Early 1948 was a tense time for the Zionist movement. In November 1947, the UN had voted in favor of the partition of Palestine, but it was not until May 1948 that the British were scheduled to withdraw. In the meantime, war had erupted between Jews and Arabs. During all the turmoil, Zionist leaders were setting the groundwork for the legal and political structure of the future Jewish state. Even before the name of the Jewish state was decided, constitutional drafts were produced. Almost every draft constitution seriously considered by the Zionist leadership stated that the future Jewish state would have a secular constitution. The seat of its political authority and the author of its laws would be the body of its citizens, not God or the Jewish tradition.
An exception was a constitutional draft written by Isaac Herzog. He had been working on a constitution for some years and his prescription was clear. The Jewish state had to be a theocracy, he wrote. “Is it necessary for the Jewish state which recognizes the decisive rule of the Torah to be a theocracy? The answer is clear and simple: Yes and yes!”1
To the twenty-first-century reader, the idea that an Orthodox rabbi like Herzog would voice a desire for the state to be ruled by religious law seems unremarkable, especially since he had spent his career in writing about what he took to be the superiority of Jewish law. Today, such a position is the clarion call of politicized religious leaders the world over. Indeed, several modern constitutions are based on religious laws.2 In Israel today, most people take for granted that religious Zionist rabbis would want the state to be run by halakha. This was not, however, a typical position among religious Zionists at the time, and Herzog’s commitment to a halakhic state would have been an outlier before the end of the 1940s. So why did Herzog think the way he did? And why has his outlook become so established that, today, few people know that there was ever an alternative approach?
Herzog began his work on the constitution of a Jewish state at around the time that he was appointed as Chief Rabbi of Palestine, in 1937. His work took a long hiatus of almost a decade after the outbreak of World War II, during which time Herzog’s attention was focused on the plight of European Jews. During those years, Herzog devoted huge efforts to the cause of the Jews of Europe.3 In 1938, he requested that his friend Éamon de Valera, by then the prime minister of the Irish Free State, accept Jewish doctors who had been ousted from their positions in Nazi Germany. In 1939 and 1940, Herzog again recruited de Valera, along with other acquaintances from Ireland, such as Cardinal Joseph MacRory, to help him secure an audience with the pope, with a view to enlisting the Vatican in the cause of Jewish refugees. In the early 1940s, Herzog utilized every possible diplomatic connection to find paths for Jews out of Nazi Europe, including his personal acquaintance with Ivan Maisky, the Soviet ambassador to Great Britain, who was Jewish.4 Herzog also worked to secure the passage of students and teachers from Polish yeshivot to Palestine or other countries such as the United States, Australia, or even Rhodesia, a British colony. After the war, Herzog spent almost ten months of 1946 in traveling around Europe and endeavoring to bring Jewish refugees to a safe haven, in Palestine or anywhere else.
Herzog’s approach to the crisis of European Jewry, like that of many rabbis, differed from that of the secular leaders of the Jewish Agency, the organization that oversaw Jewish immigration to Palestine. To be sure, the Jewish Agency did what it could to save vulnerable Jews. It placed this objective, however, in the context of its primary goal of achieving a Jewish state. This goal led to disagreements with Herzog, as well as other religious Zionists. After the British essentially closed Palestine to Jewish immigration at the time European Jews most needed a place to go, Herzog and his religious Zionist allies developed strategies designed to avoid the British restrictions. One was the use of fictitious marriages between Jews from Palestine and Europe, which were followed by quick divorces after visas were secured. The official position of the Jewish Agency was to oppose this practice out of a pragmatic desire to remain in good standing with the British. What visas were available the Jewish Agency preferred to allocate to Jewish immigrants who were perceived as helping the Zionist cause. This preference generally meant young secular Zionists. Non-Zionist Orthodox yeshiva students, whom the Zionist leadership saw as the archetypal “exilic” Jews, were low on the list. Herzog sharply objected to these policies, insisting that saving lives had to take precedence over political goals. Although he never openly transgressed the wishes of the Jewish Agency, he also never stopped pushing for the immigration of all Jews, irrespective of their utility to the Zionist enterprise, and he encouraged the rabbinate to officiate over fictitious marriages and divorces until new legislation made the practice ineffective.5 He also worked extremely hard—traveling endlessly, raising money, and engaging diplomatically—on behalf of Orthodox Jews, who were deprioritized by the Jewish Agency. To do so, he took part in a network of American and British rabbis and raised funds independently. His efforts resulted in the rescue of many rabbinical leaders of European Jewry.6 These actions were not always encouraged by the Zionist leadership, who even attempted to prevent his winter 1940 visit to London, where he hoped to acquire visas for some of Europe’s Orthodox Jews. The Jewish Agency preferred to restrict such negotiations to the formal channels, and was reluctant to make an exception for Orthodox students.7
Herzog’s work for the rescue of European Jews must have had a significant impact on his thinking about a halakhic constitution for the Jewish state. He witnessed firsthand the effect of the Holocaust on Orthodox Jews. Many of the great institutions and leaders of Torah scholarship were destroyed during those years, and the future existence of Orthodoxy was itself in question. Furthermore, it was made clear that most of the secular leaders of the Zionist movement had little interest in the survival of halakhic life. Herzog likely felt that the continuation of the world of the Torah rested on his shoulders and those of his Orthodox allies.
