-evolved. In

arguing that halakha worked according to positivist principles and emerged from an ordered state

hierarchy rather than a diffuse collection of tribes, Herzog hoped to defend halakha against

attacks grounded on these ideas.

In the second half of the nineteenth century, the newly articulated theory of the evolution of

species, which first arose in the field of biology, came to inform many areas of scholarship,

including law.31 The application of evolutionary theory to law was an outgrowth of the historicist

study of law that began in Germany in the late nineteenth century. Friedrich Carl von Savigny

(1779-1861), a central figure in the German Historical School of Law, claimed that law could not

be studied according to abstract universal scientific legal principles but had to be understood

against the background of the historical peculiarities of specific peoples.

In England, the most prominent heir to Savigny’s legal historicism was Henry James Sumner

Maine (1822-1888), a jurist and historian. Maine’s most influential work, Ancient Law, was

31
For a classic account of this trend, see: Richard Hofstadter, Social Darwinism in American Thought (Boston,
Mass: Beacon Press, 1993), especially pp. 3-12. For a survey of the application of evolutionary theory to Anglo-
American jurisprudence, see: E. Donald. Elliott, “The Evolutionary Tradition in Jurisprudence,” Columbia Law
Review 85 (1985). For its impact on Victorian social theory, see: John W. Burrow, Evolution and Society: A Study In
Victorian Social Theory (London: Cambridge University Press, 1966). (Chapter 5 deals with Henry Maine.) For
Maine and the idea of social evolution and progress, see the articles in: Alan Diamond, “The Victorian Achievement
of Sir Henry Maine: A Centennial Appraisal,” (Cambridge; New York; Melbourne: Cambridge University Press,
1991), Part 1: "Maine and the Idea of Progress".
 117

published in 1861, two years after Darwin’s Origin of the Species, by the same publisher.32

Certainly, evolutionary processes form the basis of Maine’s description of the development of

law. Maine claimed that law develops from the commands of heroic kings, through the

emergence of aristocracies and the beginnings of law as a body of knowledge, to a fully-fledged

regime of customary law and, finally, to codification.33 This development mirrors that of the

political institutions in which law is embedded, which begin as collections of families, gradually

forming into tribes. Eventually, societies develop the capacity to create legal fictions which

allow individuals to enter into legal relationships independent of their blood-ties. Family and

tribe give way to a society formed from voluntary association. This is what Maine famously

described as “a movement from Status to Contract.”34 Maine considered these historical shifts to

be more than neutral developments; they were an evolution from lower to higher. He talked in

terms of “the upward march of society.”35 In other words, his work painted a picture of legal

Darwinism. Just as Darwinism in the social sciences portrayed considered the later stages of

social development to be socially and morally superior to earlier stages, so Maine considered the

later stages of legal development to be not only more effective and advanced, but also morally

inferior to its earlier stages. Tribal law was inferior to that of the nation state. Similarly, religious

law of earlier epochs was inferior to modern secular European law.

32
It has been suggested that Maine intended to indicate his debt to Darwin by using the same publisher, but this is
far from certain. See: Elliott, “The Evolutionary Tradition in Jurisprudence,” fn. 22; Burrow, Evolution and Society:
A Study In Victorian Social Theory, 139-40.
33
Henry Sumner Maine, Ancient Law (Boston: Beacon Press, 1963), especially 8-14.
34
Ibid., 165.
35
Ibid., 18.
 118

Despite the high reverence in which Maine was held by his contemporaries, his historicist

methodology failed to have a serious impact on English jurisprudence. Much more pervasive

among jurists in the years after Maine’s death was an analytical methodology which sought to

uncover the pure categories of law rather than trace its historical development. Legal scholars

and legislators were suspicious of a theory which understood law to develop from the bottom up.

They preferred a vision of law that could justify reform imposed from above by a political and

academic elite. 36 Despite this, however, Maine’s work remained hugely important in the late

Victorian era and the early twentieth century, particularly in the colonial context. Maine

remained influential because although his historical methodology was largely rejected when it

came to the study of contemporary law, his theory of legal evolution was a seductive conceptual

framework in a triumphalist imperial society which both romanticized and scorned the cultures

of “oriental” colonies.37 Maine himself was an important figure in Britain’s colonial apparatus.

He served as a member of the council of the governor-general of India and was heavily involved

with the codification of Indian law. His jurisprudence laid the theoretical ground for the

widespread conceptualization of the religious and tribal law of the colonies as less evolved than

the law of the civilizing imperial power.38 Imperial rule both drew power from and contributed

towards the formation of the myth of modern, secular, state-centered, codified law as the

pinnacle of an evolutionary sequence.39

36
Raymond Cocks, Sir Henry Maine: A Study In Victorian Jurisprudence (Cambridge: Cambridge University
Press, 2002), 141-95.
37
To be sure, the evolutionary aspects of Maine’s work were also dissected and criticized but the general idea
remained deeply influential. See: Elliott, “The Evolutionary Tradition in Jurisprudence,” 45-6.
38
Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, N.J.: Princeton
University Press, 2010).
39
See: Peter Fitzpatrick, The Mythology of Modern Law, Sociology of Law and Crime (London; New York:
Routledge, 1992), 110.
 119

This orientalist and evolutionary understanding of law also characterized the British approach to

the law of the Ottoman Empire after its decline. In Mandate Palestine, British judges portrayed

the local laws as “outdated and archaic, intricate and obscure, illogical and unreasonable, harsh

and monstrous,” not to mention inefficient and corrupt.40 For example, one British judge in

Palestine considered the Mejelle, the Ottoman legal regime, to have a “barbarous” air and

believed that its backwardness indicated “how remote is the working of the Asiatic mind from

that of the European.”41 Another referred to the Ottoman Penal Code as “a delightful piece of

juridical nonsense,” a comment that simultaneously belies both the condescending romanticism

and the disdain of imperial judges towards colonial law.

Legal positivism and legal evolution were really two sides of the same coin in the jurisprudence

of Imperial Western Europe. Legal positivism taught what good law is; legal evolution taught

what it is not. According to these theories, good law is the centralized, hierarchical, secular,

modern law of the European nation state as opposed to the under-evolved, decentralized, tribal,

violent, disorganized and corrupt law of ancient religions, or contemporary oriental peoples.

This intellectual context is vital for a proper understanding of Herzog’s own writing. A close

reading of Herzog’s works indicates that he had largely assimilated the idea that the most

The colonized are relegated to a timeless past without a dynamic, to a ‘stage’ of

progression from which they are at best remotely redeemable and only if they
are brought into History by the active principle embodied in the European. It
was in the application of this principle that the European created the native and
the native law and custom against which its own identity and law continued to
be created.
40
Likhovski, Law and Identity In Mandate Palestine, 53,52.
41
Judge Anthony Bertram in 1909, quoted in: ibid., 54.
 120

advanced law was law on the modern European model. He sensed, however, that many

considered Jewish law to be akin to those tribal and religious legal cultures that belonged to an

earlier stage of history. As a result, in several different works, he embarked upon a project that

attempted to depict Jewish law in the image of modern European law. Herzog was deeply

convinced that Jewish law was eternal and perfect and therefore as evolved and efficient as any

other legal system. As a result, he dedicated himself to the apologetic task of presenting Jewish

law in as positive a light as possible to those who had a tendency to dismiss or deride it as

archaic and obsolete. Herzog’s work then, was a product of his intellectual context, both in the

sense that he adopted many of the commonplaces of the discourse in which he was embedded,

and also because his work must be read, in part, as a reaction to the assumptions of that same

discourse.

Herzog’s Early Writings on Judaism and Jewish Law

Herzog’s apologetic streak is readily apparent in a 1930 article, “The Outlook of Greek Culture

Upon Judaism” published in The Hibbert Journal, a London liberal Christian quarterly.42

Although not relating to Jewish law in particular, this article pertains to our subject as it sheds

light on the way in which Herzog wrote about Judaism for audiences who might not naturally be

well-disposed towards it, in this case a Christian audience, and the way in which he presented

Judaism as entirely compatible with modern attitudes to both morality and science.

42
Republished in: Isaac Herzog, “The Outlook of Greek Culture upon Judaism,” in Judaism: Law and Ethics
(London: Soncino Press, 1974).
 121

Herzog gave a wide-ranging survey of pagan Hellenistic attitudes to ancient Judaism. He quoted

extensively from ancient sources across the Greek world, as well as from contemporary

scholarship in French and Hebrew.43 The article is strongly defensive of Judaism. Herzog noted

that among some Greeks, like Aristotle, Clearcus and Theophrastes, there was “the profoundest

admiration amounting to reverence for Judaism and the Jewish race.”44 This was, natural

considering that:

The pure monotheistic faith of the Jews, distinguished by its

spirituality and by its sublime ethical trend, which towered so high
above the religions of all the “barbarian” nations and even above
the religion of Greece herself, was bound to arouse the admiration
of the early philosophers of Greece whose soul in reality militated
against her polytheistic and grossly sensualistic national religion.45
Other Greeks, however, particularly Hellenized Egyptians, produced accounts that can make the

reader “outraged beyond words.”46

The Egyptians of the cultured Hellenized type, envious of the

growing strength of the Jewish community and lashed into fury by
the Jewish account of the Exodus, so uncomplimentary to their
ancestors, felt impelled to produce a version of their own which
would place the Jews in a very lurid light.”47

43
For example: Théodore Reinach, Textes d'auteurs grecs et romains relatifs au judaïsme (Paris: E. Leroux, 1895);
David Neumark and Samuel Solomon Cohon, Toldot ha-pilosofiyah be-Yisra'el (New York: A.I. Shtibel, 1921).
Reinach was a French Jewish scholar. Neumark was a German scholar who had recently moved to Hebrew Union
College in Cincinnati.
44
Herzog, “The Outlook of Greek Culture upon Judaism,” 215.
45
Ibid., 214.
46
Ibid., 218.
47
Ibid., 215.
 122

Herzog concluded his article by remarking that the existence of ancient anti-Semitism is

unremarkable given that “even now the Jewish people and Judaism, in particular, are largely

misunderstood and misjudged.”48 He went on, however, in a more optimistic tone:

Civilization exhibits two forces – religion and science –

contending for mastery over the human mind. Science is ultimately
traceable to the contribution made by the Hellenic race. Israel, on
the other hand, has brought into the world the light of religion in its
highest and purest form. The fact that the first encounter between
these two principal cultural forces generated mutual sympathy
cannot fail to grip our attention. The Greek mind, repelled at last
by its ancestral world-outlook, or religion, and struggling from
light, was thrilled by the phenomenon of an entire nation
professing a religion which comprised a God-idea, a spiritual,
imageless cult and a system of morality, all singularly congenial to
the circle of ideas which Greek thought was now evolving. The
Jewish mind, on the other hand, was powerfully attracted by the
high flights of the Greek intellect in its effort to grapple with the
riddle of the universe…
Short lived as that mutually sympathetic understanding was, it yet
offers a deep and stirring interest not only to the student of Jewish
history, but also to the student of civilization in general. It goes to
illustrate how much in common religion and science really have.49
Drawing on the long-established dichotomy between Hebraism and Hellenism, Herzog argued

that Judaic religion and Greek science are not only compatible but are in fact are mutually

reinforcing. The subtext was that even in Herzog’s own period, after the ascendance of scientific

positivism was in Europe, Judaism could still be held up as a beacon of religious and ethical

enlightenment.

This apologetic stance also characterized his writing on the subject of Jewish law for non-

specialist and Gentile audiences. In 1930 he delivered a paper before the Society for Jewish

48
Ibid., 222.
49
Ibid., 222-3.
 123

Jurisprudence in Inner Temple in London which was soon published in the Journal of

Comparative Legislation and International Law entitled “John Selden and Jewish Law.”50 The

article is an overview of all of the works relating to Jewish law written by John Selden, the

seventeenth century English politician, scholar and jurist. Selden wrote several such works,

which mined the Jewish canon, including rabbinical literature and Maimonides’ Mishneh Torah

on subjects such as tithes, inheritance, marriage and divorce, courts and the calendar. Many of

Selden’s works were written in Latin and Herzog read them in the original.51

Herzog recognized that Selden was “undoubtedly one of the most erudite men that England had

ever produced” and was generally impressed with his writings on rabbinical law. He was,

however, unforgiving of some elementary mistakes in Selden, calling one “a blunder unworthy

of the merest beginner” and at one point suggesting that “the barest acquaintance with post-

Talmudic Jewish history would have saved him from the subsequent pitfall into which he fell.”52

He also lamented Selden’s digressive style, noting sharply at one point: “We can see at a glance

that Selden tries to be exhaustive. But he succeeds in doing much more than that: he exhausts the

patience of the reader.”53 Ultimately, he paid Selden the somewhat muted complement of

recognizing that “very few non-Talmudists, Israelite or non-Israelite, have reached Selden’s level

of Talmudic-Rabbinic erudition,” and admiring that “a man who certainly was not a Talmudist

should have been able to produce what Selden has produced in the domain of Rabbinica.” He

50
The article was republished in Herzog, Judaism: Law and Ethics. Page numbers refer to that edition.
51
Herzog informed the reader that “I decided to read no reviews or criticisms of Selden until I had covered the
whole of his Rabbinic writings form beginning to end and had formed an independent opinion free from all external
influences.” Herzog, “John Selden and Jewish Law,” 68.
52
Ibid., 77,79.
53
Ibid., 71.
 124

concluded by emphasizing Selden’s inferior understanding of Jewish law compared with its truly

great practitioners: “I would remark that if, instead of launching out on his own, he had simply

produced a translation of Maimonides’ Code, he would have rendered far greater service to

learning.”54

A key theme that arises in this article is Herzog’s articulation of Jewish law as a superior system

of law which has played a critical role in the development of Western civilization. Herzog’s

opening paragraph notes that modernity drew many Jews “into close contact with the cultural

activities of the outside world.”55 The reverse, however, was also true: the beginnings of the

modern period also marked a renewed interest in Jewish culture on the part of Gentiles:

The Renaissance did not confine itself to the resuscitation of

classical antiquity, but also brought about the re-awakening of a
deep interest in Hebrew scholarship. Christian savants in many
European centers of learning began to apply themselves with an
ever-increasing zest to the study of Hebrew, and, gradually
widening the scope of their studies and researches, they also began
to pay considerable attention to Talmudic and Rabbinic literature.56
The subtext of this statement is the assertion that Jewish law was an important subject of study in

its own right and formed the basis of Christian religious exegesis. Thus, Herzog wrote with

approval of Selden’s appreciation of the Jewish tradition:

There can be no doubt that Selden had great faith in Jewish

tradition, which represented to him the vehicle of the true meaning
of the Law of Moses. He generally treats the sages of the Mishnah
and the Talmud with the profoundest respect and now and again he
censures even Jewish Biblical exegetes like Ibn Ezra and Ralbag
for giving interpretations at variance with tradition. With Christian
writers, both Catholic and Protestant, who ignore Jewish tradition

54
Ibid., 79.
55
Ibid., 67.
56
Ibid.
 125

in explaining Pentateuchal law he deals very summarily. This, says

Selden, is like attempting to interpret Roman law independently of
the standard Roman jurists, Ulpian, Palinian, etc.57
Far from being of merely archaic interest, Herzog argued, the Jewish legal tradition is a worthy

area of study and estimation in its own right.

Main Institutions of Jewish Law

Herzog’s article on Selden was one part of his increased dedication, from the end of the 1920s, to

the goal of bringing the appreciation of Jewish law to a wider audience of both Jews and

Gentiles. Between 1929-31 he published a further seven articles on Jewish law and jurisprudence

in the Scottish Juridical Review and the American Temple Law Quarterly, the Law Review of

Temple University in Philadelphia. The articles were comprehensive overviews, impressively

detailed given that they were survey articles, of the sources of Jewish law, and the topics of

possession, rights and duties, norms and morality in Jewish law.58 This spate of legal writing

culminated in February 1935 and in August 1938 with the publication of the first two volumes of

Herzog’s monumental The Main Institutions of Jewish Law.59 Proper treatment of these

57
Ibid., 78.
58
Herzog, “The Assignment of Rights in Jewish Law.”; Herzog, “Moral Rights and Duties in Jewish Law.”; Herzog,
“Legacies to Creditors and Satisfaction of Debt in Jewish Law.”; Herzog, “Possession in Jewish Law [Part I].”;
Herzog, “Possession in Jewish Law Part II.”; Herzog, “Possession in Jewish Law Part III.”; Herzog, “The Sources of
Jewish Law.”
59
Herzog, Main Institutions, 1: The Law of Property; Herzog, Main Institutions, 2: The Law of Obligations. A
second edition of both volumes was published in 1965 and re-issued in 1980: Isaac Herzog, The Main Institutions of
Jewish Law, Paperback ed., 2 vols. (London ; New York: Soncino Press, 1980). Originally five volumes were
planned but the work was cut short by Herzog’s work as Chief Rabbi along with, presumably, his efforts to aid
refugees during and after WWII and his subsequent ill health. Herzog himself explained the gap between the
publication of the first two volumes at Herzog, Main Institutions, 2: The Law of Obligations, vii.:
 126

publications is beyond the scope of this dissertation. We will limit ourselves here to a few

comments about those elements of Herzog’s work which shed light on his understanding of

Jewish law and his motivations for publishing studies of Jewish law for a Gentile audience.

Herzog was very clear about his high estimation of Jewish law. In his opinion, it was an

“elaborate, massive towering structure… of such hoary antiquity, of so majestic, awe-inspiring

an origin.”60 He was dismayed, therefore, that its true genius was not recognized by the world at

large. After all, he claimed, Jewish law is a major contribution to the progress of human

civilization and scholars ignore it to their own detriment. He lamented, however, that Jewish law

had not received the attention it properly deserved.

In Herzog’s mind, the cause of the undeserved lack of attention to Jewish law was twofold. It

was, firstly, the result of an ancient and persistent anti-Judaism:

Rome… destroyed the Jewish state and drove the Jewish people
out of its magic land. She thus sapped in no small measure, directly
and indirectly, the process of natural growth and development
inherent in Israel’s legal system. She has been admired throughout

That a relatively long interval has elapsed between the appearance of Volume I
and the present volume has been due to the fact that in the meantime I was
suddenly transferred by the directing hand of Providence to an infinitely wider
sphere of activity. My election to the Chief Rabbinate of the Land of Israel at a
critical and momentous juncture in our history has had the inevitable effect of
diverting my attention to other channels, while the severe trials and tribulations
of Palestine Jewry, which, alas, have not yet ended, have not been conducive, to
say the least, to that state of mind which is a necessary pre-requisite of literary
work of this kind. On the other hand, the deep-rooted consciousness that we are
on the threshold of a new era which, with the help of the Eternal Guardian of
Israel, will bring with it the revival of Israel’s nationhood in his ancient,
prophetic, cradle-land and the rehabilitation of Jewish law as a living and
vivifying force, has acted all along as an incessant inward urge and as a
powerful incentive.

60
Herzog, Main Institutions, 1: The Law of Property, xvii.
 127

the centuries for her juristic genius. Her victim, Judaea, on the
other hand, has not yet received due appreciation for her
achievement in the field of law, an achievement which so
strikingly attests the intellectual powers of the Jewish race as well
as its noble passion for righteousness…Judaea has not yet received
the meed of recognition and appreciation to which she is justly
entitled upon that score.61
This passage speaks not only to Herzog’s disappointment at the lack of recognition for Jewish

law per se, but specifically to his disappointment that Jewish law was considered inferior to the

legal system of Rome, which in Herzog’s day still formed the basis for European and, to a lesser

extent, for Anglo-American jurisprudence.

The reason that Jewish law had not been given proper recognition was not, however, limited to

the conquest of Rome and the subordinated position of Jewish communities. Herzog claimed that

Jews themselves were also at fault because even Jewish scholars did not give Jewish law its due:

It is, I regret to have to say, the inferiority complex from which

some of our people suffer that prevents them from attaching
importance to the treatment of a purely Jewish subject unless it is
presented from the comparative standpoint.62

The Jews with an “inferiority complex” to whom Herzog referred were the scholars of the

Mishpat Ivri movement. The movement provided an important foil to Herzog’s work throughout

his life and it is worthwhile briefly to digress from the analysis of Main Institutions to describe it.

At the end of the nineteenth century the academic study of Jewish law was “born out of an affair

between German professors and Zionist students.” 63 German law professors who were heirs to

61
Ibid.
62
Ibid., xvi.
63
Assaf Likhovski, “The Invention of "Hebrew Law" in Mandatory Palestine,” The American Journal of
Comparative Law 46, no. 2 (1998): 341 and passim.
 128

von Savigny’s Historical School of law became interested in Jewish law from the perspective of

legal ethnology.64 Their Zionist students embraced the academic study of Jewish law as part of a

movement of Hebrew national revival. Just as Zionists, influenced by romantic nationalist

movements in Eastern Europe, considered the revival of the Hebrew language to be an essential

aspect of their own national revival, so they believed that the retrieval of Hebrew law as an

organic aspect of their national character was an important component of their Zionist

aspirations. Societies arose that were dedicated to this task, the first being the Hebrew Law

Society established in Moscow in 1918 under the leadership of the Swiss-educated Russian Jew,

Shmuel Eisenstadt. Eisenstadt later immigrated to Palestine with colleagues such as Paltiel

Dickstein and continued his attempts to revive Hebrew law in the interest of Hebrew national

revival. By far the most ambitious and expansive work on Jewish law to emerge from the

movement was Asher Gulak’s Yesodei ha-Mishpat ha-Ivri, published in Berlin in 1922, three

years before Gulak took up his position as Professor of Law at the newly established Hebrew

University of Jerusalem.65 According to a current Israel scholar, the book was “unparalleled in its

objectives and its scope.”66 In its four volumes, Gulak attempted systematically to cover all areas

of Hebrew civil law. Herzog himself recognized that Gulak deserved “the credit of having made

64
Ibid., 342; Rudiger Schott, “Main Trends in German Ethnological Jurisprudence and Legal Ethnology,” Journal of
Legal Pluralism 20 (1982).
65
Asher Gulak, Yesodei ha-mishpat ha-ivri: seder dine memonot be-Yisra'el al-pi mekorot ha-talmud veha-poskim
(Berlin: Devir, 1922). On Gulak, see: David N. Myers, Re-Inventing the Jewish Past: European Jewish Intellectuals
and the Zionist Return To History (New York: Oxford University Press, 1995), 88-9; Amihai Radzyner, “From
Dogmatist to Historian: Asher Gulak and the Research on Jewish Law in the Hebrew Universiry, 1925-1940,”
Jewish Studies 43 (2005-6).
66
Amihai Radzyner, “Between Scholar and Jurist: The Controversy over the Research of Jewish Law Using
Comparative Methods at the Early Time of the Field,” Journal of Law And Religion 23 (2007-8): 217.
 129

the first attempt to produce a synopsis of law within a framework of general concepts and

principles.”67

The Mishpat Ivri movement shared a great deal in common with Herzog and his work. Both

wanted a revival of the culture of the Jewish people based on ancient rabbinical law and both

devoted efforts to research Jewish law to that end. However, despite being a member of the

Hebrew Law Society in London, Herzog expressed serious reservations about the entire

enterprise.68 Fundamentally, the Mishpat Ivri movement was a secular project. It was an attempt

to construct a workable national law which was based upon religious law, but was not identical

to it. Mishpat Ivri scholars, much like the Zionist movement as a whole, regarded Jewish

religious history as a resource for national revival but not as a binding source of law and

custom.69 This is clear from Eisenstadt’s articulation in a 1910 article:

Mishpat Ivri reveals its full depth and breadth out of the confusion
of the Talmud and demands its redemption from the chains of time
and the rust of generations. It demands elucidation and modern
illumination. It demands a new Hebrew attire, to appear in all its
splendor to its people and it demands an academic scientific
apparel so that it can appear in the pantheons of human
knowledge.70
Partially as a result of this secularizing impulse, Mishpat Ivri scholars used a heavily

comparative methodology. Jewish law for them was not any different from the national laws of
67
Herzog, “Possession in Jewish Law [Part I],” 329.
68
Radzyner, “Between Scholar and Jurist: The Controversy over the Research of Jewish Law Using Comparative
Methods at the Early Time of the Field,” 206; Amihai Radzyner, “Jewish Law in London: Between Two Societies,”
in Jewish Law Annual 18, ed. Berachyahu Lifshitz (London and New York: Routledge, 2009).
69
This is particularly, but not exclusively, true of the cultural Zionist program. See: Joseph E. David, “Beyond the
Janus Face of Zionist Legalism: The Theo-Political Conditions of the Jewish Law Project,” Ratio Juris 18, no. 2
(2005): 223.
70
Shmuel Eisenstadt, Tsion be-mishpat (Tel Aviv: Hamishpat, 1967). Quoted and translated in: Radzyner,
“Between Scholar and Jurist: The Controversy over the Research of Jewish Law Using Comparative Methods at the
Early Time of the Field,” 194-5.
 130

other peoples and was therefore be studied with the normal tools of legal analysis. Especially for

those who had been trained in the German Historical School, this meant historicization and

comparison.

This was anathema to Herzog.71 Although he admired the scholarship of Gulak and others,

Herzog could not affiliate with a position that secularized halakha. For Herzog, Jewish law was

the product of divine revelation and so was entirely sui generis. This also meant that for Herzog,

a comparative approach to the analysis of halakha was fundamentally flawed. He felt that it was

less likely to highlight the authentic contributions of Jewish law and more likely to judge its

significance only by virtue of its relationship to other, more prominent, legal systems such as

Roman law. Furthermore, the methodology of comparative legal theory tended to emphasize the

origins of law and Herzog balked at the notion that any aspect of Jewish law was derived from an

external system rather than revelation. Herzog noted his differences with Mishpat Ivri on a

number of occasions. On one occasion in the early 1950s, for example, he delivered a lecture to a

group of lawyers entitled “Knowledge and Will in Contract and Property in Torah Law.” The

organizers of the lecture, however, added “in comparison with English law” to his title. Herzog

objected:

Before beginning my lecture, I would like to correct an error in its

title, and I would ask that the correction also be published in the
press. The subject I chose to lecture on was “Knowledge and Will
in Contract and Property in Torah Law [Mishpat Ha-Torah].” The
words “in comparison with English law” were added subsequently,
without my knowledge. In my introduction to the second volume
of my English work on Torah Law [Mishpat Ha-Torah]72, I have
71
For a discussion of Herzog’s critique of comparative Jewish law in general, see: Radzyner, “Between Scholar and
Jurist: The Controversy over the Research of Jewish Law Using Comparative Methods at the Early Time of the
Field,” passim.
72
i.e. Herzog, The Main Institutions of Jewish Law.
 131

already condemned a conspicuous proclivity in large portions of

the modern literature on Mishpat Ivri, to invariably search for
comparison and analogies from external sources. In essence, from
an internal, spiritual perspective, such a comparison, God forbid, is
inconceivable. For as the heavens are higher than the earth, so the
divine Torah from heaven is higher than any kind of jurisprudential
system produced by human intellect and spirit. At the most, it is
useful for explanatory purposes, enlisting human intellect to
invoke external concepts in explaining certain concepts of Torah
Law [Mishpat Ha-Torah] for those who are not conversant with
the classical Jewish sources, but are familiar with other legal
systems. Therefore, my lecture is not devoted to comparison but
rather to explanation, in other words explaining with the assistance
of concepts and definitions taken from English law.73
Herzog’s reservations about the comparative methodology of Mishpat Ivri are here articulated

very clearly. Indeed, no doubt because of these reservations, Herzog hardly ever used the term

“mishpat ivri” to refer to Jewish law.

With this background, we can return to our analysis of Main Institutions with a greater

understanding of what Herzog meant by targeting his work at Jewish scholars with an

“inferiority complex.” His goal was to create an alternative scholarly approach to Jewish law that

respected its divine origins and its religious significance in addition to its role in Jewish national

revival. This explains his continuing critique of the comparative legal methodology throughout

the work. Herzog described Main Institutions as “neither a history nor…a comparative study of

Jewish law” and it is smattered with critiques of Mishpat Ivri scholars.74 The book took issue

with Gulak and other Mishpat Ivri scholars, including earlier scholars like Nahman Krochmal, on

73
Isaac Herzog, Pesaqim U-khetavim, ed. Shlomo Shapira, 9 vols., vol. 9: Teshuvot 'al hoshen mishpat (Jerusalem:
Mosad ha-rav Kook, Yad ha-rav Herzog, 1989), 405. Quoted and translated in: Radzyner, “Between Scholar and
Jurist: The Controversy over the Research of Jewish Law Using Comparative Methods at the Early Time of the
Field,” 189-90.
74
Herzog, Main Institutions, 1: The Law of Property, xvi.
 132

several occasions.75 Herzog was particularly resistant to hypotheses that proposed that Jewish

law was influenced by other systems of law. He intended his book to give the reader “some idea

of the specific nature of Jewish jurisprudence” and therefore approached Jewish law on its own

terms without trying to fit it into legal categories borrowed from other legal systems or tracing

alien influences.76 Indeed, he sometimes suggested that other systems of law were influenced by

halakha rather than the other way round. Remarking, for example, on a legal concept in the

Palestinian Talmud that occurs also in the Code of Justinian, Herzog wrote:

The Palestinian Talmud is much older than Justinian, and although

direct dependence is improbable, the idea of the all-embracing
praescriptio longissimi temporis may have been partly suggested
by some juridic practice in the eastern provinces.77
This theme of precedence of Jewish law to other kinds of law was particularly evident in

Herzog’s claims that Jewish law is morally superior. In one aside, for example, he claimed that

Roman law “undoubtedly moves upon a lower ethical plane than Hebrew law.”78

Beyond its critique of the comparative methodology of the Mishpat Ivri movement, Main

Institutions was intended to portray Jewish law in a favorable light for its Gentile readers.

