“Step by step, we will bestow the laws of the Torah upon the citizens of Israel and we will turn halakha into the binding law of the nation.” This promise was made by Israel’s minister of justice, Yaakov Ne’eman, an Orthodox Jew, to a gathering of rabbis in 2009.1 Ne’eman’s call for the laws of the Torah—by which he meant Orthodox Jewish law—to be imposed on the citizens of a modern democracy provoked a fierce backlash. One politician described the comments as a move toward the “Talibanization of Israel.”2 The Ministry of Justice later “clarified” Ne’eman’s comments, but did not retract them; his spokesperson insisted that Ne’eman merely “spoke in broad and general terms about restoring the stature of Jewish law and about the importance of Jewish law to the life of the country.”3
This furor was a typical moment in a decades-long culture war in Israeli society, revolving around the idea of the halakhic state. Halakha, in the understanding of Orthodox Judaism, is the law revealed by God, which is binding on every Jew. Those calling for Israel to be a halakhic state want it to be governed by that law. Debates over whether Israel should be a halakhic state have generated existential controversies about the role of religion, and religious figures, in public life, the legitimacy of Israel’s courts and legislature, and even Israel’s claims to the West Bank.
Both supporters and opponents of the halakhic state have referred to such a regime as a “theocracy.” Fundamentally, this contentious term refers to a political body whose laws are the laws of God, not of human beings. For opponents of the halakhic state, “theocracy” conjures up the image of an archaic and coercive regime unfit for a modern state. For its supporters, it means the establishment of a perfect law and the fulfillment of divine command. Both those who idealize theocracy and those who demonize it typically imagine the idea of a Jewish theocracy, the halakhic state, to be a very old idea, an ancient archetype of Jewish politics. In fact, though, the idea of the halakhic state was invented no earlier than the 1940s. This book investigates its genealogy. It traces the intellectual history of the idea of the halakhic state among religious Zionist thinkers, recovers the position of Orthodox thinkers before its emergence, analyzes the reasons for its widespread adoption by Jewish thinkers in the State of Israel, and traces its transformation in Israel’s first decades.
In addition to being indispensable for a full understanding of contemporary Israel, this genealogy also opens avenues of comparison with other states around the world in which powerful religious groups both resist and adapt to democratic constitutions. It offers insight into some of the most urgent questions of political life in the twenty-first century: Must fundamentalist religion and democracy inevitably conflict with each other, or can they cooperate? How do religious communities relate to legislation that they believe contradicts divine law? Can religious traditions offer a productive critique of the modern state without entirely undermining its existence?
An unlikely starting point for the idea of the halakhic state is Dublin, in December 1921. Great Britain had just signed a treaty with Irish republican forces that created the Irish Free State. The treaty, however, fell short of granting full independence to Ireland, which remained legally subordinate to Britain. In the summer of 1922, violence broke out between two heavily armed factions within the Irish Republican movement, one supporting the compromise and the other opposing it. Thousands were wounded and hundreds killed. During the conflict, Éamon de Valera, the head of the so-called anti-treatyites, who was unwilling to compromise for anything less than a fully independent Irish constitution, took refuge for his life. The place de Valera chose to hide was the house of Isaac Herzog, the chief rabbi of Dublin.4 The two men were personal friends and also political allies. Herzog was a supporter of Irish independence from the British, and de Valera was a supporter of Zionism, a cause close to the heart of Herzog, who would go on to become the State of Israel’s first Ashkenazic Chief Rabbi.5 Indeed, the two men, like many Irish Catholics and Jews, came to see a similarity between Zionism and Irish Republicanism, which were both nationalist movements fighting British Imperial control for what they considered the right to establish independent states in their own homelands.6
De Valera and Herzog each lived to see the fulfillment of his nationalist dream. Within forty years of de Valera’s taking refuge in the Herzog home, the British Empire had withdrawn from almost all of its colonies. In the aftermath of World War II, a bankrupt Britain withdrew from the Indian subcontinent (1947) and Palestine (1948). By the end of the 1960s it had relinquished most of its Asian and African colonies. As the empires of Britain and other European powers declined, independent nation-states were established in their wake. These included the Republic of Ireland in 1937 and the State of Israel in 1948.
By some accounts, religious leaders like Herzog have little to do with this grand narrative of imperial decline and nationalist ascendancy. Most post-imperial nationalist movements were dominated by secular leaders, and Zionism was no exception. Zionism was a “secular revolution,” designed not only to achieve an independent Jewish state but also as an effort to liberate Jews from their religious past.7 Myths and motifs of traditional Judaism were routinely exploited by Zionist leaders, but only in support of their broadly secular project.8 In this sense, Zionism was akin to many other nationalist movements, from Algeria and Egypt to Turkey, Iraq, and Syria, all of which attempted to “free” nations from their religious past.9
Religious Zionism, the common name for the Orthodox Jewish religious nationalism that Herzog represented, did not fit into this picture. At a time when Jewish nationalism was associated with secularism, religious Zionists were committed nationalists who nonetheless persisted in their adherence to traditional religion. Although, since the 1970s, religious Zionism has come to play an increasingly powerful role in Israeli politics, its influence was marginal at best in the first decades of the state.10 By the late 1940s, the Holocaust had destroyed Orthodox Jewish life in Eastern Europe and most Jews in America and Palestine were abandoning the religious beliefs and lifestyle of their parents. In this light, Orthodox Jews adhering to a religious version of nationalism could easily be dismissed as outliers, a historical anomaly in the context of modern nationalism and a fading remnant of an abandoned world.
This book comes to a different conclusion. It argues that the religious Zionism of Herzog and his followers was not an anomaly of modern times but was, in fact, a product of modernity. It was shaped by the logic of the modern liberal state and was therefore firmly part of the story of Zionism and modern European nationalism more broadly. Religious Zionists produced few political manifestos or works of legal philosophy. They tended to write halakhic tracts and commentaries on religious texts in a rabbinic idiom, replete with references and allusions to the traditional canon, that are difficult to decipher, even for most Hebrew speakers. And yet, this book argues that the writings of Herzog and others like him bear the mark of an unmistakably modern legal and political theory. Although it was articulated through sources of the Talmud and medieval rabbinical literature, Herzog’s imagined halakhic state was a new phenomenon in Jewish history.