With these experiences fresh in Herzog’s mind, he revisited the question of the constitution at the end of 1947, once the war was over and statehood imminent. In August 1947, at a meeting of the Council of the Chief Rabbinate, he urged a focus on “setting up a program for the constitution of the state in the framework of the Torah.”8 He was likely motivated by the fact that the Va’ad Le’umi, the Jewish National Council that would form the basis of the government of Israel, had formed its own committee for the writing of the constitution. Its chairman was Zerah Warhaftig, a member of the religious Zionist Ha-Po'el Ha-Mizrahi party, who was eager to incorporate his consultations with Herzog and other rabbis into the committee’s deliberations.9 Herzog decided to write a constitution himself and convened a committee of rabbis who would review it. He also conferred on the subject with experts in secular law, such as Gad Frumkin, an Orthodox Jew who would become one of the first justices of the state’s Supreme Court.10
Herzog planned to publish a draft constitution, which was in effect a short thesis of eighteen chapters dealing with the theory of democracy and theocracy, political and judicial appointments, rabbinical enactments, elections, taxes, the presidency and ministries, the police force and army, education, the place of religion in the state, the Chief Rabbinate, and other matters.11 Ultimately, Herzog completed only six of the eighteen chapters, of which only one was published in his lifetime.12 The fact that the work was never completed can be attributed in part to the many pressing matters competing for Herzog’s attention after the foundation of the state, in part to his eventual acceptance that his constitution would never be implemented, and in part, perhaps, to failing health in his later years. In 1989, Herzog’s extant writings in connection with the constitution and related material were published by Itamar Warhaftig, Zerah Warhaftig’s son, under the title Constitution for Israel According to the Torah.13
Although Herzog never finished the constitution, it is possible to piece together his constitutional and jurisprudential thinking from the chapters that do exist, in conjunction with Herzog’s other writings. In Herzog’s vision, the entire state would be governed by a single law: halakha. “The aspiration of all of religious Judaism in Israel and the Diaspora,” he wrote, “should be that the constitution include a basic clause that the law of the land is based on the foundations of the Torah.”14
Although Herzog explicitly described his constitution as theocratic, he knew that it also had to be democratic. On the face of it, these two constitutional approaches are mutually exclusive. Herzog, therefore, went to great pains to demonstrate that his idea of a theocracy was compatible with democracy. It is not clear if he was motivated by a genuinely egalitarian impulse or by the pragmatic concern that he had to convince secular Zionists (who made up the majority of Jews in Palestine, including virtually all of the political elite) to adopt his constitution. The bulk of Herzog’s writings indicate that pragmatism was his main motivation and that his concessions to liberal considerations were intended to reassure secular Zionists that halakha would be consistent (or consistent enough) with their values. But Herzog also had to sway an entirely different constituency to his perspective. He had to convince more traditionalist Orthodox leaders, many of whom were not full supporters of the Zionist enterprise, that the goal of halakhic rule was worth the cost of being creative with the interpretation of traditional texts. Many of Herzog’s writings on this topic were directed at this religiously conservative constituency. They were composed in a Hebrew saturated with references to rabbinic texts and specialized halakhic shorthand. Herzog did not take for granted his reputation among Orthodox rabbis in Palestine. Although nobody doubted Herzog’s prowess as a halakhic scholar, some more conservative rabbis were suspicious about his Western education. The Ultra-Orthodox community of Palestine nominated Yaakov Moshe Harlap, a pupil of Abraham Isaac Kook, as a candidate to oppose Herzog in the election for the chief rabbi, which took place in 1936. Herzog won the election by a decisive majority but it is possible that in his rabbinic writings he still had an eye toward cultivating support among his more conservative colleagues.15 It is therefore possible that Herzog was more progressive than his writings attest and that his dismissive remarks about liberal values were intended to appease critics for whom adherence to Torah outweighed any democratic considerations. It is more likely, though, that Herzog was genuinely ambivalent about the values of liberal democracy and that his concessions to democracy were motivated mainly by pragmatism rather than principle.