Herzog’s strategy was to provide a systematic presentation of Jewish law in English in a

structure that would be recognizable to English-speaking jurists. His goal was to distill “the

intricate, the bewildering, semi-enigmatic nature and often semi-chaotic state of so much of the

stupendous mass of material” of the totality of Jewish law into a “methodized, reasoned

75
For example: ibid., 62-64, 77-78, 112-17, 225-28. See also: Radzyner, “Between Scholar and Jurist: The
Controversy over the Research of Jewish Law Using Comparative Methods at the Early Time of the Field,” passim.
76
Herzog, Main Institutions, 1: The Law of Property, xvii.
77
Ibid., 231-32.
78
Ibid., 232.
 133

quintessence, presented in a Westernized and modernized form.”79 To a certain degree, this was

a paradoxical endeavor. Having criticized others for their comparative methodology, Herzog

sought to present Jewish law to non-specialists by translating it into English legal terminology.

Herzog did not, however, embrace the methodologies of Gulak and others. Rather than

suggesting historical relationships between Jewish and other legal systems, Herzog attempted to

bolster appreciation for Jewish law by mapping it onto an English idiom.

One example of this strategy occurs early in Main Institutions, where Herzog listed all of the

categories of Jewish law and explicitly compared them to European categories:

The following classes of laws taken together would seem to

constitute a body of legal matter corresponding approximately to
law in the modern Western sense.80
Although in the ensuing pages, Herzog repeatedly pointed out the ways in which “modern

Western” and Jewish categories do not precisely overlap, he nonetheless persisted in drawing the

comparison. “Dinin,” for example, “would nearly but not absolutely correspond” to “civil law.”81

“Dinȇ makkoth” in Jewish law “might suggest correspondence with criminal law.”82 “Sanhedrin

may be taken as the Mishnaic-Talmudic approximation of what modern jurisprudence would

class under administration of the law.”83 And so on. Indeed, Main Institutions is peppered with

references and comparisons with contemporary English jurists. Herzog referred most often to

79
Ibid., xv.
80
Ibid., xxi.
81
Ibid.
82
Ibid., xxii.
83
Ibid., xxiv-xxv.
 134

John Salmond’s Jurisprudence and Anson’s Law of Contract, both of which were very popular

among British jurists in Herzog’s time.84

These comparisons between halakha and Roman and English law were intended to demonstrate

to Gentile jurists that Jewish law was not the backward and violent tribal law imagined by

proponents of the theory of legal evolution. By describing Jewish law as similar to, but not quite

the same as, modern legal systems with which his readers were familiar, Herzog put the case that

although Jewish law was a law in its own right, it was on a par with the most evolved legal

systems like those of England and Rome. This argument sometimes even overrode Herzog’s

interest in presenting Jewish law as morally superior to other laws. A salient example is his

discussion of Gulak’s distinction between the Jewish and Roman approaches to possession in

law:

In distinguishing between the Roman possessio and the Jewish

hazakah, Gulak attributed the difference to the fact that in Roman
law, “the actual possession of an object, being a manifestation of a
ruling power, receives the protection of the law until a greater
power, the sovereign power of the state, intervenes and annuls it
through the claim of the owner. Hebrew law, on the other hand, is
the divinely ordained law in which there is no room for the
worship of might, nor for its juridic protection.”85
Herzog agreed with Gulak to a degree: “I share to the full the author’s sentiments in regard to the

lofty ethical pedestal occupied by Hebrew law.”86 He was reluctant, however, to confirm the idea

that Roman law emanated from the “sovereign power of the state” whereas Jewish law depended

84
Sir John William Salmond, Jurisprudence: or The theory of the law (Stevens and Haynes, 1907); William
Reynell Anson, Principles of the English Law of Contract (Oxford: Clarendon Press, 1879). Salmond was in fact a
New Zealander, but New Zealand at the time, as a Commonwealth country, had the same law as England. Anson’s
work on contract is still in print today.
85
Quoted in: Herzog, Main Institutions, 1: The Law of Property, 226-7.
86
Ibid., 227.
 135

purely on religious morality. This would have been to admit that halakha was lower down the

chain of legal evolution, that it was a religious customary law incapable of properly enforcing

law and order rather than an efficient law enforced by a sovereign state. Herzog took pains to

emphasize the efficiency and sovereignty of Jewish law:

As an intensely patriotic Jew I can hardly think of ancient Rome,

to which we must attribute a large measure of the troubles and
woes which still beset us, with a mind entirely free from prejudice,
and yet I consider Gulak’s estimate in this connection as altogether
unfair … My own impression, albeit that of a non-expert in Roman
law, is that the interdicts were measures intended to safeguard the
maintenance of public peace and order … Jewish law was likewise
eager to maintain public peace and order, but it was not so ready
as Roman law to enact sweeping measure by which the rights of
the individual would be sacrificed in the interest of mass… Jewish
law was not altogether devoid of a system of discipline, but it kept
that system within certain limits and bounds. [Emphasis mine.]87
One of Herzog’s interests was to increase the estimation of Gentile jurists for Jewish law, which

explains his emphasis in this case to insist upon the ability of halakha to maintain public order.

The moral superiority of Jewish law is a recurrent refrain in Herzog’s opus. However, if Jewish

law were based exclusively on the moral conscience of the Jews, it would have failed to stand up

to the standards of modern positivist law, with its mechanisms of state-backed coercive

enforcement and its efficient control over public order. In short, Herzog’s goal in Main

Institutions was to make Jewish law accessible to a general audience and to elevate it from its

role as a curiosity for jurist ethnographers to its proper place as a beacon of justice and

civilization:

It has been my ardent striving throughout to afford the general

student of jurisprudence at least an elementary conception of the
elaborate, massive towering structure of Jewish law. When its
literary sources have been made more accessible and its
accumulated treasures of the ages have been laid bare, the world’s

87
Ibid., 227-28.
 136

jurists may awake one day to find to their utter amazement that
Jewish law, so sadly neglected, if not contemned [sic], offers one
of the most arresting and thought-compelling manifestations of the
Jewish mind. They may yet come to realize that the utter neglect of
Jewish law on the part of students of law, and of cultured persons
generally, had meant a serious loss to the cultural progress of
humanity.88

Herzog’s Early Constitutional Writing

So far, we have analyzed Herzog’s early writings to demonstrate that his work on Jewish law can

best be understood in his intellectual context, and specifically in the context of European legal

philosophy of the early twentieth century. Herzog emphasized both the unique sacral nature of

Jewish law and also its similarity to the “modern Western” legal systems of contemporary

Europe. He wanted to draw a sharp distinction between Jewish law and the archaic and un-

evolved systems of law described by Maine and others. Chapter 4 will demonstrate how this

background enhances our understanding of Herzog’s work on his proposed constitution for

Israel. Before moving on to his constitution writings in the Israeli context, however, we will

explore a series of four articles entitled “The Administration of Justice in Ancient Israel,” first

published in The Jewish Forum between March 1931 and May 1932.89 These articles deserve

careful analysis because they contain Herzog’s reconstruction of the ancient Jewish constitution.

88
Ibid., xvii.
89
The articles were originally published in Isaac Herzog, “The Administration of Justice in Ancient Israel: 1. The
Reconstruction of the Judiciary by Ezra,” The Jewish Forum 14, no. 3 (1931); Isaac Herzog, “The Administration of
Justice in Ancient Israel: 2. The Bet Din,” The Jewish Forum 14, no. 11 (1931); Isaac Herzog, “The Administration
of Justice in Ancient Israel: 3. The Appointment of Judges and their Ordination,” The Jewish Forum 14, no. 12
(1931); Isaac Herzog, “The Administration of Justice in Ancient Israel: 4. The Sanhedrin,” The Jewish Forum 15,
no. 5 (1932). They were republished in: Herzog, Judaism: Law and Ethics, 105-43. Page numbers here refer to that
publication.
 137

Even here Herzog implicitly engaged in apologetics against the prevailing belief that Jewish law

was tribal, uncivilized, archaic, brutal, disorderly, detached from the authority of a state and

incapable of responding to modern circumstances. On the contrary, he argued, Jewish law, even

in ancient times, was not an ad hoc collection of primitive rules but a system of law no less

structured than a modern constitution. It was hierarchical, methodical, attuned to the realities of

government and capable of developing to deal with any situation that a legal system may have to

confront.

One of the main aspects of the ancient Jewish constitution that Herzog had to address was the

fact that it prescribed the death penalty as the sentence for a large number of crimes, including

purely ritualistic transgressions. Capital punishment for collecting sticks on the Sabbath was

certainly barbaric by modern standards. Herzog was sensitive to this:

I have often heard it remarked that the restoration of the Jewish

State in accordance with Jewish law, would isolate the Jewish
people from the modern civilized world; for, the Hebrew penal
code includes the death-penalty for purely ritual offences, such as
the willful desecration of the Sabbath, etc. 90
It is interesting to note that even before the Peel Commission and before Herzog’s appointment

as Chief Rabbi of Palestine, he was thinking about the application of Jewish law to a Jewish

state. Herzog addresses the problem by pointing to the fact that the rabbinical tradition made it

very difficult ever to impose capital punishment. “This difficulty is…more apparent than real.”91

Capital, and even corporal, punishment was highly restricted, requiring

that the culprit had been warned immediately before the

commission of the offence in the presence of two adult male
Israelites of unimpeachable character and conduct…and that he
90
Herzog, “Administration of Justice,” 141.
91
Ibid.
 138

had expressly defied the warning and said that he would commit
the act in the full knowledge of the penalty awaiting him.92
The result was that the Jewish penal code “is more theoretical than practical” and by the time of

the Roman destruction of Jerusalem had almost been abolished in practice.93 The real fault for

the continued presence of these archaic rules in the Jewish legal system lies with the Romans

who interrupted the natural course of Jewish history.

Had Jewish law continued along a normal line of development,

capital punishment would probably have entirely dropped out of
practice, though the law of the Torah would not, of course, have
been altered in theory.94
Far from being brutal and archaic, Herzog claimed, the Jewish attitude to punishment it is in fact

very civilized. “In this, as in many other respects, it is superior to the law of the majority of the

most highly civilized modern states.”95

Herzog reproduced this section of his “Administration of Justice” in a footnote of Main

Institutions. There, he was even more explicit about the fact that the ancient death penalty should

not prevent the implementation of Jewish law in a new Jewish state, pointing out that even the

theoretical existence of the death penalty rests on the restoration of the Temple and its sacrificial

cult, which entails “insurmountable” problems and “could only be restored under prophetic

directions.” The death penalty, then “is therefore a matter which could only arise in the

Messianic age and need not enter into any practical calculations affecting the reconstitution of

92
Ibid.
93
Ibid.
94
Ibid., 142.
95
Ibid., 141.
 139

the Jewish State in Palestine. [Emphasis in the original.]” In the meantime, “no Jewish court

could inflict the death-penalty even for the crime of homicide.”96

Herzog was sensitive to a possible consequence of his line of argument. While claiming that the

Jewish penal code, when it came to corporal and capital punishment, was only of theoretical

interest and not fit for practical application, he was sure to avoid giving the impression that the

Jewish legal system is incapable of preserving law and order. Were that the case, Jewish law

would not be the equal of modern legal systems whose first priority is to preserve the order of the

state. Indeed, Herzog insisted, the Jewish legal system had ample resources to deter crimes even

without the threat of capital punishment:

It must not, however, be thought that murder could be committed

with impunity in the Jewish State governed by Jewish law. We are
told that when the court was convinced that willful murder had
been committed but could not, owing to the technical restrictions,
pass the death-sentence, the convict was condemned to life-long
imprisonment.97

The specific nature of Herzog’s portrayal of the ancient constitution is also apparent in his

discussion of judicial institutions. According to Talmudic and medieval sources, there were three

kinds of courts in ancient Israel. The Great Sanhedrin of 71 judges sat in Jerusalem. A Small

Sanhedrin of 23 judges sat in cities of more than 120 residents. Smaller towns could have ad hoc

courts of three judges, made up of hedyotot, laymen, rather than ordained judges.98 The Great

and Small Sanhedrins could judge all cases, including capital cases, whereas the courts of three

96
Herzog, Main Institutions, 1: The Law of Property, xxii-xxiv fn. 3.
97
Herzog, “Administration of Justice,” 141.
98
Maimonides, Mishneh Torah, Hilkhot Sanhedrin, Chapter 1. See also Tractate Sanhedrin, especially chapter 1.
 140

judges could judge only civil cases. Other sources mention a “tribal court,” whose meaning is

ambiguous. Herzog set himself the task of explaining three features of this judicial structure that

would have made it seem primitive and disorderly to modern European jurists: that in a town of

only 120 residents, 23 must be judges capable of sentencing people to death; that untrained

laymen administer justice in the ad hoc courts; that the courts are not organized in a centralized

hierarchy and that they are separated by tribal affiliation.

Herzog noted that Asher Gulak was “fully congnisant of the difficulty entailed by the statement

that every town of 120 citizens and upwards had to be furnished with a Sanhedrin of 23.”99 In

Herzog’s words, Gulak’s explanation for this phenomenon was that the Sanhedrin emerged out

of a local assembly that

comprised the heads of the clans and of the prominent families and
the notable citizens, the elders, in general. In the process of time it
became the practice for this assembly to include a few learned
men, experts in law. the great majority of the Sanhedrin were,
according to Gulak, ordinary laymen and this would, he thinks,
explain the multiplicity of sanhedrins.100
Herzog, though, was deeply dissatisfied with this description, which corresponded closely to

Maine’s description of tribal law, almost at the lowest rung of legal evolution. As a result, he

reinterpreted the traditional sources pertaining to the court of 23 judges. Contrary to the plain

meaning of the rabbinical sources and their key interpreters such as Maimonides, Herzog

claimed that the law did not require every town of 120 or more residents to have a court of 23

judges; it simply permitted it to have one. Any other reading, Herzog claimed, is inconceivable

considering that local elders untrained in the law are hardly capable of sitting on capital cases:

99
Herzog, “Administration of Justice,” 137.
100
Ibid., 137-38.
 141

It will hardly avail us to assume that during the early periods such
cases were tried by the assembly of citizens in each locality and
not by a distinctive body possessing specific qualifications and
specially appointed for that purpose.101
The small sanhedrins, in Herzog’s view, were few in number and highly expert, “of the nature of

a district court, covering by its jurisdiction a large and distinct area.”102

What of the courts of three judges? The Talmud describes them as courts of hedyotot, normally

interpreted as courts of laymen with no particular legal training, a kind of arbitration panel made

up of peers of the disputants. Herzog noted the disparity between this kind of panel of peers and

the contemporary judiciary:

This strikes us, prima facie, as rather startling. What kind of a

judicial system would that be under which a plaintiff could compel
the defendant to appear before any three men he may choose?103
Herzog had two strategies to soften the disparity. He asserted that the application of these courts

of arbitration was vastly limited to circumstances in which regular courts were unavailable:

We must bear in mind that this applies only to a locality where

there is no regular Bet Din and to a case where the defendant
refuses to go to the nearest Bet Din or to submit voluntarily to a
court of arbitration.104
In addition, he reinterpreted the meaning of hedyot to be a technical term meaning an expert

without formal rabbinical ordination, but still fully trained in the law. Thus, he argued, the courts

101
Ibid., 136.
102
Ibid., 140.
103
Ibid., 120.
104
Ibid., 120-1.
 142

of three were not made up of laymen at all but rather “expert-jurists, authorized by the [Jewish]

Babylonian authorities.”105

Herzog was also determined to demonstrate that the Jewish judicial structure is, and always has

been, centralized and hierarchical after the pattern of a modern nation state. He pointed out that

as early as the 6th century BCE, the royal charter granted to Ezra referred to judges by two

different names, shoftim and dayanim. This, Herzog claimed, showed that it “contemplated a

grading of the judiciary into a higher and a lower order.”106 According to Herzog, the first,

higher order, court was the Knesset ha-Gedolah, the “Great Assembly,” which sat at the pinnacle

of the national legal and political hierarchy. Herzog dismissed the scholarly consensus that the

assembly never existed, or only existed in a form very different from the one described in the

Talmudic sources. He identified it with a kind of combined legislative and judiciary body:

Whatever the critics may say, the historicity of that body cannot be
questioned by sound, really scientific criticism. The Great
Assembly was not a court invested with a definite jurisdiction. it
was rather a kind of academic-legal assembly charged with the
reorganizing of Jewish life, private and public, in accordance with
the letter and the spirit of the Torah and the Prophets.107
In a later work, Herzog would make the comparison to modern constitutions more explicit,

comparing the Great Assembly with the modern legislative assembly:

This was a kind of legislating parliament [‫]פרלמנט מחוקק‬, enacting

laws in the framework of the limitations that the written and

105
Ibid., 122.
106
Ibid., 113. The reference is to Ezra 7:25 where Ezra is commanded to appoint shaftin and daynin, Aramaic for
shoftim and dayanim.
107
Ibid., 114.
 143

transmitted Torah set up; a parliament, only not in the modern

sense.108
According to Herzog, this assembly became in time the Great Sanhedrin of 71 judges, which he

also identified in modern constitutional terms, calling it “the highest authority of the nation” and,

more strikingly, its “Supreme Court and legislative body.”109

As we have seen, a primary goal of Herzog’s early writings was to battle both European

chauvinism and the Jewish “inferiority complex” and to present Jewish law in “modern Western”

terms to show that it was the equal, or even the superior, of contemporary European codes and

constitutions. All along, he was thinking ahead to the possibility of the application of Jewish law

in a future Jewish state. He knew that success in such an endeavor relied upon the ability to

demonstrate that Jewish law really could be equivalent to the law of other modern states. Until

1948, however, these considerations remained in the realm of theory. With the establishment of

the State of Israel, the urgency of advocating for Jewish law in the Jewish state became acute.

The next chapter explores Herzog’s efforts in that area.

108
Isaac Herzog, Tehuqah le-Yisra'el al-pi ha-torah, ed. Itamar Warhaftig, 3 vols., vol. 3 (Jerusalem: Mosad ha-rav
Kook and Yad ha-rav Herzog, 1989), 289.
109
Herzog, “Administration of Justice,” 136, 35.
 144

4. A Constitution for Israel According to the Torah

The Israelite state, according to its traditional structure, is neither a

complete theocracy nor a complete democracy, but a nomocracy.
- Isaac Herzog

From around the time he was appointed as Chief Rabbi of Palestine in 1937, Herzog’s writing

about Jewish law and jurisprudence took on a new sense of urgency and pragmatism.1 The same

year in which he took up his post, the Peel Commission produced its report which first

recommended a partition plan for Palestine. Even though the British government later softened

its support for the policy, there remained a feeling that a Jewish state somewhere within the

borders of Palestine would soon be established. The question of a Jewish constitution was no

longer just a matter of theory.2

This chapter offers an analysis of Herzog’s main contribution to the topic: an unfinished book

provisionally entitled A Constitution for Israel According to the Torah.3 Like his earlier work,

1
For previous discussions of Herzog’s political thought, see, among several others: Ben Tzion Greenberger, “Rabbi
Isaac Herzog's Theory of Torah and State,” in The Halakhic thought of R. Isaac Herzog, ed. Bernard S. Jackson,
Jewish Law Association Studies V (Atlanta: Scholars Press, 1991); Yehudah Zoldan, “Shilton u-mishpat be-Yisra'el
be-mishnat hgry"A Herzog,” in Masu'ah Le-Yitzhak, ed. Shulamit Eliash, Itamar Warhaftig, and Uri Desberg
(Jerusalem: Yad ha-rav Herzog; mekhon ha-entsiklopediah ha-talmudit; mekhon ha-talmud ha-yisra'eli ha-shalem,
2008).
2
Correspondence with rabbis in Palestine and abroad indicate that he applied himself to the project from the late
1930s. See the discussion on p. 37 for Herzog’s consultation with Hayyim Ozer Grodzinski in the aftermath of the
Peel Commission. See also: Itamar Warhaftig, “Mavo,” in Tehuqah le-Yisra'el al-pi ha-torah Vol. 1, ed. Itamar
Warhaftig (Jerusalem: Mosad ha-rav Kook and Yad ha-rav Herzog, 1989), 25. Rabbi Y. M. Tukachinsky also
recorded Herzog’s consultation with him in about 1939. See: Y. M. Tukachinsky, “Shihrur benei ha-yeshiva mi-
giyus,” Ha-torah veha-medinah 5-6 (1954-5); Warhaftig, “Mavo,” 25.
3
Herzog originally called the book The Foundations of the Constitution, Law and its Orders, and the State
Government in the Jewish State in the Framework of the Torah. He also referred to it by other titles, however, such
as The Constitution in Israel According to the Torah. It was published by Warhaftig under the title The Constitution
 145

Herzog’s constitutional writing is best understood in the context of the legal and political

discourse that shaped his intellectual environment. A close contextual reading highlights the

ways in which legal centralism and positivism continued to shape Herzog’s legal philosophy.

Such a reading also helps us to situate Herzog against the backdrop of the legal and

constitutional thinking of nationalist independence movements all over the world. Despite his

deeply Jewish constitutional vision and the rabbinic idiom in which he wrote, his work has more

than a little in common with others who, like him, were working to establish independent nations

states in the wake of the gradual disintegration of waning empires.

Herzog’s work on the constitution was interrupted for several years, no doubt because World

War II, and particularly Herzog’s efforts to save Jews displaced by the Holocaust, took up most

of his energies. At the end of 1947, with the war over and statehood imminent, he revisited the

issue. In August 1947 at a meeting of the Council of the Chief Rabbinate he urged a focus on

“setting up a program for the constitution of the state in the framework of the Torah.”4 He was

likely motivated by the fact that the Va’ad Leumi, the Jewish national council that would form

the basis of the government of Israel, had constituted its own committee for the writing of the

constitution. Its chairman was Zerah Warhaftig, a member of Mizrahi, who was eager to

incorporate his consultations with Herzog and other rabbis into the committee’s deliberations.5

Herzog decided to write a constitution himself and created a committee of rabbis who would

read it, clause by clause. He also conferred about this with others. He told Gad Frumkin, an

for Israel According to the Torah and that is the title that I have used throughout. The title of the books is discussed
at: Warhaftig, “Mavo,” 33.
4
Ibid., 26.
5
Ibid., 26 fn. 6. See also Warhaftig’s own description of this period: Warhaftig, Huqah le-Yisra'el: dat u-medinah,
esp. 22-85.
 146

Orthodox Jew who would become one of the state’s first supreme court justices, about his plans

to work on a constitution and indicated that he would be showing his drafts not only to rabbis but

also to experts in secular law.6

Herzog planned to publish a constitutional draft of 18 chapters dealing with the theory of

democracy and theocracy, political and judicial appointments, rabbinical enactments, elections,

taxes, the presidency and ministries, the police force and army, education, the place of religion in

the state, the chief rabbinate, and other matters. 7 Ultimately, Herzog completed only six of the

eighteen chapters, of which only one was published in his lifetime.8 In 1989, Herzog’s extant

writings in connection with the constitution and related material were published by Itamar

Warhaftig, Zerah Warhaftig’s son.9 The fact that the work was never completed can be attributed

in part to the many pressing matters competing for Herzog’s attention after the foundation of the

state, in part to his eventual recognition that his constitution would never be implemented and in

part, perhaps, to failing health in his later years.

Although Herzog never finished Constitution for Israel, it is possible to piece together his

constitutional and jurisprudential thinking from the chapters that do exist, in conjunction with

6
Elyakim Rubinstein, Shoftei erets (Jerusalem and Tel Aviv: Schocken, 1980), 46.
7
A proposed table of contents for the work was found in Herzog’s archive and published in: Herzog, Tehuqah le-
Yisra'el al-pi ha-torah, 1, Appendix 13 p. 243.
8
The chapter about the king’s law and its relationship to halakha was included in a pamphlet that Herzog wrote to
attempt to make Jewish inheritance law more egalitarian. It was published in an American Jewish journal: Isaac
Herzog, “Din ha-melekh ve-din ha-torah,” Talpiyot 7, no. 1 ([5]718=1947). It was republished in: Herzog, Tehuqah
le-Yisra'el al-pi ha-torah, 2, 65-89. For Herzog’s writings on inheritance law, see: ibid. See also the discussion at:
Greenberger, “Rabbi Herzog’s Proposals For Takkanot In Matters of Inheritance.”
9
Isaac Herzog, Tehuqah le-Yisra'el al-pi ha-torah, ed. Itamar Warhaftig, 3 vols. (Jerusalem: Mosad ha-rav Kook
and Yad ha-rav Herzog, 1989).
 147

Herzog’s other writings. We have already seen how Herzog utterly rejected the legal pluralism of

other religious Zionists and embraced the centralist idea that a polity should have only one legal

regime which flows from the sovereign state. Herzog remained entirely committed to this idea of

law in his own constitutional writings. In Herzog’s vision, the entire state would be governed by

a single law: halakha.

The aspiration of all of religious Judaism in Israel and the Diaspora

should be that the constitution include a basic clause that the law of
the land is based on the foundations of the Torah.10
Herzog readily acknowledged, however, that this plan would be resisted by many. It would

require a concerted effort to produce a constitution according to the Torah that a majority would

accept.

In order that this clause be acceptable for a large part of the Israeli
public, which is far from knowledge of the Torah and to our regret
does not totally adhere to our holy tradition, … we need to work
immediately on a draft of the law that will be in accord with the
democratic nature of the state.11
The constitution of the state would therefore have to be both religious and democratic:

The Jewish state… must of necessity be neither a total theocracy,

nor a total democracy, … but theocratic-democratic… But this
hyphenation [‫ ]הרכבה‬requires deep study and great attention and
thought on the part of the scholars of the Torah.12
Herzog’s Constitution for the Israel According to the Torah was an attempt to describe this

hyphenated theocratic-religious constitution.

10
Isaac Herzog, “Ha-tehiqah veha-mishpat be-medinah ha-yehudit,” Yavneh: kovetz akademai dati 3 (1949). The
article was published in 1949 but an editorial comment indicates that the article was received in Shevat 5708, which
corresponds to January or early February 1948. Republished as: Herzog, “Ha-tehiqah.”
11
Herzog, “Ha-tehiqah,” 205.
12
Ibid., 209.
 148

Challenges

The challenges to Herzog’s constitutional project were the same as those faced by all religious

Zionists. Like the thinkers surveyed in chapter 2, Herzog noted that according to halakha, neither

women nor Gentiles (according to many Jewish scholars) were permitted to take up positions of

political authority, to become judges or to give testimony in a court of law.13 Furthermore,

Herzog acknowledged, criminal and civil law is underdeveloped in halakha.14A constitution

which did not address these issues, Herzog recognized, could never be accepted as the

constitution of the new state. They would pose problems “impossible to surmount”.15 Legal

pluralists allowed the existence of a distinct legal regime separate from halakha. This allowed

them to preserve halakha while also providing for a parallel state law that would be acceptable to

all citizens. Herzog’s centralism prevented him from embracing this solution. With halakha as

the only legal regime in the state, he had no option but to propose modifications to halakha in

order to make it fit with modern democracy.

Herzog wrote with power and conviction about the necessity of modifying halakha. He knew that

the non-religious majority would have to be convinced to go along with his constitutional

plans.16 He also knew that the constitution of Israel also had to be in accord with the United

Nations Partition Plan, which required the new Jewish state to have a democratic constitution, to

elect a legislative body by universal suffrage and not to allow political, civil, or any other

13
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 39 and elsewhere.
14
Ibid., 26.
15
Ibid., 39.
16
Ibid., 3.
 149

discrimination against any person.17 “The establishment of the Jewish state,” Herzog noted, “is

largely dependent on the guarantee of those rights in the spirit of that pact.”18

There is, however, a mood of reluctance that pervades his writings. He lamented the fact that

“those Jews who are one hundred percent faithful and believing … do not constitute the

majority.”19 He sometimes balked at the concessions that he felt forced to make. He was

particularly reluctant to address the equality of the sexes with regard to judicial appointments:

It seems to me that women are not appointed as judges in all

democratic states, even for civil cases. So why should those who
campaign for democracy be even more democratic than many
democratic states? Surely we must oppose this with all force.20
There had been a contentious history to women’s involvement in politics in the religious Zionist

community. In 1919-20 Herzog’s predecessor as Ashkenazic chief rabbi of Palestine, Rabbi

Abraham Isaac Kook, had ruled that women should not vote. (Women’s suffrage was, though,

allowed by Rabbi Bentsion Hai Uziel, who was at the time the Chief Rabbi of Tel Aviv and in

1939 became the Sephardic Chief Rabbi of Palestine, shortly after Herzog took up his position

there.)21 In an attempt to staunch the further spread of egalitarianism, Herzog argued that there

was no reason for the Israeli constitution to be more democratic than other democratic states,

which did not all allow women on the bench. It is difficult to say which states Herzog had in

17
United Nations General Assembly Resolution 181.
18
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 3. See also his similar comments at: ibid., 96.
19
Ibid., 3.
20
Ibid., 43-4.
21
Menahem Friedman, Hevrah va-dat: ha-ortodoksiyah ha-lo-tsionit be-erets Yisra'el, 1918-1936, Sifriyah le-toldot
ha-yishuv ha-yehudi be-Erets Yisra'el (Jerusalem: Yad Yitshak Ben-Tvi, 1977), 146-84; Zvi Zohar, “Traditional
Flexibility and Modern Strictness: Two Halakhic Positions on Women’s Suffrage,” in Sephardi and Middle Eastern
Jewries: History and Culture in the Modern Era, ed. Harvey E. Goldberg (Bloomington: Indiana University Press,
1996).
 150

mind but it is at least fair to say that even in countries where women de jure qualified for the

judiciary, they were under-represented on the bench. In Britain, for example, the judiciary was

officially opened to women in 1919 but the first female judge was not appointed until 1945. In

the United States, as Herzog was writing, less than 1.5% of judges on State or Federal courts

were women.22 Begrudgingly, however, Herzog recognized that this argument was unlikely to

persuade others and acknowledged that there was:

…a great doubt if we will succeed [in establishing a halakhic

constitution without finding a way to approve of female judges]
because influential people will mostly certainly be in favor of the
appointment of women. We have to be ready for the evil day and
to investigate [the matter] even now according to the halakha even
if in practice we will oppose it to the fullest extent that we are
able.23

Ultimately, the need for a democratic constitution was so important that it overrode Herzog’s

misgivings. In particular, he felt that a Jewish state that did not give full rights to Gentiles would

imperil the lives of Jews around the world.