Before religious Zionism, halakha had never been associated with a modern state. Unlike the centralized legal systems of modern states, halakha was a decentralized system of law. Indeed, it is debatable whether halakha should be considered a “system” at all.11 Rabbinical courts were not part of a single, hierarchical institution; every rabbinical judge was independent, and there was no formal relationship between one court and the next. Jews all over the world followed different laws, depending on local custom and judicial rulings. Furthermore, whereas modern states tend to claim that their laws have exclusive legal authority within their territory, halakha worked alongside other kinds of law, like the laws of non-Jewish rulers and non-halakhic legislation of Jewish lay leaders, which were also considered authoritative by Jews. Finally, whereas the rule of law in the modern state requires the law to apply equally to all citizens within its borders, halakha claimed authority only over Jews and never over members of other religious communities. Personal identity and not geographical boundaries determined the limits of its jurisdiction.
Herzog’s idea of a halakhic state, however, re-imagined the history of halakha according to the model of the modern state. He and his allies envisaged a halakhic system centralized into a single body, recorded in law books explicitly modeled on the legal codes of modern European states. They created a hierarchical system of halakhic courts that, contrary to ancient precedent, included a court of appeals.12 They also proposed that, just like the law of the modern state, the law of the halakhic state would apply to all citizens, of whatever religion. This recasting of halakha, and the practical program for implementing it, represented a radical departure from the historical precedent to which religious Zionists appealed for legitimacy.
These innovations reflect the fact that many religious Zionist rabbinical leaders were immersed in the intellectual currents of modern European law and politics. Their writings should therefore be read in the context of the rise of modern nationalism, the struggle of independence movements against the control of European empires, and the centrality of legal philosophy in that struggle. The image of de Valera taking refuge in Herzog’s house reminds us how deeply embedded Herzog and other religious Zionists were in the historical adventures of the time. Like Herzog, de Valera considered law and constitutionalism to be a primary tool in the battle for full independence from Britain. De Valera finally achieved that goal with the constitution of an independent Ireland, which was ratified in 1937. Herzog was familiar with the Irish constitution; he consulted with de Valera over the clauses regarding the place of religious communities in the new Ireland. Herzog could not fail to have been impressed by the way in which the democratic Irish constitution upheld a central place for religion and religious law in the state. In the very same year that the Irish constitution was ratified, Herzog was appointed as Ashkenazic Chief Rabbi of Palestine and took up the cudgel in his own battles over law in the Zionist context. He fought against the secular Zionists who wanted a constitution that drew from the “foreign wells” of British and Ottoman law rather than the sacred canon of halakha.13 Like de Valera, Herzog pushed for the creation of an independent state, while maintaining the central role of religious law in that state. Far from being an anomaly in an age of modern nationalism, Herzog’s religious Jewish nationalism was produced by it.14
The term “religious Zionist” requires clarification. Commonly used to refer to Orthodox Jewish Zionists, the term covers tremendously diverse ideologies and ways of life. Indeed, the flagship political party of religious Zionism, the National Religious Party (Mafdal), which functioned from 1956 to 2008, has been described as a party of “institutionalized factionalism.”15 Religious Zionism has included socialists and bourgeois capitalists, those devoted to rabbinic authority and those skeptical of it, and people with disparate views on politics, theology, and many other key issues. It has also has undergone many changes in its history of more than a century.16
As early as the 1860s, Orthodox Jews began writing about the religious value of Jewish settlement in the Land of Israel. Yehudah Alkalai (1798–1878) and Zvi Hirsch Kalischer (1795–1874), rabbis in Sarajevo and Prussia respectively, each advocated for Jewish settlement in the Land of Israel, both out of concern for the fate of indigent European Jews and out of a certain kind of messianic ideology. Their writing had limited impact, however, and it was not until the 1880s, following a series of repressive antisemitic measures in the Russian Empire, that emigration to Ottoman Palestine became a serious option for many European Jews. In those years, the Hibat Zion movement promoted Jewish immigration to Palestine and attracted many Orthodox Jews, particularly from Eastern Europe.17 Because of internal divisions and the difficult conditions in Palestine, most of the Hibat Zion settlements had failed by the time Theodor Herzl formally established political Zionism as a world movement in 1897. That failure is why the historian Dov Schwartz dates the real genesis of religious Zionism to 1902, when the Mizrahi party was founded.18 Mizrahi was an Orthodox Zionist party, whose name was a contraction of merkaz ruhani, meaning “spiritual center.” Its slogan was “the Land of Israel for the People of Israel according to the Torah of Israel.” The founding of Mizrahi marked the moment at which Orthodox Jews began to conceive of themselves as a part of the wider current of Jewish nationalism represented by the Zionist movement.
Religious Zionism was paradoxical. Defined on the one hand by its conservative adherence to the Jewish tradition, it also aimed to bring about revolutionary change. Thus, religious Zionism was deemed by some of its adherents to be a “sacred rebellion”; elements of both sanctity and rebellion were central to its identity.19 The rebellious element of religious Zionism was expressed primarily in its embrace of Zionism against the objections of most other Orthodox Jews. (Only after the Holocaust did the majority of Orthodox Jews began to affiliate with Zionism.) Zionism was often opposed by Orthodox Jews for two reasons. First, they balked at the fact that most Zionists defined their movement as a way to escape the religious world of their parents and to replace the enervated, degenerate “exilic” Jew of the religious past with a muscular liberated “New Jew” in a national homeland. Rabbinic teachings had little place in this vision. Second, in the eyes of most Orthodox leaders, Zionism represented an attempt to “force the end,” taking the salvation of the Jewish people into their own hands, and thereby arrogantly replacing God as redeemer.20 Through a mixture of innovative interpretations of canonical texts and pragmatic alliances with secular Jewish Zionists, religious Zionists allowed themselves to join the Zionist movement against the protests of the majority of Orthodox rabbis of the time.
