Continuity and Change in Jewish Political Thought: A Response

I begin by thanking the many people involved in this forum. It is a rare and special pleasure for one’s work to receive such generous attention from colleagues as brilliant as Professors Assaf Likhovski, Amihai Radzyner, and Winnifred Fallers Sullivan. I am grateful to them, and to Professors David Flatto, Benny Porat, Alon Harel and Eyal Zamir, and to Anouska Colledge in the editorial office for all the work that went into creating the forum, from the initial idea, to the very fruitful online symposium, to the final printing of these proceedings.

At its core, my book makes the admittedly bold claims that the idea of the halakhic state was established in the legal philosophy of religious Zionists of the 1940s, especially that of Rabbi Isaac Herzog and his circle; that it marked a distinctive departure from what came before; and that this difference was the result of an encounter with modern trends in political thought and jurisprudence—notably the legal centralism of the post-colonial state—rather than the internal logic of the halakhic discourse. As with many works of intellectual history, this thesis revolves around questions of comparison and influence: Were things different from before? How different, and by what measure? How and why did these differences come about?

The comments of the respondents are rich and varied, and open many avenues for further study. My brief words here cannot possibly do full justice to all of their ideas, so I will concentrate on the questions they raise about my claims of comparison and influence. I begin with engaging with the questions about whether the break is so severe as I make it out to be, whether there were not precursors of the halakhic state that preceded Herzog by decades (Likhovski), or centuries (Radzyner), and whether modern jurisprudence need loom so large in my picture as I make out. I will conclude by addressing Professor Sullivan’s powerful consideration of comparisons of a different kind: between the place of legal pluralism in a Jewish polity and in the modern state more generally.

Prof. Likhovski’s comments raise the challenge endemic to intellectual history, which is the question of resemblance. As he justly points out, it is interesting to ask whether figures such as Breuer or Blau, whom I did not emphasize in my study, could also be seen as endorsing a kind of halakhic state. This is a reasonable line of inquiry; the reason they do not feature prominently in my study is because they were not taken seriously as either political or intellectual precedents by my own subjects, who were indeed the people who went on to design the foundations of statist religious Zionist thought. But the potential for hidden currents between these thinkers remains fertile ground for future research. The potential opened up by new technologies such as the “distant reading” of large digitized libraries also holds out great promise, with the caveat that plugging search terms into powerful computers is, of course, not enough on its own, as lexical continuity often masks conceptual change, just as conceptual continuity might be concealed by changes in the use of language.

In a more substantive line of questioning, Likhovski wonders whether I am downplaying the similarity between the thinkers I discuss in my book and the architects of the Mishpat Ivri movement. This question is somewhat fraught terminologically speaking, as the term “Mishpat Ivri” has applied to different groups over the generations, something Likhovski has discussed in his own research.¹ The founders of the movement, however, began thinking about the revival of Hebrew law in Russia as early as the 1910s. Can I then be correct in arguing that the attempt to create a “halakhic state” emerged in earnest only in the 1940s?

There was, to be sure, a certain continuity between Herzog’s scholarship and the work of some of the Mishpat Ivri scholars. Herzog clearly read their work, and admired some of their achievements.² Like them, Herzog was interested in historical and comparative legal scholarship, at least to a degree. It might be argued that he protested too much in his explicit disavowal of any connection between his own approach to law and that of the Mishpat Ivri scholars, in order to disassociate himself from a group that was primarily made up of non-Orthodox Jews, and to distance himself from accusations from within the Orthodox rabbinate that his own halakhic innovations smacked of “reform.”

At the same time, however, I do maintain that there really were key differences between Herzog’s Torah state and the ideas of the Mishpat Ivri. Likhovski himself points out some of them, including the “comprehensiveness of the application of the halakhah to modern life.” I agree, but I would emphasize that the difference was one of substance, not merely of extent. Mishpat Ivri explicitly set out to create a modern law based on Jewish law, not as divine command but as a secular national asset. Its proponents did not think twice of cherry-picking from the canonical sources. Moshe Silberg, a Mishpat Ivri scholar who was in fact an Orthodox Jew, called Mishpat Ivri “a civil-secular creation which will accept, wherever possible, the basic principles of Jewish law, with the explicit exception of the archaic conclusions which are superimposed on them.” He wanted “to winnow and sift … to pour out the wine that has become sour, and to keep the barrel so as to fill it with new wine.”³ This could not have been more different from the position of Herzog, who believed his constitution would be the entirety of halakha per se, divine in its authority, not a secular national project built on modernized residue of halakhic literature.