The great majority of the people of Israel is dispersed among the

nations and wherever they are, their situation is more or less
precarious. So it is clear that if we would establish the Hebrew
state with all its executive, judicial and legislative functions run
according to how the simple meaning of the halakha appears at
first glance, in such a way that non-Jewish residents would be
discriminated against to a large degree, we would endanger the
situation of our brothers in the Exile, and expose them to
retaliation. You might say that it would not be so terrible to suffer
the denial of known civil and political rights in the exile. This is
not so, for in this era known as modernity, dishonor will eventually
result in total contempt and total contempt will bring the
contemptuous to thoughts – which will result in actions – that

22
Beverly B. Cook, “Women Judges: A Preface to Their History,” Golden Gate University Law Review 14, no. 3
(1984): 576. In France, women were admitted to the bench only in 1946. Sara L. Kimble, “No Right to Judge:
Feminism and the Judiciary in Third Republic France,” French Historical Studies 31, no. 4 (2008).
23
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 43.
 151

[Jews should be] denied human rights and that their blood and
possessions are free for the taking.24
The danger to Jews around the world that would result from the establishment of a

discriminatory legal regime in Israel was so grave that it would override any halakhic

reservations. Particularly in the aftermath of the Holocaust, Herzog recognized that the

establishment of a State for the Jews that was also fair to its Gentile citizens, was simply a

necessity:

We have been given the opportunity to accept from the [United]

Nations the power to established in the land of Israel a Jewish
state, but on condition that we tolerate those of other faiths, even
idolaters, (as long as their worship does not disturb general morals
or moral rule,) who will live in our land and worship in their own
way. … What should we do? [Should we] tell the nations: We are
unable to accept this condition because our holy Torah prohibits a
Jewish state from permitting Christians, and a fortiori idolaters to
live in our land, and moreover it forbids us from permitting their
worship in our land and forbids us from allowing them to rent
land? It seems to me that there is no rabbi in Israel in his right
mind who would think that we have to respond in that way,
meaning that this is what the holy Torah requires of us. Even if the
Jewish state would be sinning by fulfilling the condition[s of the
UN], I would still say that the sin is overridden by the threat to the
life of the Jewish people, given its state in the world.25

Herzog, however, did not want to rely only on the legal leeway provided by the situation of

pressing need. Herzog understood that his argument would be far more convincing from a

halakhic perspective if his reasoning did not rely on there being a state of emergency.

However, we do not need to rely on leniencies arising from the fact

that the Jewish state [is required to] save the nation and it is like
setting up a refuge in a time of suffering, God forbid, until the
righteous Messiah comes, given the awesome tragedy of the
European exile in our days, and nearly before our eyes …

24
Ibid., 2-3.
25
Ibid., 18-19. According to halakha, almost any prohibition is set aside in case of danger to life.
 152

[because] according to the law itself there is no sin here according

to my opinion.26
Herzog’s main goal in Constitution for Israel was to expand on this last sentence and to set out

the framework of a constitution that would be acceptable from the perspective of both halakha

and democracy.

As with Herzog’s earlier writings, the rhetorical and jurisprudential strategies in Constitution for

Israel are best understood in the context of a wider legal discourse. Before engaging with an

analysis of Herzog’s specific suggestions, the next part of this chapter will offer a profile of the

legal discourse of the British Mandate and the early years of Israel and also of post-colonial

states in general. This contextualization will continue to show how deeply embedded Herzog’s

constitutional writings were in an intellectual discourse that went well beyond the boundaries of

his religious tradition. Ultimately, it will become clear that even as he was enmeshed in the

Jewish tradition, his attitude to law in the context of the nation state mirrored closely that of

secular Zionists and, indeed, that of other post-colonial independence movements.

The Discourse of Jurisprudence in Palestine/Israel

As discussed in chapter 3, before coming to Palestine, Herzog had responded to an intellectual

environment in which the highest form of law was the systematic and hierarchal expression of

the will of the sovereign state and in which religious law was considered to be at a lower stage of

legal evolution. The intellectual context in Palestine was no different. In fact, if anything, in the

26
Ibid., 19.
 153

last years of the Mandate and the early years of the state the condescension towards religious law

and the embrace of positivist centralism were even more pervasive.

The application of the evolutionary theory of law played a fundamental role in the British

Mandate’s training of lawyers. Law was used as an imperial tool by the British. Although their

judges were initially expected to implement the laws that had were already in place before the

Mandate was established, the law was gradually anglicized, especially in areas pertaining to

commerce.27 Lawyers for the Mandate were educated in the Law Classes, an institution

established in Jerusalem in 1920 which heavily emphasized British jurisprudence.

The textbook for the course on jurisprudence was An Introduction to the Study of Law: And

Handbook for the Use of Law Students in Egypt and Palestine, by Frederic Goadby, an English

jurist who had taught in England and Cairo and was brought to Palestine to direct the Law

Classes there.28 Goadby distinguished between religious and primitive legal systems and the law

of the modern state. John Austin, a founder of modern legal positivism, was Goadby’s model.

For Goadby, only state law, the will of the sovereign backed by coercive force, could be

considered modern law and was the hallmark of “a high state of civilization.”29 Goadby believed

that European law had reached a higher state of evolution that the “half barbaric” legal systems

outside of Europe, including those in the Ottoman Empire and the Mandate itself. This was

27
Likhovski, Law and Identity In Mandate Palestine; Assaf Likhovski, “Two Horwitzian Journeys,” in
Transformations In American Legal History: Essays In Honor of Professor Morton J. Horwtiz, ed. Morton J.
Horwitz, Daniel W. Hamilton, and Alfred L. Brophy (Cambridge, Mass.: Harvard Law School : Distributed by
Harvard University Press, 2009).
28
Likhovski, Law and Identity In Mandate Palestine, 114ff.
29
Ibid., 114-5.
 154

certainly true of religious law which was backward compared to the mostly secular law of

modern Europe.30

This approach to religious law, including Jewish law, was widespread at the time. The Law

Classes for which Goadby’s Introduction was a textbook were founded by the Attorney-General

of Mandate Palestine, Norman Bentwich. A British Jew, Bentwich was a Zionist who, after

leaving his position with the mandatory government, remained in Palestine as a professor in the

Hebrew University until 1951. In 1927, Bentwich published an article describing the role of

Jewish law in the mandatory legal regime. He noted that the Jewish community, like all religious

communities, had internal control over personal law like marriage and divorce. He did not

express any concern with that arrangement in principle, but he did voice some reservations about

the state of Jewish religious law:

There is reason to expect that in the free atmosphere of Palestine,

Jewish law will be systematically developed to accord with the
liberal views of our time as to the relations of men and women.
That development has been impaired by the abnormal conditions
of the Jewish communities in Eastern Europe since the Middle
Ages. As soon as a Jewish religious centre is established in the
national home, the authority of the rabbinical body to change the
law would be recognized throughout the diaspora, and Jewish law
on matters of family right could be modified, as it was modified in
the happier days of the great jurists of Babylon, Persia, Egypt and
Spain during what are known as the Dark Ages of Europe.31

Bentwich, despite his general sympathy for Jews and Jewish law, was clear about the problems

of its non-egalitarianism, which compared unfavorably with “the liberal views of our time.”

30
Ibid., 116.
31
Norman Bentwich, “The Application of Jewish Law in Palestine,” Journal of Comparative Legislation and
International Law 3rd Series (1927): 65.
 155

Bentwich attributed this to the “abnormal conditions” of Ashkenazic Jewry in the previous

centuries. On the face of it, this explanation is reminiscent of Herzog’s laying the blame for the

unnatural development of Jewish law at the feet of the Romans. There was, however, another

aspect to Bentwich’s comment. Although dismissive of the backwardness of the dominant strain

of Jewish law in recent centuries, he talked nostalgically about Jewish jurists in “Babylon,

Persia, Egypt and Spain.” Bentwich was presumably referring to the period of the Geonim and

the subsequent ascendency of Spanish Jewry during which time philosophers and rationalists like

Sa’adia and Maimonides dominated the world of Jewish law. This romanticization of the

Sephardic legacy is part of “the myth of Sephardic Supremacy” that pervaded enlightened Jewish

scholarship from the nineteenth century.32 It is a component of a kind of Jewish orientalism that

repudiated the apparent backwardness of Eastern European Judaism and embraced a mythical

older, truer Judaism that was more akin to the enlightened universalist monotheism of modern

Europe. Therefore, in this passage, even as he defended the ability of Jewish law to evolve in line

with contemporary liberalism, Bentwich implicitly agreed with Goadby and others like him, that

Jewish law as it currently constituted itself was inferior to contemporary liberal European law.

This kind of jurisprudence was not limited to the British. It was equally pervasive among

Zionists. The attraction to modern positivism even emerged in the Mishpat Ivri movement. The

movement had been formed on the basis of the uniqueness of Hebrew national law. As early as

the 1920s, however, Mishpat Ivri scholars changed their approach in an attempt to demonstrate

the viability and enlightened nature of Jewish law. They began to downplay the uniqueness of

Jewish law and to emphasize how similar it was to European law and how different from Muslim

32
Ismar Schorsch, “The Myth of Sephardic Supremacy,” Leo Baeck Institute Yearbook 34, no. 1 (1989).
 156

and Ottoman law. They adopted the European evolutionary attitude when it came to talking

about Muslim law. They characterized it as primitive, passive and tribal, in contrast to the

evolved law of Europe which was based on the individual, not the tribe. They took pains to

demonstrate that it was wrong to classify Jewish law in the same way, it being more refined and

evolved.33

The domination of European-style legal positivism was also apparent among Zionists in

Palestine during Herzog’s tenure as chief rabbi and particularly after the establishment of the

state. In the 1930s, the Mishpat Ivri movement had lulled. In the late 1940s, however, on the

verge of independence, there were renewed calls among Israel jurists and politicians for the

creation of a national law that would be based on Jewish law.34 In 1947, a Legal Council was set

up to discuss the legal system of the future state.35 The council had a special sub-committee to

deal with Jewish law, headed by Abraham Hayyim Freimann.36 The interest in Jewish law,

however, was primarily the function of a nationalist rather than a religious impulse. The new

supporters of Mishpat Ivri wanted a modern, secular positivist system which, in the interests of

national expression, would be based roughly on Jewish precedent.37

33
Likhovski, Law and Identity In Mandate Palestine, 144-50; Likhovski, “The Invention of "Hebrew Law" in
Mandatory Palestine,” 362-65.
34
Assaf Likhovski, “Between Mandate and State: On the Periodization of Israeli Legal History,” Journal of Israeli
History 19, no. 2 (1998): 60-64; Rubinstein, Shoftei erets, 45-49.
35
Yehudit Karp, “Ha-mo'atsa ha-mishpatit: reshit alilot haqiqa,” in Sefer Uri Yadin, ed. Aharon Barak and Tara
Shpanitz (Tel Aviv: Bursi, 1990).
36
The sub-committee did not complete its work, perhaps because Freimann was killed in the ambush of the convoy
to Mount Scopus in April 1948.
37
Moshe Silberg, an Orthodox Jew who later became an Israeli Supreme Court Justice, was one of the most
consistent supporters of Mishpat Ivri. Even he, however, believed that Israeli law could not simply adopt traditional
Jewish law wholesale. Discussing the proposal to write a law for Israel based on halakha, he wrote:
 157

This positivist impulse was expressed in the Zionist interest in a constitution and in codification.

The Israel Declaration of Independence of 14 May 1948 explicitly called for the adoption of a

constitution no later than 1 October of the same year. It was assumed by almost all major jurists

and politicians in the late 1940s and early 1950s that a constitution would soon be adopted.38

Many constitutional drafts were produced, the most viable and advanced version being a draft by

Leo Kohn, a religious Zionist from Germany who worked for the Jewish Agency in Palestine and

was an expert in constitutional law. Ultimately, a constitution was not adopted, primarily because

of Ben Gurion’s reluctance to constrain his executive powers at a time of war and political

fragility. Even Ben Gurion, however, wanted the State eventually to adopt a constitutional legal

regime based on the British or European model.39

Israeli jurists also desired a codified legal system on the European model. Although the Mandate

had imported Britain’s common law tradition into Palestine, there was a strong move among

This code will not be in the nature of a “condensed Shulhan Arukh,” and it will
not claim for itself the traditional authority – religious and sacred – of the
existing codes. This will be a civil-secular creation which will accept, wherever
possible, the basic principles of Jewish law, with the explicit exception of the
archaic conclusions which are superimposed on them. The objective will be: to
winnow and sift, to bring closer and to reestablish what still cleaves to life, and
to keep away and reject the dry growth which became shriveled and
impoverished in the course of centuries. In other words somewhat more graphic:
to pour out the wine that has become sour, and to keep the barrel so as to fill it
with new wine which will become permeated with the aroma that has seeped
into it, and that its aroma and its taste may be like the aroma and the taste of the
old wine.

Moshe Silberg, Talmudic Law and the Modern State (New York: Burning Bush Press, 1973), 148-49.
38
Emanuel Rackman, Israel's Emerging Constitution, 1948-51 (New York: Columbia University Press, 1955).
39
Shlomo Aronson, “David Ben-Gurion and the British Constitutional Model,” Israel Studies 3, no. 2 (1998).
 158

Zionist jurists towards a continental-style codification.40 The codification project, like the

constitutional project, stalled in 1948, in part because of the negative connotations of borrowing

from German culture in the aftermath of WWII and the Holocaust. It did not, however, dissipate

entirely. The move to codification re-emerged in the 1960s and especially in the 1970s under

Aharon Barak when he was Attorney General of Israel. (A civil code was finally adopted in

Israel in 2004.)41

It was not just the British authorities, then, but also the Zionists themselves for whom the ideal

legal system was based on a modern, positivist model, complete with a constitution and a civil

code. This was unsurprising. For one thing, secular Jewish jurists had almost all been educated in

Germany, or in universities that sought to emulate German legal scholarship. This legal

education took place in period during which positivism, and particularly the theories of Hans

Kelsen, were dominant.42 The legal culture among the Zionist elite was deeply rooted in

continental Europe.

Zionism, Post-Colonialism and Legal Centralism

40
Nir Kedar, “Law, Culture, and Civil Codification in a Mixed Legal System,” Canadian Journal of Law and
Society 22, no. 2 (2007); Likhovski, “Between Mandate and State: On the Periodization of Israeli Legal History,”
64-6.
41
Kedar, “Law, Culture, and Civil Codification in a Mixed Legal System.”
42
Fania Oz-Salzberger and Eli Salzberger, “The Secret German Sources of the Israel Supreme Court,” Israel Studies
3, no. 2 (1998). Kelsen’s theories remained very popular in Israeli legal circles. Izhak Englard, a jurist who became
a Supreme Court Justice, bases his entire legal philosophy on Kelsen’s theories. See, for example: Izhak Englard,
Religious Law in the Israel Legal System (Jerusalem: Hebrew University of Jerusalem Faculty of Law, Harry
Sacher Institute for Legislative Research and Comparative Law, 1975). Kelsen himself published the very first
article of the first issue of the Israel Law Review in 1967. Hans Kelsen, “On the Pure Theory of Law,” Israel Law
Review 1 (1966).
 159

The Zionist interest in state-centered positivist law was more than just a function of education; it

was part of the deep structure of colonial and post-colonial legal history. Colonialism was bound

up in legal pluralism; post-colonial independence in legal centralism. According to a

contemporary scholar of the history of colonial law, in the early years of colonial regimes,

imperial powers exerted “conscious efforts to retain elements of existing institutions and limit

legal change as a way of sustaining social order.”43 The existence of multiple legal regimes in

European colonies was a result of the complexity of their social dynamics as well as an

intentional strategy of imperial powers trying to deal with the challenges of ruling unfamiliar

territories with limited bureaucratic resources. “Colonial states did not in an important sense

exist as states in the early centuries of colonialism. They did not claim or produce a monopoly on

legal authority or on the assignment of political and legal identity.”44 During the long nineteenth

century there was a gradual move toward a more centralized idea of law in European colonies.

They remained legally pluralistic, but the imperial state became a kind of ordering power that

organized the various legal regimes within each part of the empire. Increasingly, therefore, there

was “a shift toward a hierarchical understanding of the plural legal order and recognition of the

dominance of state law,” which represented a “movement from truly plural legal orders to state-

dominated legal orders.”45 In Mandate Palestine this resulted in a situation in which the Mandate

bureaucracy imported its own laws, particularly in the areas of commercial and criminal law, and

organized and arbitrated between the legal regimes of the various religious communities.

43
Lauren A. Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (Cambridge:
Cambridge University Press, 2002), 2.
44
Ibid., 229.
45
Ibid., 264,28.
 160

Although this system was “state-dominated,” it remained pluralist because the Mandate never

claimed to be the source of all law; it recognized that the rabbinical courts, for example, had their

own systems of law, with their own sources and procedures, which pre-existed the arrival of the

Mandate. Although the Mandate tried to place these pre-existing plural regimes into some kind

of hierarchical order, it never lay claim to be the only sovereign in the positivist sense; the single

source of all law within the state.

With the decline of empire and the establishment of independent post-colonial states, there was a

further shift, away from state-dominated pluralism and towards a full-fledged legal centralism. It

is a commonplace of post-colonial studies that the interaction between the colonial periphery and

imperial center meant that the self-understanding of colonial nationalist independence

movements was often based on European myths and ideas. This was particularly true in the

realm of law, given that the leaders of independence movements often received their legal

education in imperial capitals and used their skills and training against the imperial powers in

their fight for new post-colonial nation states.46 Law, as much as other aspects of nationalist

culture, played a significant role in the achievements of independence movements. These

movements often absorbed the Western myth of the backwardness of colonial law and

considered modern law on the European model as the pinnacle of legal evolution. It was not just

the hegemonic influence of imperial education that produced this effect; there was also a

strategic advantage in embracing European legal modes.47 Legal centralism and positivism, with

their emphasis on the omnipotent sovereign power of the state and the integration of all cultural

46
Likhovski, Law and Identity In Mandate Palestine, 106.
47
For the hegemonic effects of imperial education, see: Gauri Viswanathan, Masks of Conquest: Literary Study and
British Rule In India (New York: Columbia University Press, 1989).
 161

streams into a single state-based regime, was a legal philosophy that naturally supported the

goals of independence movements.

This pattern – the shift from the pluralism of imperial colonies to the centralism of newly

independent nations – was replicated across the globe. It was the case in Central Africa, for

example:

There is a basic difference of attitude toward legal pluralism and

unification between the colonial rulers on the one hand, and the
leaders of independent Zaire, Rwanda, and Burundi on the other. It
was consistent with colonial policy to recognize legal pluralism:
this recognition was not only induced by a feeling of cultural
superiority, it was also - like the choice of a policy of indirect rule
– imposed by reasons of expediency and administrative
convenience. Furthermore, the colonial authorities were not
interested in national integration, quite the contrary. The leaders of
the newly independent nations, for their part, wished to do away
with legal (and for that matter, social) pluralism and strived toward
national (e.g. legal) unification but were faced with a situation of
legal pluralism imposed upon them by the facts of life.48

Closer to Palestine, the same was true in the newly independent Turkey. In the 1870s, the

Ottoman Empire adopted a new civil code called the Mejelle. However, religious laws remained

in force, especially in the area of private law. Despite the establishment of the Mejelle, then,

legal pluralism remained in force:

Two bodies of law of different origin, reflecting the rules and

principles of two of the major legal families in the world, the
civilian and the Islamic, were in effect operative together, with the

48
Filip Reyntjens, “The Development of the Dual Legal System in Former Belgian Central Africa (Zaire-Rwnda-
Brundi),” in European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th-
Century Africa and Asia, ed. W.J. Mommsen and J.A. de Moor (Oxford, New York: Berg, 1992), 126.
 162

same force and independent of each other, applicable to the same

body of people.49
At the end of the nineteenth and the beginning of the twentieth centuries, Turkish reformers who

were educated in Europe created the idea of the Turkish nation. After the dissolution of the

Empire, they returned to found the independent state of Turkey. At the foundation of this new

state was the reception in 1926 of the Swiss Code Civile, which brought an abrupt end to

pluralism and established an uncompromising all-encompassing legal centralism.50

The same pattern occurred with the establishment of the State of Israel. The British Mandate,

even as it used law as a tool to serve its imperial ends, remained pluralistic. Religious courts

retained their jurisdiction over personal law and the British did not claim to be the source of their

legal validity. For all that it disdained the supposedly less-evolved systems of religious law, it

continued to respect their jurisdictions and to recognize that their authority originated not in the

Mandate’s sovereignty but in the various communities that pre-existed British rule.51 This

pluralistic attitude is articulated well in the following description of the place of religious law in

the Mandate constitution, by a professor of law at the Hebrew University writing only a few

years after the end of the Mandate:

What is the status of the norms in our legal system, and, generally,
what is the status of those norms of Jewish law which are
recognized by our legislator? We have already said that it is the
status of a second and collateral system which is linked up with the
principal system. Can we say that the Jewish law has become

49
Esin Örücü, “The Impact of European Law on the Ottoman Empire and Turkey,” in European Expansion and
Law: The Encounter of European and Indigenous Law in 19th- and 20th-Century Africa and Asia, ed. W.J.
Mommsen and J.A. de Moor (Oxford, New York: Berg, 1992), 49.
50
Ibid., passim.
51
Anglicization of the law certainly took place, but it was limited by the British reluctance, on the whole, to change
the substantive law of the systems that preceded the mandate. See: Likhovski, Law and Identity In Mandate
Palestine, 50-58.
 163

merged into the law of the state? If by “merged” as distinguished

from “linked up” we mean that the norms in question have been
plucked, as it were, from the system to which they belong and
fused into another system, or that their sources, their special
character, the principles of interpretation peculiar to them, etc., are
rejected, in short, that their autonomy is denied, the answer is in
the negative.
…. When the Palestine legislator in the Palestine Order in Council,
1922, made Jewish law and the systems of the other religious
communities sources of Palestine law, with regard to a certain
class of legal relations, he intended to incorporate it into his system
as autonomous law.52

Things changed after the state was established. Whereas the British presided over a pluralistic

system in which different legal systems had their own sources of validity, the jurists of the new

State of Israel insisted, following Kelsen, that sovereignty belonged to the state alone and that

only the state could be the basis of legal validity. In the earliest years of the state jurists already

began to conceptualize its legal regime in Kelsenian terms. One 1953 article in the legal journal

ha-Praklit, for example, was entirely devoted to describing Israel’s legal system in terms of

Kelsen’s Grundnorm. The author opened with a clear declaration of his intention to apply

Kelsenian theory to the law of the new state:

My intention in this article is to use the foundational concept of a

prominent school of contemporary jurisprudence in order to
produce a legal formulation of the political event of the
establishment of the State of Israel.

The concept of the Grundnorm [‫ ]נורמה בסיסית‬is taken from Hans

Kelsen, one of the greatest jurists of our day, who created an
original school of jurisprudence, known as “the pure science of
law.”53

52
Guido (Gad) Tedeschi, “On the Choice Between Religious and Secular Law in the Legal System of Israel,” in
Studies in Israel Law, ed. Guido (Gad) Tedeschi (Jerusalem: 1960), 274. Note that this article was first published in
its Hebrew original in 1952. Although he was writing during the state period, the author is explicitly talking about
the Mandate’s legal regime that had been established in 1922.
53
M. Sternberg, “Ha-norma ha-besisit shel ha-mishpat be-Yisra'el,” ha-Praklit 9, no. 2 (1953): 129.
 164

Even Ben-Gurion himself subscribed to this legal philosophy. In response to rabbinical

resistance to the Women’s Equal Rights Law of 1951 (which will be discussed in greater detail

in chapter 5,) he declared that the sovereign state was the source of all legal authority, including

that of the rabbinical courts:

When the rabbinical courts require, in order to give force to their

rulings on every Jew, the sovereign [‫ ]ממלכתי‬authority that is
given by the power of the state, then the state is permitted and even
required to fix the conditions by which the sovereign [‫]ממלכתי‬
authority of the rabbinate operates.54

This Kelsenian jurisprudence also formed the basis for judicial decisions. A landmark case in

1951, Skornik v. Skornik, dealt with the status in Israel of a civil, non-religious, marriage

between two Jews that had been contracted outside of Israel. The question arose of the

jurisdiction of the religious courts in the matter. Justice Witkon answered with direct reference to

Kelsen’s centralism:

If it be argued that the Jewish law is universal, the reply is that

every religious law, in its application in this country, flows from an
act of the secular legislator… – from the point of view of the basic
norm according to the theory of Kelsen – and derives its force
therefrom.55
As summarized by Itzhak Englard, himself a leading scholar of Kelsen who later became a

Supreme Court Justice of Israel, “the law of the state is a unitary and exclusive system. Thus

54
Quoted in: Warhaftig, Huqah le-Yisra'el: dat u-medinah, 130.
55
Skornik v Skornik C.A. 191/51. Piskei Din 8:179-180. Quoted in: Englard, Religious Law in the Israel Legal
System, 43.
 165

religious law has no normative validity unless and to the extent that it is recognized by state

law.”56

The same theme arose in many cases that were decided by the Supreme Court in the early years

of the state.57 For example, in a 1959 case dealing with a conflict between a husband and wife

over spousal support, the case turned on the extent to which legislation in the Knesset could

interfere with the application of rabbinical law in the rabbinical courts.58 Fundamentally, it was a

question of the extent to which the rabbinical courts were under the centralized authority of the

state’s sovereignty. Moshe Silberg, who happened to be an Orthodox Jew, argued that the

rabbinical courts maintained their independent authority within the area of their own jurisdiction.

“The secular legislature,” he claimed, “cannot annul a norm of the religious law because it is not

the source of the religious legislation.”59 He was the single dissenting opinion, however. The

other four judges ruled that the state may indeed interfere in the jurisdiction of her religious

courts because ultimately their authority flows from the state. As Justice Olshan, who wrote the

majority opinion, put it, “I find no basis for the claim that the secular legislator cannot annul a

religious law. In the absence of a constitution, the legislator is all powerful.”60

56
Ibid.
57
For a long list of similar cases, see: Asher Maoz, “Ha-rabanut u-vet ha-din: ben patish ha-hoq le-sadan ha-
halakha,” Shenton ha-mishpat ha-ivri 16-17 (1990-1): 33 ff.
58
Balaban v Balaban C.A. 313/59. Piskei Din 14:285.
59
Quoted in: Menachem Elon, Haqiqah datit (Tel Aviv: Ha-kibuts ha-dati, 1968), 39.
60
Quoted in: ibid., 40.
 166

A similar attitude was expressed in a Supreme Court case from 1964. The chief rabbinate

challenged the right of the court to hear an appeal to a rabbinical court decision. Justice Kister

responded as follows:

Religious functionaries [‫ ]כהני דת‬are permitted to administer of

religious worship freely. When speaking of the Jewish religion, a
rabbi is permitted to teach Torah and mitsvot and to answer
question in matters of religion without any impediment. But …
when they are acting as rabbis with the authority bestowed upon
them by the legislator, they are an arm of the government and are
open for supervision like other authorities of the state.61

There was, then, a distinct difference between the way that the Mandate authorities and the

Israeli government understood the legal structure of the state and particularly the basis for the

authority of the state’s religious courts. As with so many other post-colonial newly independent

nations in which national homogeny was a priority, legal pluralism gave way to a strict

centralism. It is important to note that there was almost no change in practice between the

administration of the law in the final years of the Mandate and the first years of the state. Under

the new state the religious courts continued to have jurisdiction over personal status law. The

difference, however, was in how the administration of the law was perceived. Whereas the

Mandate considered the various courts within the state to be operating autonomously and to have

their own sources of validity, the State of Israel considered all law to flow directly from its

centralized sovereignty. That has remained the case to the present day. Aharon Barak, a

particularly influential Supreme Court Justice in Israel, described Israel’s law thus:

Even the application of Torah law in the areas of marriage and

divorce among Jews derives from a secular law… Form the
standpoint of the State, the secular legislature is empowered to

61
Billett C.A. 291/74. Piskei Din 29(1):102. Quoted in: Yitshak Kohen, “Shiput rabani ve-shiput hiloni,” Diné
Israel 7 (1976).
 167

adopt a given set of religious law norms and to reject others. The
application of religious law derives, then, from its absorption by
the secular law. By the process of this absorption, the religious law
becomes a law with a secular source.62

When Herzog departed from the legal pluralism of pre-state Jewish thinkers and embraced a

halakhic version of legal centralism, he was following precisely the same path as many post-

colonial nationalists, Zionists among them. Indeed, he did not have to wait until his arrival in

Palestine to become acquainted with the importance of legal centralism to nationalist

independence movements. He learned this lesson while he was still serving in Ireland. Although

the Anglo-Irish Treaty of 1922 established the Irish Free State as a political entity, it remained

under the sovereignty of the British crown. Many Irish accepted this compromise but others

decried the submission to ultimate British control and a bloody civil war ensued. One of the

leaders of the so-called anti-Treatyites, who fought for total independence, was Éamon de

Valera. De Valera had been the first President of the Free Irish State and he left the Parliament in

protest when the treaty was signed in what he considered to be a betrayal of full Irish

independence. He could not accept a situation in which the Irish government still owed fealty to

another power so that total sovereignty did not reside in the state. After a year of civil war, he

finally supported a cease-fire and dedicated himself to fighting for independence through

legislative means. He became Prime Minister in 1932 and ushered Ireland to full independence

with a new constitution of the Republic of Ireland which was ratified in 1937.

