Monthly Archives: April 2021

Nathaniel Berman responds to Alexander Kaye on Legal Pluralism & Legal Centrism

Professor Nathaniel Berman offers us a response to Alexander Kaye’s discussion of Chief Rabbi Hertzog focusing on the legal theory behind the interview; topics beyond my competence.  First, he points out how legal pluralism has not gone away even in countries such as France. Two, religious and corporate arbitration is a form of legal pluralism. Three, the legal structure of the West Bank is certainly legal pluralism. Finally, and most importantly, Berman look at the case of legal pluralism or legal centrism in Turkey, a case that he teaches in his courses in international law. The case of Turkey was litigated and then adjudicated by the European Court of Human Rights providing a rich background for this discussion. Berman ties this back to Rabbi Hertzog at the end.

Professor Nathaniel Berman is Professor of International Law at Brown University. He is the  Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture in Brown University’s Religious Studies Department. A graduate of Yale College, Harvard Law School. He also has a PhD in Jewish Studies from University College London on  Divine and Demonic in the Poetic Mythology of the Zohar: the “Other Side” of Kabbalah, which we featured in a blog interview here.  

“Centralism” vs. “Pluralism”? The Quest for Justice in a Fragmented Society

Alexander Kaye’s thought-provoking interview with Alan Brill, based on Kaye’s The Invention of Jewish Theocracy: The Struggle for Legal Authority in Modern Israel (OUP, 2020), provides much-needed historical context for the  social, political, and legal fragmentation currently besetting Israel. In this comment, I seek to widen the frame of the discussion, in relation to both Israeli and international law. I take as my guiding thread the legal-theoretical dichotomy that Kaye uses to structure his discussion of Relgious Zionist debates on halakha in a Jewish State: “centralism” vs. “pluralism,” the latter term resonating with the current fragmentation. I will put this discussion in dialogue with a crucial decision of the European Court of Human Rights, Refah Partisi v. Turkey (2001), which explicitly confronted the “centralism vs. pluralism” issue in a religious context.

Kaye’s book highlights the thought of Yitzhak Herzog, the Ashkenazi Chief Rabbi whose term (1936-1959) spanned the Mandatory and Independence periods. Kaye presents Herzog as a strong advocate of the notion that only one legal system should govern any given polity – “legal centralism” — and that halakha should be that system in a Jewish State. Kaye contrasts Herzog’s position with those of others, such as Rabbi Shlomo Goren, who favored a legal “pluralism,” specifically, concurrent secular and halakhic systems.

Kaye interestingly characterizes Rabbi Herzog’s halakhic-centralism, contrary to what one might otherwise think, as distinctively “modern.” Halakhic-centralism would be the Jewish version of the centralization of power in the modern nation-state. By contrast, Kaye asserts (contra Herzog), Jews have historically mostly lived with legal pluralism, governed by halakhic, feudal, and a variety of governmental legal regimes. Kaye also provocatively argues that Herzog’s insistence on legal centralism provides a link between an older liberal Orthodoxy and today’s extremist right-wing ideologists of a “halakhic State.”

One may complicate Kaye’s frame from a number of perspectives. First, “centralism” and “pluralism” are ideal types, rather than descriptions of specific historical realities. No sovereign, modern or pre-modern, has tolerated an unbridled “pluralism.” Even sovereigns that have permitted, or encouraged, a degree of legal autonomy for ethnic or religious communities placed limits on that autonomy, particularly when perceived as materially or symbolically threatening sovereign authority. Conversely, a thoroughgoing “centralism” was always more of an ideology than a reality, an ideology only maintained through carving out certain realms, sometimes vast realms, as outside “normal law.”

Consider France. An assault on the legal pluralism of the ancien régime, with its overlapping and conflicting jurisdictions, played a key role in the ideology of the French Revolution. Pre-revolutionary France’s various legal orders differed by region, “estate” (nobility, clergy, commoners), religion, and even guild. Revolutionary ideology, culminating in the Napoleonic Code, preached the elimination of all intermediary legal collectivities between the individual and the State. Nevertheless, post-revolutionary France had no compunctions about ruling the populations of its far-flung empire under radically different legal systems than prevailed in the metropole – under such regimes as the infamous “Native Codes” (Codes de l’indigénat). Indeed, within French colonies themselves, European settlers lived under different rules than the “natives” – a situation described by French jurists as “legal dualism.”

In today’s Israel, a complex form of  overlapping “legal dualisms” prevail on the West Bank. Jewish settlers are generally governed by Israeli civil and criminal law, except for certain domains governed by military authority, such as land use and planning. (For example, the West Bank’s Ariel University was established by the order of Major General Nitzan Alon, the Head of the IDF’s Central Command.) Palestinians in “Area C” are generally governed by pre-occupation (i.e., Jordanian) law – but are nonetheless tried in Israeli military courts for offenses involving security and public order. A complex body of “conflicts of law” jurisprudence has arisen to deal with mixed Jewish/Palestinian cases. Palestinians in areas under Palestinian Authority control are generally subject to that Authority’s law, though they are also subject to arrest and trial by the Israeli military. If this “pluralist” regime were converted to “centralism,” it would entail one legal regime from the River to the Sea, applying equally to all – in short, that “State of all its citizens” anathema to the vast majority of Jewish Israelis.

Legal centralism has also been substantially attenuated even within the metropoles of advanced Western and Westernized countries. Such countries have long permitted, indeed encouraged, wide latitude to a variety of kinds of legal pluralism – in the guise of “private,” contractual arrangements. For example, powerful corporations have wide rule-making authority within their enterprises, which often affects the lives of their thousands or tens of thousands of employees far more than State law. Moreover, pervasively used arbitration agreements allow private actors, again often large corporations, to “contract out” of state law and set the procedural and substantive rules under which they settle their disputes. Judicial review of both kinds of such pervasive “private” rulemaking and adjudication tends to be rather minimal.

One kind of arbitration agreement, religious arbitration, is particularly relevant to Kaye’s work. Under such agreements, parties agree to submit their disputes to religious courts – again, “contracting out” of state law. As with corporate arbitration, judicial review tends to be minimal. Such agreements are quite common in countries like the US. In Israel, religious adjudication, both through State rabbinical courts (mostly used by the “national-religious” people) and private rabbinical courts (mostly used by Haredim) handle much of dispute resolution, even beyond “personal status” issues such as marriage and divorce.

How should one judge the implications for justice of the putative pluralism/centralism divide? It is my contention that one cannot do so in the abstract, particularly when divorced from the context of power. For example, Rabbi Yitzhak Herzog would have extended his halakhic centralism even to non-Jews living in the Jewish State. In his responRabbi sum on this theme written just before Israeli independence, Herzog envisioned three classes of residents of the Jewish State: 1) Jews, as defined by Orthodox halakha; 2) “resident-strangers” (ger toshav), a complex legal category that entails acceptance of the “seven Noahide laws”; and 3) simple non-Jews, particularly those halakha considers “idol-worshipers.” The second category of people would enjoy most, but not all, rights of Jews; the third category would enjoy fewer rights. To be sure, and I will return to this theme, Herzog sought to minimize these inequalities, declaring (in his pre-State responsum) that the international community would not tolerate glaring discrimination.

Without going into the intricate complexities of Rabbi Herzog’s tripartite schema, we can see that justice concerns are quite distinct from the pluralism/centralism schema. If one belongs to an ethnic or religious minority, one may well benefit from legal pluralism, preferring the legal system of one’s own group rather than submitting to the majority group’s system. And then again, one may not. Even if one may be the object of ethnic or religious discrimination by the majority, one may fare better under the majority’s legal system due to other kinds of discrimination in one’s “own” group, say on the basis of sex, gender-identity, or sexual orientation. One cannot predict in the abstract how the centralism/pluralism divide would affect justice.  