At the same time, religious Zionists understood their project to be deeply sacred. In his prayer for the State of Israel, composed by Herzog in 1948 and immediately adopted by religious Zionists into synagogue services, the state was described as “the beginning of the flowering of the redemption.”21 Religious Zionist leaders believed from the start that their mission would have apocalyptic consequences and that Zionism, rather than usurping the role of redeemer from God, would actually enjoin God to bring about the messianic age. This outcome would lead to the redemption not only of the Jewish people but also of the entire world. Some religious Zionists concealed their eschatological beliefs in an attempt to appease non-Orthodox Zionists. Yitzhak Yaakov Reines, for example, the founder of Mizrahi, claimed that his support of Zionism was purely a matter of political exigency in order to protect the oppressed Jews of Eastern Europe.22 Others, however, such as Isaiah Bernstein, a central figure in Ha-Po’el Ha-Mizrahi, the socialist wing of the Mizrahi movement, were more explicit about the religious value of Zionism. “The battle we are now waging for the freedom and redemption of Israel and for the establishment of a Jewish state is not confined to us,” wrote Bernstein. “The return of Israel to their land and the renewal of their spirit are a significant contribution to peace in the world.”23
Because they believed that Zionism was an instrument of divine redemption, religious Zionists tended to think that secular Zionists, even those who explicitly opposed religion, were unconsciously motivated by a latent religious impulse. According to Yitzhak Nissenbaum, a Mizrahi leader, Zionist activity of any kind was always impelled by “faith in the power of Judaism.”24 Similarly, Abraham Isaac Kook, a rabbi who was never technically a registered Zionist but who was revered as a figurehead of the religious Zionist movement, claimed that “while [secular Zionists] may believe that the good they accomplish is contrary to the Torah, it is in fact of its very essence.”25 For Kook, secular Zionists were tools of God whether they knew it or not.26
As part of their messianic vision, religious Zionists saw the Zionist movement as a way to open up new spiritual avenues for the Jewish people. They believed that the return of Jews to the Land of Israel would allow Jews to follow biblical and rabbinic law in areas of life that were not available to them in their exile, such as laws pertaining to agricultural life and, eventually, the rebuilding of the Temple in Jerusalem. They also believed that Jews in their newly redeemed state would follow Jewish law. Shlomo Zalman Shragai, another Mizrahi leader, wrote that, because “observing the Torah and fulfilling its commandments in their entirety is possible only in the land of Israel,” the ultimate purpose of Zionism is “a means to realize the goal of fulfilling and observing the Torah.”27
Within the basic parameters of this worldview, streams of religious Zionism proliferated, adopting different perspectives on a host of issues. Members of the Mizrahi party by and large continued to adhere to a conservative religious outlook coupled with a moderate political platform. By contrast, Ha-Po’el Ha-Mizrahi, an organization established in 1922 by Orthodox Zionist youth who disapproved of what they saw as the bourgeois values of many religious leaders, attempted to connect religious Zionism to the secular Zionist workers’ movement. The religious kibbutz movement, a network of religious socialist communes that were affiliated with Ha-Po’el Ha-Mizrahi, were generally skeptical of rabbinic authority and had a freer interpretation of Orthodox Jewish law. They worked toward the creation of a redeemed Jewish society in which physical labor and communion with the land were cardinal virtues.28 Meanwhile, religious Zionists emanating from the circle of Abraham Isaac Kook were drawn to his unusual mix of traditionalism, romantic nationalism, and mysticism.29
After the 1967 war, religious Zionism produced still more variants. Gush Emunim, the “Bloc of the Faithful,” was a religious Zionist movement that emphasized the Jewish settlement of the territories occupied by Israel during the war as a primary religious value. The eschatological impulse that had been present in religious Zionism from the start became more explicit and imminent in religious Zionist thought from the 1970s. It also became more violent. Religious Zionists mounted fierce resistance against the state’s policy of exchanging “land for peace” with its neighbors. This opposition expressed itself in rhetoric, political action and, occasionally, physical conflict. In 1995, Prime Minister Yitzhak Rabin, the Israeli champion of the peace process, was assassinated by a religious Zionist student. The trauma caused by the event is still palpable in Israeli society.
Since the 1980s, religious Zionism has diversified still further under the influence of global trends toward multiculturalism and, later, the potential of the internet to strengthen and give voice to otherwise marginal groups. In recent decades, religious Zionism has developed in various, often opposing, directions. Some religious Zionists have incorporated feminist insights and the higher criticism of Scripture into religious life. Others have embraced extreme right-wing activism, or Hasidically inflected new-age artistic expressionism.30 Still, however, wider Israeli society seems to associate religious Zionism primarily with the campaign for continued Israeli control over the Occupied Territories. A study from 2014 found that 22% of Israeli Jews identified themselves as “religious nationalist” even though only 10% of Israeli Jews identified themselves as “religious.”31 This data seems to indicate that, for some, “religious Zionist” has become a proxy for Israeli territorial maximalism represented by political parties like The Jewish Home.32
The mission of religious Zionists to create a halakhic state had to contend with severe obstacles, some arising from the political circumstances of their time and others inherent in the Jewish tradition itself. Among the political obstacles was the commitment of the overwhelming majority of Zionists to a liberal democratic legal constitution for the Jewish state and a deep opposition to the idea of religious rule. Immediately after the establishment of Israel, the provisional government set up a committee to prepare a constitution for the new state. The government committee considered several constitutional drafts. Their proposals regarding the place of religion in the state were comparable to other democratic constitutions of the period. At the time, a complete separation between religion and state was rare, even in liberal democracies. Even in the United States, the erection of a “wall of separation” between religion and state did not become a mainstay of Supreme Court decisions until the second half of the twentieth century.33 Despite the lack of a sharp distinction between church and state, however, democratic constitutions tended to protect the freedom of, and from, religion.
Typical of this approach was the draft written by Leo Kohn, a jurist and professor of international relations who also worked for Israel’s Foreign Ministry. Kohn drew inspiration mainly from the constitutions of France, Ireland, and the Weimar Republic, as well as those of the United States and China, rather than from the Jewish tradition, and certainly not from Jewish law. His proposal was accepted as the formal basis for the deliberations of Israel’s government in August 1948.34 It opened with an affirmation of the place of God in Jewish history: “We, the children of Israel, giving thanks and praise to God, the Creator of the world, who brought us out from slavery to freedom and returned us to the land that He promised to our forefathers.”35 But it defined Israel as “a sovereign, independent, democratic republic,” maintained that the state would not discriminate among its citizens on the basis of “race, religion, language or sex,” and had little religious content beyond its opening words.36 Under pressure from religious Zionist critics, Kohn added more references to the Jewish tradition to the second and third drafts of his constitution. Those references, however, remained largely symbolic and incidental to the main substance of his proposal. In this respect, Kohn’s draft constitution was similar to many European constitutions of the time that included a reference to God in their preambles but not substantive religious norms.