62
Aharon Barak, “The Tradition and Culture of the Israel Legal System,” in European Legal Traditions and Israel,
ed. Alfredo Mordechai Rabello (Jerusalem: The Harry and Michael Sacher Institute for Legislative Research and
Comparative Law; The Hebrew University of Jerusalem, 1994), 474.
 168

Herzog had a close personal friendship with de Valera. They shared a love of mathematics and,

according to the memoirs of Herzog’s son Chaim (later President of the State of Israel,) de

Valera would frequently visit the Herzog home to “unburden his heart to my father.”63

According to one source, de Valera was hidden for a time in the Herzog home during the civil

war.64 The friendship was likely strengthened by the mutual interest of the two men in the

independence movements of their respective nations. Herzog, according to his son, was “an open

partisan of the Irish cause.”65 He even learned a little Irish in response to a friendly challenge of

de Valera.66 Herzog’s sympathy for the Irish cause was presumably enhanced because he

compared the Zionist movement with the struggle for Irish independence. His criticism of British

policy in Palestine, which he considered to be discriminatory against Jews, must have echoed the

Irish antipathy for British policy in Ireland.67 The comparison of Jewish and Irish independence

63
Chaim Herzog, Living History: A Memoir (New York: Pantheon Books, 1996), 12.
64
Ibid. Keogh, Jews in Twentieth Century Ireland: Refugees, Anti-Semitism and the Holocaust, 77.
65
Herzog, Living History: A Memoir, 12.
66
Keogh, Jews in Twentieth Century Ireland: Refugees, Anti-Semitism and the Holocaust, 77.
67
See, for example, the following newspaper report of Herzog’s criticism of the British Government during a
Sabbath sermon. The sermon was presumably a response to the Passfield White Paper, published a few days earlier,
which was anti-Zionist in tone, restricted Jewish immigration to Palestine, and was understood by many Zionists to
be an abrogation of promises made under the 1917 Balfour Declaration. This is one of the rare examples extant of
Herzog’s sermonizing in English. That, and the strength of his statements about Britain, make it worth quoting the
sermon at some length, as it was reported in the Irish press in “Dublin Rabbi's Protest,” Irish Independent, 27
October 1930:

Rev. Dr. Isaac Herzog, M.A., D.Litt., Chief Rabbi of the Jewish community in
the Free State, preaching at the Adelaide Rd., Dublin, Synagogue, on Saturday
morning, referred to the Palestine question, and condemned the British
Government’s recent statement of policy.
“We stand amazed,” he said. “How did it come about that the British
Government has dared to turn into a sham, into a farce, most solemn obligations
contracted towards an ancient, historic race of 17 millions; towards a race which
has given to the world religion and morality; towards a race which has outlived
all its tormentors and would-be destroyers, including the mightiest empires of
antiquity; towards a race which is now in the forefront of every sphere of
progress – humanitarian, industrial, scientific, literary and artistic?
“We refuse to believe that the British people are at one with the present
Government in this singular breach of faith. When the latent conscience of the
 169

was quite common in Ireland. Many Catholics in Ireland, for example, were strongly opposed to

the Peel Commission’s partition plan because it seemed to them akin to the division of Ireland

that had been forced upon them by the British and their supporters.68 Long after he had become

already chief rabbi of Palestine, Herzog continued to make this connection explicitly. In 1947,

according to a contemporary Irish newspaper,

In a recent conversation with a “high British personality,” who had

demanded the Jewish community’s co-operation in suppressing
disorders, he (Dr. Herzog) explained that this could only be done
by the Jewish people having their own Government, police and
army.
Dr. Herzog said he had reminded the British official of the history
of Ireland, and emphasized that the Irish people had refused to
become informers when asked to do so by the British Government.
“Britain did not enlist the co-operation of Ireland in the campaign
against terrorism until agreement was reached with the Irish nation,
after which the Irish people liquidated the terrorists,” Dr. Herzog
added.69

De Valera, for his part, seems to have sympathized with Herzog’s Zionism. In 1933 Herzog was

present when de Valera, then Prime Minister, received Norman Sokolow, the president of the

Jewish Agency and the World Zionist Organization. Sokolow asked de Valera “to use his

British public has been aroused to the true facts of the case, when it realises
what a travesty, what a parody, the present Government has made of the
Palestine Mandate, Englishmen throughout the Empire may yet proceed to echo
the great cry of sorely-disappointed Israel.
“But come what may, we shall never lose heart. Palestine is the land of Israel,
not by virtue of the Balfour Declaration, but by a Divine Declaration embodied
in the Book of Books. No power on earth can tear us away from our prophetic
cradle-land to which we are bound by ties innumerable, indissoluble.”
68
Eliash, The Harp and the Shield of David, 13-48, especially pp. 24-6.
69
Reuter Agence France-Presse, A.P., "Palestine Tensions Grow: Fortified Camps Erected by the British," Irish
Press, 7 February 1947. This comparison was not acceptable to all readers. A letter to the editor in response to the
article, from a London address, claimed that in fact the Jews in Palestine were more like Ulster Unionists and that
“the quarrel between British and Jewish Imperialism is simply an example of thieves falling out.” Reginald
Reynolds, “Palestine and Ireland,” Irish Press, 11 February 1947.
 170

influence with the League of Nations to secure a larger quota for Jews entering Palestine,

especially in view of the situation in Germany.”70 Reportedly, de Valera “promised to do his

best.” 71 His connection with Zionism continued even after Herzog’s departure to take up office

in Palestine. In 1950, de Valera visited Ben Gurion in Israel and he remained close with the

Herzog family for decades.72

This relationship with de Valera makes it easy to understand why the Irish Prime Minister

consulted Herzog as he was writing a new constitution for Ireland, which was the culmination of

de Valera’s long struggle to achieve full independence through political and legal means. In the

few months before Herzog’s departure for Palestine, de Valera conferred with Herzog about the

70
“Dr. Sokolow Received by Mr. de Valera,” Irish Press, May 19 1933.
71
Ibid.
72
Keogh, Jews in Twentieth Century Ireland: Refugees, Anti-Semitism and the Holocaust, 91. De Valera’s
connection with both Isaac Herzog and with Zionism, is reflected in a more recent account of Isaac Cohen, one of
Herzog’s successors as Chief Rabbi of Ireland:

During his years with the Irish Volunteers, [de Valera] developed a warm
mutual friendship with a predecessor of mine, Rabbi Dr. Isaac Herzog, whom he
visited in the Chief Rabbi’s residence in Dublin’s South Circular Road.
He mentioned a number of times that he greatly admired the new-born state of
Israel and welcomed its liberation from British control. He was particularly
impressed by the successful revival of Hebrew as the daily spoken language in
Israel.
President de Valera was deeply moved when I brought him a sapling of a fir tree
in 1973 from Eamon de Valera Forest which the Irish Jewish community had
planted in Cana near Nazareth in his honour. When the Israeli forestry
department sent him three trees growing in the forest he was happy to plant them
himself in the grounds of Aras an Uachtaráin [the residence of the Irish
President] so as to have a part of the Holy Land near his home.
…When the United Nations urged Israel to withdraw from extensive parts of the
liberated areas of Palestine he said that if he had still been President of the
League of Nations he would have seen to it that Israel did not give up any of the
territory that it had regained after the Arab attack resulting in the Six Day War
in 1967. Isaac Cohen, “De Valera's Wartime Condolences,” The Irish Times, 29
March 2005.
 171

constitution, particularly its clause concerning minority religions in Ireland.73 Herzog’s

experiences in Ireland, then, brought him into intimate contact with an independence movement

that fought for years for a constitution that centralized all sovereign authority in the new state.

His association of Irish and Jewish independence helps us further to understand his absolute

insistence of a fully centralized legal regime for Israel and the fact that he would not tolerate the

existence of different jurisdictions, with different sources of legal authority in his vision of a

constitution.

Herzog’s intellectual context, then, provides crucial background to his own constitutional

writings. Like many secular Zionsts and nationalists from Turkey, Africa, India and elsewhere,

Herzog received his general and legal education in Europe and like them, his constitutional ideas

were based squarely on the model of positivist and centralist constitutions of Europe. With this

context in mind, his Constitution for Israel can be understood in greater depth.

Theocracy and Nomocracy: The Structure of the Jewish Constitution

This chapter opened with Herzog’s description of his proposed constitution as “theocratic-

democratic.” Indeed, the entire project of Constitution for the State was intended “to solve the

problem of the harmonization of a government of Torah which is democratic.”74 Herzog’s first

challenge was to address the question of terminology. “Theocracy” was not a popular term as it
73
Keogh, Jews in Twentieth Century Ireland: Refugees, Anti-Semitism and the Holocaust, 110. Keogh notes that the
official documents do not mention Herzog as a participant. On the basis of an oral interview, however, he maintains
that Herzog was consulted about the constitutional clause relating to minorities in Ireland.
74
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 2.
 172

conjured up images of a state ruled by religious functionaries.75 Herzog made it clear that he was

not recommending the rule of priests but the rule of law. For him, however, this law was

halakha. According to this definition, he was unapologetic about his commitment to theocracy:

Is it necessary for the Jewish state which recognizes the decisive

rule of the Torah to be a theocracy? The answer is clear and
simple: Yes and yes! …[The] Torah includes within it the
foundation of foundations. That is to say the general principles of
the constitution, and the law in its general principles and to a
known degree, in details.76
If, Herzog argued, a Muslim state can be run according to Muslim law, why should a Jewish

state not be run according to Jewish law?

Say what you will! Say that this is a theocracy! Look at Saudi
Arabia! You all recognize it and you all run after it because of its
oil. Yet it maintains a government, police force and legal system
which is absolutely theocratic.77

This was not the only occasion on which Herzog appealed to other states in search of a precedent

for his own constitution. On one occasion, grappling with what it would mean to impose halakha

on all citizens in the Jewish state, including Gentiles, he wrote that “it would be appropriate to

check the situation in the Far East in places under the higher government of European powers

75
Other religious Zionists were also wary of this term. Making reference to the Josephus, who coined the term in
Contra Apionem 2.16, Shimon Federbusch wrote at some length about how “theocracy” means simply a state under
the law of God rather than a “hierocracy” which is a state run by the priesthood (or in the case of Israel, the
rabbinate.) Federbusch, Mishpat ha-melukhah be-Yisra'el, Chapter 1. The negative connotations of “theocracy”
persisted in Israeli society. Some continued to argue that halakha is anti-political at its core and is inherently and
necessarily incommensurate with democracy. See: Gershon Weiler, Jewish Theocracy (Leiden; New York: Brill,
1988). More nuanced treatments take issue with this position. See especially: Aviezer Ravitzky, “Is a Halakhic State
Possible? The Paradox of Jewish Theocracy,” Israel Affairs 11, no. 1 (2005); Eliezer Goldman, “Hoq Ha-Medinah
Veha-Halakhah - Ha-Omnam Setirah?,” in Mahshavot 'Al Demokratiah Yehudit, ed. Aviezer Ravitzky (Jerusalem:
The Israel Democracy Institute, 2010).
76
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 3.
77
Ibid., 2.
 173

and to determine the custom in Egypt and in similar countries.”78 It is also possible that Herzog

had the Irish constitution in mind. There is no direct evidence that Herzog considered the Irish

constitution as a useful precedent but given his familiarity with Irish politics and his own

associations between Irish nationalism and Zionism, he may well imagined Ireland’s 1937

constitution, the work of de Valera, as a model for his own constitution.79

The Irish constitution would have been a particularly useful precedent because it was a

democratic constitution that made special recognition of the Catholic faith. The preamble of the

Irish constitution made special mention of the Christian character of Ireland:

In the Name of the Most Holy Trinity, from Whom is all authority
and to Whom, as our final end, all actions both of men and States
must be referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord,
Jesus Christ, Who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to
regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of
Prudence, Justice and Charity, so that the dignity and freedom of
the individual may be assured, true social order attained, the unity
of our country restored, and concord established with other
nations,
Do hereby adopt, enact, and give to ourselves this Constitution.80
Christian doctrine was not limited to the preamble; it also had an impact on its substantive law.

The constitution provided for freedom of conscience, outlawed discrimination on the basis of

78
Herzog, “Ha-tehiqah,” 206.
79
It is interesting to note that Leo Kohn, whose draft constitution formed the basis for the discussions of the
constitutional committee of the Jewish Agency, headed by Zerah Warhaftig, himself received his doctorate in law
from the University of Heidelberg. His dissertation was a study of the constitution of the Irish Free State. He was
subsequently consulted in the drafting of the 1937 constitution of Ireland. Certainly, his study of Ireland played a
role in his own constitutional thinking for Israel, although he also studied many other constitutions as part of that
process. On Kohn, see: Amihai Radzyner, “A Constitution for Israel: The Design of the Leo Kohn Proposal, 1948,”
Israel Studies 15, no. 1 (2010).
80
“Constitution of Ireland,” (1937), Preamble.
 174

religion and recognized minority religious communities.81 However, it also recognized “the

special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith

professed by the great majority of the citizens.”82 It also gave a special reverence not only to

Catholic identity as a national heritage but as a state-endorsed value.

The State acknowledges that the homage of public worship is due

to Almighty God. It shall hold His Name in reverence, and shall
respect and honour religion.83
Indeed, under the constitution, divorce was impossible in Ireland: “No law shall be enacted

providing for the grant of a dissolution of marriage.”84

Having established the precedent of contemporary constitutions in which religion played a

central role, Herzog continued with an extended analysis of the Jewish precedents for the kind of

constitution he imagined. Once again, his centralist and positivist re-interpretation of the Jewish

tradition came to the fore. Towards the beginning of his Constitution for the State, he issued the

following disclaimer:

I will not deal here with history. My aim is not to give any sort of
picture of the Jewish state as it was in actual practice in earlier
days… I am dealing here not with past reality but with theory, that
is to say with the question of how the state should come into being
and exist according to our authoritative sources of halakha.85
With this statement, Herzog made clear that his discussion of Jewish constitutional theory was to

be not historical but analytical. This approach in itself was consistent with legal positivism

81
Ibid., Art. 44.1.
82
“Constitution of Ireland,” (1937), Art. 44.1.
83
Ibid.
84
Ibid., Art. 41.3. This remained the law in Ireland until the fifteenth amendment to the constitution in 1995 allowed
divorce, with certain fairly restrictive conditions.
85
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 3-4.
 175

which, as we have seen, focuses on describing the law as it is, not as it has come to be or how it

should be.86 Herzog continued:

From this perspective the form of the state is a theocratic

monarchy. At the head of the state stands a king. He himself is
placed under the sovereignty [‫ ]שלטון‬of the Torah, just like the king
of a democratic state is placed under the authority of the
constitution and the law. He has, it is true, broader powers than
such a king, but they themselves derive from the divine
constitution, from the Torah.87
This passage is deeply significant. As we saw in chapter 2, the “king’s law” was the cornerstone

of religious Zionist legal pluralism from Kook onwards who imagined the political powers of the

king, which ran parallel to the halakha, as a precedent for the political authority of the state.

Herzog sharply diverged from this approach. Immediately after mentioning the monarchy, he

undermined its significance. Certainly, he acknowledged, the traditional Jewish constitutional

arrangement includes a king but the king is not the most significant component of state power.

True, the king stands “at the head of the state,” but he is nevertheless subordinate to the ultimate

sovereignty in the state which is the “sovereignty of the Torah.” For Herzog, then, the king and

his legal regime is not parallel to halakha, as medieval scholars like the Ran, religious Zionists

like Goren, Federbusch and others had maintained, but subordinate to it. There is but one

centralized system of law deriving from a single sovereign constitution, the divine Torah.

Herzog also drew a parallel in this passage between the Jewish constitution as he imagined it and

contemporary constitutional monarchies:

86
“It is also thought to follow from the positivist obsession with the “is” that they distinguish between formal
analysis on the one hand, and historical and functional analysis on the other.” Dias, Jurisprudence, 453.
87
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 4.
 176

He [the king] himself is placed under the sovereignty [‫ ]שלטון‬of the

Torah, just like the king of a democratic state is placed under the
authority of the constitution and the law.88
By making this analogy, Herzog enhanced the legitimacy of his Jewish constitution by

associating it with the constitutional model of many European states, not least the United

Kingdom. This move is familiar to us from his earlier writings in which he strove to legitimate

Jewish law in the eyes of Gentile critics by demonstrating its similarity to systems of law that

were widely accepted as the most advanced and civil in the world.

Herzog enhanced his description of the Jewish constitution as a centralized hierarchy beneath a

sovereign law in a 1953 article. In Constitution for the State, Herzog had characterized the

constitution he had in mind for Israel as a democratic-theocratic “hyphenation.” In his 1953

article Herzog alighted on a more felicitous term for the kind of state he had in mind: he called it

a “nomocracy.”

The Israelite state, according to its traditional structure, is neither a

complete theocracy nor a complete democracy, but a nomocracy.89

88
Ibid.
89
Herzog, “ha-medina ha-Yisraelit,” 11. Herzog was not the first to use the term “nomocracy.” It seems, however,
that the word was first used to describe the ancient Jewish polity. The Oxford English Dictionary cites the earliest
use of the word in print as the 1829 The History of the Jews by the English priest, Henry Hart Milman. I have no
evidence that Herzog had read the book, but it was still in print during his lifetime and it seems reasonable that
Herzog would have encountered a popular English work about the Jews. Indeed, Milman’s description of
“nomocracy” is reminiscent of Herzog’s:

If God was not the sovereign of the Jewish state, the Law was: the best, and only
safe, vicegerent of Almighty Providence, to which the welfare of human
communities can be entrusted. If the Hebrew commonwealth was not a
theocracy, it was a nomocracy. (Henry Hart Milman, The History of the Jews:
From the Earliest Period Down To Modern Times, 5 ed., 3 vols., vol. 1
(London: J. Murray, 1883), 215-6.)

Notably, the term also occurs in a 1901 work by Oscar Straus (1850-1926), who to become the first Jewish United
States Cabinet Secretary, serving as the Secretary of Commerce and Labor under President Theodore Roosevelt.
Straus sought to trace the origins of the republican form of government in the United States to “the direct and
indirect influence of the Hebrew Commonwealth.” He wrote:
 177

Herzog spelt out his understanding of the term:

It is really more accurate to say that the state in Israel should be a

nomocracy than a theocracy, that is, a rule of law. But not the rule
of any law; the rule of the divine law, the heavenly Torah.90
Under this Jewish nomocracy, there is a king, but the king, like that in a constitutional monarchy,

is not the real sovereign. He is subordinate to the true sovereign, which is the law. His only

authority derives from that sovereign law: “The king rules by power of the Torah.”91

If the king does not represent the sovereign authority of the state, who does? Already in his

Constitution for the State, before he had adopted the term “nomocracy,” Herzog hinted at an

answer:

What is a theocracy? It is a word made up of two Greek works:

theos, God, and kratia, government. That is to say, a state whose
constitution and laws, at least in the main, declare themselves to be
from a supernatural, superhuman source. This does not mean that
the term applies only a state that has no place for the human factor
to be expressed. … [But] what is clear is that that term is only
fitting for a state in which the human factor in the context of
constitution is expressed only within a known framework of a
superhuman edict and according to authority it derives from that
edict.92

This [ancient Jewish] government, from the fact that God, the source of all
power, the embodiment of the law, and not a king, was ruler of the nation, is
termed by various writers a Theocracy, or Nomocracy (from nomos, meaning
law), or a Commonwealth. (Oscar S. Straus, The Origin of Republican Form of
Government In the United States of America (New York; London: G.P.
Putnam's Sons, 1901), vi, 108.)

Like Herzog, Straus used the term “nomocracy” favorably to associate the ancient Jewish constitution with that of a
modern state.
90
Herzog, “ha-medina ha-Yisraelit,” 8.
91
Ibid.
92
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 3.
 178

With this formulation, Herzog further distanced Jewish law from the irrational and ritualistic

religious laws imagined by proponents of the evolutionary theory of law by emphasizing that the

law, while divine in origin, is interpreted by human beings. As long as the “human factor”

operates within the structure of the law and according to its procedural rules, it acquires the

authority of the divine law itself. In the 1953 article, Herzog made it clear that the institutional

body that wields the power to interpret and develop the law with its divine framework is the

Sanhedrin. As it is the representative institution of the sovereign law, the Sanhedrin is the

ultimate constitutional authority:

The principle supreme power [‫ ]הכח העיקרי העליון‬is that of the

court which is the Great Sanhedrin.93

Herzog’s understanding of the Sanhedrin enhanced the association of the Jewish constitution

with the law of the modern state. According to Herzog’s description, the one significant

difference between the sovereignty of Israel and that of the modern European state was that the

ultimate sovereign authority in the former was the divine revelation and in the latter the will of

the people. Just as in the modern state the sovereign was represented by Parliament, in Israel it

was represented by the Sanhedrin, the Great Rabbinical Court. That is why the Sanhedrin was,

for Herzog, the “supreme power” in the state. On several occasions, Herzog explicitly compared

the Sanhedrin with a parliament. In his notes to Leo Kohn’s draft constitution, he remarked that

“the role of the parliament was filled by the Great Sanhedrin in no small way.”94 Elsewhere,

referring to the Men of the Great Assembly, which in rabbinical literature is often considered the

precursor to the Sanhedrin, Herzog wrote:

93
Herzog, “ha-medina ha-Yisraelit,” 8.
94
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 3, 28.
 179

In the early Second Temple period there was for a certain time
another higher institution at the highest level by the name of the
Great Assembly. … This was a public body made up of the great
men of the nation which accepted upon itself the important role of
implementing the sovereignty of the Torah in Israel, and raising
the morals of the people. This was a kind of legislative parliament
[‫]פרלמנט מחוקק‬, enacting laws according to the procedures set up
by the written and transmitted Torah; a parliament, only not in the
modern sense.95

This is a description of the constitution of Israel which self-consciously and explicitly mirrored

the positivist jurisprudence that in Herzog’s lifetime dominated both European and Anglo-

American legal scholarship. The entire state is under the rule of law, a single centralized

hierarchy in which all legal authority derives from the sovereign. The king of Israel, like the

kings of constitutional democratic monarchies, or the executive powers of republican

governments, was entirely dependent on and subordinate to that sovereign authority.

Furthermore, the constitution appoints a body whose task is to interpret old laws and create new

ones. In the modern state, this role is taken by the parliament; in the Israelite state by the

Sanhedrin.

Women and Gentiles

Having laid the basis for the structure of his constitution, Herzog went on to address the potential

conflicts between halakha and democracy. As shown above, he was eager to present solutions to

these conflicts that did not depend on halakhic concepts like “preservation of life” but rather

arose from a more natural application of halakha. He conceded that according to halakha, all

95
Ibid., 289.
 180

judges would ideally be religious Jewish men who were intimately familiar with the law of the

Torah. The circumstances, however, were not ideal and so Herzog proposed, begrudgingly, that

there would be “two legal authorities” in the state, one called “rabbinical” and the other “state”

[‫]ממשלתי‬.96 The rabbinical courts would have jurisdiction over personal status law as they had

under the British Mandate and the state courts would judge civil matters.97

According to this overview, Herzog’s proposal sounds similar to Gorontchik’s pluralist system

of rabbinical and state courts, each with its own laws and its own judges. The similarity,

however, is illusory. The continuation of Herzog’s proposal made it clear that it was not

pluralistic at all. For Herzog, the state courts, dealing with civil law, would also have to apply

halakha: “Torah law is also the legal code of these courts.”98 Indeed, in certain circumstances

Herzog thought that these state courts should prosecute people even for religious crimes like the

public desecration of Shabbat and sins of sexual immorality.99 Furthermore, the state courts

would have to be constituted according to the judicial procedures outlined in halakha. Every

court would have to have three judges, the minimum size of a religious court. The judges would

ideally all be pious Jews, or at least Jews with a basic respect for the tradition, if not Orthodox in

all respects:

96
Ibid., 1: 25.
97
More accurately, Herzog wanted the jurisdiction of the rabbinical laws to be expanded so that they would have
exclusive jurisdiction of all cases in their remit. Under the mandate, they had exclusive jurisdiction over certain
kinds of law and concurrent jurisdiction over others. Rabbinical courts under the Mandate had, in fact, a narrower
jurisdiction than the Muslim religious courts because of the heritage of the Ottoman legal system. The fact that this
difference between Muslim and Jewish courts was in fact preserved in the early years of the State of Israel, which
was a source of great disappointment to the rabbis. See, for example: ibid., 26, 239-42. On the jurisdictions of the
different religious courts in the early years of the state, see: Moshe Chigier, “The Rabbinical Courts in the State of
Israel,” Israel Law Review 2, no. 2 (1967).
98
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 26.
99
Ibid.
 181

We have to insist with all strength that only Jews who, at least, are
not known to transgress the Shabbat or eat non-kosher food in
public will be eligible to be appointed. [Judges in the state courts]
cannot be Jews who cause pain and strife in the heart of the
believing community and the Judaism of Torah and mitzvot, even
if they don’t fill the requirement of being God-fearing in the
context of the ritual commandments.100

In other words, even Herzog’s “state courts” are halakhic courts in both substance and procedure.

This is quite different from Gorontchik’s model in which halakha had no role in the

governmental courts. In Herzog’s model, all courts would judge according to halakha but

different courts would have jurisdiction over different areas of law in much the same way as

European states have different courts for, say, family law and civil law. Jjudges in the family

courts, because of the complicated nature of family law and its critical importance for religious

integrity, would have to meet higher qualifications of religious commitment and halakhic

knowledge than the criminal and civil courts. All courts, however, would be governed by the

basic substance and procedure demanded by halakha.

Herzog realized, though, that this system could never be implemented. The exclusion of women

and non-Orthodox men, not to mention Gentiles, from the judiciary would arouse “the opposition

of large sectors of the public on the basis of the principle of the personal freedom of religion.”101

Herzog considered offering Israeli Arabs their own courts where they could judge themselves by

their own rules, “two jurisdictions and two laws, for Jews as appropriate for them and for Arabs

as appropriate for them.”102 This would avoid the halakhically problematic situation of a Gentile

100
Ibid., 25.
101
Ibid.
102
Ibid., 28.
 182

judging a Jew in a court run according to the Torah. But Herzog knew well that this position

would not have been accepted:

This divisive approach in the realm of jurisdiction and law will not
receive the support of the decisive majority. They will say that a
distinction to such an extent cannot be maintained … and that this
is not the way to arrive at peace and serious, free, political unity.103
Therefore, Herzog had to devise more far-reaching solutions. He was not willing to compromise

on his position that all courts in the state would have to judge by halakha. He had, though, to

devise a way to allow non-religious, female and Gentile judges to sit on those courts.

“Partnership” and “Acceptance”

Herzog’s first suggestion was to avoid the question altogether. The prohibitions against

appointing Gentiles to positions of power applies only to positions with formal political-legal

authority. Gentiles may, however, be business partners with Jews. Herzog mooted a proposal that

sidelined the entire question of the prohibition of Gentiles holding positions of authority by

altering the entire perception of the state. If the state were not conceptualized as a political entity,

but as a civil partnership, then anyone, including Gentiles, women and non-Orthodox Jews,

would have equal status. This proposal required Herzog to give an inventive reading of the state:

Surely the foundation of the state itself is a kind of [civil]

partnership. Does this state have the law of the kingdom of Israel
in the same way as the kingdom of Israel in the days of David and
Solomon…? That is something else. In reality, this is a partnership
between the people of Israel and the Gentile people according to
conditions that guarantee the first partner [i.e. the Jews] a certain
degree of control. The question, then, can only be whether we are
permitted to make a partnership of this kind.104

103
Ibid.
104
Ibid., 20.
 183

Herzog proceeded to examine a number of pertinent sources before concluding that it is indeed

permitted for the people of Israel to forge agreements with other nations in circumstances like

this one. In this case, in fact, it would be certainly acceptable, because “it is for the good of our

existence.”105

Herzog was not satisfied with this approach, however. He did not give a reason for this, but two

possibilities suggest themselves. First, the “partnership” approach eviscerates not only the

political but also the theological significance of the Jewish state. The miraculous events of 1948,

to which Herzog himself ascribed the messianic description of “the first flowering of our

redemption,” could surely not be reduced to an innovative kind of business partnership.106

Second, the proposal was simply not very convincing. Herzog’s description of the state as civil

partnership could more or less apply to any state. Taken to its logical conclusion this position

could entirely eliminate the category of the political from Jewish thought. In any case, for

whatever the reason, Herzog dedicated only two paragraphs to this proposal before putting it to

one side and returning to his consideration of the halakhic ramifications of appointing Gentiles

and women to positions of authority in the context of a state proper.

The first halakhic obstacle to address was the prohibition of serara, “lordship” or “authority.”