The European Court of Human Rights 2001 decision in Refah Partisi v. Turkey amplifies, at times unwittingly, our understanding of these issues. In 1998, the Turkish Constitutional Court had ordered the dissolution of the Islamist Welfare Party (Refah Partisi). The Court declared that the Party had engaged in a variety of activities designed to undermine the secular nature of the Turkish State. The Turkish Constitution at that time explicitly established Turkey as a secular State. It also outlawed action designed to cause the “legal order of the State to be based on religious precepts.” The Welfare Party’s alleged anti-secular activities included calls for the violent overthrow of the secular Turkish State and support for international terrorist groups. For our purposes, though, the crucial charge concerned the Party’s plan to replace secular Turkish law with religious law. This proposal would have meant the application of Sharia to the 95% of the population who are Muslims. Other communities would have been governed by their own religious law.

The Welfare Party provided both liberal and theocratic defenses for this plan, all of which are directly relevant here. In the former vein, it argued that it was merely advocating legal pluralism. Drawing on the analogy of corporate arbitration clauses, it declared that “the plurality of legal systems which it proposed was actually intended to promote the freedom to enter into contracts.” Drawing on the rhetoric of individual liberty, one of its leaders declared: “The citizen must be able to choose for himself which legal system is most appropriate for him.”

In a social-historical vein, the same leader declared: “In our history there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace.” Drawing on the language of civil liberties, he declared: “The right to choose one’s own legal system is an integral part of the freedom of religion.” Evoking the key terms we have been exploring here, he concluded: “We shall free the administration from centralism,” describing the latter as a “repressive State.”

In other pronouncements, however, Welfare Party leaders made clear the theocratic ideology behind their proposal. In 1994, one declared: “The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’”. He also declared that the faithful should “call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s messenger of his jurisdiction.” He concluded: “The condition to be met before prayer is the islamisation of power.”

All of this rhetoric, both pluralist-liberal and centralist-theocratic, should sound familiar, mutatis mutandis, from debates about the role of halakha in Israel. The Turkish context also amplifies the shortcomings of the “centralism vs. pluralism” frame in the quest for justice. In particular, it highlights the indeterminacy of this frame in the abstract. Was the Welfare Party an advocate of a live-and-let-live pluralism, as it claimed, or was this pluralism a mask for a centralist theocracy? Only a consideration of concrete power dynamics could resolve this puzzle.  

The European Court of Human Rights upheld the dissolution of the Welfare Party. At first glance, this dissolution seemed to violate basic civil liberties, such as the freedoms of religion, free expression, association, and so on. However, the European Convention on Human Rights allows such infringements when they pursue “legitimate ends,” are not disproportionate to those ends, and are “necessary in a democratic society” – requirements with close parallels in American constitutional jurisprudence. In upholding the dissolution, the Court declared that a “plurality of legal systems” based on religious affiliation is incompatible with the basic principles of the European human rights system. Such a pluralism “would undeniably infringe the principle of non-discrimination between individuals,” one of the “fundamental principles of democracy.” (In American terms, one would say that the proposed legal pluralism would infringe the principle of the “equal protection of the laws.”)

Perhaps aware that this unequivocal affirmation of legal centralism was incompatible with pervasive practices in most Western countries, the Court went on to give two further justifications, both related to power considerations. First, it highlighted the facts that 95% of Turkish citizens are of Muslim heritage and that Turkey had a history (in Ottoman times) of theocratic government. These facts made it very plausible that the “pluralism” advocated by the Welfare Party could soon tip into a theocratic centralism. A “pluralism” in which one community possesses such a dominant position could only be nominal, at best.

Second, the Court cited two sets of features of Sharia that it declared incompatible with justice. It noted substantive rules incompatible with the European Convention, such as capital and corporal punishment and the treatment of women. At a more general level, it declared that Sharia reflects “dogmas and divine rules laid down by religion,” is therefore “stable and invariable,” and is thus incompatible with “pluralism in the political sphere or the constant evolution of public freedoms.” (Note the very different usage of the term “pluralism” here).

To be sure, experts in Islamic law may well reject the Court’s characterizations here – particularly its assertions about the lack of an evolutionary potential in Islamic jurisprudence. The Court’s pronouncements do not seem to have been based on any serious research or consultation with a range of Sharia scholars. For our purposes, it is nonetheless instructive that the Court seems to have felt that its condemnation of “legal pluralism” was insufficient to decide the case.

For all the countless differences between Israel and Turkey, one could easily draw parallels between the arguments in the Refah Partisi case and those concerning a potential “halakhic State” in Israel. Let us assume that a hypothetical halakhic State would be nominally one of legal-pluralism, rather than Herzog’s halakhic-centralism – allowing each religious community to be governed under its own religious law, rather than having Jewish law imposed upon all. The proponents of such a State might well give an array of liberal arguments akin to those of the Turkish Welfare Party. Yet, the fact that approximately 80% of Israeli citizens are Jewish means that halakha would have power far beyond that in a truly pluralist system. The fact that Israel is now defined firmly as a “Jewish State” by the “Nation-State Law” could only reinforce this power. Moreover, the fact that millions of non-citizen Palestinians are currently under direct or indirect control of the Israeli military would further render such pluralism illusory.

Other justice issues are just as troubling. The question of equality on the basis of gender and sexuality would be acute in all the religious legal systems that would be likely to replace the secular legal system. Moreover, the injustice of imposing religious law on secular members of both Jewish and Arab society would be glaring in Israel, as in Turkey. Finally, the existence of multiple Jewish, Muslim, and Christian denominations would require an arbitrary act of power to determine which had authority — unavoidable if the entire system would not break down into a plethora of legal regimes.

I conclude with a striking feature of Rabbi Herzog’s pre-independence responsum to which I alluded above, its relation to international law. As noted by Kaye, Herzog thought that, although legal evolution was commendable, “Jewish religion and law exhibited the most advanced and civilized aspects of any culture” – and that any developments in halakha should come from its internal logic and not from external influences. This feature has something in common with the stasis the European Court attributed to Sharia. Halakhic evolution in accordance with developing international law or morality would, for Herzog, seem to be anathema.

Strikingly, however, as I have noted, rabbi Herzog did express concern with the legal and moral standards of the international community in his pre-State responsum. In particular, he declared that international non-discrimination standards should influence halakhic development in certain areas – for example concerning land sales to non-Jews. “Insistence on discrimination” in these matters, he wrote, could “endanger our chances to secure a Jewish State or cause its subsequent destruction.”

Of course, the compatibility of halakha with international law was never the subject of international judicial scrutiny, as Sharia was in the case of Turkey. However, the ringing affirmation of basic principles of non-discrimination in Israel’s Declaration of Independence was clearly written against the background of similarly worded principles in roughly contemporaneous international documents.

Although I have taught international law for more than 30 years, I do not have the disciplinary hubris to think that it will provide the real-world key to healing Israel’s fragmentation. The recent “Nation-State Law” clearly signals a move in the opposite direction. Nonetheless, there is growing international legal scrutiny of events in Israel and the Palestinian Territories, highlighted by the recent ICC decision. May international law yet play some role in providing a way out of fragmentation, as it did in Rabbi Herzog’s thinking – and as it did, however briefly, in relation to theocracy in Turkey? The jury is still out.

Rabbi Shagar on Politics and Messianism- Beriti Shalom- My Covenant of Peace

Last summer, Rav Shagar’s collected writings on politics were published. I devoured it immediately, and I taught some of it in my Shabbat afternoon class last summer. The book is called My Covenant of Peace: Right and Left, War and Peace (Yediot Aharonot : 2020). In many ways, it is one of the best books of edited essays of Rav Shagar in that the pieces were left as he wrote them from 1983 to 2007 and arranged in chronological order. Most of his other writings the editors combined over twenty years of classes and notes into single essays on a topic, thereby obscuring his intellectual development. Here we see the specific issue that drove him to speak in each year. In addition, this book deals with the existential issues in less abstract terms and in more basic existential political terms.  This week, when the holidays of Iyar occur, is a good time to post.  