Religious Zionists were not satisfied with Kohn’s cursory gesture to religion. Zerah Warhaftig, a religious Zionist representative of the United Religious Front party who was the chair of the constitutional committee lamented that, other than the preamble, Kohn’s constitution contained “nothing concerning religion.” He complained that its “formulation is liberal and avoids giving a clear answer to issues of religion.” Warhaftig believed, by contrast, that “the religion of Israel should be given a status in the State of Israel.”37
The disappointment of Warhaftig and other religious Zionists was predictable, and points to a fundamental opposition between the idea of a halakhic state and the secular democracy embraced by secular Zionists. As early as 1922, Meir Berlin (later Bar-Ilan), a religious Zionist activist who later became the president of the World Mizrahi organization, had marked out the Jewish approach to religion as distinct from that of Christian European countries:
Our case is different. Our Torah and traditions are not man-made constitutions, but God’s own law. . . . We have no “church” that is not also concerned with matters of state, just as we have no state which is not also concerned with “church” matters. In Jewish life these are not two separate spheres.38
John Locke, the Enlightenment thinker, whose writings on the role of religion in the state laid the groundwork for many modern constitutions, attempted “to distinguish exactly the Business of Civil Government from that of Religion, and to settle the just Bounds that lie between the one and the other.”39 Meir Berlin rejected the application of Locke’s distinction to the Jewish case. He argued that Judaism, in contrast to the liberal tradition that had emerged from a Christian heritage, does not recognize a sphere of religion distinct from the civil politics that is the business of the state. Rather, Berlin, like all religious Zionists, believed that Jewish national and religious identities were deeply integrated. More specifically, he argued that Judaism had an inherently legal character. It followed that the constitution of a Jewish state could not simply be another one of those “man-made constitutions.” In the constitution of a Jewish state, the Torah, “God’s own law,” had to play a central role.
The political obstacles to the realization of a halakhic state were even deeper than the fundamental divide between religious Zionists and the rest of the Zionist movement over the place of religion in the constitution. Many Zionists displayed not only an antipathy to the idea of the halakhic state but to traditional Judaism more broadly. Max Nordau, for example, a close collaborator of Theodor Herzl in the foundation of political Zionism, wrote of the Hebrew Bible that its “conception of the universe is childish and its morality revolting.” He considered it to be full of superstition and faulty history, along with poems and stories that “are rarely distinguished by beauties of the highest order but frequently by superfluity of expression, coarseness, bad taste, and genuine Oriental sensuality.”40
David Ben-Gurion, the architect of the Jewish state and Israel’s first Prime Minister, relied heavily on the Bible as a source for a Jewish nationalist mythos, but he too had no interest in Orthodox Judaism or in halakha as a normative practice.41 For Ben-Gurion, Zionism was heir to the Jewish sovereignty and political heroism described in the Bible, but he dismissed the “exilic” period between biblical times and the rise of Zionism—which included the entire rabbinic period and the formation of halakha—as “apolitical, particularistic, prone to an exaggerated spiritualism and withdrawal.”42
For all these reasons, religious Zionists faced an uphill battle in their attempt to convince the Zionist movement to adopt a constitution on the basis of the Torah. Although many of them believed that, as part of the unfolding of a messianic vision, the Jewish masses would eventually repent and return to the Torah, they did not know exactly when this event would happen.43 As a result, the establishment of a halakhic state required them to win over a population that ranged from the skeptical to the openly antagonistic.
Aside from the political obstacles arising from the negative attitude of many Zionists toward religion, religious Zionists also faced a set of intellectual obstacles that flowed from the numerous tensions between halakha and democracy. Democracy posed four key challenges to the idea of the halakhic state. The first was the challenge of anachronism. Most of the corpus of halakha was formulated before the period of the modern state. As such, its political categories are ostensibly unsuited for dealing with modern politics. Halakhic sources speak of kings, priests, and prophets, and have very little to say about parliamentary democracy, bureaucracy, and the modern judiciary. The second challenge was that of scale. Halakha developed among Jews who lived under Gentile rule. Their communities were sometimes very large, and certainly had a rich political life. They did not, however, require either the legal structure or the administrative capacity of the modern state. Halakha therefore says almost nothing about questions that are fundamental to the politics of the state, such as foreign policy, the role of the army, the structure of government, or the procedures of mass representation. The third challenge was one of social and political discrimination. Orthodox interpretations of halakha distinguish in numerous areas of law between men and women, between Jews and Gentiles, and between Jews who observe halakha and those who do not. Many rabbis believed that halakha would not permit either non-Jews or Jewish women to hold positions of political or judicial authority. Already in the years following World War I, several religious Zionist rabbis had attempted, and failed, to deny the franchise to Jewish women in Palestine.44 This kind of discrimination was in direct tension with modern democratic values. Finally, there was the challenge of authority. The cornerstone of democratic politics is that the people govern themselves. The people are the source of all legal and political authority; laws have authority only if they are endorsed by their will. In halakha, however, the source of legal authority is not the people but God. Halakha is considered to be the will of God as revealed in the Bible and interpreted by rabbis, its authorized interpreters. God’s laws are binding whether or not the people accept them, and new rules cannot simply be invented by a parliament; they must be consistent with generations of halakhic precedent.
These challenges could not simply be ignored by religious Zionists. By the 1920s, it had already become clear that a Jewish state, should it be established, would be democratic. The Va’ad Le’umi, the Jewish National Council that organized Jewish life in Palestine and became the structural foundation for the Israeli government, was democratic. Indeed, it was not only the majority of the Zionist movement but also the international community that demanded that the Jewish state should be an egalitarian democracy. When the United Nations voted in 1947 to partition Palestine into a Jewish and an Arab state, it specified that both states should have a democratic constitution and a legislative body elected by universal suffrage and should not allow discrimination based on “race, religion, language or sex.”45 To convince others to govern the Jewish state by halakha, religious Zionists would have to present a picture of a halakhic state in which women, non-Jews, and non-Orthodox Jews could hold positions of power. They would have to propose a constitutional arrangement that was compatible with their understanding of the Jewish tradition but would also allow a woman to be the Prime Minister and a Muslim to be a judge.