According to many halakhic authorities, it is not permitted for Jews to appoint Gentiles to any
105
Ibid., 21. Herzog considered here the possible difference between forging an agreement with Muslims and
Christians, whom he did not categorize as idolaters, and others like “Indians, Chinese and Japanese.” He concluded
that there would be no difference with regards to this kind of “partnership” and noted that he was not even sure that
those nations are really idolatrous as “I have not properly studied their religions and their modes of worship.”
106
This is the description given in the official Prayer for the State of Israel produced by the Chief Rabbinate.
Notwithstanding certain claims that S. Y. Agnon contributed to the prayer, Herzog was its primary author. See:
Yo'el Rafel, “Zehuto shel mehaber ha-tefilah li-shlom ha-medinah,” in Masu'ah Le-Yitzhak, ed. Shulamit Eliash,
Itamar Warhaftig, and Uri Desberg (Jerusalem: Yad ha-rav Herzog; mekhon ha-entsiklopediah ha-talmudit; mekhon
ha-talmud ha-yisra'eli ha-shalem, 2008).
 184

position of authority (not only the judiciary) over Jews. The prohibition is based on an

extrapolation from the biblical passage about the appointment of a king who has to be “from

among your brethren” and not from among the Gentiles.107 According to the classical

formulation of this principle by Maimonides, the teaching regarding the appointment of the king

extends to all other positions of authority:

This applies not only to the monarchy but to all positions of

authority [serara] among Israel… All appointments that you make
must only be from among your brethren.108

Herzog circumvented Maimonides’ ruling by noting that it is based on a verse about the

appointment of a king. Perhaps, then, suggested Herzog, the ruling applies only to positions of

authority that are akin to monarchy. Kings are appointed for life and they transmit their political

authority to their heirs. Appointments in a democracy generally have a fixed term and are not

inherited. Furthermore, he argued, a king rules over subjects who do not necessarily want his

rule. In a democracy, by contrast, elected officials are not imposed on the population, but are

appointed by the very people over whom they have authority. These differences between a king

and democratically elected officials, argued Herzog, may mean that Maimonides’ restrictions to

political appointments do not apply in the context of the democratic state.109

This innovative hermeneutics dealt with the general problem of political appointments of

Gentiles. A further step, however, was required to justify Gentiles occupying the judicial bench

and judging Jews by Jewish law. The halakhic mechanism he suggested for this purpose was that

107
Deuteronomy 17:15
108
Maimonides, Hilkhot melakhim 1:4
109
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 23, 44-45.
 185

of “acceptance” [‫]קבלה‬. If a judge or witness is accepted by the parties in a civil suit, or by the

defendant in a criminal suit, then they are allowed to take up those roles even if they do not meet

the normal qualifications for them.110 This method could, Herzog suggested, allow even Gentiles

or women to take up the position of judge on the basis of the formal acceptance of all relevant

parties. It would, however, be an inadequate solution, and might lead to chaos, if at the start of

every case the parties needed to accept or reject the judge or witnesses. It would hardly make for

a robust legal system if any party in a case could simply dispute the authority of the judge.

Herzog therefore proposed that there could be a one-off “acceptance” of each judge, on behalf of

all the residents of the state, by a binding act of the elected government. He suggested that

because the people choose their representatives, those representatives may formally accept on

their behalf all judges and witnesses in the state’s courts:

The community in its entirety elects a legislative assembly [‫אסופה‬

‫ ]מחוקקת‬and this assembly through the strength of this election
will decree that it accepts in the name of the entire community
witnesses and judges who are unqualified by the law of the Torah
and the sages.111

This suggestion is radical for several reasons. Most of all, there is simply no precedent for it at

all. Herzog admitted much: “We have apparently not found an “acceptance” of this kind

explicitly in the commentators.”112 The alternative, however, was unthinkable. Without this

accommodation, halakha would be rejected wholesale as the legal system of the state. Herzog

110
The details of this method go beyond the scope of this chapter. Suffice it to say that there is much discussion
about the efficacy of this method in the halakhic literature. See: Bar-Ilan and Zevin, Entsiklopedia Talmudit.Vol. 3
pp.168-9
111
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 41.
112
Ibid.
 186

felt that the only way for it to have a chance of acceptance was for this, albeit radical, mechanism

of “acceptance” to be employed.

The upshot, then, was a proposal of a judicial system in which some courts, those concerned with

family law most of all, would be reserved for religiously-trained rabbis and the other state courts

would accept judges and witnesses of any kind. Both courts, however, would be part of the same

hierarchy and would be considered Torah courts, ruling according to the substance and procedure

of halakha:

Let the official law book for the entire population, “for the
stranger as for the sojourner in the land”, be Torah law.113
Clearly, this system is quite unlike that of Gorontchik. Herzog indicated this even in the names

that he gave to the different courts. Gorontchik had called the two courts in his system

“rabbinical Torah courts” [using the tradition term ‫ ]בתי דין רבניים‬on the one hand and “courts of

law” [using the modern secular term ‫ ]בתי משפט‬on the other. This emphasized the fact that they

each ruled according to a different source of law and legal authority. Herzog, by contrast called

both courts by the traditional name [‫ ]בתי דין‬and distinguished them by calling the family courts

“rabbinical” [‫ ]בתי דין רבניים‬and the others “state” [‫]בתי דין ממשלתיים‬.

Herzog in Context

In chapter 2, I noted that the most religious Zionists who proposed constitutional arrangements

for the Jewish state before 1948 suggested models that were, at their core, legally pluralistic.

They relied on Jewish legal mechanisms like “king’s law” and modeled themselves on the

113
Ibid., 28.
 187

thinking of medieval scholars like the Ran who conceived of the Jewish polity as incorporating a

number of parallel systems of law which, although they all were under the authority of God, each

had their own source of authority and had distinct rules and procedures. Herzog, though,

departed from this line of thinking and sharply opposed the notion that the Jewish constitution

might accommodate multiple legal systems. The Jewish state, he argued, had to be a centralized,

all-encompassing regime with a single legal hierarchy that incorporated all valid law in the state.

Anything else, argued Herzog, was inconceivable. This raised the question: why did Herzog take

such strong exception to a model for the Jewish state that drew firmly on pre-modern precedent,

that provided reasonable solutions to the challenges of having a religious democratic state, and

that garnered so much support from within the religious Zionist community?

I have tried to answer that question through an extended analysis of Herzog’s writings on law

from his time in Ireland to his time as Chief Rabbi of Israel. I placed those writings within the

wider context of European intellectual discourse, which celebrated centralism and positivism and

looked down upon religious law and the pluralistic legal models of colonial societies. I have

shown that Herzog was particularly sensitive to this intellectual climate. He was aware that legal

positivists would be predisposed to viewing Jewish law, which was, after all, ancient, ritualistic

and de-centralized, as the epitome of un-evolved law. Herzog lamented this critique of halakha,

which was for him the word of God and the greatest law of all. Furthermore, Herzog he knew

that halakha would only have a chance of being made into the law of a new Jewish state if it was

viewed as the equal of modern European law. He therefore took great pains to describe Jewish

law in positivist terms, rejecting the legal pluralism of many of his religious Zionist colleagues

and taking every opportunity to demonstrate parallels between the ancient Jewish constitution, as
 188

he portrayed it, and the constitutions of modern Europe. He did this even though it required him

to make substantial accommodations in his halakhic reasoning.

Herzog’s emphasis on centralism and positivism fits perfectly into the pattern of legal

development in other post-colonial independence movements. In establishing their own

independent state, Zionists, like other nationalists, insisted on a European-style centralized legal

regime. This placed them on a par with the European states from which they claimed

independence and also supported the goal of national cohesion in the new state. Herzog’s

rejection of pluralism in favor of centralism correlates well with the same shift made by secular

Zionist jurists in the early years of the state.

The fact that Herzog’s constitutional thinking had so many resonances with general Zionist

jurisprudence perhaps explains the speed with which it rose to dominate pluralistic thinking in

the religious Zionist camp. Within a few years after the establishment of the State of Israel, legal

centralism and positivism became defining features of the legislative goals of the religious

Zionist leadership as well as the institutionalization and bureaucratization of the chief rabbinate

and the rabbinical courts. The next chapters recount this development.
 189

5. The Imperialism of the Chief Rabbinate

The rabbinical courts need to be as imperialistic as possible and

must not give up on their authority.
- Zerah Warhaftig

Despite the prevalence of legal pluralism before the late 1940s, from the time that the state was

established the legal centralism of Herzog and others came to dominate. Ultimately, religious

Zionists had virtually no real input into the actual constitutional arrangement of the new state.

Their legal philosophy, however, continued to have significant effects on the way that they

related to it. It shaped the legislative proposals emerging from the highest levels of the Mizrahi

party and often resulted in an antagonistic attitude to the state’s institutions, particularly the

judiciary and the legislature. Following Herzog’s centralist doctrine, religious Zionists worked

hard to get the Torah to determine the nature of Israel’s constitution. Their categorical failure in

this regard did not lead them to rethink their centralist philosophy; it merely forced them into an

ideological battle to acquire as much control as possible over the state’s legal machinery.

Civil Legislation

As discussed in chapter 2, one of the main motivations for the legal pluralism of both medieval

thinkers like the Ran and modern thinkers like Gorontchik was the inability of halakha to

establish social order. This led them to advocate a dual legal system in which the state’s civil and

criminal courts would be able to fill the gaps in the halakha. Centralists of Herzog’s school,
 190

however, demanded a single halakhic legal system that would govern all realms of the state. To

have any chance of fulfilling their vision, therefore, Herzog and his followers had to formulate a

halakhic code that would be competent to govern all spheres of Israeli law. Because Israeli

judges would be drawn from the entire population, not only those with rabbinical training, the

code also had to be understandable even to people with no experience of halakha. To this end,

the early years of the state witnessed a concerted effort on the part of a group of rabbis to

produce a halakhic civil and criminal code. Their work bore unmistakable traces of European

positivism, especially of the German style of legal codification, which reinforces the impression

of the ascendancy of centralist jurisprudence among religious Zionists as well as the close

relationship between the religious Zionist attitude to law and general European legal discourse.

In 1948, one of the most important and influential religious Zionist leaders was Rabbi Meir Bar-

Ilan (1880-1949). Born Meir Berlin in Volozhin to a preeminent rabbinical family, he received an

extensive yeshiva education. His father was Rabbi Naftali Zvi Yehuda Berlin (widely known by

his acronym, Netziv,) head of the Volozhin Yeshiva, who was revered by generations of rabbis.

After receiving a religious education, Meir Berlin attended the University of Berlin. It was in

Germany that he became a member of the Mizrahi party and later the secretary of the world

Mizrahi movement. After his move to Jerusalem in 1926, he became the president of the Center

of World Mizrahi and in that office, which he held until his death, he was one of the senior

religious representatives of the Yishuv. He is today perhaps best known for spearheading the

monumental Talmudic Encyclopaedia, a work which has reached its thirtieth volume and

continues to grow, which comprises exhaustive essays on Talmudic legal principles and
 191

categories.1 In 1948, Bar-Ilan was the grandfather of religious Zionism, a deeply authoritative

voice who was connected to the roots of Zionism and also to the religious establishment of pre-

war Europe.

Given his deep investment in religious Zionism, Bar-Ilan had naturally given thought to the

relationship between politics and Judaism. As early as 1922, he made the claim that the Jewish

tradition knows of no separation between church and state.2 Like other Zionists, however, both

religious and secular, he allowed these thoughts to remain in the abstract for decades. It was not

until 1948 that he outlined a detailed position on what a modern Jewish state might look like in

practice. In the immediate aftermath of the Declaration of Independence, only months before his

death, he published an article called “Law and Justice in our State.” 3 It was originally a

memorandum circulated around a number of like-minded rabbinical scholars and was later

reprinted in Yavneh, a journal of religious Zionism that had recently been founded. At the time

Herzog’s work had not yet been published or widely shared, so this was the one of the first and

most detailed treatments of the role of halakha in the laws of the state in this period. Because of

Bar-Ilan’s seniority, authority and scholarship, it became an important touchstone of religious

Zionist thought and policy.

The article began with Bar-Ilan stating outright that he believed that the all areas of law in the

1
See Bar-Ilan’s bibliography: Meir Bar-Ilan, Mi-Volozhin ad Yerushalayim (Tel-Aviv: Yalkut, 1939). For the
methodology and impact of the encyclopaedia, see: Yehoshua Hutner, “Ha-rav Meir Berlin ve-’entsiklopedia
talmudit’,” Ha-Darom 49 (5740=1980).
2
Hertzberg, The Zionist Idea: A Historical Analysis and Reader, 550.
3
Meir Bar-Ilan, “Hoq u-mishpat be-medinatenu,” Yavneh: kovetz akademai dati 3 (1949). Republished as: Meir
Bar-Ilan, “Hoq u-mishpat be-medinatenu,” in Ha-mishpat ha-ivri u-medinat Yisra'el, ed. Yaakov Bazak (Jerusalem:
Mosad ha-rav Kook, 1969). Page numbers refer to the latter publication.
 192

Jewish state, including civil law, should be governed by halakha. “Foreign” law has no place in

the Jewish state:

We are obliged to … arrange statutes and laws, not just in matters

of religious ritual [‫ ]איסור והיתר‬but also in matters of civil law
[‫]חיוב ופטור‬, by which we will live and by which we will judge in
our independent and sovereign state.4
He conceded that there were serious obstacles to this goal. Like Herzog, he recognized that

reform was required to allow full participation of women and Gentiles in the institutions of state.

Without this, he recognized, halakha would certainly not be adopted by the majority of citizens,

in which case “the whole shape of social life in our state will be neither by our spirit, nor

according to our outlook.”5 He also acknowledged that Jewish law, particularly criminal law, fell

short of what the modern state required. He readily admitted that for two millennia Jewish

communities had not generally been responsible for administering their own criminal or civil law

without the oversight of the Christian or Muslim authorities.6 This was no small admission. The

span of two millennia of exile, which Bar Ilan portrayed as merely an unfortunate hiccup in the

natural development of Jewish law, in fact represent the entire period of the development of

rabbinical law. Bar-Ilan conceded, then, that legal reform and new legislation was necessary.

Despite this, however, Bar-Ilan continued to maintain that the Torah in principle contains all the

necessary resources for governing a modern state. All that was needed was reorganization:

The fundamental question of what is the basis of the law of our

state should by rights and by logic not arise, since we have the
entire Torah, written and transmitted, and a legal corpus in the

4
Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 20. For the sake of clarity, it should be noted that the context indicates
that Bar-Ilan is not saying here that there should be no Gentiles in the State of Israel, but simply that the law of the
land should be decided by Jews, and according to the Jewish tradition as opposed to English or some other law.
5
Ibid., 23.
6
Ibid., 21.
 193

form of halakhic explanations and practical responsa that perhaps

no other nation has. We have only to put these laws in order and to
make their realization in day to day life to a real possibility.
[Emphasis in the original.]7

Bar-Ilan excoriated the “regnant public opinion” that the state would have to adopt the laws of

other nations, “to go and graze in other fields and to draw the basis of the laws of our state from

the strange wells of the other nations.”8 This, he said, is nothing but “the evil inclination [created

by] the long exile.”9 Bar-Ilan observed that this position even arose within the heart of the

Orthodox community itself. He took issue directly with those who argued for a pluralist

constitutional model:

Within our religious circles there is a kind of secret agreement that

if there will be in the State of Israel a double system of law with
religious or rabbinical courts on the one hand and secular ones on
the other, … that will be enough for them and they will not ask for
more.10
For Bar-Ilan, however, as for Herzog, this pluralist solution was entirely unacceptable.

The only path for every believing Jew is to request with all force
and to strive with all might and with every effort that we should
have one law in all realms of our state, and not just for us but for
all those who live in the state, even those who are not of the
covenant, just as in every land and country the political territory
determines [the law] and not personal [religious] affiliation … and
this one law should be based on the Torah of Israel and what
derives from it, and not on another law and another Torah.

7
Ibid.
8
Ibid., 22.
9
Ibid.
10
Ibid. Bar-Ilan is presumably here referring to the agreement, later called the “status-quo agreement,” made
between Ben-Gurion and the Agudat Israel party in June 1947. Part of that agreement granted the rabbinical courts
continued control over personal status law, but reserved the right of the state to control all other realms of law. The
full text of the agreement is at: Itamar Rabinovich and Jehuda Reinharz, Israel In the Middle East: Documents and
Readings On Society, Politics, and Foreign Relations, Pre-1948 To the Present (Waltham, Mass.; Hanover:
Brandeis University Press; University Press of New England, 2008), 58-59. For a full discussion, see Friedman,
“Structural Foundation.”
 194

But this is not easy... Therefore it is our obligation, the obligation

of the believers in the justice of the goal and the possibility of
bringing it to fruition, to prepare immediately for war, with the
right and with the left, for a state law that is based on the laws of
our holy Torah in all the streets of our state and in all the fields of
its life. This law and no other, none besides it.11 [Emphases in the
original.]

In this striking passage, Bar-Ilan articulated his positivist and centralist belief that halakha must

be the only legal system endorsed by the state. He explicitly stated that he would not seek to

impose the ritual aspects of halakha on every citizen, but regarding civil and criminal law, he

issued a call to arms in the struggle to establish halakha as the only law for every resident in the

state, Jewish and Gentile. The originality of this call cannot be overstated. It was a radical

innovation to seek to impose the civil and criminal aspects of Jewish law not just on Jews but on

all those within the territory of the state, irrespective of their religious identity. Nonetheless, Bar-

Ilan clearly insisted that the Jewish law in Israel should be all-encompassing and unified and

should reside in the power of the state. His picture of the law represented the epitome of legal

centralism and he was willing to tolerate serious divergences from the traditional norm to

establish and defend it.

The strength of Bar-Ilan’s rhetoric belied the fact that his position was deeply paradoxical. He

maintained throughout that Jewish law is capable of governing a modern state and that the

adoption of a pluralistic legal system, incorporating the laws of other nations, would be folly.

However, a close reading of his argumentation reveals that he fought for a centralist model of

halakha precisely on the grounds that this was the legal model of other modern states. He argued

that the halakha should cover everyone “just as in every land and country [where] the political

11
Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 22-23.
 195

territory determines [the law] and not personal [religious] affiliation.”12 So even as he called for

a pure Jewish law unsullied by foreign influence, he pushed radical innovations to make Jewish

law more like the law of other nations, especially the European countries where legal centralism

and positivism reigned supreme.

The adoption of a systematic law code to cover all residents of the state was the hallmark of

modern European law. Prior to the long nineteenth century, Europe was split into innumerable

localities, governed by their own heteronomous laws. The rise of the modern nation state was

accompanied by the consolidation of state power through the imposition of a single law within

state boundaries. This was achieved by the creation of new national legal codes which were

intended to bring the rigors of Enlightenment positivism to the field of law and clarity and

uniformity to the legal system of unified states.13 The earliest example was the Napoleonic

French Civil Code of 1804. A decade later, after the beginning of German unification with the

Congress of Vienna, the argument was made for a uniform German legal code.14 During the

course of the 19th century, jurists like Paul Laband continued to argue that law was nothing more

than the will of the state and that therefore, all laws and all institutions of state had, by definition,

12
Bar-Ilan’s commitment to centralism is also manifested in his rejection of qabalah – case by case acceptance of
invalid judges by parties to a case – as a solution to the problem of the involvement of women and Gentiles in the
judiciary. Like Herzog Bar-Ilan rejected this approach because it was not “statist” [‫ ]מדיני‬enough. Qabalah would
have to be based on private arrangements between individuals whereas for Bar-Ilan, as a legal centralist, the law had
to be organized and enforced by the state and not a matter for personal preference.
13
For an overview of the role of codification in European positivist jurisprudence, see: John Henry Merryman and
Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction To the Legal Systems of Europe and Latin
America, 3rd ed. (Stanford, Calif: Stanford University Press, 2007), 27-33; R. C. van Caenegem, An Historical
Introduction to Private Law (Cambridge England; New York: Cambridge University Press, 1992).
14
The argument for a uniform German legal code was famously made by A. F. Thibaut who believed that a unified
legal system was an essential tool of unification. Initially, Thibaut was opposed by Von Savigny and the Historical
School, who believed that laws should emerge from the societies that they govern and not be indiscriminately
imposed by a small elite. Tellingly, though, Thibaut’s position won out. The Historical School itself was
instrumental in the gradual adoption of Roman law as the model for the German code. See: Susan Gaylord Gale,
“Very German Legal Science: Savigny and the Historical School,” Stanford Journal of International Law 18 (1982).
 196

to be unified coordinated with each other.15 Legal unification culminated with the Bürgerliches

Gesetzbuch (BGB), Germany's civil code, which was begun in the aftermath of the final

unification of Germany in 1871 and finally adopted in 1900. The BGB became the archetypal

civil code and was the basis of much subsequent European legislation and codification.

Bar-Ilan’s vision of a modern halakhic code was based squarely on modern European codes, the

BGB in particular. This is true for both the method of its compilation and the structure of the

final product. Bar-Ilan called for the code to be compiled in a highly bureaucratic fashion. He

wanted the traditional sources of halakha to be combed for useful precedents, refined by

committee after committee, and eventually compiled into a modern legal code. This code should

then be placed “in the hands of every judge” so that even judges without a prior knowledge of

halakha would be able to apply it:

We will need to form different committees of Torah scholars

wherein each person or group will occupy himself with a specific
area... and will conduct a great search in the responsa from the
early to late... A special committee, or several committees, will
analyze all the material of the first committees and when it is ready
for publication it will be necessary to edit everything into a concise
and pithy literary form. One can suppose that lawyers who know
the Torah and perhaps other proof readers will take part in this
work.

Bar-Ilan also wanted the form of his code to resemble the form of other modern codes. He took

pains to describe to his readers, his potential collaborators on this codification project, that the

finished product should not contain the extended and often convoluted legal analyses customarily

15
Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar
Constitutionalism, 13-39.
 197

found in Jewish legal texts. Rather, it was to be concise and consistent. It was to contain the law

and nothing more.

Every generation has its own literary form. The form of the
Halakhot Gedolot and She’iltot is not the same as Maimonides or
the Shulhan Arukh. In this generation and for the needs of our time
a book of laws has to be edited in the accepted form of law books,
with sources below, and comments in exceptional cases as either
footnotes or endnotes. But the people working on this should not
include in the law books the many new theories and lengthy
explanations that will certainly occur to them [because the law
books] will be in the hands of every judge, including those who are
not real Torah scholars.16
It is difficult to overlook Bar-Ilan's apologetic tone and the fact that he felt the need to defend the

literary form of his proposed code. He was quite aware that the form he was describing – a book

of precise legal phrases with sources relegated to footnotes and commentary banished to rare

endnotes – had little in common with traditional Jewish compilations. It was, though, a precise

description of the BGB, the most important European law code of his era.

The influence of the BGB on Bar-Ilan’s proposed code went even further. The terms Bar-Ilan

used to describe his vision of Jewish law were direct Hebrew translations of terms from German

jurisprudence. Thus, he called his legal code a “law book” [‫]ספר חוקים‬, a direct translation of the

German Gesetzbuch. He referred to “civil law” [‫]חוק אזרחי‬, a translation of bürgerliches Recht;

“penal (i.e. criminal) law” [‫]חוק פלילי‬, a translation of Strafrecht; and “public law” [‫]חוק ציבורי‬, a

translation of öffentliches Recht. This terminology was common in legal circles in Palestine and

then Israel, which, as we have seen, were heavily dependent on German legal theory. It is,

however, entirely foreign to the Jewish legal tradition. I have been unable to find even one

instance of any of these terms in classical Jewish literature, even in the modern period, before the

16
Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 24.
 198

rise of religious Zionist jurisprudence. Furthermore, it cannot be claimed that this was simply a

matter of convenient translation; these are not just foreign terms, but foreign categories. Jewish

law knows no distinction between, for example, civil and criminal damages; they are both

categorized under “damages” [‫]נזיקין‬. Nor does the Jewish tradition know of a “law book” in the

sense of a civil code. Whatever the intentions of their authors, traditional Jewish legal collections

are used in collaboration with case law and are not treated in the same way as a civil code is

treated in a modern state. Despite all of this, Bar-Ilan chose to adopt this terminology for his

legal code. It was common among the secular Zionist juristic elite, many of whom had

themselves been educated in German universities. It was also no doubt familiar to Bar-Ilan from

his own education in Berlin.

Bar-Ilan insisted on using an unadulterated Jewish law for the Jewish state. But his entire vision

of that law, its dependence on a centralized state, its monistic structure, its all-encompassing

scope, its dependence on codification, its terminology and its central categories were foreign to

halakha and were heavily dependent on the modern European model of legal centralism. The

adaptation of halakha to squeeze it into this foreign model required quite radical innovations

which Bar-Ilan, for the sake of his vision, was ready to accept. Bar-Ilan, like Herzog, understood

that legal positivism and centralism represented the only kind of law that was valued in the

modern state. For Jewish law to be taken seriously and to make its mark in a newly independent

state, it had to be re-modeled according to the laws of modern Europe.

Codification in Practice
 199

Unlike the various religious advocates of legal pluralism, Bar Ilan and Herzog had the seniority

and institutional clout to take practical steps to bring their ideas to fruition. In Sivan 5708, (June

or July 1948,) only weeks after the declaration of independence, Bar-Ilan convened a “legislative

committee” of the World Mizrahi movement, of which he was president, which he was to

supervise jointly with Herzog.17 The goal of the committee, as its secretary Zvi Kaplan later

described, was exactly in accordance with Bar-Ilan's memorandum discussed above:

Our movement must concern itself with the preparation of a book

of laws for the State of Israel according to our Torah ... It is
forbidden for two kinds of law to rule in our state, a “civil” law
and a Torah law. All the state and all the courts [‫]בתי משפט‬18 within
it must be run according to the law of the Torah.... To that end...
there is the need first of all for internal work in order to create a
book of laws in the modern form so that it will be comprehensible
to every judge and lawyer, even those who are not religious.
[Emphasis in the original.]19
On 17 August of that same year, Bar-Ilan personally wrote to a number of rabbis to enlist their

participation in the project.20 He explained the urgency “to go as fast as possible to prepare

samples of a book of laws in topical matters in both civil and criminal matters.” He outlined

specific areas of law that required their attention including contract, extortion, insurance, tort,

treason, espionage, draft evasion, forging currency, theft, robbery and murder. He also

mentioned some of the procedural problems that needed to be overcome such as the appointment

of judges and the inclusion of testimony from women or Gentiles. The work, he said, would

require them to find appropriate material and work it into the form of the finished code. He
17
This date is reported in: Zvi Kaplan, “Avodat va'adat ha-haqiqah she-al-yad ha-merkaz ha-olami shel ha-mizrahi”,
23 Nisan 5709, Religious Zionist Archives, Jerusalem [RZA] 330/38/4/1949.
18
This term refers specifically to state courts, as opposed to rabbinical courts, which are called ‫בתי דין‬.
19
Zvi Kaplan, “Avodat va'adat ha-haqiqah”. Emphases in the original.
20
Bar-Ilan, Correspondence of 12 Av 5708, RZA, 330/38/4/1948.
 200

encouraged the rabbis to let him know what they wanted to work on and how much they would

like to be paid. Ultimately, a fixed committee was established comprising nine rabbis. They were

paid from the budget of World Mizrahi. Most of them worked 4 hours per day for a wage of 30

Israeli pounds per month.21

The work of this committee, and the intellectual problems that it encountered, reflect the

paradoxical nature of Bar-Ilan's entire project which was caught between the repudiation of any

external sources of law and the reliance on European legal models and structures. There were

first of all problems over the literary form of the work. It was mentioned above that Bar-Ilan had

in mind the form of a European civil code, a form that was quite different from the discursive

nature of most rabbinical legal texts, full of tangents and asides. Bar-Ilan reiterated this

requirement in a meeting of the legislative committee on 11 April 1949:

Whatever is published must be acceptable to the public and must

be intended for this particular purpose. There is no place for length
but for summary. The give and take of halakha must be curtailed.
The work must be edited by one, directed hand... Attention must be
paid to the form, which must be comprehensible not just to Torah
scholars, for our work is not just intended for them.22

Despite his clear instructions, though, not all members of the committee understood what was

required. Earlier, Kaplan had written a letter to one of the rabbis on the committee, in which he

21
They were: Avraham Shapira, Aharon Bialistotski, Yaakov Ginzburg, A. Z. Gerber [?], Sh. A. Yedelewitz, Dr Y.
Z. Kahana, Binyamin Rabinowitz-Te’omim, Avraham Shadmi, Mordechai Elon. A further three rabbis also worked
for a short time on the committee: D. Kreuzer, G. Arieli, Y. Salmon. (The list is taken from Zvi Kaplan, “Avodat
va'adat ha-haqiqah”.) Bar-Ilan, in a meeting of the same month said there were 16 workers on the project rather than
12. It seems there were also other members of the committee not included on Kaplan's list, for example Bezalel Zolti
and M. D. Bakesht, who were both present at the 12 Nisan meeting.
22
“Du”ah hever ovdei avodat ha-haqiqah”, 12 Nisan 5709, RZA, 330/38/4/1949.
 201

felt the need to address this point, apparently in response to the rabbi’s failure to keep to the

required format:

You must understand that this work with which we are occupied is
not intended for the sake of study alone;23 it has a practical goal:
the ordering of a law book for the State of Israel. And in the
context of this work, we must attend only to matters pertaining
directly to the laws of the contemporary state and not to other
matters. [Emphasis in the original.]24
The rabbi’s confusion over what was expected of him is entirely understandable given that the

form of the work was entirely new in the history of Jewish law.

This paradox surfaced most of all in the search for legal materials on which to base the code. The

paucity of materials in the Jewish legal corpus, especially pertaining to criminal matters, was not

lost on the committee members. One of them called their work was “a creation ex nihilo.”25

Another member of the committee wrote to Bar-Ilan in such a way that manifested perfectly the

tension implicit in undertaking such a radically new project while claiming, and believing, that it

arose naturally from traditional sources. He began by emphasizing that the goal of the project

was to achieve a Torah-based legal system for the state by showing the secular parties that “any

legal problem in any area can find a fitting solution according to the foundations and roots of

traditional halakha.”26 However, he went on to undermine his confidence in the applicability of

traditional Jewish law to the modern state:

It appears to me that we have to concentrate first of all on the

material pertaining to civil law because it is plentiful and diverse,

23
Lit. “to greaten and ennoble the Torah” i.e. to study the Torah as a religious exercise rather than for practical
purposes.
24
Letter from Zvi Kaplan to Avraham Shadmi, 2 Elul 5708, RZA, 330/38/4/1948.
25
Mordekhai Elon to Bar-Ilan 17 Av 5708, RZA, 330/38/4/1948.
26
Shapira to Bar-Ilan 24 Av 5708, RZA, 330/38/4/1948.
 202

such that there is the possibility of full and complete legislation for
our purposes… But regarding criminal law, even if we actually
find all the Torah material etc., we will only have partial and
decisively insufficient legislation. For apart from the paucity of
material in our possession, there is the additional factor that
criminal law, apart from establishing guilt or innocence, needs to
effect punishments that fit the crime. This is an indispensable part
of the law and in this area there are no sources at all in the halakha.
Even if it would be possible fully to reconstruct criminal law from
the sources, as it was practiced at one time or another, this would
have little practical advantage in fixing the penal law in our time.27
This rabbi, like Bar-Ilan, was simultaneously confident in the applicability of Jewish law to the

modern state, and also concerned about the lack of resources in the Jewish tradition to write a

modern legal code in practice.