Either way, Herzog wrote with conviction about the necessity of modifying halakha, for it to be “in accord with the democratic nature of the state.”16 He knew that the majority of Jews in the state, “which is far from knowledge of the Torah and to our regret does not totally adhere to our holy tradition,” would have to be persuaded to go along with his constitutional plans.17 He also knew that the constitution of Israel would have to be in accord with the United Nations Partition Plan, which required the new Jewish state to have a democratic constitution, to elect a legislative body by universal suffrage, and not to allow political, civil, or any other discrimination against any person.18 “The establishment of the Jewish state,” Herzog noted, “is largely dependent on the guarantee of those rights in the spirit of that pact.”19 For it to succeed, he knew that his constitution would therefore have to be both theocratic and democratic: “The Jewish state . . . must of necessity be neither a total theocracy, nor a total democracy, but theocratic-democratic. . . . But this hyphenation requires deep study and great attention and thought on the part of Torah scholars.”20
Much of Herzog’s writing on the constitution was an attempt to describe the nature of this hybrid relationship between theocracy and democracy. The challenges inherent to this project were the same as those faced by all religious Zionists. Like Margulies, Gorontchik, and others, Herzog noted that, according to halakha, neither women nor non-Jews were permitted to take up positions of political authority, to become judges, or to give testimony in a court of law.21 Furthermore, Herzog acknowledged, halakhic criminal and civil law was not developed enough to govern a modern state.22 He recognized that a failure to address these issues would pose problems that were “impossible to surmount.”23 Legal pluralists allowed the existence of a legal regime for the state distinct from halakha, and thus allowed them to preserve halakha while also providing for a parallel state law that would be acceptable to all citizens. Herzog’s commitment to legal centralism prevented him from embracing this solution. With halakha as the only legal regime in the state, he had no option but to propose modifications to halakha in order to make it fit with modern democracy.
There is, however, a mood of reluctance that pervades Herzog’s writings on democracy. He lamented the fact that Orthodox Jews were not in the majority and the concessions that he was forced to make sometimes made him balk. He was particularly reluctant to address the question of gender equality with regard to judicial appointments. The idea of women on the bench, he wrote, was something that “surely we must oppose . . . with all force.”24 He noted that even many democracies did not allow women to be judges and wondered “why should those who campaign for democracy be even more democratic than many democratic states?” It is difficult to say which states Herzog had in mind but it is certainly true that at that time, even in countries where women de jure qualified for the judiciary, they were severely underrepresented on the bench. In Britain, for example, the judiciary was officially opened to women in 1919, but the first female judge was not appointed until 1945. In the United States, as Herzog was writing, fewer than 1.5 percent of judges at the state or federal level were women.25 Grudgingly, however, Herzog recognized that this argument was unlikely to persuade others and acknowledged that there was no way the people would accept a halakhic constitution that did not allow women to be judges. Even as he urged his followers to continue to oppose gender parity in the judiciary “to the fullest extent that we are able,” he reluctantly accepted that the “evil day” would eventually arrive when women would be appointed to the bench.26 He therefore began to look for halakhic justifications of this undesirable outcome because otherwise, he knew, his dreams of a halakhic constitution would have no hope of success.
