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
Interview with Alexander Kaye on The Invention of Jewish Theocracy
- 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.
The Book of Doctrines and Opinions: 