Despite these problems, the project forged ahead and by April 1949, less than a year after it had

begun, the committee had produced pamphlets on the jurisdiction of rabbinical courts, murder,

theft, robbery, extortion, incarceration, contract, business law, laws of partnerships, tort, labor

law, inheritance law and laws pertaining to the national mint. Not all of it had been edited, but

some had been approved by Bar-Ilan and Herzog.28

In this same month, however, Bar-Ilan died. The project found itself without a leader and,

consequently, without a budget. The Mizrahi archives contain letters from participants in the

project who had apparently been informed that it would have to be closed due to lack of funds.

All was not lost, however. Yehuda Leib Maimon-Fishman, Israel's first Minister for Religious

Affairs, apportioned funds to the project. Maimon-Fishman had himself been an eager advocate

of the revival of the ancient rabbinical body, the Great Sanhedrin. He believed that such a body
27
Avraham Shapira to Bar-Ilan 24 Av 5708, RZA, 330/38/4/1948.
28
Zvi Kaplan, “Avodat va'adat ha-haqiqah”.
 203

would allow for the modernization of halakha and the centralization of halakhic authority in a

rabbinical body in the new state. He was, therefore, himself an avid supporter of halakhic

centralization. Although the Sanhedrin project was aborted, Maimon-Fishman was in a position

to direct government funds to Bar-Ilan’s initiative, which aimed toward a similar goal.29 At the

same time, the Harry Fischel Institute, named for its patron, a New York Orthodox Jew, which

had already been funding Torah scholarship in Jerusalem for some years, also set aside funds for

the project and eventually absorbed all efforts of a halakhic codification under its auspices.

While remaining under the ultimate supervision of Herzog, the project apparently passed to the

management of Binyamin Rabinowitz-Te’omim. Rabinowitz-Te’omim, a nephew of Rabbi

Kook’s second wife, had been educated in the Slobodka Yeshiva in Kovno and immigrated to

Palestine in 1930. He had been a member of the original committee and published a

programmatic pamphlet about its future in March 1950.30 As the pamphlet made clear, although

the funding and management had changed, the intellectual problems and inherent paradox of the

project remained. Rabinowitz-Te’omim, like his predecessors, stressed the importance of the

uniquely Jewish approach to law but at the same time conceded the need to consult with experts

in other legal systems, “especially Swiss law which is accepted in many countries.”31 He

29
The Sanhedrin project failed despite the efforts of Maimon-Fishman, Shlomo-Zalman Shragai and others. Herzog,
though supportive in theory, never lent the project his full support. As a pragmatist he knew that it would never
garner the strength of rabbinical support it would require to be successful. He may also have feared for the
potentially radical changes such a body might introduce. For a collection of Maimon-Fishman’s writings on the
Sanhedrin, see: Yehudah Leib Maimon, Hidush ha-sanhedrin bi-medinatenu ha-mehudeshet (Jerusalem: Mosad ha-
rav Kook, 1967). For more on the episode, see: Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 3, 260-67; Cohen, Ha-
talit veha-degel, chapter 3.
30
Binyamin Rabinowitz-Teomim, Ha-haqiqah al-pi mishpat ha-torah: erkah, ba'ayotehah, u-derakhehah
(Jerusalem: Bet ha-midrash le-mishpat ha-torah, mahlakat ha-hakika, 1950).
31
In 1907 Switzerland had enacted its own civil code, similar to the German BGB. The Swiss code had been
adopted by Turkey in the 1920s.
 204

mentioned that one such jurist, Dr. Zvi Arman, a graduate of law from the University of Bern

and an expert on Swiss law had been advising the project. Rabinowitz-Te'omim also explicitly

conceded that there was a need to use new terminology, of the kind Bar-Ilan had already

introduced without fanfare. He insisted that this new terminology would not be secular, although

it is hard to imagine what he might have meant by this. He also repeated the requests, already

made by Bar-Ilan and other leaders of the project, that the law had to be understood by anyone,

even those who were not scholars of the Torah.

Ultimately, Bar-Ilan’s dream was realized only in part. The Harry Fischel Institute published two

books of Jewish law, one dealing with the law of sales, the other with the authority of the courts

and government, and the laws of murder.32 On each page of these works there is a clear outline

of the law in numbered paragraphs. Beneath the main text there are footnotes which direct the

reader to the sources of the law and a commentary which delves into the law in greater detail and

occasionally makes comparative comments with other legal systems. The section on criminal

liability, for example, first surveyed German, Ottoman and British Mandate law before

discussing halakha.33

These books were the first state legal codes ever produced in the rabbinical tradition. To a large

degree they fit the literary form that Bar-Ilan had envisioned, although they contain more

commentary and digression than he would probably have liked. The traditional rabbinic idiom

32
Itshak Ginzberg, Mishpatim be-Yisra'el: ha-hoq ha-pelili ve-dinei ha-onshin bizman hazeh le-fi mishpat ha-torah,
ha-talmud u-meforshim (Jerusalem: Mechon Harry Fischel le-derishat ha-talmud, 1956); Binyamin Rabinowitz-
Teomim, Hilkhot mekhira (Jerusalem: Mechon Harry Fischel le-derishat ha-talmud, 1957).
33
Ginzberg, Mishpatim be-Yisra'el: ha-hoq ha-pelili ve-dinei ha-onshin bizman hazeh le-fi mishpat ha-torah, ha-
talmud u-meforshim, 116 ff.
 205

was apparently too difficult to break away from entirely. The Harry Fischel Institute continued to

produce volumes of Jewish law in the form of modern codes in the 1960s and recently revived

the project after a lull of several years, with new volumes about the laws of witnesses and

judges.34 The project failed, however, in its broader goals. By the early 1950s it was already clear

that the state would never adopt halakha as its national code. The codes produced by the Institute

after that point were never expected to be practical codes for the state’s courts; they were

considered to be helpful for rabbinical courts dealing with civil matters, or understood as

exercises of abstract Torah study and perhaps a blueprint for a law in some kind of messianic

future. Their continued production, however, indicates that even though the plan failed in

practice, central institutions of religious Zionism continued to hold onto the claim that at least in

principle the state could and should be run according to halakha. Meanwhile, even the followers

of Bar-Ilan's vision abandoned the dream of running the state with an all-encompassing halakhic

code.

The Setback

The constitutional plans of religious Zionists, centralists and pluralists alike, all came to naught.

Their chances of success had always been very slim. They had no doubt drawn encouragement

from the general interest in Jewish law among many secular Zionist jurists, especially around

1948 when interest in Mishpat Ivri, which had slumped for several years, was piqued by the

immanent declaration of independence. In 1946, for example, even Hayyim Cohn, who would

34
Hilkhot edut: halakha pesukah im birur halakha. (Jerusalem: Mechon Harry Fischel, 2007).
 206

later become sharply opposed to the incorporation of Jewish law into the state’s legislation,

spoke in favor of constructing a civil law “that would continue our ancient traditions” and which

would reflect “the character and the destiny” of the Jewish people.35 This interest, however, was

never likely to translate into the formal adoption of halakha as the law of the state. Even had the

interest in Mishpat Ivri continued, the state would still have been a secular state whose laws,

even as they were based on traditional sources, would have been given authority by the Knesset,

not by God.

Ultimately, the question of the nature of the state’s constitution and its legislation became a moot

point. Although at the moment of the establishment of the state, all protagonists expected a

constitution and the adoption of a new legal code, neither of these things came to pass.36 Since

the 1950s, it was commonly held that the failure to adopt a constitution was the fault of the

religious parties, who considered the adoption of a written constitution to be a negation of the

Torah.37 This was only part of the story. True, Agudat Israel did object to a constitution on these

grounds, but the other religious parties, (Mizrahi and ha-Po’el ha-Mizrahi,) did not, at least not at

first.38 The real failure to adopt a constitution was a result of the extreme conditions of the early

years of the state. The war of 1948 absorbed most of the government’s energies. Crucially, Ben-
35
Quoted in: Likhovski, “Between Mandate and State: On the Periodization of Israeli Legal History,” 62. For more
on the temporary interest in Mishpat Ivri, see ibid., 60-64 and especially fn. 101. For more on Kohn and the changes
in his thinking about Jewish law, see: Amihai Radzyner and Shuki Friedman, “Ha-mehoqeq ha-yisraeli veha-
mishpat ha-ivri: Hayim Kohn ben mahar le-etmol,” Iyunei Mishpat 29, no. 6 (2005).
36
Technically, some have argued that Israel does indeed have a constitution, albeit unwritten or incomplete. See, for
example: Aharon Barak, “The Values of the State of Israel as a Jewish and Democratic State,” in Israel as a Jewish
and Democratic State, ed. Asher Maoz, Jewish Law Association Studies XXI (Atlanta: Scholars Press, 1991).
37
An early study of the constitution-making process observed: “notwithstanding popular opinion to the contrary
there was opposition to a written constitution from political parties other than the religious ones.” Rackman, Israel's
Emerging Constitution, 1948-51, x.
38
Ibid., 27-32. See also: Emanuel Rackman, “The Religious Problems in the Making of the Israeli Constitution
(1948-1951),” Lawyers Guild Review 13 (1953).
 207

Gurion himself impeded the adoption of a constitution for fear that it would place limits on his

(in his view necessarily) strong executive powers.39 In the face of all this, even Herzog himself

began to doubt his chance of success as early as July 1948 and other religious Zionists were even

more skeptical.40

In the end, there was hardly any change in the legal system with the establishment of the state.

The first law passed by the Provisional State Council (the forerunner of the Knesset) was the

Law and Administration Ordinance which established that the law in force on the last day of the

British Mandate would continue to be in force in the new state, subject to legislation by the new

government.41 The commitment in the Declaration of Independence to enact a constitution by

October 1948 went unheeded. (To this day, Israel still does not have a full written constitution.)

The law of Israel and its constitutional structure remained an amalgam of Ottoman law and the

modifications of the three decades of British rule. As under the British, personal status laws in

39
Radzyner and Friedman, Huqah she-lo ketuvah ba-Torah. See also: Eli Shealtiel, David Ben-Gurion: Rosh ha-
memshala ha-rishon: mivhar teudot (1947-1963), ed. Yemima Rosenthal, Ha-sidra le-hanzahat zikhram shel nesiei
Yisra'el ve-roshei memsheloteha (Jerusalem: Medinat Yisra'el, Arkhion ha-medina, 1997), 139.:

Ben Gurion stood like a wall against those who wanted a constitution. In
discussions with supporters and opponents, in the Knesset and outside it, he
found countless reasons to belittle the importance that the supporters of the
constitution adduced to the document. Moreover, by pushing off the need for a
constitution here and now, he sought to set himself up as the supreme defender
of the democracy.
40
In a letter of 6 Tammuz 5708 = 13 July 1948 to Simha Assaf, a professor of Jewish law, Herzog voiced his doubts
as to whether his proposed constitutional clause that the laws of the state should be based on the laws of the Torah
would ever be accepted. The letter is at: Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 1, 229. For skepticism among
other religious Zionists, see: Warhaftig, Huqah le-Yisra'el: dat u-medinah, 351. Moshe Una voiced similar
skepticism in a piece from 1969: “It is unclear to me on what they based the hope that it would be possible to come
to an agreement with the people who were then dealing with [legislation and the constitution].” Republished at:
Moshe Una, “Mashmautah shel ha-hashpa'ah ha-hilkhatit 'al ha-haqiqah,” in Ha-mishpat ha-ivri u-medinat Yisra'el,
ed. Ya'akov Bazak (Jerusalem: Mosad ha-rav Kook, 1969), 104.
41
Law and Administration Ordinance No.1, 1948, Section 11.
 208

Israel (marriage, divorce, etc.) remained under the jurisdiction of the religious courts, but the

religious courts enjoyed no jurisdiction over civil or criminal law.42

Herzog, for one, was distraught by this development. His commitment to a halakhic state had

been absolute. In his own words: “We will not give up on the law of the Torah. I am ready to

sacrifice my life for it. Only on the Torah of Israel may the state of Israel be built.”43 His

palpable disappointment was articulated in speech to the 18th Council of World Mizrahi on 16

August 1949. The hope of the religious Zionists, he said, had been for the political elite to come

to the rabbis to ask for advice on the law of the state so that the democracy of the Jewish state

would not just be a “pastiche, an aping of, and subordination to, the spirit of the democracy of

other nations,” but rather a democracy which drew from the Torah, “the spring of our life, the

source of Israel.”44 This was not to be. Instead, “a mix of Turkish Ottoman and British law took

the place of the law of the Torah of Israel in the State of Israel.” 45 This was a particular insult

given what he felt to be the superiority of Jewish law and civilization over both the Ottomans

and the British. According to Herzog:

These peoples did not reach the level of civilized peoples until
thousands of years after we stood at Mount Sinai. The wisdom of
their laws … is like a monkey before a human being when
compared to the wisdom of our [Jewish] laws…and I am talking to

42
Religious courts would probably have maintained their jurisdiction over personal law even had a constitution been
adopted. There was a clause along these lines in the Leo Kohn’s draft constitution, which was most likely to be the
basis for the constitution of the state. See: Radzyner, “A Constitution for Israel: The Design of the Leo Kohn
Proposal, 1948.”
43
The comment was made in a speech in the Great Synagogue in Jerusalem at the end of July 1948. The power of
this rhetoric is startling given that two weeks earlier Herzog had himself raised doubts about whether his plan would
be accepted. The speech was originally published in ha-Tsofe, 25 Tammuz 5708 and is quoted in: Warhaftig,
“Mavo,” 28 fn. 11.
44
Herzog, “Be-Kesher Le-Ma'amarav,” 222.
45
Ibid.
 209

you as someone who is well versed in the laws of Rome and

England.46

The fact that personal law remained under the jurisdiction of the rabbinical courts was little

consolation. As we saw chapter 4, the institutions of the state, in particular the Supreme Court of

Israel, had themselves adopted a centralist approach. That meant that from the point of view of

the state and in particular its non-Orthodox leaders, the rabbinical courts now derived all of their

legal authority from the sovereignty of the secular state. This was not purely a theoretical matter;

the state did interfere in the workings of the religious courts. The most significant early

intervention of the state in the practice of the rabbinical courts came in 1951 with the Women’s

Equal Rights Law. The law enacted that “a man and a woman shall have equal status with regard

to any legal proceedings.”47 It was explicitly imposed upon all courts in the state, including the

rabbinical courts.48 The impact on the rabbinical courts was mitigated to a degree because

marriage and divorce law were exempted from the law. Given that differences between men and

women attend many fundamental details of Jewish marriage law, the exemption was necessary if

the application of Jewish law in the rabbinical courts was to continue to have any meaning at all.

Under the exception, rabbinical courts could continue to administer marriage and divorce exactly

as they had done before. In other areas, however, the rabbinical courts were bound to observe

total equality of the sexes. The law effected in particular the administration of marital assets, for

which halakha distinguishes between husband and wife.49 Even when the law was still in its draft

46
Ibid., 222, 26.
47
Women’s Equal Rights Law 1951, para. 1.
48
Ibid., para. 7.
49
For more on the administration and precise jurisdiction of the rabbinical courts, see: Chigier, “The Rabbinical
Courts in the State of Israel.”; Moshe Chigier, Husband and Wife in Israeli Law (Jerusalem: The Harry Fischel
Institute for Research in Talmud and Jurisprudence, 1985). For a helpful collection of Knesset regulations pertaining
 210

stages, Herzog signaled the threat that it posed to the operation of the rabbinical courts and the

future of religious law in the state.

The draft law of full equality between man and woman in all areas
of the law is threatening us. [It is] a law that will not only uproot
with the arm of the sovereign the laws of Torah in the field of civil
law but will also badly harm family law in Israel – marriage itself
– something that is likely to split, God forbid, the people of Israel
in its land, to divide them in matters of marriage.50
Religious Zionists, then, felt besieged. Under the leadership of Herzog and Bar-Ilan, they had

fought for a centralized legal regime. This had come about, but not in the way they had wanted.

In the eyes of the state, the all-encompassing law was not halakha. Even the rabbinical courts

themselves were under the authority of a secular sovereign.

Principled Centralism, Pragmatic Pluralism

Under these circumstances there were strategic advantages for religious Zionists to abandon their

commitment to legal centralism in favor of pluralism. By adopting the rhetoric of a pluralist

approach to law, which allows for different legal systems with different sources of authority to

co-exist within the same political territory, they were able to argue that rabbinical courts should

be granted greater autonomy from the secular state and thereby attempted to salvage some

residue of legal autonomy. The adoption of this rhetoric, though, was only a strategic move,

which belied their true commitments. In order to fight for their independence from secular

authority, they argued to the government that there was room within the same polity for different

to religion and state, see: Zerah Warhaftig, Hayyim Hefetz, and David Glas, Dat u-medinah be-haqiqah: leket
hiquqim u-pesiqah (Jerusalem: Misrad Ha-Datot, 1973), 42-104. For the consequences of the Women’s Equal
Rights Law, see: Menachem Elon, Ma'amad ha-isha (Tel-Aviv: Ha-Qibuts ha-meuhad, 2005).
50
Herzog, “Be-Kesher Le-Ma'amarav,” 223.
 211

legal structures to co-exist. Among themselves, however, religious Zionists continued to adhere

to the doctrine of legal centralism that had guided them up to that point. This continuing

commitment to legal centralism, despite the intellectual acrobatics that it necessitated, underlines

the depth to which this legal doctrine had been internalized by religious Zionist society.

Whatever arguments they made externally, they remained committed in principle to the ideal that

the entire state and its law should be governed by halakha.

An important text that displays this jurisprudential double-think, the distinction between what I

would like to call pragmatic pluralism and principled centralism, is a speech that Herzog

delivered to the Mizrahi council on 6 August 1949. To understand the significance of the speech,

it is worth remembering the fervor with which Herzog had fought to have halakha established as

the law of the state. This goal characterized, for example, the open letter that Herzog and the

Sephardic Chief Rabbi Uziel had written to the Jewish Agency on 11 March 1948:

We were troubled to hear of your preparations to establish a secular

court for all civil matters. This, the establishment of a permanent
secular court on foundations foreign to the laws of Israel means the
uprooting of one of the basic and sacred principles of generations
of Judaism. We Jewish leaders must protest against it with all our
might and oppose it with every means at our disposal. We request
with every kind of plea and warning that you remove this plan
from your agenda and allow the law of the Torah to have its way.51

In his 1949 speech to the Mizrahi council, Herzog’s tone was different. He was by that stage

resigned to the failure of the plan to have halakha considered for the law of the state. He did not,

51
Itamar Warhaftig and Shmuel Katz, Ha-rabanut ha-rashit le-Yisra'el: shivim shanah le-yisudah, 5681-5751:
samkhutah, pe'uloteha, toldoteha, 3 vols. (Jerusalem: Hekhal Shlomo, 2001), 295.
 212

however, abandon his militancy altogether. In the speech, Herzog outlined several points of a

“programmatic proposal”:52

1) …To solemnly declare that we are not in principle ([though] in

practice we have no power over this) in any way at peace with the
current situation, which is the abolition of the vast majority of the
law of the Torah, and that our most fervent desire is to return the
law of the Torah to its place according to everything that the sages
of the Torah will teach under the leadership of the Chief Rabbinate
of the Land of Israel...
2) Regarding financial matters, outside the framework of personal
status, there should be a law that every Jew who is taken to a state
court has the choice to declare: “I am going to the Torah court.” In
such a case the Torah courts should have the full authority of law
and their rulings appealed only before the Great Rabbinical Court
of the Chief Rabbinate of the Land of Israel in Jerusalem...
4) Whatever happens, we must insist with all force and power on
the request for exclusive authority in the field of personal status.
And ultimately I caution and warn from the bottom of my heart
and soul that we must be ready to fight with absolutely all our
power, even to the departure of our ministers from the coalition or
our representatives from the Knesset, against any law that is likely
to impinge on the prohibitions of the personal laws of our holy
Torah.’53

In this speech, Herzog began by noting the dissatisfaction of the religious Zionists with the

failure of the state to implement traditional Jewish law in its entirety. Conceding that this had

become a lost cause, he outlined a less desirable alternative constitutional structure wherein

Torah courts would constitute a parallel and entirely independent legal system to which any

citizen of the state could have recourse. In this vision, cases heard in rabbinical courts would

only be brought on appeal to the Great Rabbinical Court; the Supreme Court of Israel would

have no jurisdiction whatsoever in the rabbinical system. This would mean that the rabbinical

courts would not be subsumed under the hierarchy of a centralized legal system of the entire
52
The speech was delivered on 21 Av 5709 at the Mizrahi Council. It is published in: Herzog, Tehuqah le-Yisra'el
al-pi ha-torah, 1, 221-28.
53
Ibid., 226-27.
 213

state. Herzog continued to say that if even this plan could not be realized then at the very least

the rabbinical courts must have independent and exclusive authority over the personal status laws

that were traditionally within its jurisdiction. This was something over which no compromise

could be tolerated.

Herzog’s ultimate concession was a picture of classic legal pluralism, exactly the kind of legal

system that Gorontchik had suggested and Herzog had vigorously opposed only two years

earlier. Intervening developments had forced him to compromise. Now that a centralized system

of law would mean the subordination of the rabbinical courts to a secular state, Herzog was

reluctantly forced to argue for legal pluralism.

However, crucially, this pluralist rhetoric was only a pragmatic position that Herzog presented to

the world outside religious Zionist circles. When talking to those inside his own camp, he made

it clear that he still held fast to centralist principles. He explicitly distinguished between the

pragmatic rhetoric reserved for outsiders and the principled centralism expressed within religious

Zionist circles. The Mizrahi council speech continued:

These are our requests facing outward, i.e. to the governmental

authority in the State of Israel. And now something about our
internal requests: We have to appoint a public committee made up
of our own people with the approval of the Minister for Religions,
whose purpose will be to introduce efficient procedures into our
courts … Now that our rabbinical courts are part of the legal
structure of the state, we have to enact legislation with the help of
God, meaning the introduction of improvements and reform of the
rabbinical courts upon whose perfection, honor and glory the honor
of our holy Torah and its influence to no small degree depend.54

54
Ibid., 227.
 214

So whereas to the outside, Herzog represented a pluralistic legal theory, his internal message to

the religious Zionist camp was quite different. There, his emphasis was not on the independence

of different courts, but on the necessity of the imposition of uniform rules of procedure and the

bolstering of the status of the rabbinical court of appeals. This contrast emphasizes the difference

between Herzog’s external pluralism and internal centralism. To the state he argued that the

rabbinical courts should to function autonomously of the central legal hierarchy but to the

religious population he demanded that the regional rabbinical courts all be brought under the

centralized legal authority of the Chief Rabbinate.

The aspiration for centralization reached its apogee at the end of Herzog’s speech. After talking

about the need for a modern halakhic code, (as discussed at the beginning of this chapter,)

Herzog continued:

There is a special importance in realizing the idea of a world union

of rabbis of Israel, whose pièce de resistance will be like the
Council of the Four Lands and, based on its precedent and
structure, will be composed of Torah authorities from the Diaspora
and Israel. It will be convened regularly by the Chief Rabbinate of
the land of Israel in Jerusalem our holy city for the purpose of
clarifying contemporary and future halakhic problems. It will be
accepted as a supreme halakhic authority.’55
Herzog dreamed of an authoritative legal body, convened under the auspices of his own office,

whose findings would be binding on Jews all over the world. He cited as precedent the Council

of the Four Lands, which in the Early Modern period had authority over the Jewish communities

in Eastern Europe. This dream represents legal centralism par excellence.

55
Ibid., 228.
 215

An important figure in the execution of this strategy of adopting an externally-oriented pragmatic

pluralism and an internally-oriented principled centralism was Zerah Warhaftig. Warhaftig was

one of the people most connected with both the Zionist rabbinical establishment and the

government itself. A lawyer by training, he was a member of Knesset on the religious Zionist

slate, (first for ha-Po’el ha-Mizrahi and then for the National Religious Party,) and a signatory to

Israel’s Declaration of Independence. He was a valuable asset for the religious Zionist camp

because as a trained lawyer he was involved in the drafting of legislation and the inner workings

of government. He used his training and position to be a resource for the halakhic centralist camp

by making whatever headway he could in the legislature and at the same time briefing the

religious Zionist leaders and advising them on the best strategy to adopt in order to achieve their

goals.

Even earlier than Herzog, Warhaftig recognized that the implementation of halakha in the state

courts was a utopian dream. As a concession, Warhaftig pursued another strategy, which was to

try to urge the Knesset to adopt a law that said that in the event of a lacuna in Israeli law, the

judge was required to seek for a response in traditional Jewish law.56 After the failure of this

attempt, Warhaftig followed Herzog’s retreat into pragmatic pluralism.

Warhaftig frequently indicated in his Knesset debates that he believed that the legal regime of

the state did not constitute a single hierarchy, but a plurality of legal authorities. When he spoke

in the Knesset about laws dealing with the rabbinical courts, he often supported his arguments

56
Warhaftig, Huqah le-Yisra'el: dat u-medinah, 45-6. This law was modeled on Article 46 of the King’s Order in
Council (a kind of constitution for the British Mandate of Palestine) which said that lacunae must be filled by
recourse to the English Common Law.
 216

with quotations from halakha. For most Knesset members, halakhic argumentation was quite

irrelevant, as Warhaftig well understood. His quotations from the halakhic literature, then, make

no sense when understood as an attempt to convince others of his argument. They do make

sense, though, when understood as jurisprudential theater, a public insistence that the rules

governing the rabbinical courts are not in principle derived from the body of the Knesset but

from halakha itself.

An excellent example of this was the debate in the Knesset over the Capacity and Guardianship

Bill in 1961. A proposal had been made to add to the bill the law that all people must “honor thy

father and thy mother.” One might assume that the religious parties would be in favor of such an

incorporation of religious law into an official statute. But Warhaftig, then Minister for Religious

Affairs, opposed the move:

There are things for which no law is needed.... Why repeat the Ten
Commandments and thus, if I may say so, reduce the level of this
eternal precept to a matter of transient law.57
Warhaftig balked at the inclusion of a religious precept into civil statute because he argued that

religious law has its own independent standing, (and a superior source of authority,) and thus has

no need for the added endorsement of a foreign system of law.58

Perhaps the best articulation of pragmatic pluralism was a speech that Warhaftig gave in the

Knesset in 1954:

We have in Israel two court systems. Most matters are under the
legal authority of the general courts which judge not necessarily by
57
Quoted in: Itzhak Englard, “The Problem of Jewish Law in a Jewish State,” Israel Law Review 3 (1968).
58
This episode fits well with the thesis of Asher Cohen, who argues that while the initial goal of the religious
Zionist movement as a whole was to establish the halakha as the law of the state, they abandoned their desire for
‘halakhic legislation’ by the mid-1950s. See: Cohen, Ha-talit veha-degel.
 217

original Hebrew law but according to the laws of the Knesset…

And there is a second system, of rabbinical courts ...The rabbinical
courts rule according to the laws of the Torah. They are religious
courts and the law that governs them is the halakha… The secular
law does not get involved and it cannot get involved in the internal
affairs of these rabbinical courts, nor in the cases in progress in
them. Secular law only defines their authority, marks the borders of
their authority, and says “within the framework of this jurisdiction
will you judge.” But it does not involve itself in their judicial
activity because they are founded on the law of the Torah and not
on human law.59

These quotations exemplify the new approach of religious Zionists vis-à-vis the state. They

challenge the centralist claims of the secular state by recourse to a pluralist argument. They

acknowledge that the secular law of the state does exist but they resist the implication that as a

result the rabbinical authority has to be subsumed within it. They claim that the relationship

between religious and state law is not the relationship between a higher and lower tier of a single

hierarchy but rather the relationship between two independent legal systems, each with its own

source of authority and substantive rules.