This is our 20th post on Rav Shagar,  for #19 and #18 on Hanukkah see here and  here, Other entry points are herehere. herehere, and here.).

Rabbi Shagar fought in the 1973 Yom Kippur War, where his tank took a direct hit at the very start of fierce tank battles of Golan Heights in which two of his comrades who were with him were killed instantly; he was wounded and badly burnt. This event, along with the subsequent Israeli political trajectory of events from the withdrawal from Sinai  to the disengagement from Gaza, elicited within Rabbi Shagar a sense that the Religious Zionist narrative of messianic redemption through return to the land was broken. The first part of this book contains Rav Shagar’s direct and visceral reacting to breakdown the Merkaz Harav messianism letting his reader share his pain and confusion without an intellectualization in Lyotard terminology. The last essays written at the time of the 2005 disengagement already have his signature constructions of postmodern theory to explain Zionism.

In the book, we see how Rav Shagar had deep sympathy and identity for the contradictory Israel opinions. He expresses how the anti-Zionist Haredi are correct, the liberal Tel Aviv peace activist is correct, and the messianic settler Zionist is correct. They all have arguments from logic and from Torah, but more than that they all speak to a visceral truth that are contradictory and conflicting. This book will make less sense for an American Zionist of AIPAC, blue & white cupcakes, and support for Israel as a pareve tenet of Jewish identity. He feels the passion of these extremes.

Rabbi Shagar sees his own postmodern views as the next step in the process of Zionism. Rav Kook was the era of the messiah of Joseph; however, we presently live in an era of the messiah of David, where we transition from state building to personal growth and universalism. The new era of Zionism will be the development of Israeli democracy and will include a multiculturalism and multi-national democracy as the next stage in the redemptive process that reflects the Hasidic consciousness of containing plurality and divisions (He explains himself in his essay “On That Day” in a different volume). Or as he describes it here, a schizophrenic combination of the Haredi, liberal, and settler positions, and as a utopian revolution that we cannot grasp. Rabbi Shagar sees his utopia as “a world of beyond, which cannot be described in human language.” Therefore, he understands prior centuries of Jewish apocalyptic literature, which were “full of wondrous, mysterious visions of the figure of the Messiah, of redemption, and of the End” as the only means to convey the messianism that is desired but not realized.

The translations were all done freehand during the summer, they should be checked and edited before any use. Levi Morrow, in turn sent me some of his summertime translations. I have much more translated that I used in teaching, but I chose a number of pieces to give a sense of his thought. The book is full of ideas so do not take the few passages here as the final word on his politics. In each passage below, the opening paragraph contains my words and the rest is Rabbi Shagar.

  1. This first piece from “On the Lebanese War Sivan 1983” shows his sense of the transience of life before death on the battlefield. The essay is somewhat eulogistic reflections on the deaths of some of his students. Notice in this early essay how his thinking is personal and direct.

In war, a person stands on the core of his life before the equalizer and the true. The counterfeit needs to be expunged because answers will not help here. Where will each one stand in his last moments when he is required to return the deposit to His Creator?  On this the Rabbis said: “Remember the day of your death” Furthermore, then a person must continue and ask: If so, —why me?

Life is beautiful. Against death we feel the beauty even more – the love between people, friendship, children, even the value to just stroll and assess the air under these skies. The grass near the tanks and the green soot, very green beside the horror. Nearby stand the divine, the living, and the observers. And the person who survives from the fire wonders and does his calculations.

A strong desire grasps a person to bow with blessing before God at that very place. To cry out to heaven: Why this horror?! Why can’t it be different? And an even more depressing question: Why does he worry about these matters only in the shadow of war? Why is it only in suffering does he learn the way to his creator? (39)

2) This piece is from 1987 during the First Intifada. He is reacting to the lawlessness of the Jewish Underground, thinking that the senseless violence could have been prevented. In late 1976, the Israeli settlers movement, Gush Emunim, attempted to establish a settlement at the Ottoman train station of Sebastia by squatting and ignoring the law. The Israeli government did not approve but nevertheless create the settlement of Elon Moreh nearby. Already in 1987, he thinks neither left nor right have the solution.

There is a direct line that connect the Sebastia train station to the Jewish Underground. It is impossible to hide from this. If people can create their own law and transgress on the state law in the case of the  Sebastia train station, then why will they not permit to themselves and act similarly to terrorize the innocent as the Underground did?… But we must look at the other side of the coin. If Gush Emunim, had asked permission from the government to settle, it would not have worked at all.  

Is there a solution concerning the return of the territories? Menachem Begin is correct. If we return the territories, Katushas will fall on Tel Aviv and Jerusalem. But the left is also correct, it is impossible for one nation to subjugate another.

With the help of the heart profound in practicality and imagination we have to search for a solution that the intellect cannot find. We have nothing but a struggle in moments and privately to attempt to reach a collective point that includes the right and the left.  (51, 54)

  • 3) Adar II – 1992. Here he ponders the meaning of the state and messianism, seeing three positions, the Haredi, the Zionist, and the Utopian. For the Haredim, the messiah will come in God’s time, in the meantime we learn Torah. For the Zionism, we live in history and political activism. The leader could be secular and even a false messiah or a half redemption is meaningful. The third approach, the Utopian, which he considers his own is to value the Haredi study of Torah as the meaning of our lives, and to appreciate the return to Zion by secular means, but ultimately love of God transcends the national struggle We need a utopian stage of universal moral, an elevated humanity, a revelation of God in our human contingency. A true messianic Zionism will be “a philosophic life and love of God to turn to be the inheritance of all the world.” We have a universalist Maimonides meeting Frans Rosenzweig and then becoming the meaning of Zionism

According to the Haredi view of the messiah, it does not require any activism to realize it… According to the view an eternal Torah, there is no meaning in an attempt to fulfill messianism in a historic manner…A Jew is a Jew of the study hall, of Torah, of prayer, but not of the army and politics.

Activism depends on a historical view of the messiah as derived by a Zionist messiah, not a Haredi one.  The messiah is not a transcendental cause that comes external to history and changes it. But exists as part of the historic process, and we are called to act in it.

Zionism of the messiah image is 1) a natural and realism as in the image of Bar Kochba who stands as proof of it. 2) A tautology of the rubric of the Messiah to open a door to understand the immanent history of it. The success of the messiah is tested in its correspondence to concrete historic circumstances in which it is active and not in compliance to specific requirements 3) The relation to the false messiah- even Christianity- as steps on the messianic path. From this, even non-relgious leaders can advance the redemption 4) partial messiah” weren’t they the kings of the house of David  who were fit? The difference between them and the messiah is relative. Not absolute. There is a legitimate possibility for the existence of a partial Jewish kingship, even if not the messiah.  

First, we speak of the negation of extreme trends in religious Zionism which accept the redemption as necessary process, without any possibility of retreat. According to them, messianism is the faith necessary to create the political course of the state, even if it appears against the immediate state.  I see in this position forcing with a strong arm the [messianic] vision on history and to [thereby] force the end. These that force the end, are those of whom Maimonides feared. [A false] spiritual militancy that accepts that if we decide with determination that the Messiah will come, he will certainly come.

Our critical question: Do we act based on the fact that we decided that the messiah is coming, or do we act because we think a given action is right, worthy to be done?

It is understood that my statement does not mean my break from that vision. It is not an announcement that the faith and historic rights are not an active force and active cause in the process of history, But they depend on their innerness of the law and of the process, which can never jump outside their skin

Three approaches – the Haredi, the Zionist, and the Utopian are the three stages of the redemption itself. 

The eternity of the Torah pushed forth and elevates the religious consciousness, an elevation that is itself a redemption.  The messiah of the exile awakens and opens our Zionism, and from there the journey continues to the universal purpose of history sealed in peace, with love and fear, which is the knowledge of God. We are not talking about a return to what was, rather a progression to what is yet to be, speedily in our days. This evolution does not mean the nullification of the central values of the prior approaches. The eternity of the halakhah, which stands in the center of the Haredi approach is not negated in the framework of the Zionist approach. 