Likhovski also encourages me to interrogate my contention that centralism was a defining feature of European jurisprudence during the period under consideration. Whereas this might have been the case in previous decades, Likhovski notes, by the 1940s, many European jurists were already making a place for non-state law in their legal thought. This is an intriguing insight, and raises the possibility that Herzog’s preference for centralism is based not only on his knowledge of modern jurisprudence, but also on his ignorance of its more recent developments. To be sure, most of the jurists Herzog quotes directly were late-19th or early 20th century thinkers, rather than his contemporaries.⁴ Herzog may well have been defending Jewish law from the ghosts of a previous generation. But if Herzog was backward-looking in this way, the same may perhaps be said about Israeli jurisprudence in general. Legal centralism was the cornerstone of the Israeli legal academy well into the 1970s. This can be seen in the pervasive influence of Hans Kelsen in Israel during this entire period, for example.⁵ Legal centralism also made its way into Israeli policy from a totally different legal tradition, via the Russian-inflected republicanism of Ben-Gurion, which was also state-centered above all else.⁶ So while Likhovski is certainly right about shifting trends in cutting edge European jurisprudence of Herzog’s era, I still think it is fair to say that the dominant trend in Palestine and Israel after his arrival there, as well as the classical legal thought to which he was exposed when still living in Ireland, still had a heavily centralist bent.

As for the Indian comparison that Likhovski proposes, all I can say is that I absolutely agree. I see the phenomena I am describing as fitting into a far wider context of the postcolonial moment. Despite the vast differences between Israel and India, the similarities between them as two states becoming independent from British rule at around the same time offer great promise for comparative legal studies.

I will move on now to Prof. Radzyner’s comments. I do not have the scope in these few words to engage with all of Radzyner’s close and generous readings. He has convinced me, based on his archival reconstruction, that Rabbi Grodzinski’s opinion about the Ran is more nuanced than I made out. Radzyner’s comments in his response, and also in his published works, upon which my own research has relied, have also been crucial in demonstrating the centrality of Rabbi Ousiel in the story of the development of Israel’s rabbinate.⁷

In this brief response, however, I wish to focus on the core of Radzyner’s comments, in which he questions one of the central claims of the book. I argued that the dominant strand of the Jewish legal tradition was legally pluralistic. As part of the illustration for this claim, my book covered at some length the thought of the 14th century jurist Nissim Gerondi, the Ran—a figure frequently mentioned by religious Zionists—who put forth a theological justification for the legal pluralism practiced in more or less all pre-modern Jewish communities. Against the historical background of the dominant legal pluralism that had been in Jewish communal organization, I argued, Herzog and his colleagues were highly innovative in their attempts to create a modern halakhic constitution with a centralist structure. Radzyner pushes back against this claim. He points out that the acceptance of the Ran’s position was not universal. What is more, he suggests that Maimonides himself, the most important Jewish thinker of the previous millennium, provides an ample precedent for Herzog’s centralism: “Can it really be said that Rabbi Herzog’s approach is a completely modern invention and influenced more by the modern conception of state than by Maimonides?” asks Radzyner. “There may well be differences in details between them, but the big picture shows much resemblance.”