Ultimately, Herzog’s desire for a halakhic constitution that was acceptable to liberal democrats was so strong that it overrode his misgivings about egalitarianism. Herzog felt that a Jewish state that did not give full rights to non-Jews would imperil the lives of Jews around the world. This was especially the case in the context of the period. After the Holocaust, he felt, Jews “dispersed among the nations” were particularly vulnerable. He thought that establishing a halakhic state “according to how the simple meaning of halakha appears at first glance” would endanger Jews in other countries. In such a state, “non-Jewish residents would be discriminated against to a large degree,” a fate that would “expose [Jews] to retaliation.”27 Having witnessed the destruction of European Jewry, Herzog was more determined than ever to preserve the rights of Jews wherever they happened to live. Without rights, he believed, Jews would suffer dishonor, which could have catastrophic consequences. “For in this era known as modernity, dishonor will eventually result in total contempt and total contempt will bring the contemptuous to thoughts—which will result in actions—that [Jews should be] denied human rights and that their blood and possessions are free for the taking.”28
Herzog therefore felt that the danger to Jews around the world that would result from the establishment of a discriminatory legal regime in Israel was so grave that it should override any halakhic reservations:
We have been given the opportunity to accept from the [United] Nations the power to establish a Jewish state in the land of Israel, but on condition that we tolerate those of other faiths . . . What should we do? [Should we] tell the nations: We are unable to accept this condition because our holy Torah prohibits a Jewish state from permitting Christians, and a fortiori idolaters, to live in our land, and moreover it forbids us from permitting their worship in our land and forbids us from allowing them to rent land? It seems to me that there is no rabbi in Israel in his right mind who would think that we have to respond in that way, meaning that this is what the holy Torah requires of us.29
The basis of Herzog’s argument was that in such an extreme situation it would be proper to accept any halakhic leniency that was necessary to secure international recognition of a Jewish state. This view rested on the well-established halakhic axiom that preservation of life takes precedence over almost any other religious consideration. “Even if the Jewish state would be sinning by fulfilling the condition[s of the UN],” he wrote, “I would still say that the sin is overridden by the threat to the life of the Jewish people.”30
Despite the halakhic significance of the need to save Jewish lives, however, Herzog was unwilling to base his entire position on it. He knew that he would be more convincing to his rabbinical colleagues if he could prove that conventional halakhic reasoning supported the establishment of a halakhic-democratic state, without needing to appeal to the extenuating circumstances of Jewish vulnerability. He therefore insisted that “[w]e do not need to rely on leniencies arising from the fact that the Jewish state [is required to] save the nation” because “according to the law itself there is no sin here according to my opinion.”31 Much of Herzog’s constitutional writing was dedicated to providing a persuasive halakhic rationale for an egalitarian, inclusive halakhic state.
Herzog’s challenge, then, was “to solve the problem of the harmonization of a democratic government of Torah” by creating a model of a Jewish democracy that would fend off criticisms from both secular Zionists and halakhic purists.32 The key was to find an epithet for a form of government that would be acceptable to traditionalists and liberals alike. One term that Herzog considered was “theocracy.” The term did not originate with Herzog. It was the ancient Jewish historian Josephus who coined the word, in the second century ce, defining it as a system of government that “ascribes the authority and the power to God.”33 The most prominent discussion of theocracy came much later, in Spinoza’s Theological-Political Treatise, published in 1670. Like Josephus, Spinoza also called the ancient Hebrew constitution a theocracy, defining it as a constitution in which “all their citizens had to swear allegiance to God, their supreme judge, to whom alone they had promised absolute obedience in all things.”34 Spinoza’s analysis had a very particular contemporary application. He used his historical reconstruction of the Hebrew constitution to argue in favor of Erastianism, the principle (named for the sixteenth-century Swiss theologian, Thomas Erastus) that the civil sovereign should have complete control over religion.35 According to Spinoza, Moses, and even God, after Moses’s death, were civil sovereigns who had full control over religious law rather than religious leaders with civil authority. This belief supported the Erastian position of the subordination of religious law to civil government.36
Herzog’s use of the term was different. He used “theocracy” as a blanket term for a state ruled by God’s law. He had different preoccupations from those of Josephus, who had no interest in combining theocracy with democracy. He also disagreed with Spinoza’s vision; contrary to Spinoza’s argument against clerical authority, Herzog expected rabbis and rabbinical law to have pride of place in the Jewish state. But, even though he was aware that in the twentieth century the term would repel liberals, Herzog did not shy away from using it. He defied those who used the term pejoratively. “Say what you will! Say that [a halakhic state] is a theocracy!” he reproached his opponents. He caustically observed that the international community was happy to accept a Muslim theocracy located only a few miles away from Palestine. “Look at Saudi Arabia!” he proclaimed. “You all recognize it and you all run after it because of its oil. Yet it maintains a government, police force and legal system which is absolutely theocratic.”37
On other occasions, though, Herzog was more circumspect. He acknowledged that “theocracy” was not a popular term and he was sensitive to the fact it conjured up images of a state ruled by religious functionaries.38 He therefore made it clear that, by theocracy, he meant not the rule of rabbis but the rule of law, albeit religious law. In a 1953 article, Herzog alighted on a more felicitous term for the kind of state he had in mind: nomocracy. “The Jewish state,” he wrote, “according to its traditional structure, is neither a complete theocracy nor a complete democracy, but a nomocracy.”39 A nomocracy, he explained, “is rule of law. But not the rule of any law; the rule of the divine law, the heavenly Torah.”40
Herzog did not invent the term “nomocracy.” It was a term apparently first used to describe the ancient Jewish constitution. The Oxford English Dictionary identifies the earliest use of the word in print as the 1829 The History of the Jews by the English priest Henry Hart Milman. The book was still in print during Herzog’s lifetime and it seems reasonable that a voracious reader like Herzog might have encountered this popular English work about the Jews. Indeed, Milman’s description of “nomocracy” is reminiscent of Herzog’s: “If God was not the sovereign of the Jewish state, the Law was . . . If the Hebrew commonwealth was not a theocracy, it was a nomocracy.”41
Notably, the term also occurs in a 1901 work by Oscar Straus, who became the first Jewish cabinet secretary in the United States, serving as the Secretary of Commerce and Labor under President Theodore Roosevelt. Straus sought to trace the origins of the republican form of government in the United States to “the direct and indirect influence of the Hebrew Commonwealth.” He wrote, “This [ancient Jewish] government, from the fact that God, the source of all power, the embodiment of the law, and not a king, was ruler of the nation, is termed by various writers a Theocracy, or Nomocracy (from nomos, meaning law), or a Commonwealth.”42 Like Milman and Straus, Herzog used the term “nomocracy” to emphasize the role of law in the Jewish constitution.