[In this new Utopian age] Only love of God is important, the national struggle becomes unimportant, the breaking of the circle of Torah and Mitzvot into love of God. A shift from “you chose us” to universalism Beyond the restorative messiah which maintain existence to a utopian messianism which breaks it to greet a religious existence and an elevated humanity. An absolute revelation in existence and history support an absolute meaning in human contingency.  (not a return to the transcendent but built on the historic and immanent)

The utopian places before us the religious purpose of Maimonides: A philosophic life and love of God to turn to be the inheritance of all the world. (438-458)

  • 4) Sivan 2005 before the disengagement from Gaza where he uses postmodern theory to make sense of the contradictions of a retreating messianism as shown by the return of land. Rav Shagar surprisingly quotes Zizek on political messianism as dangerous totalitarianism. Rather, he prefers a Walter Benjamin revolutionary utopianism. The prophets taught the messianic age is accessible, but For Rabbi Shagar, it remains a desire, an ideal, a vision. Messianisim is an apocalyptic against the realism of history and law.

I will give an example to the required change in Messianism, a term badmouthed in our day. The religious right or Gush Emunim, which is guilted by certain thinkers for its messianism [Amos Oz 1986].

One thinker,[Zizek] wrote that radical evil ({Political term Totalitarianism) appears when religious faith or reason (or democracy itself) positioned in modalities of future present. In other words, it is dangerous when messianism becomes a political argument, as an animating force of actual politics 

As it is expressed well by the modern thinker Walter Benjamin, the Messianic promise will be understood as a revolutionary act and not a process as the Enlightenment thinks because it is not capable to produce something new, only  to return the past and return on itself.  Or as Zizek wrote: It is impossible to conclude the phenomena of the messianic age with an objective analysis of a historic process. The messianic age, in the end, is the permeation of the subject that cannot contract into the objective historic process. At every moment, to tremble with a messianic turn, time becomes compressed…

The big innovation of messianism that the great prophets preached with such passion is rooted specifically that gap is not absolute. The messiah who is coming will bridge between the subjectivity and the objectivity.  Messianism delights and excites us. Obligating us to continue to give spirit to the explanations of faith. This messianism is therefore revolutionary, that is to say, denial, which is the place where the subjective will meets with historic laws.

The gap is between a transcendental belief and actual belief, rather between a messianism in the present and a messianism of one who is coming… One should be warned against a utopia lacking a utopian spirit just like mysticism without the spirit of mysticism turned the esoteric into the revealed. Messianism is not a political argument, it should be a spirit that prevents the political, the vision remains in its base. Always not present, rather a future to which we seek and yearn for. But since it is a vision, it is not physically present, we know well to consider the logic of existence and to know the gap between ideal and reality.

Is the messianic revolution, called the rebellion of the subject with the laws of history and [a rebellion] with law in general. Does this create a justification for protest against the disengagement? (133-134)

  • 5) More on the Disengagement. In this he criticizes those who lack doubt. The true believer without doubt is dangerous. God is not a fact, but an existential belief or as he terms it- we live in a world of tzimzum. To harness non-belief in the service of belief is the estate of Ayin, which he explains in other essays is a postmodern Neo-Hasidic belief in God as mystical Nothingness.

My impression of some of the young people opposing the Disengagement is that—in contrast to their thoroughly ideological rabbis—they are driven by authentic faith, and this itself is what makes them so dangerous.

What makes the religious terrorist dangerous is that he lacks a lack of faith—he lacks doubt. This lack is what enables him to murder. Paradoxically, lacking faith protects a person from transgression. The faithless ideologue, in contrast, is plagued by a hole that he attempts to overcome through ideology, and that is what makes him dangerous. In general, however, he will not go too far, and will find formulations and justifications (even ideological ones) to prevent himself from transgressing.

We must thus open up to the lack of faith—to the ability to cast doubt—to the ironic, distanced gaze. Is such a gaze opposed to the fear of heaven? Not necessarily. In a certain situation, it itself is the fear of heaven, or at least, it enables a powerful possibility for the fear of heaven.

God is not a fact. He exists without existence. This is the secret of the tzimtzum, which is also the source of lack of faith, as Rebbe Nahman teaches. The internal logic is simple: God is not a fact, so how is it possible to believe in him? How can you believe in not-a-fact? How?

The answer is that you must conscript the lack of faith in service of the cause. Believe without believe just as God exists without existence. Paradoxically, “not believing” in this sense can only function in tandem with “believing,” without which it would become simple negation—nothingness, simple absence, rather than absence that exists. This is the revelation of the Ayin. (139-140)

  • 6) 2005, as part of the talk above on the disengagement If you are wondering how he can be a Haredi, messianic settler, utopian universalist at the same time, he answers that our goal is not synthesis or a coherent form of thinking. Rather, we have to learn to live with a schizophrenic diffuse form of thinking, reminiscent of Deleuze. We live in a permanent world of the aporia of not being able to put everything together. We accept ourselves and our diverse intentions.

We must not attempt to unify opposites and construct a coherent way of thinking; we must specifically construct the possibility of multiple ways of thinking, a schizophrenic way of thinking, but without sliding into cynical reason.

Faith, on the bottom line, will be infinite, the very saying yes in and of itself. Derridean faith. Pure form… Paradoxically, this faith gives nothing, because it affirms everything—but affirming everything means denying everything.

The final conclusion will therefore be accepting yourself. This is the tsimtsum. But it might also mean accepting yourself as schizophrenic. (153-154)

  • 7) 2005, as part of the talk above on the disengagement.  Rabbi Shagar advocated the separation of religion and state. The state law should not be halakhah and he is against relgious coercion. But the last line is the crucial one, the relgious person needs the separation in his/her mind.  

Many rabbis—not just Haredi rabbis, Religious Zionist rabbis too—are coming around to the idea that we need to separate religion and state. Religion itself will emerge better for it. Identifying halakhah with state law creates ethical problems of religious coercion for religious people as well. This is something that anchoring halakhah in the community avoids. The modern idea of the state does not allow for this sort of law-making. This conflict, of course, makes itself known not just in religious-secular relations, but also in the mind of the religious person himself (153)

  • 8) 1992 lecture to Kibbutz Hadati on “War as a mizvah”. One has to distinguish between eternal mizvot and responding to temporal contingent events in history.

This is part of a much broader conception—appearing throughout Rambam’s writings—which I cannot lay out here. This distinction is not simple, nor is it accepted by most of the religious community today—they identify religious value exclusively with “mitsvah”—but in my opinion this distinction is of the utmost importance. (345)

War belongs to the realm of politics, not to the realm of mitsvah. This is not to say that politics is not the will of God, or that politics should not be organized according to halakhah. It’s just that we cannot contain politics and war within the category of “mitsvah.” In my opinion, Rambam sensed that it was dangerous to include war in the category of “mitsvah.” A mitsvah is rigid, transcendent, eternal, supernatural, unchanging, and stands outside of ongoing history.

Not so matters of the king, which are entirely historical. For example, the whole point of “the King’s justice” is to fill gaps (lacunae) which the halakhic law of the Torah did not explicitly address. This is connected to the temporality of his role. (347)

  • 9) From a 1991 course on messianism at Maaleh. On the need to create a Torah political thinking. However, Rabbi Shagar is not looking for the halakhic questions.  