Broadly speaking, there were two ways in which religious Zionists attempted to grapple with the obstacles that stood in the way of applying halakha to a modern Jewish state. In the language of legal theory, one approach would be called legal pluralism and the other would be called legal centralism. It is a central claim of this book that, around the end of the 1940s, religious Zionist elites abandoned legal pluralism, which had until then been the framework for their constitutional thinking, and embraced religious centralism. A clear definition of these terms and their place in Jewish history and legal scholarship is therefore crucial.
According to the ideology of legal centralism, a political territory may have only one system of law, derived from a single source of authority and arranged in a single legal hierarchy. In modern legal theory, this single legal system is typically that of the state and its ultimate source of authority is called the sovereign.46 In democratic states, the sovereign is usually understood to be the people. So, according to legal centralism, it is the will of the people that ultimately bestows authority upon all the law in the state. Although the people may delegate the business of making law to various institutions (parliaments, regulatory commissions, and so on) they are ultimately responsible for all laws, from the law against murder to zoning laws on the local high street. Here is how legal centralism was described by John Griffiths, a pioneering legal theorist:
[L]aw is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions. To the extent that other, lesser normative orderings, such as the church, the family, the voluntary association and the economic organization exist, they ought to be and in fact are hierarchically subordinate to the law and institutions of the state. . . . In the legal centralist conception, law is an exclusive, systematic and unified hierarchical ordering of normative propositions.47
Legal centralism has advantages as a descriptive account of law. The theory tends to be intuitive for citizens of modern states who tend to think it is self-evident that the government has the exclusive authority to make laws. Legal centralism is also appealing in its simplicity. The law that convicts a murderer is the same law that prohibits parking on a busy road during rush hour.
There is also another way of imagining the law: legal pluralism. According to this alternative theory, multiple legal systems may coexist in the same social field.48 Each system has its own source of authority, often distinct from the state. Proponents of legal pluralism claim that it is a more accurate representation of how law works in reality. A private contract between individuals, for example, may indeed be enforced by the law of the state. But in the minds of the parties to the contract, other normative systems such as moral or religious obligations may be more important than state legislation. Legal pluralists, then, recognize the existence of multiple overlapping sources of normative authority. These various sources do not necessarily coexist in a systematic way and coincide in ways that, in the words of Griffiths, “may support, complement, ignore, or frustrate one another.”49
There are two key debates among legal philosophers around the concepts of legal centralism and legal pluralism. One debate is normative. It revolves around the question of whether legal pluralism or centralism is a better way to organize law in the modern state. Another debate is descriptive. Some jurists believe that legal centralism accurately describes the function of law in the state, whereas others believe that, despite appearances, even modern states actually include several legal regimes.50 These debates aside, most legal historians agree that legal pluralism does accurately describe the way law worked in two specific historical contexts. The first context was the Middle Ages, in which everyone in the Christian and Muslim worlds lived under a legally pluralistic regime, which had a wide array of diverse legal institutions and authorities that related to each other in fluid and generally unsystematic ways, sometimes in conflict, sometimes in cooperation.51 The second was the colonial context. From the nineteenth century, even as European imperial powers attempted to enforce legal centralism in their own states, they retained in their colonies a system of legal pluralism in which all kinds of local, religious, and “tribal” law were recognized alongside the law imported by the colonizers.52
These medieval and colonial contexts, in which legal pluralism dominated, were especially significant for the legal thinking of religious Zionists. The legal pluralism of the Middle Ages was a primary point of reference for religious Zionists. Much of the halakhic precedent that they deemed authoritative was produced in that period, when halakha was only one of a number of sources of law. Alongside halakha, the non-halakhic legislation of Jewish lay leaders and the laws of non-Jewish rulers were both considered binding by Jews. Legal pluralism was therefore taken for granted by many of the medieval Jewish jurists whose works were accepted as precedent by religious Zionists. Similarly, the colonial context of the British Mandate for Palestine, which formed the de facto starting point for Zionist discussions of law, was also legally pluralistic. Under Ottoman rule, religious communities in Palestine had exclusive authority over the personal law pertaining to their members. (Personal law included, among other things, laws of marriage, divorce, and inheritance.)53 After the British conquered Palestine in 1917, they continued to recognize the independence of Palestine’s religious courts.54 Even the most liberal drafts of a constitution for Israel did not consider altering this state of affairs;55 thus, the law of Mandate Palestine was not unified into a single hierarchy but was distributed among different communities and legal institutions. As a result, legal pluralism characterized not only the medieval precedent for religious Zionist legal thinkers but also their lived reality.
It is therefore to be expected that, before 1948, most proposals of religious Zionists regarding the role of halakha in the state were legally pluralistic. They suggested that halakha should play a role in the state, but not that it should have exclusive legal authority. They typically imagined a Jewish state in which halakha would exist in parallel with the legislation of a democratically elected parliament. They acknowledged that many aspects of the state would be governed by laws created by human legislators, many of whom would not have any affiliation with religious Orthodoxy, and who might not be Jewish at all. This legally pluralistic approach provided a way for religious Zionists to address the practical and theoretical challenges of applying halakha in a democratic state. It also allowed them to legitimize both democratic legislation and halakha simultaneously, granting religious legitimacy to secular legislation while bestowing the imprimatur of the state on halakha.
At the end of the 1940s, however, a sea change occurred. For the first time, religious Zionist legal thinking began to reject the model of legal pluralism and to adopt the approach of legal centralism. A key instigator of this change was Isaac Herzog, who vehemently opposed the very idea of legal pluralism. He and his followers argued that the State of Israel should be governed exclusively by a single, centralized system of halakha, proposing that Israel’s constitution include a clause designating the Torah as the fundamental law of the state. Herzog himself described his envisioned constitution as a “theocracy.” He converted many followers to this point of view and convened a large group of rabbis who set about composing halakhic legal codes in the form of modern law books. “We will not give up on the law of the Torah,” he insisted. “I am ready to sacrifice my life for it. Only on the Torah of Israel may the state of Israel be built.”56 Ultimately, Herzog’s aspirations for a modern Jewish theocracy were ignored by Israel’s political leaders. By the mid-1950s, even Herzog himself had to admit that his dream of a centralized halakhic state would never be realized. Despite the failure of his ambitions, however, the legal centralism that Herzog championed continued to shape the legal thinking of religious Zionists in the ensuing decades, and its echoes can be heard in Israeli political discourse to the present day.