The term “nomocracy” performed an additional function for Herzog. It aided his attempt to convince skeptics that a halakhic constitution was essentially no different from the constitution of a modern European state. In the ancient Jewish state, which Herzog called a “theocratic monarchy,” the king was “placed under the sovereignty of the Torah, just like the king of a democratic state is placed under the authority of the constitution and the law.” 43 By making the analogy between the ancient Jewish king and the kings of contemporary democracies, Herzog enhanced the legitimacy of the Jewish constitution by comparing it with the constitutional model of many European states, not least the United Kingdom, which was ruling Palestine at the time these lines were written. He was implicitly indicating that the Jewish constitution, just like Britain’s, defined a monarchy in which the king was subject to law. This move is familiar from his earlier writings, in which he strove to legitimize Jewish law in the eyes of non-Jewish critics by demonstrating its similarity to systems of law that were widely accepted (by Europeans, at least) as the most advanced, moral, and efficient in the world.
In a further comparison between his reconstruction of a halakhic state and modern constitutions, Herzog found a counterpart for the Great Sanhedrin, which he called the “main supreme power” in the Jewish state, in modern parliaments.44 Although he acknowledged that the Sanhedrin was a court, on several occasions Herzog explicitly compared the Sanhedrin with a parliament, remarking that “the role of the parliament was filled by the Great Sanhedrin in no small way.”45 Elsewhere, he described the “Great Assembly,” which in rabbinical literature is often considered the precursor of the Sanhedrin, as “a kind of legislative parliament, enacting laws according to the procedures set up by the written and transmitted Torah; a parliament, only not in the modern sense.”46
Herzog self-consciously described a halakhic constitution in terms that explicitly likened it to the modern European state. For Herzog, the halakhic state is governed by the rule of law. Its power is organized in a single centralized hierarchy, according to which all legal authority derives from the sovereign. The king of Israel, like the kings of constitutional democratic monarchies, or the presidents of republican governments, was entirely subordinate to that sovereign authority. Furthermore, the halakhic constitution appoints a body whose task is to interpret old laws and create new ones. In the modern state, this role is taken by the parliament; in the ancient Jewish state it was taken by the Sanhedrin.
Herzog’s subordination of the Jewish king to the law is significant beyond the fact that he used it to align his constitution with modern democracies. The “king’s law” was the cornerstone of religious Zionist legal pluralism from Abraham Isaac Kook onward. According to legal pluralists, the king’s law was not subordinate to halakha but rather an independent parallel legal system. The king represented the possibility of a distinct legal authority outside of halakha. Herzog sharply diverged from this approach. For him, the king’s law was not parallel to halakha but subordinate to it. Herzog’s Jewish constitution allowed for only one centralized system of law deriving from a single sovereign constitution: the Torah.
Having laid the basis for the structure of his constitution, Herzog went on to address the potential conflicts between halakha and democracy. His primary focus was on the question of whether, and, if so how, to allow non-Orthodox Jews, women and non-Jews to be judges. Herzog made clear that he would ideally want his judiciary to be limited to Orthodox Jewish men, who were experts in Torah law. The requirements of democracy, however, demanded a compromise. Herzog was unwilling to depend on halakhic leniencies, justified by the need to preserve life. He felt that this halakhic mechanism would not have been a sustainable basis for a halakhic constitution, so he searched for other grounds for inclusion.