My aim here today is not purely Torah-focused or academic—it is explicitly social and political. As a Religious Zionist, I believe that the Torah is a Torah of life and it is not in heaven, so it must necessarily also generate political thinking. Then, and only then, does it attain its real meaning. The mussar masters said that a person must ponder each page of Talmud that he learns and attempt to determine how what he learned could guide his actions in his practical life. This idea is not simply an ethical exhortation, intended to get a person to apply what he learned—it shapes the very understanding of Torah itself. The question of practical application gives an absolutely different meaning to theoretical thinking, and only after they have stood the test of practical application does ideas have any real meaning. (435)

  1. 10) From a 1991 course on messianism at Maaleh, After the destruction of the Temple in the year 70 CE, the Rabbis instituted a variety of practices as a remembrance of the Temple. Most interpret these practices as indicating memory. Rabbi Shagar, in great creativity, explains the remembrance as both a remnant nagging at us by its absence and as our desire for a receding object that has not arrived.
  2. 10) Rabbi Shagar following Maimonides acknowledges that calculating the end does not produce certain knowledge, yet he disagrees with Maimonides and encourage the flights of imaginative magical mystical visions of the messianic age. Anything thought about in rational bourgeois terms by definition cannot be salvation from our banal corrupt world. We need utopian ideals. This ties in with his giving great importance to the magical tales of Rav Nachman,  wild folktales, and science fiction

R. Yohanan Ben Zakai, of course, wanted both to enable a way of life in the absence of the Temple, and also to shape this way of life as “a reminder of the Temple.” This has two meanings: It’s not just eternalizing the past, but the reminding itself is a manner of existing. Thus, existence in the present is none other than a reminder, the present is a thin embodiment of the past, and is necessarily deficient. The present is thus also oriented toward a future that has not yet arrived. (418)

Calculating the End is a mystery. The World to Come is a world of beyond, which cannot be described in human language. The only thing that can contain the utopian world is liberation from this corrupt, banal world by means of the sense of wonder contained in the world of mystery. Thus, apocalyptic literature is full of wondrous, mysterious visions of the figure of the Messiah, of redemption, and of the End. (426)

11) 2001 – Given in a Gush Etzion public dialogue as a response to Rav Medan. An aphorism against ideology or fixed external doctrines.

From an existential perspective, ideology is a graven image. As an absolute thought, it is automatically a fetishistic object. Spirituality reveals itself in existence, not in thought, and faith is not about declarations of faith which could become externalized, thereby lacking any internal substance. (111)

Copyright- Alan Brill & Levi Morrow

Interview with Alexander Kaye- The Invention of Jewish Theocracy

A few months ago, I had an interview with Daniel Mahla about his book showing the history of the 20th century creation of a divide between Agudah Orthodoxy and Relgious Zionism leading the separate political-relgious camps in Israel today. At the time, I had expected this interview with Kaye to be posted immediately afterwards. Alexander Kaye work offers an insight into the next question of the divisions with Relgious Zionism, especially between those who want a theocracy, those who give the secular state relgious value, and those who want to use Jewish sources for a secular state. This is especially important in that one of the current 2021 Relgious Zionist political parties wants in the name of Torah to reject gender equality and roll back protections on women.

Alexander Kaye is the Helen Stoll Assistant Professor of Israel Studies, and Assistant Professor in the Department of Near East and Judaic Studies at Brandeis University. He  received a Ph.D. in Jewish history from Columbia University, and a B.A. and M.Phil. from the University of Cambridge. He is ordained as a rabbi from Yeshivat Chovevei Torah Rabbinical School, and served as Assistant Rabbi of Congregation Kehilath Jeshurun in New York. Kaye with David N. Myers, co-edited The Faith of Fallen Jews, a collection of works by the late Prof. Yosef H. Yerushalmi. His first book, the one discussed below is The Invention of Jewish Theocracy: The Struggle for Legal Authority in Modern Israel (OUP, 2020)

Alexander Kaye’s doctoral dissertation was on the “The Legal Philosophies of Religious Zionism 1937-1967” (2013) opened with two superb chapter on the ideas of law and halakhah in the Relgious Kibbutz movement. He discussed Moshe Unna, Simcha Friedman, Eliezer Rosenthal, among others. Kaye showed the divergent views ranging from following a spirit of the law, even if it violates the current practice, to a legal positivism. The chapter discusses the important legal topics of Grundnorms, spirit of the law, Hans Kelsen’s view of law, as well as the training of Kibbutz thinkers in German law schools. The following two chapters of the dissertation were on Rabbi Hertzog’s approach and the final two chapters on those who differed with Hertzog. This book places the middle two chapters of the dissertation on Hertzog front and center, while jettisoning the wonderful opening chapters.

This book is about how the moderate Chief Rabbi Herzog was in favor of making Jewish law the law of the land. Kaye frames this in several ways.

First, that there are two conceptions of the law in a state- legal pluralism and legal centralism. In legal pluralism, there can be multiple sources of law, relgious, local, and national. In legal centrism, the only law is the one approved by a single national source. As a resource for the legal pluralist position, the 14th century Rabbinic scholar Rabbenu Nissim (Ra”n) postulated a legal pluralism between rabbinical law and the Rabbinic concept of the King whose operates outside of the law. Kaye shows how many contemporary Rabbis such Rabbi Shlomo Gorontchik, (under his new name Goren, became a Chief Rabbi of Israel) used Rabbenu Nissim to create legal pluralism, but Herzog did not.

Second, Kaye shows how Hertzog was influenced by European ideas, especially the case of Ireland, where they created a single legal system influenced by Catholic values instead of two separate realms. Kaye’s point in this book about Herzog is to show that the tension between secular politics and religious law is an issue shared by many modern states. He also shows how even those who argued for theocracy such as Hertzog could base themselves on European models of modernization. Kaye argues that that religious politics in Israel is part of the largely secular history of European nationalism.

Finally, Kaye also shows how these theocratic issues are build into the intellectual foundations of the state and are not just reactions to the 1967 war.

Along the way, we hear about other approaches, such as that of Rabbi Shaul Israeli who granted legal status to the Knesset and secular law, but as a way of preserving an ideal for relgious law. We also hear about Mishpat Ivri that wanted to use Jewish texts and values to create a secular law in Israel.

In all the relgious approaches to the state, whether legal pluralist or legal centrism, these modern rabbis had to be creative with the halakhah which was formed in diaspora and never had to face actual cases of governance. They all had to either change or adapt the law on some level to accommodate modern realities or they had to keep the halakhah basically as it is but to change the law’s attitude toward secular legal institutions. They all made a working acceptance of the state’s law’s, nevertheless, a majority of Israeli rabbinical scholars still frown on becoming an attorney to work in Israel courts because the halakhah mandates resolving cases in halakhaic courts and not secular non-Torah courts.

The book focuses on the influence of European models on Rabbi Herzog, as a way to understand the genesis of his ideas. However, for the 21st century many of the cases in Islamic lands where there is tension between a secular legal system and Islamic law may be closer. So too Myanmar, a country that developed a Buddhist legal system and now has issues as a non-democratic ethnic Buddhism.

My bigger take away from the book as a scholar of religion and not of law is the role that these visions of Jewish politics have in creating ideological religions which operate on the realm of ideals and not on the realm of law. For example, the Israeli political party that wants to roll back rights and protections for women offered by the secular government but they do not want to remove the very non-halakhic process of election as members of a parliament. So too ideas of Christian nationalism in the USA or Poland or Islamic, Hindu, or Buddhism visions of theocracies motivate people to act in the public sphere and create a political theology, even if not actually directly changing the legal system. Kaye sees the issue and therefore ends both his book and the interview on people like Bezalel Smotrich who while far from a rabbinic scholar in any way wants a theocracy. Kaye reminds us of the difficulty of separating the civil democratic and human forms of theocracy of a Chief Rabbi Hertzog from the vulgar popular versions of a Bezalel Smotrich.

The book is an important and well researched work, which should be read by all those interested in contemporary forms of Jewish Orthodoxy or the role of Orthodoxy in Israel. The book relies on letters and communications beside the printed materials. It will frame any further discussions on these topics. But I wish there had been a chapter on how these ideas played themselves out in Hertzog’s smaller halakhic decisions of political import such as his allowing fingerprints as evidence, his vision of the chief rabbinate in the 1950’s or his allowing the state to build churches.