The shift from legal pluralism to legal centralism can be explained by the fact that religious Zionists, for all their resistance to the secularizing tendencies of the Zionist movement, were embedded in a European legal and political culture that similarly repudiated legal pluralism in favor of the undivided sovereignty of the centralized state. This tendency was not unique to Zionism but was typical of postcolonial nationalist movements. On the Indian subcontinent, all over Africa and elsewhere, nationalists, who were often educated in European imperial centers, adopted legally centralist aspirations as they fought against imperial hegemony. Having been educated in London and Paris, and having been so intimately involved in the Irish struggle for independence from Britain, Herzog was particularly entrenched in this culture. His influence in Palestine after he was appointed chief rabbi in 1937 allowed him to disseminate, promote, and fund his philosophy of halakha and his view of the relationship between religion and the state.
There is a large and contentious literature that deals with the relationship between Zionism and colonialism. Some scholars see Zionism as an example of European settler colonialism. Others maintain that the two phenomena have nothing to do with each other. The unique place of Jews in fin de siècle Europe makes the truth more complicated than either of these positions. Many Jews were party to European culture and politics, including its colonialist assumptions. But many Jews (indeed, many of the same Jews) were also marginalized and oppressed by European society. The analytical tools of postcolonial theory, then, need to be applied to the history of Zionism with caution.
As Derek Penslar, one of the foremost historians of Zionism, has pointed out, “Zionism was historically and conceptually situated between colonial, anticolonial and postcolonial discourse and practice.”57 Even though the attitude of Zionists toward Palestinian Arabs shared some features with the mission civilatrice of European colonialism, it also differed in important respects. Zionists understood themselves not only to be colonizing Palestine, but also as a nationalist movement, resisting the colonial rule of the British Empire and, ultimately, establishing their own postcolonial state in their ancient homeland. These nationalist and postcolonial contexts are especially relevant for the analysis of religious Zionist legal philosophy, which grappled with the legacy of European imperialism and used it in the struggle to establish a state in the wake of its retreat.
The core arguments of this book, therefore, yield two main insights. The first is that, about halfway through the twentieth century, religious Zionists invented the idea of a halakhic state, a legally centralist modern state run exclusively by halakha, which was called a “theocracy” by its leading proponent. The second is that this ideological development can best be understood by placing religious Zionist legal theory against the backdrop of modern European jurisprudence, and in the context of global postcolonial nationalist movements.
To be sure, religious Zionist rabbinical elites always believed that halakha should play some sort of role in a modern Jewish state. They understood, however, that the realization of this goal required them to contend with the political and intellectual obstacles that resulted from the tensions between halakha and modern democratic principles. Earlier religious Zionists responded to these challenges with legally pluralistic solutions, proposing that halakha and democratic legislation should exist in parallel in the Jewish state. From the end of the 1940s, however, most religious Zionists began to adopt responses that were legally centralist, insisting that the state could have only a single, halakhic, legal system. A primary reason for this shift was the deep influence of modern European legal philosophy, which informed the most fundamental assumptions of religious Zionist legal thinking. While remaining committed to their idiosyncratic and traditionalist vision of Jewish law, religious Zionists also followed trends toward legal centralism that they held in common with many postcolonial modern nationalist movements. Religious Zionist aspirations to a centralist halakhic state predictably failed to materialize. This setback required religious Zionists thinkers to create new strategies to deal with what they considered to be Israel’s flawed legal order. Despite their failures, however, they never abandoned the principle that a legally centralist halakhic state was the ideal. The persistence of that idea continues to color Israeli political discourse.
These arguments have particular implications for two areas of contemporary interest: the study of the modern state of Israel and the study of the relationship between religion and the modern state more generally.
The analysis of religious Zionist legal philosophy is critical for an understanding of contemporary tensions in Israeli society. Since the mid-1970s, relations between religious and secular groups in Israel have become increasingly tense, often erupting into violence. The root of these tensions, and in particular the role of the 1967 war in Israel’s evolution, is the subject of a historiographical debate. Many scholars understand 1967 to be a crucial turning point. They claim that before 1967, most religious Zionists were pragmatists who did what they could to support the secular Zionist establishment. They were conscious of their relatively weak position in Israeli society and did not generally try to enforce their religious way of life onto others.58 After 1967, however, younger members of the religious Zionist community became a major component of the settler movement, which was also supported in many ways by the Israeli government itself.59 Religious rhetoric, sidelined in the days of the hegemony of socialist political leadership, returned to the Israeli mainstream in the “euphoria” that followed the war.60 The religious Zionist community in Israeli society was gradually emboldened, with its members attaining senior positions in the military and the government. By the end of the 1970s, secular elites had begun to warn that Israel was “sliding into clerical dictatorship” and that Israeli democracy was being replaced by a halakhic state.61 Tensions between newly invigorated and politicized religious Zionists and the state quickly escalated over the policy of “land for peace.” Mass protests among religious Zionists against the evacuations of settlements such as Yamit in the Sinai (1982), Gush Qatif in the Gaza strip (2005), and Amona in the West Bank (2006 and 2017), not to mention the assassination of Prime Minister Rabin, placed an intense strain on relations between religious Zionists and the state.62
This book offers a different perspective. Without minimizing the consequences of the 1967 war, it argues that religious-secular tension was already built into the legal philosophy of religious Zionism by the late 1940s. The adoption by religious Zionists, around the years of the establishment of the state, of a legally centralist vision, which lay claim to the entire hierarchy of the state’s legal authority, established the potential for conflict. While religious Zionists remained politically weak, there was no opportunity for this vision to be applied to reality. It became a subterranean desire that emerged forcefully after decades of suppression. The principle of legal centralism, however, was present from the state’s founding.
The forgotten beginnings of religious Zionist theocratic thinking recovered in this book are not only a matter of academic interest. The idea of the halakhic state continues to play an important role in religious Zionist thought and in the public discourse of the State of Israel. Struggles over the control of Israel’s key institutions frequently erupt. Rabbinical courts in Israel are constantly vying with the civil courts over the extent of their authority. Religious Zionist leaders push for the application of halakha over the public sphere and rabbis urge resistance against certain policies of Israel’s armed forces.63 The idea of the halakhic state has even reached the highest political office. Even Prime Minister Netanyahu reportedly recently called for the Talmud, the foundational text of halakha, to be the “basis for the Israeli legal system.”64 All of these developments are outgrowths of the discourse of religious Zionism in the first years of the state. An intellectual history of the religious Zionism of those years is therefore crucial to an understanding of these recent developments.