Herzog’s initial proposal did not recommend full inclusion. He suggested that the state should have two kinds of courts, one called “rabbinical” and the other “state” (memshalti).47 The rabbinical courts would have jurisdiction over personal status law and the state courts would judge civil matters.48 Although this proposal appears to be similar to that of religious Zionist legal pluralists who advocated the establishment of parallel halakhic and civil courts, it is in fact quite different. For Herzog, both rabbinical judges and the state’s civil judges would apply halakha in their courts. “Torah law,” he wrote, “is also the legal code of these [civil] courts.”49 Indeed, Herzog thought that the state courts should even prosecute people for some religious transgressions, such as the public desecration of the Sabbath and sexual immorality.50 Furthermore, for Herzog, both civil courts and rabbinical courts would have to satisfy halakhic procedural rules. Even civil courts would require at least three judges, the minimum size of a rabbinical court. He also wanted civil judges to be male Orthodox Jews. If this were impossible, he wanted them to be people with a basic respect for religious tradition, who, “at least, are not known to transgress the Sabbath or eat non-kosher food in public,” and therefore would not “cause pain and strife in the heart of the believing community.”51
So, in contrast to the pluralist model, even Herzog’s “state courts” would be halakhic courts in both substance and procedure. The only distinction between “rabbinical” and “state” courts was one of jurisdiction. Herzog’s proposed court system, just like that of many European states, would have different courts for family law and civil law. In Herzog’s system, judges in the family courts, because of the complicated nature of family law and its critical importance for religious integrity, would have to meet higher qualifications of religious commitment and halakhic knowledge than the judges in the criminal and civil courts did. All courts, however, would be governed by, and apply, halakhic law.
Herzog realized that in practice this system could never be implemented. The exclusion of women, non-Orthodox Jewish men, and non-Jews from the judiciary would arouse “the opposition of large sectors of the public on the basis of the principle of the personal freedom of religion.”52 Herzog considered creating courts for non-Jewish citizens of Israel, “two jurisdictions and two laws, for Jews as appropriate for them, and for Arabs as appropriate for them.”53 This plan would have avoided the halakhically problematic situation of a non-Jew judging a Jew in a court run according to the Torah. But Herzog knew well that this position would also not have been accepted. The state’s leaders, he believed, would claim “that this is not the way to arrive at peace and serious, free, political unity.”54
Therefore, Herzog had to devise more far-reaching solutions. He was not willing to compromise on his position that all courts in the state must apply halakha. Within this framework, though, he attempted to devise a way to allow nonreligious, female, and non-Jewish judges to sit on those courts.
Herzog’s first suggestion was to sidestep the question altogether. The halakhic prohibition of allowing non-Jews into positions of power applies only to formal political-legal authority. Halakha does not, though, prohibit business partnerships between Jews and non-Jews. Herzog observed that if the state was defined not as a political entity but as a voluntary association, “a kind of [business] partnership,” then the exclusionary laws regarding non-Jews, women, and non-Orthodox Jews would not apply.55 The modern State of Israel, he thought, is different from the ancient Jewish monarchy in that it was founded on the basis of international agreements in the United Nations. It would not exist without the involvement and agreement of other states. It could therefore be treated in a different way from that of the ancient Jewish kingdom. “In reality,” he wrote, “this [state] is a partnership between the people of Israel and non-Jewish people according to conditions that guarantee the first partner [i.e., the Jews] a certain degree of control.”56 If the state is imagined as a voluntary partnership, then, just as halakha places no restrictions on the authority of partners in a business association, so will halakha permit all people, of whatever gender or religious persuasion, to have full authority in a Jewish state.
Herzog was not satisfied with this approach, however, and ultimately did not recommend it. Although he did not offer a reason for this, two possibilities suggest themselves. First, the “partnership” solution diminishes not only the political but also the theological significance of the Jewish state. The establishment of a sovereign Jewish state, to which Herzog himself ascribed the messianic description of “the first flowering of our redemption,” could surely not be reduced to an innovative kind of business partnership.57 Second, the proposal was simply not very convincing. Herzog’s description of the state as civil partnership could more or less apply to any state. Taken to its logical conclusion this position could entirely eliminate the category of the political from Jewish thought. Herzog had spent his entire rabbinical career arguing that Jewish thought had as coherent and developed a legal and political theory as any modern state. Adopting this approach would have been a betrayal of that cornerstone of his life’s work. Herzog dedicated only two paragraphs to this proposal before putting it to one side and exploring other avenues for justifying the appointment of all citizens to the judiciary in a Jewish state.