 For those who want to read a different article by Alexander Kaye, there is available online “Or la-goyim”: From Diaspora theology to Zionist dogma” Journal of Israeli History  (Volume 38, 2020, which traces how the idea of “light unto the nations” went from a slogan rejected by the early Zionists rejected the slogan as a weak diaspora slogan of the Reform and Orthodox movements to a Ben Gurion slogan that still influences the current hasbara (public relations) industry. The article has some choice vignettes

Chief Rabbi Hertzog

Interview with Alexander Kaye on The Invention of Jewish Theocracy

  1. What is legal pluralism and legal centrism?

Legal pluralism refers to the idea that there can be more than one source of law in a given society. In contrast, legal centralism posits that there is only one source of law, almost always the state.

For legal centralists, any law, no matter if it is “do not murder,” or “use alternate side parking during a snowstorm,” has authority only because it is ultimately authorized by the state, or authorized by a law or regulatory body, which itself is authorized by the state. This has been a common way of thinking about law since the rise of states in the Early Modern period, and their subsequent bureaucratization, and centralization of power.

For most of history, in most societies, though, people accepted that law came from more than one source. In medieval Europe, for example, there were the laws of the king, of the church, of guilds, of local councils, of the army, of universities, and so on. Each of these sources of law had their own institutions, which often clashed with each other. There was also a fealty to “natural law,” the principles of morality that, it was felt, needed no legal body to grant them authority.

2. What is Jewish legal pluralism?

Jews have had a pluralistic approach to law for more or less all of their history. Of course, almost all Jews historically considered themselves bound by halakha, but they considered other sources of law as authoritative also. The Bible itself (1 Sam. 8) refers to the “law of the king” (mishpat ha-melekh), which seems to override other elements of Biblical law in cases where the two conflict. (There is a rabbinic disagreement about whether the king has the right to impose law on his people, or not, but both sides to the dispute agree that the law of the king is binding post facto.)

The Talmudic principle of “the law of the land is the law” (dina de-malkhuta dina) is another example of Jewish recognition of the authority of law which is distinct from halakha.

The Talmud, and medieval Jewish communities in its wake, also empowered town councils and guilds to impose regulations about wages, prices and the like. Indeed, the medieval Jewish community (the kehilla) frequently had courts run by Jewish lay-leaders, as well as halakhic courts run by rabbis. This state of affairs was accepted by major Jewish thinkers, albeit to different degrees.

3. Why did Rabbi Goren favor legal pluralism?

In 1948, Rabbi Shlomo Gorontchik, who decades later, under his new name Goren, became a Chief Rabbi of Israel,proposed a legally pluralistic system for Israel that would have two court hierarchies – one secular, one rabbinic – which would run in parallel to each other, each according to its own laws and regulations.

Gorontchik believed that this kind of legal pluralism would allow Orthodox Jews to live exclusively within the rabbinical court system, even for civil matters, while others could choose a secular court system if they wanted to do so. He thought that his proposal might convince the secular Jewish majority to endorse the authority of Jewish courts. For Gorontchik, this proposal also had the advantage of shielding the Orthodox rabbinate from pressure to make changes to keep up with a modern egalitarian ethos; the rabbis could carry on as they always had done, because the more democratically inclined could always make use of the parallel secular legal system.

Legal pluralists such as Gorontchik relied on classical Jewish thinkers like Nissim of Gerona, the Ran. The Ran was a 14th century rabbi who wrote at length about the reason that both halakha and civil law was needed to govern Jewish life.

Several religious Zionists, especially before 1948, thought that legal pluralism would be a good way for them to have their cake and eat it too – to design a state that was bound to be democratic, and to give equal rights to all people irrespective of gender or religious community, while still having a central role for halakha in that design.

4. Why did Chief Rabbi Herzog oppose legal pluralism?

By contrast, Herzog opposed legal pluralism with all his heart. He wanted the entire State of Israel to be run exclusively by halakha. He set up committees to write halakhic law books in a modern format, which he wanted to become Israel’s official law. He envisaged the use of these halakhic law books even by judges with no rabbinic training whatsoever. For Herzog, the idea that Israel would exist as a Jewish state but be governed by a law other than halakha was anathema.

In developing this position, Herzog creatively (and probably consciously) reinterpreted classical Jewish texts, and rewrote aspects of Jewish history, to argue that Jewish communities had always been governed exclusively by halakha. Of course, this was not the case.

As I mentioned above, Jewish communities had lay courts alongside rabbinical leaders, and lay legislation alongside rabbinical law. To argue otherwise, Herzog had to take issue not only with his contemporaries like Gorontchik, but also to reinterpret, or simply argue against, the Ran.

Herzog was not alone in his campaign against legal pluralism. He had the partnership of Meir Berlin, the most senior religious Zionist rabbi, and many other collaborators. Together, their authority and the force of their personalities made the desire for exclusive halakhic law in Israel into a central plank of religious Zionist thought for decades.

5. Herzog seems to both open to the wider world as a modern rabbi and at the same time he seems quite traditionalist and conservative. How does he balance the two sides?

Herzog was the beneficiary of secular learning. He had a PhD from the Sorbonne. He read Greek and Latin sources in the original and made no secret of it. In fact, he talked about his knowledge of those sources as a way of adding to his credentials on talking about the value of halakha. And, he had a principled support for the Zionist movement and the government of the State of Israel.

One of the ironies of Herzog’s position is that it took a great deal of innovation and creativity, to be as conservative as he came across. I have already mentioned his reinterpretations of pre-modern Jewish history when it came to the question of legal pluralism. But it goes beyond that. He had a deep desire to have halakha accepted by all Jews. In pursuit of that end, he did his utmost to present halakhic positions that he felt would be more palatable to modern secular Jews. For example, he wrote an entire treatise that tried to make Jewish inheritance law more egalitarian – to allow for equal inheritance of sons and daughters. It is partly for this reason that his candidacy for the chief rabbinate was opposed by more conservative rabbis of the Yishuv.

Having said all that, there is no question that Herzog was a fierce apologist for Orthodox Judaism. He believed in halakha as a religious obligation, and also believed that it was the best law for the Jewish people. His defense of tradition was only reinforced by the Shoah. He was heavily involved in attempts to rescue Jewish refugees. He saw the world of Torah learning devastated and wanted to protect what remained.

6. How was a rejection of legal pluralism an influence of modern legal thinking?

Since the Early Modern period, but especially since the 19th century, European states set about unifying their disorganized and labyrinthine pluralistic legal cultures into a single legal hierarchy under the authority of the state. This effort was the subject of legal reforms in Germany, Britain, France, and elsewhere. The legal pluralism of the middle ages was seen as backward, and was replaced by the centralist models all over Europe. Herzog was influenced by these changes in modern jurisprudence. Even as he argued for the superiority of Jewish law, which he saw as divine and perfect, he felt the need to show that it measured up to the new standards of legal centralism that had become the hallmark of modern law. This produced the ironic position that in championing halakha in Israel against the importation of a modern European style of law, Herzog was at the same time emulating modern European law in its devotion to exclusive and centralized law.

He was uncompromising in wanting halakha to be the law of Israel. But one of the main arguments of my book is that, structurally speaking, wanting religious ideas to dominate a polity is not obviously different from wanting secular ideas to dominate a polity.

7. What was Herzog’s reception of the evolutionary approaches?

In Herzog’s day, European scholars were applying Darwin’s evolutionary theory to all kinds of other areas outside biology, such as social and cultural developments. Herzog acknowledged that certain aspects of one culture may be more advanced than those of another. He argued, though, that Jewish religion and law exhibited the most advanced and civilized aspects of any culture. In order to show that Judaism met or exceeded the supposedly more evolved morality of the “Western world” (i.e. the classical and Christian traditions), even by standards set by modern Christian thinkers, Herzog sometimes had to read his own tradition very creatively. As an example, Jewish law had been criticized in that early sources talk about every small town of only 120 inhabitants having its own court of 23 judges, capable of presiding over capital cases.