Despite these public professions of legal pluralism, however, Warhaftig, like Herzog, remained

deeply committed to legal centralism in principle. In 1953 Warhaftig delivered a speech to

Israel’s rabbinical judges. He summarized for them the various legal matters on which he was

working and noted the practical benefits of having the executive branch of the state supporting

the judgments of the rabbinical courts, and thereby enforcing their rulings in matters of personal

status law.60 Fundamentally, however, the speech was a call to arms, a cry to shore up the forces

59
Quoted at: Warhaftig, Huqah le-Yisra'el: dat u-medinah, 429.
60
Despite the reluctance to recognize the state’s authority over them, the rabbinical courts did make use of the
state’s coercive powers, not to mention its funding. Some rabbis wrote about how their authorization by the state
actually gave them greater authority in the eyes of halakha itself. See: Maoz, “Ha-rabanut u-vet ha-din: ben patish
ha-hoq le-sadan ha-halakha.”
 218

of religious law and the rabbinical courts and to prepare for an extended war with the

government. “We are,” he said, “in a hard struggle with the Knesset and with the government

over authority.” The appropriate strategy in this struggle was that “the rabbinical courts need to

be as imperialistic [‫ ]אמפריאליסטיים‬as possible and not to give up on their authority.”61

Warhaftig then emphasized this bellicose exhortation with a quotation from one of the rulings of

the rabbinical court itself: “The Great Rabbinical Court ruled in one of its rulings, ‘In principle

everything belongs to us, just that the law removes certain things from us.’”62

Warhaftig’s rhetoric points clearly to a stance of legal centralism. The exhortation to the

rabbinical courts to be “imperialistic” and the notion that “everything belongs to us” are both

expressions of a philosophy according to which rival legal regimes are battling for the control of

the same territory: the legal authority of the state. The battle for legal control, Warhaftig warned

the rabbinical judges, was a zero-sum game in which either the government or the rabbinical

courts, but not both, could win. Indeed, Warhaftig held on to his dream of the application of

halakha to the state until late in his life. As late as 1988, he wrote:

[Torah] law is the language of the state and the spirit of the people.
When we returned to the Land of Israel, we accepted the Hebrew
language. We redeemed it from pages of books and brought it out
to the city street. We did not go to seek other languages, despite the
many difficulties in reviving an ancient language.63 Similarly, the

61
Zerah Warhaftig, Al ha-shiput ha-rabani be-Yisra'el: neumim (Tel Aviv: Moreshet, 1955), 17.
62
Ibid.
63
Needless to say, this romantic view of the revival of Hebrew and the abandonment of other languages was not
entirely true to reality. In the same way as, I am arguing, halakha in the Zionist context absorbed many
characteristics of “foreign” laws and competed with them in a busy philosophical marketplace, so was the Hebrew
language not used as universally in the Yishuv as Warhaftig would have liked to remember. See: Liora Halperin,
“Other Tongues: The Place of Lo‘azit in Hebrew Culture,” in Reflections on Knowledge and Language in Middle
Eastern Societies, ed. Bruno De Nicola, Yonatan Mendel, and Husain Qutbuddin (Cambridge, UK: Cambridge
Scholars Press, 2010); Liora Russman Halperin, “Babel in Zion: The Politics of Language Diversity in Jewish
Palestine, 1920-1948” (Ph.D. Dissertation, UCLA, History Department, 2011).
 219

State of Israel needed to announce in its first constitution it

acceptance of Hebrew Law.64

I have argued that despite the disappointments of 1948, when halakha did not become the law of

the state as Herzog, Bar-Ilan and others had hoped it would, legal centralism remained important

to the religious Zionist movement. Notwithstanding their strategic adoption of an external

discourse of pragmatic pluralism, they remained committed in principle to a jurisprudence which

championed the idea of a single centralized legal hierarchy. This expression of principled

centralism was not restricted to the world of theory; it was accompanied by a rigorous program

of practical legal reform internal to the system of rabbinical courts. This reform and its

consequences are the subject of chapter 6.

64
Warhaftig, Huqah le-Yisra'el: dat u-medinah, 45.
 220

6. Centralization of the Rabbinical Courts

The Great Rabbinical Court finds that it indeed does have the
authority to judge this appeal, since the matter of appeals was
accepted by rabbinical enactment, which is a law [as binding] as a
law of our holy Torah.
- Ruling of the Rabbinical Court of Appeals

Chapter 5 dealt with the strategic response of the religious Zionist leadership to the failure of

their grand ambition, to make halakha into the law of the State of Israel. It showed that there was

a distinction between the outward rhetoric of the religious Zionists and their internal policy.

Towards the state, they strategically projected a rhetoric of pragmatic pluralism in order to

accrue for themselves as much independence as they could. Among themselves, they remained

committed to a principled centralism. That position was most apparent in the ways in which the

inner workings of the rabbinical courts were transformed in the early years of the state. An

extensive reform of the institution of the Chief Rabbinate was carried out according to a policy

of centralization and bureaucratization. An analysis of that reform indicates that legal centralism

continued to dominate the legal philosophy of religious Zionism, even after the failure of their

more expansive constitutional goals.

Rules of Procedure for the Rabbinical Courts

A hallmark of a centralized hierarchical legal system is that the different courts within it are

subject to the procedural rules imposed upon them by the central authority. Before 1942 there
 221

was no uniform procedure for the rabbinical courts in Palestine. At the time, there were four

regional rabbinical courts, (Haifa, Tel Aviv-Yafo, Petah Tikvah and Jerusalem,) which each

followed its own procedures. These procedures were generally ad hoc and often even internally

inconsistent. There were frequent complaints from lawyers about the unpredictability of the

rabbinical court system.1 The matter was brought into stark relief in a landmark case of 1939, in

which the High Court of the British Mandate reversed a ruling of the Great Rabbinical Court for

the first time. The grounds for the reversal were the failure of the rabbinical court to adhere to

appropriate procedural rules. The British authorities recognized the independent authority of

Palestine’s religious courts and generally avoided direct intervention in the substance of their

rulings. However, they were quite strict about legal procedure and insisted that all courts within

the Mandate follow the expected standards of an organized and centralized legal system.

The appeal was fiercely contested by both chief rabbis, who objected to what they considered to

be an unjustified interference in their jurisdiction. Rabbinical courts, they claimed, had

jurisdiction over personal law and that meant they should have autonomy not just of law but also

of legal procedure:

If the rabbinical courts are given the authority to judge [cases of]
personal status for members of their community, they have to be
given the full possibility to judge not only according to the
material law of the Jewish community but also according to laws
and principles of judgment that are customary in the Jewish
religious courts and which constitute an inseparable part of the
general Jewish law.2

1
Radzyner, “‘Takkanot Ha-Diyun’, 1943,” 117.
2
Quoted at: ibid.
 222

This moment marked a turning point in the administration of the rabbinical courts. To avoid

future appeals to the Mandate courts, the Va’ad Le’umi proposed new procedural regulations for

the rabbinical courts. Within a year, lawyers for the Va’ad Le’umi had composed the regulations.

They were presented to the chief rabbis, who made few changes, and they were published in

November 1942. They included rules about the time and place of cases, the composition of the

courts, the division of court costs and, especially, rules requiring the recording of judicial

reasoning and the process of appeals.

One scholar has suggested that this episode represents the capitulation of the Chief Rabbinate in

the face of external pressure from the Mandate authorities and the Va’ad Le’umi.3 However,

another interpretation is possible. The Chief Rabbinate did not accept the regulations

begrudgingly. They were eagerly embraced and enforced by the Chief Rabbinate which relished

the centralization of legal authority within a legal hierarchy with the Chief Rabbinate at its apex.

The extent of the positive attitude of the Chief Rabbinate to the 1942 reforms is highlighted

when contrasted with its very different response to similar reforms only twenty years earlier. In

1921, like in 1942, the British Mandate demanded that the rabbinical courts establish procedural

regulations and an appeals system. On both occasions, the Va’ad Le’umi composed the requested

regulations and formally enacted them. The practical impact of the regulations of 1942, however,

was entirely different from that of the regulations of 1921. In 1921, the regulations were all but

entirely ignored. Indeed, the very fact that regulations had to be re-issued in 1942 demonstrates

how little impact the 1921 regulations actually made on the Chief Rabbinate. In 1942, however,

the regulations were positively embraced by the Chief Rabbinate and became deeply engrained

3
This Radzyner’s opinion in: ibid.
 223

in the legal culture of the rabbinical judiciary. The difference between the reception of these two

sets of very similar regulations only twenty years apart can best be explained by the new

commitment of the Chief Rabbinate to legal centralism. To understand this, a brief overview of

the background to the 1921 regulations and their reception is necessary.

When the British took over Palestine they preserved most of the structure of the religious court

system but also introduced some key changes. In particular, the very institution of the Chief

Rabbinate of Palestine was only established upon the insistence of the British authorities. As

indicated above, for all the autonomy the Mandate authorities granted to the religious courts,

they insisted on certain procedural rules and intuitional structures. They demanded, most of all,

consistent procedures and the possibility of appeal.

The Ottomans, who preceded the British as governors of Palestine, recognized the position of

Hakham Bashi, or Head Rabbi. This position, however, lacked the formal authority or

institutional structure that the British required. On the urging of the British, the Chief Rabbinate

of Palestine was founded in 1921.4 Rabbi Abraham Isaac Kook, Herzog’s predecessor, became

the first Ashkenazic chief rabbi and Yitshak Nisim, Uziel’s predecessor, its first Sephardic chief

rabbi. The establishment of the Chief Rabbinate brought with it two substantive developments.

First, the rabbinical court of Jerusalem took on a new importance. Previously it had been just

another rabbinical court serving its own locality. From 1921, while continuing to serve as a

regional rabbinical court, it was given an additional function and a new name. It became the bet

4
For a full account of the establishment of the chief rabbinate and its early history, see: Aryeh Morgenstern, Ha-
rabanut ha-rashit le-erets Yisra'el: yisodah ve-irgunah (Jerusalem: Shorashim, 1973). See also: Warhaftig and
Katz, Ha-rabanut ha-rashit le-Yisra'el.
 224

din ha-gadol, the Great Rabbinical Court, and was given the power to act as a court of appeal for

cases heard in any of the other rabbinical courts. In other words, the previously independent

regional rabbinical courts became the first tier courts in a new juridical framework for which the

Jerusalem court served as an appeals court. Second, a new series of procedural rules were

published that were intended to govern all the rabbinic courts in the country. The new rules

covered everything from the place of trial, the composition of the courts and the procedure for

appeal.5

The procedural rules of 1921 were not drafted by rabbis at all, but, on the insistence of the

Mandate authorities, by three lawyers, (one of whom, Mordekhai Levanon, was also a co-author

of the 1942 regulations,) against the objection of many rabbis including Kook himself.6 Once

introduced, the rules were resisted by the rabbinical authorities. Though he realized the benefits

of his appointment as chief rabbi, Kook protested in particular against the institution of a

rabbinical court of appeal.7 He did not only resist these innovations because they represented an

imposition from external sources. He also opposed them because they were a departure from

precedent in Jewish law, which provides no right to appeal.8 The transformation of the Jerusalem

5
They were published, some years after their initial promulgation, at: “Sidrei ha-mishpatim be-vatei ha-din be-erets
Yisra’el: Ha-rabanut ha-rashit be-erets Yisra’el,” ha-Mishpat 2(1928): 241-250; 290-298.
6
Radzyner, “Al reshitan shel taqanot ha-diyun be-vatei din ha-rabani’im: ‘sidrei ha-mishpatim’, [5]681,” especially
22-31.
7
Morgenstern, Ha-rabanut ha-rashit, 76; Friedman, Hevrah va-dat.
8
The principle is established in the Talmud that a rabbi may not overturn the ruling of a colleague: “What a sage has
declared impure his colleague may not declare pure. What he has forbidden his colleague may not permit.” (Bavli
Hulin 44b, Bavli Nidah 20b.) Also: “A court does not scrutinize the decision of another court.” (Bavli Baba Batra
138b.) Many pre-modern commentators allow for a rabbi to overrule a colleague’s earlier ruling in the case of a
clear mistake in the law or, according to some, in the case of a mistake in judgment. Some allow for a rabbi to
overrule any ruling of a less eminent colleague. (See, for example, Rama on Yoreh De’ah 242:31 and Shach on
Yoreh De’ah 242:53.) Historically, there were examples of rabbinical courts that functioned as appeal courts. The
Council of the Four Lands, mentioned by Herzog as a possible precedent of the chief rabbinate, sometimes
performed this function, but it was not its main role. Simha Assaf, a law professor in Mandate Palestine, tried to
 225

rabbinical court into a court of appeal was an innovation in Jewish law. Some of the new

procedural rules were also departures from halakha. The new rules stated, for example, that the

rabbinical judge must formally record the reasoning for his ruling. This rule was required for the

proper administration of a court of appeals which needs a record of the decision of the court of

first instance in order to consider the appeal properly. The requirement for the judge to record his

reasoning, however, is not required by the classic Jewish codes, which explicitly state that the

rabbinical judge need make no such record.9

It was not just Kook who objected to these innovations. Although the court in Jerusalem did hear

many appeals, the regional rabbinical courts frequently objected to its jurisdiction. As a result,

the procedural rules were roundly ignored.10 Records of rabbinical court rulings from before the

1940s almost never include the judge’s reasoning. They are instead terse statements, usually only

a few lines long, that list the actions demanded by the court. In fact, the procedural rules made so

little impact on the landscape of the rabbinical infrastructure of Palestine that when the new

regulations were published in 1942, most people thought that they were the first that had ever

been written. One scholar, who wrote an entire book about rabbinical procedure, asserted that

“for the first time in the history of the literature of the halakha a collection of the laws of legal

procedure was edited in its own framework, not as part of substantive law, in the year 5703 [i.e.

demonstrate the ample precedent for rabbinical courts of appeal. Herzog appreciated Assaf’s work and quoted it in
his book on the constitution. Simha Assaf, Bate ha-din ve-sidrehem ahare hatimat ha-Talmud (Jerusalem 1924-5).
The idea of a rabbinical appeals court, however, remained largely foreign to the Jewish tradition and, as we will see,
many rabbis in Palestine-Israel were unconvinced that the chief rabbinate had the authority to overturn their
decisions. For more on the role of appeals and precedent in Jewish law, see: J. David Bleich, “The Appeal Process in
the Jewish Legal System,” in Contemporary Halakhic Problems (1995).
9
Shulhan Arukh Hoshen Mishpat 14:4.
10
See the contemporary report in: Paltiel Dickstein, “Sidrei ha-din be-vatei dinenu ha-leumi'im,” Ha-mishpat ha-ivri
3 (1928). See also: Radzyner, “‘Takkanot Ha-Diyun’, 1943,” 153 fn. 70.
 226

1942].”11 This was the view shared by most people at the time, who were unaware that similar

rules had been composed only twenty years earlier. They made so little impact on the religious

Zionist community, or the rabbinical community as a whole, that almost nobody knew they even

existed.

In 1942, however, the reactions were entirely different. The Chief Rabbinate itself embraced the

1942 regulations and defended them against any criticism. What explains this difference in

response? It cannot be attributed to the response of the regional rabbis, whose resistance was

equally determined, and perhaps more so, than it was in 1921. The Tel Aviv-Yafo rabbinate

objected particularly strenuously to the centralizing thrust of the 1942 regulations. In a private

meeting with the Chief Rabbinate, they claimed that the Great Rabbinical Court was authorized

to write regulations only for itself, not for the regional courts. If regulations were required, they

insisted to be allowed to write their own. Besides, they claimed, the regulations contained rules

that were contrary to halakha. In particular, they argued, the endorsement of the rabbinical court

appeal system invalidated the entire enterprise. This opposition in Tel Aviv-Yafo to the

regulations was unanimous among the members of its rabbinical court: one rabbinical judge said

the imposition of a rabbinical court of appeal would result in total opposition to the regulations;

another said he would organize all the rabbis in the country against them; a third labeled the

regulations “Reform.”12 Yet despite all of this opposition, the regulations were approved by the

chief rabbis.

11
Shochetman, Seder ha-din, 11.
12
Radzyner, “‘Takkanot Ha-Diyun’, 1943,” 131.
 227

If the embrace of the regulations cannot be explained by the acceptance of the regional rabbinate,

it can still less be explained by external pressure from the British or the Va’ad Le’umi. For one

thing, the same kind of pressure in 1921 resulted not in capitulation but in resistance.

Furthermore, it cannot be said that the chief rabbis in 1942, Herzog and Uziel, tended any more

readily toward capitulation with the British than their predecessors in 1921. We have many

examples of their resistance to governmental pressure, including those examples outlined in

chapter 5 where the chief rabbis or other religious Zionists like Zerah Warhaftig resisted

governmental encroachment into rabbinical matters. There was no such resistance, however, to

the procedural regulations of 1942. To be sure, there was no overnight change to rabbinical

procedure. Shortly after the regulations were published, a commission of the Va’ad Le’umi

found that the Tel Aviv rabbinate was still ignoring the regulations, and even, in contravention of

approved procedure, levying a tax on parties seeking appeal in order to dissuade them from

challenging their rulings in the Great Rabbinical Court. Indeed, even the Great Rabbinical Court

itself did not always insist on the strictest adherence to the regulations, at least in their early

years.13 Before long, however, the Chief Rabbinate began effectively to enforce the new rules.

The evidence indicates that the Chief Rabbinate was not simply capitulating to external pressure.

Rather, it was fully in support of a regulatory apparatus that transformed a disparate body of

loosely connected rabbinical courts with regionally dispersed power and ad hoc procedure into a

single hierarchical structure with centralized authority and uniform legal procedure.

13
For examples of the approach of the Rabbinical Court of Appeals to the procedural irregularities of the courts of
first instance, see: Osef piskei din, ed. Zerah Warhaftig, vol. 1 (Jerusalem: Ha-defus ha-co-operativi "Ahva", 1950),
20-24, 72-79, 91-92, 132-39, 48-52.
 228

Even before the regulations had been written, the chief rabbis had insisted on the authority of the

Great Rabbinical Court to request case materials from lower courts in order to properly conduct

appeals. In 1937, the Chief Rabbinate wrote to the notoriously independent Tel Aviv rabbinate:

We have not been honored with a response to our correspondence

of 28 Iyar 5697 [=9 May 1937] and we have still not received the
legal material in your possession regarding Shlomo and Sophia
Skorokhod. As this is impeding the appeal hearing, we would be
grateful if you would request your agents quickly to send to us the
full material of this case.14
This letter was sent on 28 Sivan [=7 June], a full month after the earlier request for the material.

Behind the stylized honorifics, we sense the impatience of the Chief Rabbinate at the fact that the

Tel Aviv court had not only failed to fulfill proper procedure, but had ignored the request of the

Chief Rabbinate altogether.

Herzog was particularly strict in his insistence on the keeping of proper legal records, in

particular a written record of the legal reasoning of the judges, which were not required by the

halakha, but were required by the 1942 regulations. In a responsum from 1948, Herzog

acknowledged the novelty of the regulations, but nonetheless insisted on their enforcement:

The fact is that according to the strict halakha there is no right to

request written arguments from us. This is explicit in Hoshen
Mishpat 14:4 in the Rama … It seems that the rabbinical courts
that do not write reasoning and proof rely on this [ruling].…
However, they are not acting properly. They are contravening our
enactment which was made with their agreement, even as we
recognize that this is a great innovation.15
As he chastised the regional rabbinical courts for ignoring the new regulations, Herzog, notably,

made no mention of the fact that the regulations had originated with the insistence of the British

14
Israel State Archive LAW/23517/83
15
Herzog, Pesaqim U-khetavim, 9: Teshuvot 'al hoshen mishpat, Siman 9.
 229

authorities. He took full ownership of them and threw the weight of his authority behind them.

Despite the fact that the regulations were written by lawyers and not by rabbis, Herzog attributed

halakhic authority to the regulations on the basis that this was “our enactment made with their

agreement.” In other words, they had the status of a rabbinical enactment with the binding force

of the halakha, not merely of the Mandate authorities. He even implied that the enactment had

received the approval of the regional courts, which was not in fact the case.

Similar efforts were made by the chief rabbis to enforce the appellate system. In 1950, a case

was heard in the Tel Aviv rabbinical court in a civil matter. This was a legal field over which the

rabbinical courts had no state-endorsed jurisdiction. From the perspective of the state, therefore,

the court was functioning in the capacity of an arbitration board and not as a formal court.16

Herzog claimed that even in this instance, the parties had the right to appeal, “for our authority as

a rabbinical court of appeals flows from a communal enactment.”17 In other words, the

centralization of the rabbinical court system was not a result of enforcement by the secular state

alone; it had real halakhic validity. This approach was repeatedly affirmed in discussions in

Great Rabbinical Court cases about the jurisdiction of the rabbinical court of appeals. In one

example of many, the court ruled in 1945:

The Great Rabbinical Court finds that it indeed does have the
authority to judge this appeal, since the matter of appeals was
accepted by rabbinical enactment, which is a law [as binding] as a
16
Since the Mandate period or earlier, the rabbinical courts had functioned as arbitration tribunals in areas outside of
their legal jurisdiction. This role of the rabbinical courts was recognized in law under the Mandate. In 2006,
however, in HCJ 8638/03 Amir v The Great Rabbinical Court in Jerusalem, the state ruled that Israel’s state-funded
rabbinical courts were prohibited from acting as arbitration tribunals, even where the private parties submitted
themselves to their binding authority, and were only allowed to adjudicate cases that the state explicitly placed under
their jurisdiction. See: Mautner, Law and the Culture of Israel, 189-90; Adam S. Hofri-Winogradow, “Plurality of
Discontent: Legal Pluralism, Religious Adjudication and the State,” Journal of Law and Religion 26, no. 1 (2010):
76-78 and passim.
17
Herzog, Pesaqim U-khetavim, 9: Teshuvot 'al hoshen mishpat, Vol 9, Siman 11.
 230

law of our holy Torah. Therefore, anyone who comes to court

comes with this in mind.18

As if to underline the importance of both the system of appeals and the requirement for recording

judicial reasoning, the religious establishment published in 1950 the very first collection of

rabbinical court rulings, called Collection of Rulings of the Chief Rabbinate of the Land of Israel

– the Great Rabbinical Court for Appeals.19 Edited by Zerah Warhaftig, this book was the first of

its kind. For centuries rabbis had published collections of responsa, which often included their

rulings from their roles as rabbinical judges. The formal records of Jewish communities also

frequently included the final rulings of rabbinical cases. Warhaftig’s collection, however, a

product of the newly institutionalized and centralized bureaucracy of the Chief Rabbinate, was

quite different. The format of the book evinces the bureaucratization and modernization of the

rabbinical system. Each case in the collection begins with the reference number for the case and

the name of the court. It then lists the names of all of the judges, the president of the court for the

hearing, the plaintiff, the respondent and their legal counsel.20 There follows a short summary of

the subject of the case; a statement of the facts; the terms of the decision (often presented as a

numbered list); the reasoning of the judges; and a numbered list of the “conclusions”, meaning

points of law decided in the case which could conceivably be applied as binding precedent in

future cases.

18
Osef piskei din, 1, 71. The halakhic significance of the enhanced status of the state-endorsed Great Rabbinical
Court in Jerusalem was discussed in various forums. For more about the way the official position of the chief
rabbinate affected the perception of its courts in the halakhic mind, see: Maoz, “Ha-rabanut u-vet ha-din: ben patish
ha-hoq le-sadan ha-halakha.”
19
Osef piskei din, 1.
20
Names are often concealed to preserve anonymity, for example: “The plaintiff A (the wife); The respondent B (the
husband).”
 231

Similar records of rabbinical court cases were published regularly for about twenty years. The

format of these published decisions was quite different from those previously issued by the very

same courts but it was almost identical to the format of the records of the Supreme Court of

Israel, which began to be published at around the same time. Figures 1 and 2 (page 234) depict

how similar were the records of secular courts to those of the rabbinical courts in both content

and form, even down to the typeface. By contrast, figure 3 (page 235) is a copy of a decision of

the Jerusalem rabbinical court from 1938. The differences are demonstrable. Whereas the later

judgments were published, the 1938 decision never was. The later decisions, both rabbinical and

secular, take up several pages; the 1938 decision takes up less than a page. It is quite likely that

the judges in this case conferred and perhaps even exchanged their own considerations in

writing. These notes, however, if they existed, were not preserved. Therefore, instead of sections

outlining the points of law considered in the case, the findings of fact and the orders of the court,

the entire decision consists of two sentences:

There have appeared before us in law Mr Pinhas Ehrlichman,

plaintiff, and his representative Mr. Goldberg Esq., and Mrs.
Rivkah Shapira-Ehrlichman, respondent, and her representative
Rabbi Yitshak Levi. After hearing the claims and responses of the
two sides, we have decided:
According to the enquiry she is held to be a married women. The
plaintiff may not force her to accept a divorce until he pays her
damages in the sum of 15 Palestinian pounds. Then he will be
exempt from marital support.21

It is clear that from the late 1940s, the Chief Rabbinate, assisted by religious Zionist lawyers like

Warhaftig, chose to present the rulings of the rabbinical court in a way that was quite different

from any previous such record, but identical to the presentations of the secular courts of Israel.

No law or political pressure pushed the Chief Rabbinate to do this. It was the outcome of a desire

21
Israel State Archive LAW/23527/15
 232

to present the rabbinical courts as professional, regulated and uniform, to draw the Jewish

population of Israel to patronize the rabbinical courts over the secular courts and above all to

centralize authority of the rabbinical courts into a hierarchy with the Chief Rabbinate at its peak.

The initiative to publish the decisions of the rabbinical court came from Warhaftig himself. He

was assisted by a number of lawyers, including Mordekhai Levanon, who was one of the authors

of the procedural regulations of both 1921 and 1942. Some rabbis were initially resistant and

pointed out that the decisions were not written according to a consistent format. They had to be

reassured that the editors would abstract the necessary information from the available material

and put it into a format fit for publication.22 The forward of the first collection of edited decisions

included the following note from Warhaftig:

The selection of the rulings herein published was guided by the

desire to accurately portray the workings of the Court. … The
opinions of the judges, with a few exceptions, are not published as
written, but have been abstracted by the editors from the contents
of the pamphlets appended to the case files. This volume thus does
not constitute a formal record and the editors assume full
responsibility for the adaption and wording of the judicial
opinion.23
The goal of publishing the decisions therefore, was initially articulated not by the rabbinical

judges themselves, but by religious Zionist jurists, was to modernize the workings of the

rabbinical court. The format of the edited decisions was designed with that in mind:

The principal facts are presented succinctly, the conclusions

unambiguously. It this provides jurists and scholars with access to
the world of the rabbinical courts and the methods by which they
reach their decisions.24
22
Zerah Warhaftig, “Precedent in Jewish Law,” in Authority, Process and Method: Studies in Jewish Law, ed.
Hanina Ben-Menahem and Neil S. Hecht (Australia: Harwood Academic Publishers, 1998), 13 fn. 73.
23
Quoted at: ibid., 14.
24
Ibid.
 233

Despite the fact that the rabbinical judges did not initiate this process, however, they were soon

conditioned by it. Warhaftig “found that publication encouraged rabbinical court judges to

communicate their opinions in a clear and orderly manner comprehensible to those unschooled in

Jewish law, whether jurists or members of the public.”25 The bureaucratization of the rabbinate,

therefore, began to affect the thinking of even those rabbis who were initially skeptical of it.

Since his time in Ireland, Herzog had attempted to portray rabbinical law to be as efficient,

structured and systematic as any European law. He hoped that by demonstrating that halakha

could compete with modern state law on its own terms, it would be taken more seriously and its

genius would be acknowledged. From the 1940s, the Chief Rabbinate of Palestine and Israel

followed a similar strategy, but now the consequences were practical and not just theoretical. The

creation of a centralized hierarchical halakhic system on the model of Israel’s secular courts was

intended to demonstrate the competence of rabbinical courts to operate under modern conditions

and to compete with the institutions of state.

25
Ibid.
Fig. 1: First page of a ruling from Israel’s [civil] Court of Appeals, Fig. 2: First page of a ruling from the Rabbinical Court
234

1959. [C. A. 291/56 Piskei Din 13:39.] of Appeals, 1957. [Osef piskei din, 2, 353.]
 235

Fig. 3: Ruling from the Jerusalem Rabbinical Court, 1938.

[Israel State Archive LAW/23527/15.]
 236

Statutory Legislation

The commitment of the Chief Rabbinate to legal centralism and bureaucratization is equally

evinced by a flurry of rabbinic legislation. Before 1944, there had been no rabbinic statutory law

in Palestine other than the procedural regulations discussed above.26 In 1944 and 1950, a whole

series of statutory regulations were enacted by the chief rabbinate. This fact in itself is an

indication of the centralist approach of the Chief Rabbinate. Statutes by their nature diminish the

interpretive authority of individual judges and presume the universally acknowledged authority

of the legislating body. The substance of the statutes reinforces the impression that they emerged

from the particular centralist attitude of the chief rabbinate.

The statutes can be summarized as follows:27

1944 Statutes:

1) All Jewish marriages require a ketubah, a document guaranteeing a payment to the wife

from the husband’s estate in the in the case of divorce or the husband’s death. The sum

guaranteed in the ketubah was traditionally set at a certain number of silver shekels, an

ancient denomination whose precise value is disputed by modern rabbis.28 Under this

26
On the occasion of the establishment of the Chief Rabbinate in 1921, R Kook in his inaugural speech talked about
the potential for the Chief Rabbinate to be a legislative body: ‘In our national life in the Land of Israel, there will
surely at times be a dire necessity to issue some significant legislation [‫]תקנות‬, which, if agreed upon by a majority
of the rabbinate, the generally recognized sages of Israel, and accepted by society, will then gain the status and
power of Torah law.’ Quoted in: Warhaftig and Katz, Ha-rabanut ha-rashit le-Yisra'el, 1:23. But Kook never
himself embarked on this vision of rabbinical legislation.
27
The full text of the statutes and associated contemporary material is at: Herzog, Tehuqah le-Yisra'el al-pi ha-
torah, 3, Part 3. See also: Zorach Warhaftig, “Rabbi Herzog and Rabbinic Legislation,” in The Halakhic thought of
R. Isaac Herzog, ed. Bernard S. Jackson, Jewish Law Association Studies V (Atlanta: Scholars Press, 1991).
28
For a survey of modern valuations of the ketubah, see: Michael Broyde and Jonathan Reiss, “The Value and
Significance of the Ketubah,” The Journal of Halacha and Contemporary Society 47 (2004).
 237

statute, the minimum value of the ketubah was fixed at a sum in a contemporary

currency: 50 Palestinian pounds for a first marriage and 25 Palestinian pounds for a

widower or divorcee.

2) A man whose married brother dies childless is called yavam and is required by halakha to

either marry his brother’s widow or to perform a ceremony called halitzah, freeing him

from this requirement and allowing her to re-marry at will. Until the halitzah ceremony,

the widow is unable to re-marry. According to this statute, the yavam is required to pay

the widow maintenance until he agrees to carry out halitzah.

3) A father has to support his children up to the age of fifteen years.

1950 Statutes:

4) According to halakha, a Jewish marriage is carried out between the bride and groom in

the presence of two witnesses; a rabbi’s involvement is not technically required. This

statute was designed to formalize marriage ceremonies and to bring them under the

auspices of the administration of the rabbinical courts. It laid down that betrothal can

only be performed as part of a full marriage ceremony in the presence of a quorum and

that marriages may only be carried out by rabbis who have been authorized by the Chief

Rabbis.