The history of the idea of the halakhic state in the Israeli context also illuminates urgent contemporary global questions about the relationship between religion, law, and politics in the context of the modern state. It has been widely observed that the predictions by early-twentieth-century scholars that religion would disappear in a “disenchanted” modernity were severely misguided. The revival of a politically engaged Christian right in the United States, the emergence of political Islam in the Middle East, the ascendance of Hindu nationalism in India, and the surge of radical Jewish politics in Israel all challenge the notion that modernity, liberal democracy, and secularism inevitably go hand in hand. Indeed, the impact on global politics of newly politicized religious groups has generated a far-reaching reassessment of theories of secularization.65 Studies of these phenomena, however, are overwhelmingly focused on Christianity or Islam and tend to overlook Judaism. Bringing the history of religious Zionism into conversation with the scholarly literature on secularization provides a new comparative perspective on a global phenomenon.
Until recently, a largely unexamined myth in Western political thought was that of the “Great Separation.”66 According to this myth, the formation of the modern state from the sixteenth century onward was a response to the European wars of religion. It was an attempt to escape religious violence by divorcing religion from political life. According to this narrative, modernity was necessarily accompanied by secularization, which was a trend comprising several components: differentiation—the separation of the sphere of politics from the sphere of religion; privatization—the retreat of religious life away from public state institutions into the personal lives of individuals and voluntary organizations; and decline—the inexorable weakening of religious belief and practice in the face of a powerful demystifying scientific worldview.67
The “Great Separation” thesis is more than a historical claim. It also implicitly entails the normative claim that religion is prone to violence because religious passions claim total and exclusive authority over all spheres of life. It contrasts this view to secular politics, which it holds up as rational, allowing for toleration between diverse groups. According to this understanding, secularization was a rational response that saved modern Europe from the intolerance and violence of religious conflict. This myth implies that there is something special (and better) about Western Christian society, which, alone among the world’s “civilizations,” developed a rational secular politics.68 This position tends to support the notion that, even today, secular politics remains an essential bulwark against the danger of politicized religious radicalism.
In this reading, a clear distinction can be made between “political theology” and “modern political philosophy.”69 Political theology is a kind of politics in which the ultimate authority is God and in which human action is oriented toward spiritual salvation in an eschatological future. By contrast, modern political philosophy is an approach to politics in which the ultimate authority is not God but the will of the people and in which human action is oriented toward the good of people in the “immanent frame” rather than to some kind of transcendent salvation.70
Scholars have taken issue with both the descriptive and the prescriptive aspects of the “Great Separation” thesis. Descriptively, the thesis fails to explain why religion has demonstrably not, in fact, been relegated to the private sphere. Even in modernity, religion continues to play a major role in political life, as the daily headlines repeatedly confirm. Scholars have also pointed out that even the aspects of modern politics that appear to be secular are in fact intrinsically theological. Locke, Hobbes, and other founders of modern political theory based their works on readings of the Bible and other religious texts.71 In his critique of liberalism, Carl Schmitt pointed out as early as the 1920s that modern notions of the state and sovereignty are nothing but medieval theological ideas dressed in a new garb and that “the central concepts of modern state theory are all secularized theological concepts.”72 Specifically, he argued, the sovereignty of God, and the loyalty that flowed from it, has been inherited by the sovereignty of the state that replaces God as the source of political authority.
Prescriptive aspects of the theory of secularization, which make claims about what should be, rather than what actually is, have also been criticized. Scholars have objected to the contrast between irrational, violent religious politics and rational, tolerant secular politics. They point out that modern forms of violent conflict are not a function of religion, but rather the outcome of structural changes brought about by modern state formation. In other words, the modern state was not formed in order to escape religious violence; religious violence is an outcome of the modern state.73 According to this position, conflict and violence today are not caused by an anachronistic eruption of religious fanaticism; they are a function of the internal logic of the modern state itself. It is the modern secular state, not religion, that demands the monopoly on the legitimate use of force and the power to legislate almost every aspect of life. It is the state that expresses its instinct toward violence (against its own citizens and against people beyond its borders) and total authority over law within its borders. These impulses then spread around the globe, migrating along the routes of European colonialism.74 Taken together, these criticisms blur the distinction between “secular” and “religious” and challenge the notion that a clear distinction can be made between “political theology” and “modern political philosophy.”
Contemporary scholarship, then, is currently in the midst of a wide-ranging series of debates over whether a “Great Separation” ever occurred, over the nature of “religion” and “secularism” and over the relationship between them. The intellectual history of religious Zionism contributes to this debate.
Ostensibly, the example of religious Zionism lends credence to the position that there is a sharp distinction between secular and religious politics. Secular Zionism, it could be argued, is a classic example of “modern political philosophy,” a movement that attempted to strip Judaism of its theological content and to set up a Jewish state on the model of other modern states. By contrast, religious Zionism championed political theology against modern political thought, explicitly appealing to God, not the people’s will, as the ultimate authority, and orienting Zionist politics toward a messianic future.
At the same time, the phenomenon of religious Zionism can also be shown to undermine the distinction between secular and religious politics. Although the ultimate goal of religious Zionism was explicitly eschatological, the entire structure of religious Zionist legal and political thinking was based on archetypally modern categories such as democracy, territorial sovereignty and, most of all, the state. For the first time in Jewish history, under religious Zionism the state became a primary vehicle of religious meaning and a key category of halakhic discourse. Schmitt thought that modern politics was based on “secularized theological concepts.” Religious Zionist theories of politics, the mirror image of Schmitt’s conception, might be termed sanctified secular concepts.
The religious Zionist philosophy of law is a particularly strong example of modern ideas being absorbed into a religious framework and imbued with sacred significance. Religious Zionists incorporated into their legal thinking a series of deeply held assumptions that underpinned the legal philosophy of twentieth-century Europe. They accepted from modern European jurisprudence the principles that everyone within the territory of the state, whatever his or her religious affiliation, was subject to the same system of laws and that all legal authority in the state was centralized, hierarchically organized, and flowed from a single source. To many modern readers, these principles might seem unremarkable because they form the basis of modern Western jurisprudence. In the history of Jewish law, however, they are quite unusual; before the twentieth century, no Jewish thinker had thought about halakha in quite this way. The religious Zionist embrace of the principles of state sovereignty and democratic constitutionalism is therefore striking.