 Some legal historians, like Asher Gulak, observed that it was highly unlikely that there would be 23 trained judges among 120 inhabitants. This could only mean, therefore, that the “judges” were some kind of local elders, who were empowered to put people to death for capital crimes. This was exactly the kind of “tribal” behavior that seemed to demonstrate that halakha fell short of more evolved legal standards.

In order to defend Jewish law according to modern models, Herzog reinterpreted the text. He asserted (against most classical interpretations, including that of Maimonides,) that small towns did not need to have courts, but they were permitted to have them, as long as the judges were in fact suitably knowledgeable and trained. This is one of many similar examples by which Herzog employed creative readings to paint Jewish law in its best light to modern critics.

8.  Why was Herzog opposed to Mishpat Ivri?

The Mishpat Ivri movement was a group of legal scholars, who formed an association in Moscow in 1918, and attracted others to their ranks over the years. They were Jewish jurists who studied Jewish law with modern academic tools. Like Herzog, they were great champions of Jewish law. They thought it to be the equal of other legal systems – especially Roman law – that were lauded by European jurists. Asher Gulak’s monumental Foundations of Hebrew Law was a classic example of their work. It organized Jewish law according to the categories of Roman law, as well as modern law, and included a lot of historical and comparative material.

Herzog had a deep appreciation for the learning of the Mishpat Ivri scholars, but he also took issue with them on some fundamental matters. Unlike Herzog, most Mishpat Ivri scholars saw Jewish law as a work of human genius, not as divine law. They were interested in applying that law to the State of Israel, but were more than ready to discard parts of halakha they found outdated, and supplement it when they saw fit. Herzog was totally opposed to this attitude. He allowed for developments to halakha only in terms of its own internal logic, not merely by personal choice.

Herzog also thought Mishpat Ivri scholars had an “inferiority complex” because so much of their work was involved with comparing Jewish law to other bodies of law. The work of Asher Gulak, which compares talmudic and Roman law is a prime example. This is somewhat ironic because Herzog also compared halakha, (though always favorably,) to other systems.  

9. How was Isaac Herzog influenced from his Irish background and friendships?

Herzog was in Ireland during some of the most intense and violent years of the campaign for Irish independence from Britain. He was Chief Rabbi of Ireland for much of that time, and was friendly with Éamon de Valera, the Prime Minister of the Irish Free State. He saw a close analogy between the Irish and Zionist causes. Like many Zionists and Irish Republicans, he considered each movement to be a righteous fight for independence against the British. He never openly endorsed Irish violence, but he did demonstrate understanding of those who used violent resistance in that context.

Beyond the general affinities between the Republican and Zionist cases, Herzog was inspired by his experience in Ireland in more specific ways. When Ireland became a fully independent Republic in 1939, it became a democratic state which had the deep imprint of Catholicism in its laws, its constitution, and its culture. The constitution incorporated Catholic doctrine in its preamble and in its main body (particularly regarding marriage and the family,) and also in more subtle uses of language. Samuel Moyn has shown that the term “dignity” was used in the Irish constitution as a kind of code for religious values.

Herzog believed that this was one example of how it should be possible to have a modern democratic Israel that is subject to religious law.

10. Why did Israel not create a constitution? Were there attempts?

Firstly, and surprisingly, there is actually a debate about whether Israel has a constitution or not. Aharon Barak, the extremely independent Supreme Court Justice, believed that Israel’s “Basic Laws” are in fact a constitution; others think they do not yet have that designation. But either way, it is certainly the case that the requirement laid down in Israel’s Declaration of Independence for a constitution to be ratified by October 1948 was not upheld; it was replaced by the so-called “Harari Compromise,” which allowed a constitution to be written piecemeal.

It is commonly believed that the reason such a compromise was necessary was that religious parties objected to the writing of a constitution because the Jewish people already have a “constitution” in the Torah. This is an oversimplification. It is true that some religious parties objected to a constitution on something like these grounds, but many did not. Even if they had all objected, they would not have been powerful enough alone to block it. In addition, the religious objections to a constitution were equally an objection to a secular Israeli law per se.

Herzog wanted all the law books of Israel to be derived from halakha, not the constitution alone. In fact, Israel’s secular leadership was probably far more influential in blocking the constitution. Ben-Gurion in particular was more of a republican than a democrat (in the terminology of political philosophy, not of today’s American political parties). Scholars like Nir Kedar have pointed out that he was concerned that focusing too much on the constitution would risk stressing delicate coalitions, and that strong constitutional rights for individuals might impede his political philosophy, which was based on the importance of the nation and the state, rather than individual rights.

11. What is the problem of halakhah for a secular state? Besides the testimony of women and gentiles as well as having a secular supreme court as an appellate court, what are the other problems?

There are all kinds of challenges for anyone trying to implement halakha as the law of the state. There are certainly the issues of discrimination between men and women, and between Jews and non-Jews, to which you refer. There are questions of whether and how it can be justified to apply some areas of halakha (eg in civil law) and not others (eg dietary laws.)

There are also all kinds of areas about which halakha has never been called upon to address, such as issues of the technology and infrastructure of running a state. And there is a more fundamental issue, which is that halakha has never been applied to a state before; it has been the law of dispersed communities of Jews. Unlike the laws of modern states, it has not been applied on a territorial basis, (i.e. to everyone living within certain borders, irrespective of the religious differences between them,) but to Jews, wherever they happen to live. Furthermore, halakha has always been localized, with diverse communities having their own rabbis and their own rulings.

The Orthodox rabbinic authorities I write about in my book devote huge energies to addressing these problems. These include people like Herzog, Bar-Ilan, and their collaborators. They also include the next generation of rabbis, like Shaul Yisraeli, who addressed the same questions after the State of Israel was already in existence. They wrote for journals like Ha-Torah Veha-Medinah (Torah and State), a later version of the same journal, Tehumin (Domains), and countless other forums, producing articles and rabbinic rulings, and creating institutions to address these questions.

Their task was made even harder by their fear of appearing to be “like the Reform” – that is, they did not want other Orthodox Jews to think that they were departing from the legitimate chain of tradition in the way they believed Reform thinkers had done. Nonetheless, they scour the halakhic corpus for usable precedent, read sources creatively, and come up with inventive interpretations. And still, as one of the sources I found put it, the rabbis involved in this endeavor sometimes felt like it was “creating something out of nothing” (yesh me-ayin).

12. What happened to your dissertation on legal theory in Religious Zionism? Why did you switch to writing on Herzog?

Thanks for asking! A good amount of the research I did for my dissertation found its way into this book, but I felt that there was a broader story that needed telling about Herzog’s school of thought. I wanted to show how influential the position of “halakhic centralism” became to the rabbinical leaders of the religious Zionist community, how it came to shape things that are going on inside that community, and how it continues to influence Israeli society in very fundamental ways.

There was also another line of thinking that I wanted to develop, which is how that story helps us understand more about other fields of scholarship, in particular the relationship between law, religion, and politics, and the role of imperialism and colonialism in fashioning the legal imaginations of nationalist movements, and the states they produce.

One of the parts of my dissertation that did not make it into the book is my work on the religious kibbutz movement. I find that movement fascinating, especially in its legal creativity. I have written a few pieces elsewhere on that subject; it continues to draw my attention and I hope to continue my work in that area. Other religious Zionists had commitments to halakha and to Zionism. The religious kibbutzim had a third commitment – to socialism. Their intellectual and spiritual work is a fascinating attempt to bring those three commitments together, reading socialist values into religious texts.

