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.

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