The first halakhic obstacle to address was the prohibition of “rulership” (serara). The prohibition is based on an extrapolation from the biblical passage about the appointment of a king who has to be “from among your brethren,” implying that the king had to be an Israelite.58 According to the influential medieval interpretation of Maimonides, the teaching regarding the appointment of the king extends to all other positions of authority: “This applies not only to the monarchy but to all positions of authority. . . . All appointments that you make must only be from among your brethren.”59
Herzog limited the application of Maimonides’s ruling by noting that it is based on a verse about the appointment of a king. Perhaps, he suggested, the ruling applies only to positions of authority that are akin to monarchy and not to appointments in a democracy. Whereas kings are appointed for life and they transmit their political authority to their heirs, appointments in a democracy generally have a fixed term and are not inherited. Furthermore, Herzog argued, a king’s subjects have no say in his appointment. In a democracy, by contrast, elected officials are elected by the very people over whom they have authority. These differences between a king and democratically elected officials, he thought, may mean that Maimonides’s restrictions to political appointments do not apply in the context of the democratic state.60
Herzog’s innovative interpretation of Maimonides dealt with the general problem of the appointment of non-Jews to political authority. A further step, however, was required to justify non-Jews occupying the judicial bench and judging Jews by Jewish law. The halakhic mechanism he suggested for this purpose was that of “acceptance” (qabalah). Within certain parameters, if all parties to a civil case or defendants in a criminal case agree, they may accept the authority of a judge or the testimony of a witness, even if they do not meet normal halakhic requirements. This method could, Herzog suggested, allow non-Jews or women to become judges on the basis of the formal acceptance of all relevant parties. It would, however, be inefficient and potentially chaotic if cases could proceed only once every party had formally accepted the judge and witnesses. It would hardly make for a robust legal system if any party in a case could simply reject the authority of the judge before the case had even begun. Herzog therefore proposed that there could be a one-off “acceptance” of all judges, on behalf of all the residents of the state, by a binding act of the elected government. Because, he proposed, elected officials represent the entire people, they may formally accept on their behalf all judges and witnesses in the state’s courts, even “witnesses and judges who are unqualified by the law of the Torah and the sages.”61 This was a radical proposal. It had no precedent in halakhic literature, and Herzog admitted that he had not “explicitly found an ‘acceptance’ of this kind in the commentators.”62 Without this accommodation, however, halakha would certainly not be accepted as the legal system of the state, an outcome that Herzog considered to be unthinkable. He felt that the only way for it to have a chance of acceptance was for the mechanism of “acceptance” to be employed.
The outcome of Herzog’s deliberations was to propose a judicial system in which some courts, those concerned with family law most of all, would be run by Orthodox judges but the other state courts could accept judges and witnesses of any kind. Both courts, however, would be part of the same hierarchy and would have to apply halakhic law. On this he would not compromise. “Let the official law book for the entire population,” he demanded, “ ‘for the stranger as for the sojourner in the land,’ be Torah law.”63
Clearly, this system is quite unlike the pluralist system suggested by Gorontchik in 1948. The difference is manifest even in the names that the two men used for the courts. Gorontchik called the two court systems in his constitutional proposal “rabbinical Torah courts” (batei din rabani’im) on the one hand and “courts of law” (batei mishpat) on the other. This distinction emphasized the fact that they each ruled according to a different source of law and legal authority. Herzog, by contrast, called both courts by the traditional name for Torah courts (bet din) and distinguished them by calling the family courts “rabbinical Torah courts” (batei din rabani’im) and the others “state Torah courts” (batei din memshalti’im). Herzog’s halakhic interpretations were very creative, sometimes radical. But all this creativity was intended to produce a situation in which Israel’s law would be halakha, a law that would be applied to all people in all of the state’s courts.
This point raises the question: Why did Herzog take such strong exception to legal pluralism? Why did he reject a model for the Jewish state that drew firmly on halakhic precedent, provided reasonable solutions to the challenges of accommodating both halakha and democracy, and received support from within the religious Zionist community?