The members of the religious kibbutzim also had to meld halakha into a form amenable to their communalist lifestyle. They were revolutionaries, of a kind. They felt that the “diasporic” Jewish ways of life of their ancestors was lacking because it was not, in their view, an organic way of living. They noted that their parents and grandparents could carry out their halakhic lives only with the help of loopholes and the cooperation of the Gentiles among whom they lived. (Getting a non-Jew to light a fire on the Sabbath is a classic example of this.) They felt that living a socialist life in the Jewish homeland would get back to the way Jewish life was meant to be lived. They were reluctant to accept the loopholes and workarounds that other Orthodox Jews employed to adapt halakhic agricultural rules (about the sabbatical year,) and some of their thinkers iconoclastically suggested revising elements of halakha on the grounds that they now lived in a “new regime”, free of private property. (In practice, most of the religious kibbutz community continued to keep to the letter of the law, even as they sometimes chafed against it.)

They also acted with real independence as a community. They felt themselves to be a bridge between secular and Orthodox Jews, making connections with each group, but they forged their own way where necessary. A good example of this arose over the question of whether women should be drafted into the Israeli army. The Orthodox community was unified in their opposition to this policy, but the religious kibbutz movement stood alone in agreeing with the secular labor Zionist position on the matter. They argued it was a question of national policy, not of halakha per se, and that rabbis had no special authority to speak on the matter. That delimitation of rabbinic authority and the sharp distinction between religious and political authority was unusual in the Orthodox community.

A number of kibbutz intellectuals stood out for their philosophical acuity and their independence on matters of political and religious philosophy. I am particularly interested in Eliezer Goldman. He was born in the USA and immigrated to Palestine as a young man. He received a PhD in philosophy and wrote broadly about ethics, jurisprudence and other issues, all while continuing to work on the kibbutz. He and many of his colleagues were also associated with the political left in Israel. After Israel’s conquest of the occupied territories in 1967, many Orthodox Israelis were swept up in a religious euphoria that placed religious, even mystical importance on this territory. Goldman and others connected to the kibbutz movement remained skeptical of this position for many years.

13. What was the position of Rabbi Shaul Yisraeli? How did he create legal pluralism by an innovative approach of identifying the Knesset with a king.

Yisraeli wanted to justify the legitimacy of the State of Israel and its political institutions. This was not taken for granted. Other religious Zionist leaders clearly stated that the Knesset, and certainly the secular courts, are inherently suspect because they are not halakhic institutions. Yisraeli was ecumenical enough to publish some of these dissenting opinions in a journal that he edited.

Yisraeli thought that the Knesset and the courts had to be legitimate. On the other hand, he explicitly stated that for the Jewish state, halakha is the only legitimate source of law. This created a tension, for which his solution was to articulate a new category of norms, (we might call it “regulations” or “policy,” as opposed to “law,”) distinct from halakha. His precedent for this was the Biblical king, which he mapped onto Israel’s democratic legislature in ways that were sometimes forced but were essentially an elaboration on the existence of non-halakhic norms in Jewish history.

In this sense, he has something in common with the position of legal pluralism. Where he differs from the pluralist position, though, is that he was extremely clear in distinguishing the Knesset’s legislation from “law,” a category he reserved for halakha alone. Yisraeli’s writings are somewhat ambiguous in their definitions of these different kinds of norms, but basically he authorized the non-rabbinic institutions to establish rules regarding policy issues that, he determined, don’t need deep legal wisdom, and are just a kind of social management. This might include things like tax regulations, or foreign policy. Real “law,” though, like criminal law, he considered beyond the authority of secular institutions.

Yisraeli was inventive, relatively moderate, and interested in building coalitions and helping the state to succeed, but even he was fundamentally supportive of a halakhic state. The same balance and moderation, as well as the same goal in spreading the realm of halakha, can be seen in the writings and institutions of some of his students, who are still involved in convincing the people of Israel to accept halakha as their national law. As an example, the Eretz Hemdah Institute in Jerusalem, founded under Yisraeli’s auspices, has established a network of rabbinical courts for civil matters, and encourages people to use them instead of the state’s secular civil courts. They point out that pursuing cases in their rabbinical system can be quicker and cheaper than it might be in the civil courts, but they are also motivated by the aspiration to apply halakha to all areas of modern life.

14. What was the setback and then failure of the idea of a halakhic state?

The desires of the religious Zionist leadership for the state to be governed by halakha, or at least for halakha to have a major role in the Israeli legal system, did not materialize.

True, the rabbinical courts maintained control over personal status law, but this was more or less a continuation of how things had been under the British, and the Ottomans before them. The legal system of the State of Israel was squarely a secular affair, drawn in structure and substance from Ottoman and British law and, increasingly over the subsequent decades, from the civil law traditions of Europe.

The leaders of the Zionist movement, who were almost all what we would today call secular Jews, had no interest whatsoever in entertaining the proposals of Herzog and his colleagues. This was a source of deep discontent for them; they regarded it as an assault against God. They had to decide how to respond to this failure. The strategy – explicitly formulated by Herzog in a speech to the Mizrachi movement – was to appear to accept the situation, while fighting for whatever they could achieve within the system, but never to give up on the goal of ultimately achieving a halakhic state. I think the Mizrachi movement has by and large kept to this strategy over the years.

15. How does Religious Zionism contribute to the discussion of the relationship of religion and state?

On the one hand, religious Zionists, by definition, are committed to the combination of religion and politics. They believe that the Torah and Jewish nationalism go hand in hand; they attribute religious significance to the Jewish nation-state, and they want that partnership to be reflected in the laws and policies of the State of Israel. They are generally opposed, almost by definition, to the idea of the “secular state.” On the other hand, religious Zionism is also an example of how we should not think of “religious” and “secular” as discrete categories, and how it makes little sense to divide people up into those who champion one of these categories over the other. In fact, as I mentioned above, the ideology of religious Zionism was based heavily on modern political and legal philosophy, which came out of the “secular” world that they claimed to be opposing.

16. Are Rabbi Yitzhak Ginzburgh or Bezaelel Smotrich a continuity of Herzog in the desire for a Torah state?

One of the challenges in historical analysis is to identify continuity within change as well as change within continuity. There are certainly huge differences between Herzog and the large variety of religious Zionist operating today.

I question whether Ginzburgh should even be identified as a religious Zionist, even though he is an inspiration for many who do identify themselves in that way. He draws on kabbalah in a way that Herzog never did.  Smotrich is tainted with a kind of bigotry that Herzog never displayed. Both men are also deeply uncompromising. Ginzburgh in particular would rather tear down the state as it currently exists than concede anything to it. Both men – like many religious Zionist leaders today – also have a fixation on Israeli control over Occupied Territories. By contrast, Herzog was a more nuanced and balanced thinker. He believed firmly in the importance of the halakhic state, but he also cared about national unity, and recognized the legitimate concerns of people very different from himself. He was also prepared to negotiate and compromise politically. It is difficult to know what Herzog would have said about the territories, as he died in 1959, before the 1967 war. It seems to me, though, that like many religious Zionist leaders of his generation, he was more interested in the character of the Jewish state, and its religious and moral standing, than the question of territory per se.

Having said all that, there is a point of continuity that I think should not be overlooked, and that is the position that, as a matter of principle, that the law of Israel should be halakha. This is important to note because it pushes back against a common conception of religious Zionism in the early years of the state. Many Israelis, liberals in particular, wistfully remember the religious Zionism of the 1950s and ’60s as a movement that was moderate, compromising, and pragmatic.

They typically see the 1967 war, and the subsequent rise of Gush Emunim as a watershed moment that transformed religious Zionism. This picture has a lot of truth to it. There is no question that 1967 and its aftermath had profound effects on religious Zionism, as it did on the rest of Israeli society. But focusing too much on the change obscures the fact that earlier religious Zionists still had a deep theological attachment to the idea of the halakhic state.

That ideology was modulated by a greater tendency to moderation and compromise, which is generally, unfortunately, less common among religious Zionist leaders today. Nonetheless, I think that Herzog’s persistent belief that bringing secular law to Israel was like “divorcing the Torah” became imprinted on the character of the mainstream religious Zionist movement. With the rise of Gush Emunim – along with other political and social changes in Israeli society such as the decline of Labor Zionism – the theocratic urge, less tempered by the values of moderation and unity, became more pronounced.