Let me address these challenges. First, it was not my intention to argue that the legal pluralism of the Ran per se was widely accepted by Jews, even though it was certainly the case that legal pluralism in general was the basis for almost all Jewish communal organization. The Ran’s version was one articulation of that pluralism, but certainly not the only one. (In the book, I mention articulations of the Rashba and other medieval scholars.) Indeed, the reason the Ran looms so large in religious Zionist writing, and that he therefore received attention in my own work, is not because he was exceptional but precisely because he was unremarkable. He merely offered the fullest expression of a position that was taken for granted by his readers. For centuries, halakhic law and rabbinical leaders functioned alongside normative regimes, both Jewish and not. Indeed, the Kehilla often established Jewish courts made up entirely of non-rabbinical lay leaders. The Ran articulated a theological grounding for this state of affairs, but whether people accepted his specific framing or not, they never disputed the legal reality that his theology assumed. The story of Jewish legal pluralism that I recount in the book is essentially a brief historiographical overview of an extremely long and well documented history that has been convincingly covered by other scholars over many decades.⁸ It was the departure from this well-established precedent that makes Herzog and his colleagues such intriguing trailblazers.

What of Maimonides as a precedent for legal centralism? Among medieval halakhic thinkers, Maimonides certainly had the most systematic and unified constitutional vision. But although a modern rabbi like Herzog might choose to claim Maimonides as a precursor to bolster his credibility, that does not in fact make Maimonides, a 12th century philosopher-jurist, the most convincing source for what is ultimately a modern constitutional project.

For one thing, not only is Maimonides himself a notoriously cryptic writer, the world of Maimonides scholarship is also vast and contentious. In Radzyner’s reading of Maimonides, “there is no permanent law of the king that is outside Torah law … It is clear that the Torah is the only law, because the Torah is both the best political and social law, so what need is there for another system of laws that is necessarily inferior?!” But this is not the only way to read the Maimonidean corpus.⁹ Although Maimonides does write in some places of the Torah being the only law of the Jewish polity, he also writes elsewhere about the power of the king to legislate, judge, and punish independently of halakhic institutions and regulations.¹⁰ In other words, even Maimonides considered the king’s law to be not subsumed under the auspices of halakha but an alternative legal regime, principally responsible for regulating society. In the words of Menachem Lorberbaum, “If the king’s law guides tax law and criminal law, then civil society is, to all intents and purposes, governed not by divine law but by a different law.”¹¹ To be sure, Maimonides’ constitutionalism was not the same as the Ran’s, but this certainly sounds like legal pluralism to me.

Second, even if we concede the point, and read Maimonides as a legal centralist, he still fails to provide a sufficient precedent for Herzog and his colleagues. Herzog’s halakhic state would have been one in which all citizens of the state—Jews or non-Jews, men or women—would be governed by criminal and civil elements of halakha, and may serve as judges or witnesses in the state’s halakhic court system. Herzog had to spill much ink to justify this position against the prima facie reading of Maimonides, according to which women would not be permitted to hold any position of political or judicial authority.¹² Moreover, Herzog’s halakhic state organized the courts into a hierarchical structure, which included a court of appeals, an institution which is almost without precedent in Jewish history.¹³

To be sure, there are many aspects of the thought of Herzog, Yisraeli, and the other thinkers dealt with in my book that are reminiscent of Maimonides. Indeed, Herzog and others often explicitly appealed to Maimonidean precedent. This fact alone, however, is not in itself decisive. Appeals to Maimonides are a prominent feature of all post-medieval halakhic literature. Besides, these same rabbis were also willing to depart from Maimonidean rulings when they felt it was necessary. But more to the point, their legal thinking has so many modern elements that I believe one must look elsewhere for its more immediate historical origins. This is not merely my intuition. It is confirmed time and again by a close reading of the archival record. In following Herzog’s wishes and attempt to compose a halakhic legal code in modern form for the State of Israel, one of Herzog’s colleagues wrote with frustration that it was like creating something “ex nihilo.”¹⁴ This does not sound like a comment of someone convinced he was following a thousand-year-old halakhic precedent! Similarly, Herzog’s close colleague Meir Bar Ilan campaigned for “one [Torah] law in all realms of our state … ” for all people, Jewish or not, “just as in every land and country the political territory determines [the law] and not personal [religious] affiliation.”¹⁵ In this case at least, Bar Ilan was explicit that his precedent is not Maimonides or any other halakhic precedent, but the thoroughly modern idea that sovereign borders set the boundaries of legal jurisdiction, not confessional communities. In sum, a centralist interpretation of Maimonides might possibly have been an inspiration for Herzog and others. But the structure, if not the substance of the modern halakhic state seems closer to a 20th-century European state than it does to the Maimonidean vision.