This analysis does not somehow mean that religious Zionism was “secular” as opposed to “religious.” Although the structure of religious Zionist legal theory was derived from the jurisprudence of modern Europe, its content was quite distinct. The fact that modern concepts such as democracy and the state were raised to new prominence in religious dialogue must not obscure the fact that the foundation of its normative system remained the will of God, not the people, or that the goal of its political agenda was eschatological as well as temporal. Indeed, religious Zionists fiercely resisted many elements of secularization, including differentiation, privatization, and the decline of religious commitment.
The case of religious Zionism does not, then, unambiguously support or contradict the notion of a “Great Separation” between secular politics and political theology. Rather, it demonstrates that intellectual exchange on a deep level may take place between groups that define themselves as “secular” and “religious” even while fundamental tensions between the groups persist. In fact, in the Israeli case, it is the very similarity between the ways that religious and secular political structures are imagined that exacerbate the tensions between them. The prominence of legal centralism in religious Zionist thought, which it inherited from modern European jurisprudence, brought it into direct conflict with the state itself. Because both religious and secular communities considered the state to be the exclusive locus of political and legal authority, they found themselves fighting over exclusive control of its legal apparatus. This conflict has contributed to a cultural war that lasts to this day.
In recovering the genealogy of the idea of the halakhic state, this book draws on two overlapping historical methodologies. It is, first of all, a work of intellectual history. It undertakes a close reading of religious Zionist texts, attempting to piece together the internal logic of their patterns of thought and to reconstruct the discourses of which they were a part. This approach involves identifying their “commonplaces,” the general assumptions that are taken for granted in the construction of their arguments.75 Often, what is left unsaid in a historical source reveals more than what was explicitly expressed. Statements made as an aside, without any need for justification or explanation, may warrant more attention from the historian than statements that are emphasized by the author. This is because the peripheral or incidental elements of a text are often the key to recovering the scaffolding that undergirds the rhetorical web in which it is embedded. The historical meaning of a text can be ascertained only after identifying the matrix of other texts to which it is implicitly or explicitly responding.76
This book is also informed by the methodology of the field of cultural legal history and its fundamental insight that law and culture construct each other.77 By providing the categories through which we think about ourselves as individuals, social groups, and national units, law creates the structures through which we make meaning.78 By appreciating the role of law in constituting meaning, rather than merely as a tool to bring about practical ends, we can read law as a discourse through which identity, power, and social roles are negotiated.
This approach to law can be particularly effective in the study of people or groups who feel marginalized or threatened by a state’s hegemonic authority. For them, the law can become a battlefield on which struggles for identity are asserted and power imbalances addressed. Often the significance of legal argument is in its rhetoric as much as its ability to bring about a practical outcome; the use of law to mount social resistance or to shore up identity can be no less important than its political outcome. This insight refines our understanding of why cultural debates over law were so important to religious Zionists. Their fixation on law was not only because they wanted to achieve real social change (though, certainly, it was about that as well). Even when such change was out of reach, their continued principled arguments about law in public forums acted as a marker of their own social identity and resisted the secular hegemony of a state that, they believed, had abandoned God.
As the first intellectual history of the halakhic state, this book adds a Jewish case study to the growing field that is dedicated to an exploration of the meaning of the “religious” and the “secular” in the modern state and the relationship between them. Like works that focus on other religious traditions, this book analyzes the complex and counterintuitive interaction between “modern” and “traditional,” “religious” and “secular.” The Jewish case, however, is different in an important way. Whereas, historically, several states have officially established religions such as Christianity or Islam, the halakhic state has only ever existed in imagination, an ideal to be achieved or a nightmare to be avoided. Although traces of Jewish law are encoded in Israeli legislation and although Jewish religious courts, like the courts of other religious communities, have some jurisdiction in Israel, nothing like the theocracy proposed by Isaac Herzog ever came to fruition. It is impossible to know how a halakhic Jewish state would have unfolded over the decades had Herzog’s proposals been accepted. The array of anthropological and ethnographic data available in the study of other states, where religions have officially been established, simply does not exist, with an important methodological consequence. The sources for the study of the halakhic state are limited to the intellectual output of the religious Zionist elites who invented, debated, and attempted to implement the idea during the middle decades of the twentieth century. These historical subjects are almost exclusively Orthodox rabbis. They are all male. They are also mostly (though not exclusively) Ashkenazim, of European origin.79 They are not the rank and file religious Zionists whose outlook often differed from those of the rabbinical elites. They are certainly not women, Palestinians, migrant laborers, or other members of early Israeli society who would have been largely oblivious to the esoteric rabbinical writing on the halakhic state. Although the voices of these groups are not represented in the relevant sources, the history of the halakhic state nevertheless has significant implications for their place in Israeli society. Questions of inclusion, equality, and representation deeply preoccupied theorists of the halakhic state. Among other things, this book explicates religious Zionist thinking about groups that have historically been disadvantaged from the perspective of Orthodox Jewish law. These attitudes continue to have a significant effect on Israeli society today, even though the halakhic state never became Israel’s official constitutional model.
Although the main texts analyzed in this book were written before the end of the 1960s, it is difficult to overestimate the consequences of the history of the idea of the halakhic state on contemporary Israel. The role of religious Zionism in Israel’s politics today can be seen in a new light once the historical foundations of the theocratic idea have been taken into account. While the importance of 1967 can scarcely be overstated, it is impossible to understand religious Zionism in the twenty-first century, or Israeli society more broadly, without coming to grips with the genealogy of the idea of the halakhic state that began decades earlier. Although early religious Zionist leaders, including Isaac Herzog himself, were in many respects far more accommodating and liberal than their spiritual heirs, they unwittingly laid the intellectual foundations for the religious Zionist fundamentalism that intensified from the 1970s onward. Therefore, the act of historical recovery attempted in this book might have practical implications for Israeli society today. Appreciation for the long history of Jewish legal pluralism provides tools that could allow parties to religious-secular conflict to understand their differences in less acrimonious ways. The recovery of forgotten byways in legal and political religious thought offers strategies to ameliorate the tensions between secular and religious communities in Israel today and, by extension, in other parts of the world.