5) The minimum marriage age for a woman is 16 years and one day.

6) Halakha forbids a woman to marry more than one husband but various communities

followed different practices with regards of a man marrying more than one wife. This

statute prohibited polygamy for all communities, whatever their traditional practices.

7) The 1944 statutes had provided a financial incentive for halitzah; this statute mandated it.
 238

It also stipulated that a yavam must perform halitzah, and is prohibited from marrying his

brother’s widow.

8) Upon divorce, a man must pay his wife “compensation” in addition to the value of the

ketubah.

9) According to halakha a divorce must be given at the initiative of the husband and may not

be issued against his will. After a separation, therefore, it remains in the power of the

husband to prevent his wife from re-marrying by refusing to grant a divorce, either in

pursuit of financial gain or out of a desire to make her suffer. This statute allowed the

rabbinical court to request the state to incarcerate a so-called recalcitrant husband

pending his agreement to finalize the divorce.

These statutes served to further the centralization of legal authority in the Chief Rabbinate and to

impose uniform practice on everyone under its jurisdiction. One function of the statutes was to

bring the workings of the rabbinical courts in line with the norms of modern society. This does

not, however, imply that they were a concession to the state or its legislative authorities. To be

sure, the statute banning polygamy almost coincided with the Israeli legislature’s outlawing of

polygamy as part of the Women’s Equal Rights Law of 1951.29 This cannot, however, have been

the reason for the rabbinical legislation. As discussed in chapter 5, certain aspects of the

Women’s Equal Rights Law, such as the equality of spousal property relations, were vigorously

29
Technically, bigamy had been criminalized under the Mandate’s Criminal Law Ordinance (1936). The law
provided for exceptions, however, and was rarely enforced by the British, in keeping with their general reluctance to
interfere in the family law of religious communities. The law was made more rigorous under the provisions of the
Women’s Equal Rights Law (1951). Eventually, the loopholes in earlier laws were closed in the Penal Law
Amendment (Bigamy) Law (1959). See: P. Shifman, “The English Law of Bigamy in a Multi-Confessional Society:
The Israel Experience,” The American Journal of Comparative Law 26, no. 1 (1978); Tammy Razi, “The Family Is
Worthy of Being Rebuilt: Perceptions of the Jewish Family in Mandate Palestine, 1918-1948,” Journal of Family
History 35, no. 4 (2010): 398.
 239

and vocally resisted by the Chief Rabbinate. In this case, the legislation was being introduced on

its own initiative.

Similarly, the rabbinic legislation concerning the minimum age of marriage came at around the

same time as the Knesset’s Age of Marriage Law of 1950. There, too, however, the rabbinical

statue self-consciously differed from the law of the secular legislature. The rabbinical statute set

the minimum age of marriage for women at 16. In the Knesset, the age was set at 17. Religious

authorities in Palestine (both Jewish and Muslim) had long resisted attempts to legislate a

minimum age for female marriage.30 Here too, however, the decision of the Chief Rabbinate to

finally compose legislation of its own in this area should not be understood as a capitulation to

the demands of the state. In his discussion during the drafting of the rabbinical statutes, it was

clear that Herzog did not feel himself to be bound by the state legislature. On the contrary, he

hoped that if he preempted the decision in the Knesset, the Knesset would in fact capitulate to his

own decision: “We should [set the age] similar to the government so that it will only set the age

that we set.”31 Indeed, aware that the discussions in the legislature were likely to set the

minimum age at 18, Herzog, chose a different age, even though he had no halakhic objection in

principle to the age that the Knesset was about to choose:

I do not think that the age of 18 is entirely impossible according to

halakha, [but] we also have to take into account the terrible fact of
the destruction of the six million … and therefore my opinion is
that the age should not be older than 17 years and one day for a
male and 16 years and one day for a female.32

30
Likhovski, Law and Identity In Mandate Palestine, 93-97.
31
Herzog, Tehuqah le-Yisra'el al-pi ha-torah, 3, 160.
32
Ibid.
 240

For public policy reasons of his own – the desire to increase the child-bearing years of Jewish

women in the aftermath of the Holocaust – he explicitly chose to put his rabbinic legislation at

variance with that of the state.

Clearly, then, the origins of these rabbinical statutes must be sought elsewhere than in the desire

to accommodate the wishes of the state. They can best be interpreted as a natural continuation of

the centralizing tendencies of the Chief Rabbinate during this period. The attempts of Herzog,

Bar-Ilan and others to bring the entire state under the control of Jewish law had failed. But they

remained committed in principle to legal centralism and valorized a legal system that was

centralized, hierarchical, uniform, and which operated according to the standards of order and

efficiency of modern state bureaucracies.

It makes sense, then, that a key concern of these statutes was bureaucratization and the

imposition of uniformity of practice. One example of the bureaucratizing tendency of the statutes

was the requirement that weddings only be carried out by authorized rabbis. Before this point

state law mandated that all marriages of Jews in the state had to be carried out under halakha. It

did not, however, have any provisions for the official registration of authorized rabbis. Any

marriage conducted according to rabbinical law in Palestine/Israel was a valid marriage,

irrespective of who had carried it out.33 These statutes restricted the administration of Jewish

marriages to rabbis who had been officially registered by the Chief Rabbinate. This gave the

Chief Rabbinate, rather than regional rabbis or rabbinical courts, full control over all Jewish

marriages conducted in the state.

33
From the perspective of the state, the qualifications and registration of rabbis was not legislated until the
Rabbinical Courts Jurisdiction (Marriage and Divorce) Law (1953).
 241

One aspect of halakha in particular claimed the attention of the Chief Rabbinate in its imposition

of its centralized authority. Jewish law is infused with local variations, including sometimes

quite large divergences of law between different communities. Jewish immigration to Palestine,

especially after WWII, brought together communities of very different origins. This was

particularly the case after the immigration of tens of thousands of Sefardic Jews from Yemen and

other Arabian countries in the early years of the state.

Sefardic and Ashkenazic practices surrounding marriage differed in a number of important ways:

Although Ashkenazic communities had given up the practice of polygamy early in the middle

ages, in many Sefardic communities, men continued to marry more than one women; certain

Sefardic communities, in particular those from Yemen, had the custom of betrothing minors;

Sefardic and Ashkenazic communities value the silver shekels in a traditional ketubah differently

such that the same number of traditional shekels of silver in a ketubah would be valued lower by

a Sefardic judge than an Ashkenazic judge; in the case of yibum, Sefardic custom encourages the

yavam to marry his sister-in-law widow whereas Ashkenazic custom encourages him to perform

halitzah.34

Prior to the enactment of these statutes each community acted according to its received

traditions. Soon after Herzog became chief rabbi, he was asked to provide his expert opinion in a

case in the Mandate courts where a Jewish man was being prosecuted for polygamy. His defense

34
Aharon Gaimani, “Marriage and Divorce Customs in Yemen and Eretz Israel,” Nashim: A Journal of Jewish
Women's Studies & Gender Issues, no. 11 (2006). Ashkenazim ceased the practice of polygamy long before it was
formally outlawed in the tenth century under Rabenu Gershom. See: Finkelstein, Jewish Self-Government in the
Middle Ages, 23 ff.
 242

was that his own religious law, which governed personal law, allowed polygamy. Even though

he was Ashkenazic, Herzog agreed that the ban on polygamy was not universally authoritative in

the Jewish world and that even for Ashkenazim a second marriage was not void.35 If this were

true for Ashkenazim, it was certainly true for Sefardic communities which continued to follow

their own customs after arriving in Palestine or Israel. Herzog’s representations to the British

courts in this matter no doubt flowed from his general antipathy to the involvement of those

courts in matters, like marriage, that he felt should fall under the exclusive jurisdiction of the

rabbinical courts. However, although he acknowledged the diversity of Jewish practice for the

purposes of exonerating a Jewish man under criminal investigation for polygamy, his own

jurisprudential leanings made him highly antipathetic to this kind of pluralism in practice. The

adherence of different Jewish communities to their own customs and law was entirely

unremarkable in the context of Jewish history but it could not be countenanced by a centralized

rabbinical authority which was trying to create a modern system of law.

The Chief Rabbinate recognized that one of the most fundamental features of modern legal

systems is that the same law governs everyone. The desire to implement this principle in the

context of Jewish law lay behind Bar-Ilan’s attempts to formulate a halakhic code that would

pertain to all citizens, even Gentiles. Although his plan failed, as we have seen, that centralizing

and unifying impulse did not dissipate. It was applied to all those areas over which the Chief

Rabbinate did have control. The rabbinical statutes under discussion are a function of this. Thus,

the statutes banned polygamy even for those whose communal practice permitted it and set a

minimum age for marriage even on those communities whose female children were married

35
Attorney General v Melnik Criminal Appeal no. 85 (1938), Palestine Law Reports 6 (1939): 34. See: Rackman,
“The Religious Problems in the Making of the Israeli Constitution (1948-1951),” 71.
 243

young. They also mandated the halitzah ceremony even for those communities whose traditional

practice had been yibum, the marriage of a childless widow to her late husband’s brother, and

stipulated a value of the ketubah document higher than the figure customary in Sefardic

marriages.

It did not escape the attention of Sefardic rabbis that the statutes not only imposed uniformity;

they imposed it according to the Ashkenazic rite. The reasons for this are not difficult to discern.

Ashkenazic rabbinical authorities in the majority in Israel. More importantly, for people like

Herzog, whose entire legal philosophy was motivated by the desire to create a halakha that

would be seen to compete with any modern state’s legal system, practices like child marriage and

polygamy would have seemed backward, even barbaric. Indeed, one might argue that the Chief

Rabbinate here was implementing Warhaftig’s exhortation to “imperialism” in more ways than

one. Not only did these statutes represent the imposition of a centralized rabbinical authority and

the continuation of a struggle with the state over social and legal control, but it also constituted a

kind of civilizing mission with regard to the newer immigrants from Eastern countries.36

It was resisted by those such as Ovadiah Yosef who was and remained a champion of Sefardic

independence. In 1951, just one year after the statute mandating halitzah, a case came before

Yosef in the rabbinical court of Petah Tikvah. In a typically long ruling, he concluded:

It seems clear that for us [Sefardim] who hold onto the coattails of
our teacher37 [that]… the commandment of yibum takes
36
This entire episode can perhaps best be understood in the highly politicized context of the relationship between
Sefardic and Ashkenazic Israelis in Israel, particularly after the troubling policies of the state with regard to the
Yemenite immigration of 1949. See: Tom Segev, 1949: The First Israelis, trans. Arlen Neal Weinstein (New York,
London: Free Press, Collier Macmillan, 1986), Part II.
37
I.e. Rabbi Yosef Karo, author of the Shulhan Arukh, a key rabbinical code. Typically, Sefardic rule follows Karo
whereas Ashkenazic rule follows the opinion of Rabbi Moses Isserles in the case of a disagreement.
 244

precedence over halitzah even today. The agreement of the leaders

or members of the Chief Rabbinate of Israel who legislated the
annulment of the commandment of yibum altogether, even for the
Sefardim and Eastern communities, has no authority. They have no
authority in this matter.38
Yosef, then, correctly perceived this legislation as an attempt both to centralize authority in the

Chief Rabbinate and to impose a uniform law on all Jews in the state. He disapproved of both

tendencies.39

Legal centralism had begun as a fairly marginal ideology among religious Zionists. It was

championed, however, by powerful figures like Herzog and Bar-Ilan just as the state was

established, and rose to dominance. After it became clear that the state’s laws would not be based

on the Torah, legal pluralism might in theory have regained its earlier popularity in religious

circles. If the legal authority of the state was both secular and centralist, strict adherence to a

centralist position would result in the subordination of the rabbinical authorities to a legal

hierarchy which derived its authority not from the will of God but from the will of the people.

This, in the opinion of leading politicians and jurists, was indeed the case. However, rather than

abandoning their centralist position for a more accommodating pluralism, mainstream religious

Zionist leaders instead adopted an ingenious strategic maneuver in order to preserve their

centralism while also asserting their independence from the state’s sovereignty. While

representing themselves to the state, they argued for the independence of the rabbinical system

on the basis of classic pluralist arguments. Within their own camp, however, they retained and

38
Yabi’a Omer, volume 6, Even Ha-Ezer 14 (9).
39
The imposition of Ashkenazic custom, and Yosef’s resistance to it, can also be seen in the politics of the
discussion about the pronunciation of Hebrew. See: Isaac B. Gottlieb, “The Politics of Pronunciation,” AJS Review
32, no. 2 (2008).
 245

strengthened their centralist position and did all they could to impose uniformity, order, a

statutory framework and a hierarchical system on the entire rabbinical system.

 246

Conclusion

This dissertation is an attempt to recover abandoned pathways in religious Zionist thought and to

explain why those paths were abandoned in the first place. It maps a shift in the approach to law

and the state that took place in religious Zionists thought around the time of the establishment of

the State of Israel. Before this shift, a variety of legal philosophies were available to religious

Zionist thinkers. At the extreme, as shown in chapter 1, the religious kibbutz movement and its

affiliated thinkers advocated a revolutionary, almost anarchic, approach to law. They wanted

their society to be built only on rules that emerged spontaneously from the spirit of their religious

and national life. Although they embraced the existence of the state as the fulfillment of a

nationalist ideal, they retained a Marxian skepticism for state as the seat of all law and authority.

They drew on Weimar legal theory to formulate a jurisprudence that could express their

repudiation of legal positivism while also being able to defend the role of law in sustaining a

society and its values. Established patterns of halakhic interpretation prevented them from

implementing this philosophy to the extent that some kibbutz thinkers desired but the kibbutzim

remained a symbol of the potential to construct a political and legal order that was not, in theory,

at least, entirely focused on the state.

Chapter 2 surveyed a number of religious Zionist constitutional positions that existed alongside

the radical legal philosophy of the kibbutzim. They covered a spectrum from, at one extreme, the

call for a complete separation between religion and state to, on the other, the call a rabbinic

oversight of all legislation. They all, however, shared in common a pluralistic attitude to law.

They agreed upon the fact that a single polity may have within it a plurality of legal regimes and
 247

a plurality of legitimate sources of legal authority. This position had the advantage that it was

able to preserve a distinction between halakha and the state, thereby avoiding the imposition of

halakha on people who did not recognize its authority and preventing the imposition of radical

modifications on halakha in order to engineer its accommodation with the requirements of

modern law.

In the late 1940s, however, a shift took place that limited the legal philosophies that were

available to religious Zionists. Legal centralism, a new approach to law, rose to dominance. The

legal anarchism of the kibbutz and the legal pluralism of the mainstream religious Zionist leaders

each lost their viability as they were overshadowed by legal centralism, which became the

overarching philosophy that guided the religious Zionist community in theory and in practice. As

chapters 3 and 4 showed, this shift was associated strongly with Isaac Herzog, whose scholarly

life had been dedicated in large part to portraying the sources of Jewish law according to the

image of state-centered jurisprudence that was valorized by modern legal scholars in Britain and

in Palestine. Chapters 5 and 6 made clear that Herzog was not the only figure to adopt this

position. It became so influential among religious Zionist leaders that it molded their

constitutional fantasies, determined their strategic self-representation to the state and guided the

construction of the entire system of the new rabbinical courts.

To be sure, this dissertation does not cover every aspect of religious Zionist legal philosophy

during the period. It leaves a lot of room for further research, particularly in three areas, which I

hope to explore in future works. First, the picture would be enhanced by a more thorough

consideration of the legal philosophy of the Sephardic leaders of religious Zionism. Although to
 248

some degree susceptible to the same dynamics of nationalism and independence as Ashkenazic

thinkers, it stands to reason that Sephardic thinkers were less entrenched in the jurisprudence

Western Europe. Indeed, models of legal pluralism seem to have had greater prominence in the

thinking of Bentsion Uziel, Hayim David Halevi and others.1 Second, this dissertation is

concerned primarily with the ways in which religious Zionist thinkers engaged with the theory of

the state while it was still in the process of formation. In subsequent years, especially the 1950s

and 1960s there was a wealth of journal and responsa literature that dealt with the halakhic status

of the state and its legislation.2 This literature sheds important light on the way they revisited

those questions after the institutions of state were already established and the patterns of

interaction between the government and the religious parties had become more familiar. Third,

better access to the records of the rabbinical courts would sharpen this project. Israeli law

imposes an embargo of seventy years on all the case files because they tend to deal with the

1
In addition to his responsa, other non-halakhic writings of Uziel have recently been published. See: Bentsion Me'ir
Hai Uzi'el, Mishpetei Uzi'el, 10 vols. (Jerusalem: Ha-va'ad le-hotsa'at qitvei ha-rav, 1998-2004); Bentsion Me'ir Hai
Uzi'el, Mikhmanei Uzi'el, ed. Ezra Barne'a et al, 6 vols. (Jerusalem: Ha-va'ad le-hotsa'at qitvei maran zts"l, 1995-
2009). Halevi wrote a book of particular interest to the topic of legal philosophy: Hayim David Halevi, Dat u-
medinah (Tel Aviv: Defus Arzi, 1969). See also: Marc Angel, Loving Truth and Peace: The Grand Religious
Worldview of Rabbi Benzion Uziel (Northvale, N.J.: Jason Aronson, 1999); Marc Angel and Hayyim J. Angel,
Rabbi Haim David Halevy: Gentle Scholar and Courageous Thinker (Jerusalem; New York: Urim Publications,
2006); Moshe Hellinger and Ruth Bar-Ilan, “Religious Ideology That Attempts To Ease the Conflict Between
Religion and State: An Analysis of the Teachings of two Leading Religious-Zionist Rabbis In the State of Israel,”
Journal of Church and State 51, no. 1 (2009); Radzyner, “Ha-rav Uziel, rabanut Tel-Aviv-Yafo u-bet ha-din ha-
gadol le-erurim: mahazeh be-arba ma'arakhot.”
2
See, in particular: Sha'ul Yisra'eli, ed. Ha-torah veha-medinah (Tel Aviv: Ha-merqaz le-tarbut shel hpohm"z,
1949-). Some important articles from the journal were republished in: Yehdah Shaviv, ed. Be-tsomet ha-torah veha-
medinah: mivhar ma'amarim mi-tokh kovtsei “ha-torah veha-medinah” be-arikhah mehudeshet, 3 vols. (Alon
Shevut, Gush Etsion: Mekhon tsomet, 1991). One of the most interesting religious Zionist thinkers of the 1950s and
1960s was Rabbi Shaul Yisraeli, who published an entire collection of responsa laying out innovative halakhic
positions on various aspects of the state. Sha'ul Yisra'eli, Amud ha-yemini, 2 ed. (Jerusalem: Hotza'at ha-torah veha-
medinah al shem maran ha-rav Sha'ul Yisra'eli ztz'l, 2010). It would also be valuable to trace some more radical
thinkers over this period. Scholars, for example, have already investigated the shift in the early 1950s in the thinking
of Yeshayahu Leibowitz. See: Moshe Hellinger, “A Clearly Democratic Religious-Zionist Philosophy: The Early
Thought of Yeshayahu Leibowitz,” Journal of Jewish Thought and Philosophy 16, no. 2 (2008); Yeshayahu
Leibowitz, Torah u-mitsvot ba-zeman ha-zeh: hartzaot u-ma'amarim 5703-5714 (Tel Aviv: Masada, 1954);
Yeshayahu Leibowitz, Judaism, Human Values, and the Jewish State (Cambridge, Mass.: Harvard University Press,
1992); Haim O. Rechnitzer, “Redemptive Theology in the Thought of Yeshayahu Leibowitz,” Israel Studies 13, no.
3 (2008).
 249

personal lives of individuals.3 Some court decisions have been published, although it is

impossible to tell how they were selected and at least some of them were edited or censored. 4

This makes it hard to perform a serious historical study of the material. Despite the need for

further research, however, the evidence available does seem to support the general narrative of

the dissertation: there was a shift from legal pluralism to legal centralism which came about not

primarily as a result of an immanent unfolding of the rabbinic tradition but by the interaction of

religious Zionist thought with modern legal and political theory.

This shift is a significant contribution to the way that we think about the relationship between

religion and modernity, particularly within the context of the modern state. There has been a

great deal of concern recently about a perceived kulturkampf between religious and secular

sectors of society. When the state was founded, these two populations each prophesied that the

other would soon die out of its own accord and was therefore prepared to make temporary

compromises. In recent decades, however, that mutual accommodation has broken down. Neither

side achieved the unambiguous social dominance that they expected and the erstwhile

3
Amihai Radzyner has begun an analysis of the rabbinical court records from before 1942, which have been opened
to the public.
4
The published decisions are: Dov Katz and Yitshak Glazner, eds., Pisqei din shel batei ha-din ha-rabani'im ha-
ezori'im be-Yisra'el (Jerusalem: Defus Veis, 1954-). Shmu’el Daikhovsky, himself a judge in the rabbinical court
system, describes the selectivity of the publishers and the censorship of published decisions:
The practice of the editors of the rabbinical court decisions until recently was
not to publish decisions that mention or relate to the secular law. In certain
circumstances they even took out sections of published decisions when they
contained quotations from secular law.

Shlomo Daikhovsky, “Samkhut batei ha-din ha-rabani'im be-re'i psiqat batei ha-din,” Diné Israel 10-11 (1981-3):
10.
 250

accommodations between secular and religious Jews in Israel lost their power to hold together

groups with fundamentally different approaches to law, politics and social values.5

Religious Zionism was not exempt from these developments. Its early protagonists believed that

its synthesizing ideology could heal the rifts between the anti-Zionist ultra-Orthodox on the one

hand and the ant-Orthodox secular Zionists on the other. Recently, however, in a period of

growing mutual antipathy between sectors of Israeli society, religious Zionism has itself become

increasingly antagonistic to the secular state. Most historians look for the roots of this

antagonism in the transformation of religious Zionist ideology after 1967. In the aftermath of the

Six-Day war, the religious Zionist camp, under the influence of Rabbi Tsvi Yehuda Kook and

others, cultivated an ever more utopian and messianic understanding of the state, affirming “the

truth that the state of Israel is a divine state.”6 This understanding of the state, however, was

dependent on its fulfilling a particular messianic vision laid out for it, which included an

expansion of Israeli territory. The state, however, considered, and in some cases implemented, a

withdrawal from parts of that territory. The religious Zionists’ valorization of the state as a

messianic tool turned into a deep sense of betrayal once the state, in their mind, had abandoned

its divine mandate.7 One terrible outcome of an extreme expression of this ideology was the

assassination of Prime Minister Yitzhak Rabin in 1996. Although that event was followed by a

5
See, for example: Asher Cohen and Bernard Susser, Israel and the Politics of Jewish Identity: The Secular
Religious Impasse (Baltimore: Johns Hopkins University Press, 2000); Aviezer Ravitzky, “Religious and Secular
Jews in Israel: A Cultural War?,” in Creating the Jewish future, ed. Michael Brown and Bernard V. Lightman
(Walnut Creek: AltaMira Press, 1999).
6
This formulation is by Rabbi Hayim Druckman describing the views of Kook. Quoted in: Aviezer Ravitzky, “‘Let
Us Search Our Path’: Religious Zionism After the Assassination,” in The Assassination of Yitzhak Rabin, ed. Yoram
Peri (Stanford, Calif.: Stanford University Press, 2000), 144.
7
Clearly, this brief sketch does not do justice to the variety and nuance that continued to characterize religious
Zionists, many of whom endorsed the peace process and the idea of “land for peace.”
 251

brief period of soul-searching in many sectors of religious Zionism, the messianic ideology did

not disappear and the sense of betrayal was intensified, particularly after the disengagement from

Gaza in 2005 and ongoing clashes with the state over the building of new Jewish settlements in

the West Bank.

My research indicates, however, that an important component of the religious-secular

kulturkampf may be found in jurisprudential shifts at the beginning of the state period. Although

the political and ideological developments after 1967 are, indeed, critical factors in the

development of recent social tensions, the transition described in this dissertation established a

framework in which they could unfold. The conflict between religious and secular Zionism is

made possible not only by their fundamental differences but also by their fundamental

similarities. Reading the legal philosophy of religious Zionists in the context of the legal

philosophy of modern Europe shows that religious Zionist rabbis and thinkers constructed their

own constitutional ideas against the backdrop of theories of sovereignty and legal interpretation

that emanated from European universities as much as from the world of the yeshiva. Just as

secular Zionism – along with nationalist independence movements all over the world – embraced

legal centralism, so did the religious Zionists.

Ironically, it was the fact that both secular and religious Zionists adopted the same centralist

understanding of the state that made for a more intense conflict between them in the long-run.

Although polities characterized by legal pluralism are not devoid of conflict, the doctrine is

nonetheless predisposed to allow the devotees of different legal and political systems to in some

way recognize the validity of the other. This was a function of the medieval Jewish legal
 252

mechanisms of “king’s law” and the “law of the land.” It was also a function of the indirect rule

of the British Empire. Once the secular and religious Zionist elite both adopted a position of

legal centralism, there was no longer any room for the other. In a centralist mentality, there is

only one unified legitimate locus of legal and political authority: the state. Once each party

adopted the doctrine of legal centralism, it meant that everyone was interested in having as much

control as possible over the instructions of state. Everyone was fighting over the same territory.

A similar pattern can be discerned on a global scale. In recent decades there has arisen in many

countries what has been described as a conflict between religious fundamentalism and secularist

constitutionalism. Here too, the conflict arises from both difference and similarity. For all that

religious fundamentalists and secular liberals differ over their visions of the state, they share the

belief that the state is the center of legal and political legitimacy and power. Thus, for example,

despite the fact that the nation state is a relatively modern political phenomenon and, therefore,

by definition, does not have a direct precedent in Muslim law, political Islam in most of its

varieties has not tried to overturn the state, but to coopt it and to create a “constitutional

theocracy.”8 In Pakistan, for example, Jamaat-i-Islami, an Islamic political party, believed that

that politics was the only legitimate expression of Islamic spirituality. The Muslim Brotherhood

in Egypt originally considered the ideal Islamic society to be a kind of a-political utopia but it

has since become extremely active in politics; Egypt’s President Mohamed Morsi is, of course,

drawn from its ranks.9

8
Ran Hirschl, Constitutional Theocracy (Cambridge, Mass.: Harvard University Press, 2010).
9
Mohammed Ayoob, The Many Faces of Political Islam: Religion and Politics in the Muslim World (University of
Michigan Press, 2007), Chapter 4.
 253

In all these cases, then, it seems that clashes between religious and secular, or traditional and

modern factions in Israel and worldwide are intensified by the fact that both sides have adopted a

position of legal centralism and regard the state as the ultimate prize. The corollary of this is,

some have argued, that if the ideological importance of the state is diminished, the grounds for

conflict or domination are likely to diminish too. In fact, a great deal of early scholarship on

legal pluralism was motivated by the desire to recover the dignity and legitimacy of non-

European legal cultures that were subsumed under the centralist European regime.10

For this reason, perhaps, some recent scholars have occupied themselves with uncovering the

pluralistic roots of Jewish legal and political theory.11 Legal pluralism provides the theoretical

framework to hold a strong and committed outlook, whilst allowing for the presence of other

10
The scholarship of early scholarship of legal pluralism was characterized by “the romantic assumption that
nonstate law was more egalitarian and less coercive than state law.” Mitra Sharafi, “Justice in Many Rooms Since
Galanter: De-Romanticizing Legal Pluralism Through the Cultural Defense,” Law and Contemporary Problems 71
(2008). As Sharafi points, out, however, there was, subsequently, criticism of this romantic view. One scholar, for
example, warned that “indigenous law…is not always the expression of harmonious egalitarianism. [It] often
reflects narrow and parochial concerns; it is often based on the relations of domination.” Marc Galanter, “Justice in
Many Rooms: Courts, Private Ordering and Indigenous Law,” Journal of Legal Pluralism 19 (1981): 25. It would be
naïve, therefore, to see legal pluralism as some kind of panacea that will miraculously increase the component of
toleration in society. It is, though, worth considering how a sophisticated use of the insights of legal pluralism might
be brought to bear on the problems under discussion. The Archbishop of Canterbury, for example, touched on this in
thoughts about what might entail a “just and constructive relationship between Islamic law and the statutory law of
the United Kingdom.” He called for both the state and religious communities to consider internal change and for an
avoidance of “the sterility of mutually exclusive monopolies.” Rowan Williams, “Civil and Religious Law in
England: A Religious Perspective,” Ecclesiastical Law Journal 10, no. 3 (2008): 264, 74. See also the discussion in:
Bernard Jackson, “‘Transformative Accommodation’ and Religious Law,” Ecclesiastical Law Journal 11, no. 2
(2009).
11
Michael Walzer’s latest book addresses the plurality of political regimes in the Bible. Suzanne Last Stone and
Menachem Lorberbaum have identified thinkers and legal mechanisms that divide between realms of law in the
medieval period. Yedidia Stern has examined the pluralistic elements of the Jewish tradition with the explicit goal of
applying those resources to the problems of contemporary Israel. Stone, “Religion and State: Models of Separation
from within Jewish Law.”; Lorberbaum, Politics and the Limits of Law; Yedidia Stern, State, Law and Halakhah, 4
vols. (Jerusalem: The Israel Democracy Institute, 2001-6); Michael Walzer, In God's Shadow: Politics In the
Hebrew Bible (New Haven: Yale University Press, 2012). Other scholars have pursued similar projects with regard
Islamic thought. Noah Feldman, for example, has argued that Islamic law has the resources within necessary to
produce democratic constitutional states under sharia. Noah Feldman, The Fall and Rise of the Islamic State
(Princeton: Princeton University Press, 2008).
 254

equally strong outlooks within the same political unit. I have shown not only that the Jewish

tradition as a whole possesses deep resources of principled legal pluralism, but that this was the

position of many significant religious Zionist thinkers all the way up to the foundation of the

state. It is striking how quickly the transition to legal centralism obscured the memories of those

early religious Zionist constitutional models.

 255

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