I owe Prof. Sullivan a debt for the way that her penetrating comments place my work in the context of wider conversations of religion, law, and justice. Sullivan draws from my work, along with the resonant stories of I.B. Singer, and the scholarship of Chatterjee which she reads alongside it, the basic exhortation “to move away from the seduction and violence of nationalism and legal centrism.” Indeed, Sullivan’s own body of work corroborates this idea. She has shown as much as anyone that the conceit of the modern state to stay “neutral” when it comes to its treatment of religious communities or other groups is not only likely to fail but is logically impossible.¹⁶ For the state to stay separate from religion, it needs to define religion, thereby altering even the way that religious communities perceive themselves and their own traditions.

Sullivan’s Singerian criticism of the legal centralism of the liberal state, and the legal violence that it necessarily entails—is so creative because it draws on religious experience in a way that is unusual in the political–theological landscape. Generally, theological critiques of liberal legal regimes seem to come from one of two directions. There is the theologico-anarchic critique, exemplified by Martin Buber, for example.¹⁷ In this view, only God can be the true sovereign; the laws of people are suspect, and the usurpation by the sovereign state of the divine mantle is highly problematic. By contrast, there is the hyper-sovereigntist critique typified by Carl Schmitt.¹⁸ In this view, precisely because the state does occupy the position of the divine, it should not be curtailed by the liberal ideas of constitutionalism and the rule of law; the sovereign should be free to act, unencumbered by the rights of the ruled. Sullivan’s critique is different from either of these. Rather than beginning with an a priori theology and creating a political theory from it, she begins with observed religious experiences. Instead of assuming an understanding of “God” or “religion” or “law”, she assumes a phenomenological posture and ascertains the place of these ideas in the lives of the people she studies. The resulting picture is a ground-up illustration of how things actually are, rather than how scholars imagine them to be. This is not only a powerful conceptual tool but a necessary precondition for achieving justice.

Of course, it is always necessary to be on guard against being seduced by the memories of disappeared worlds, or by the desire for utopias, messianic, or otherwise. On the one hand, I.B. Singer believed that “there can be no justice without godliness.” We, who witness the profound moral failings of liberal states that purport to operate without reference to godliness—states which studiously avoid the language of virtue altogether—certainly understand that sentiment. The mobilization of Singer’s father’s rabbinical court to alleviate a situation of dire need was only possible in the context of a community bound by values that transcend the language of law and rights. On the other hand, as Sullivan notes, Singer himself found his father’s court “suffocating and backward.” Close-knit religious communities have often created outsiders of women, LGBTQ people, and racial minorities. Violence and oppression may remain even in places where the centralized state has limited reach. Its varied track record notwithstanding, it is, in theory at least, in order to enforce such equality that the liberal state claims to exist in the first place.

I also wonder whether some version of centralism—legal, political, or otherwise—may not be the only way we can help ourselves out of some of the crises we find ourselves in today. Take COVID-19, for example. Clearly, the response to the pandemic has been marred by the usual injustices and incompetences. But still, it is hard to imagine the development of a vaccine and its distribution—which, however inequitably it was deployed, still surely saved many lives—in an entirely decentralized world. Similarly, it is in many ways the injustices associated with the centralized state that have accelerated climate change to (or beyond) the point of existential global crisis, and the intransigence and self-interest of state-based politics does not seem to be helping us move in the right direction fast enough. Still, any hope we have of slowing, let alone reversing, that trend will rely on political and technological interventions that seem unlikely to be successful without coordination at the level of the centralized state.

This cautionary note is not intended to undermine Sullivan’s central point, however. It is to suggest that our options here are not limited to a simple binary between legal centralism and legal pluralism. This invites us to consider how the failings of the liberal state might possibly be corrected by more pluralistic regimes, while we at the same time remain on guard against the exclusionary liabilities of the legal institutions of religious communities. The precise details of such a legal regime would take quite some working out. But when it comes to Israel, as elsewhere in the world, creative thinking in this vein must surely be welcomed.

I would also like to thank President Isaac Herzog for graciously attending the symposium, and for offering his own insightful comments.

Footnotes