Part of the answer is provided by Herzog’s writings from before he came to Palestine. In an intellectual environment in which religious law was considered primitive, Herzog portrayed halakha as more advanced than modern European law. Defending Judaism against scholars who held legal pluralism to be a mark of unevolved and chaotic premodern politics, Herzog argued that halakha had the same centralized structure as the modern state. The political circumstances that Herzog encountered upon his arrival in Palestine, however, intensified his commitment to a legally centralist halakhic constitution. In particular, his legal thinking was shaped by postcolonial jurisprudence, which characterized the Zionist movement and, indeed, all nationalist movements fighting for independence against European imperial powers.
The transition from British imperial control to national independence reinforced Herzog’s inclination to present Jewish law in the model of modern European law and, in particular, to reimagine halakha as a centralized legal system. Even before Herzog arrived in Palestine, he became acquainted with the use of law as a tool in nationalist struggles. When he was still in Dublin, serving as Chief Rabbi of Ireland, Herzog played a significant role in the life of Éamon de Valera, the Irish nationalist leader.64 Around 1922, at the height of the civil war between Irish unionists and nationalists, de Valera found himself in danger during violent clashes on the streets of Dublin and spent a time hiding in the Herzog home.65 Herzog and de Valera were good friends. They shared a love of mathematics and, according to the memoirs of Herzog’s son Chaim (later president of the State of Israel), de Valera would frequently visit Herzog to “unburden his heart to my father.”66
The friendship between the two men was likely strengthened by their support for each other’s nationalist causes. Herzog, according to his son, was “an open partisan of the Irish cause.”67 He even learned a little Irish in response to de Valera’s friendly challenge.68 Herzog’s sympathy for Irish nationalism was presumably enhanced because he compared the Zionist movement with the struggle for Irish independence. Herzog’s criticism of British policy in Palestine mirrored the Irish opposition to British policy in Ireland.69 The comparison of Jewish and Irish independence was quite common in Ireland. Many Catholics in Ireland, for example, were strongly opposed to Britain’s 1937 plan for the partition of Palestine because it reminded them of the division of Ireland that had been forced upon them by the British and their supporters.70 Long after he had become Chief Rabbi of Palestine, Herzog continued to make this connection explicitly. An Irish newspaper reported in 1947,
[i]n a recent conversation with a “high British personality,” who had demanded the Jewish community's co-operation in suppressing disorders, he [Dr. Herzog] explained that this could only be done by the Jewish people having their own Government, police and army.
Dr. Herzog said he had reminded the British official of the history of Ireland, and emphasized that the Irish people had refused to become informers when asked to do so by the British Government.
“Britain did not enlist the co-operation of Ireland in the campaign against terrorism until agreement was reached with the Irish nation, after which the Irish people liquidated the terrorists,” Dr. Herzog added.71
De Valera, for his part, seems to have sympathized with Herzog’s Zionism. In 1933 de Valera, then prime minister of Ireland, received Norman Sokolow, the president of the Jewish Agency and the World Zionist Organization, in Herzog’s presence. Sokolow asked de Valera to urge the League of Nations to pressure the British into allowing more Jews into Palestine. Reportedly, de Valera promised to try.72 De Valera’s association with Zionism continued even after Herzog’s departure to take up office in Palestine. In 1950, he visited Israel’s first prime minister, David Ben-Gurion, in Israel and he remained close with the Herzog family for decades.73
De Valera’s connection with both Isaac Herzog and with Zionism is reflected in the more recent account of Isaac Cohen, one of Herzog’s successors as Chief Rabbi of Ireland:
During his years with the Irish Volunteers, [de Valera] developed a warm mutual friendship with a predecessor of mine, Rabbi Dr. Isaac Herzog, whom he visited in the Chief Rabbi’s residence in Dublin’s South Circular Road. He mentioned a number of times that he greatly admired the new-born state of Israel and welcomed its liberation from British control. He was particularly impressed by the successful revival of Hebrew as the daily spoken language in Israel. President de Valera was deeply moved when I brought him a sapling of a fir tree in 1973 from the Eamon de Valera Forest which the Irish Jewish community had planted in Cana near Nazareth in his honour. When the Israeli forestry department sent him three trees growing in the forest he was happy to plant them himself in the grounds of Aras an Uachtaráin [the residence of the Irish President] so as to have a part of the Holy Land near his home. . . . When the United Nations urged Israel to withdraw from extensive parts of the liberated areas of Palestine he said that if he had still been President of the League of Nations he would have seen to it that Israel did not give up any of the territory that it had regained after the Arab attack resulting in the Six Day War in 1967.74
Herzog’s connection with de Valera, and the association between Zionism and Irish nationalism, must have impressed upon Herzog the importance of legal sovereignty for the cause of nationalist movements. Under the Anglo-Irish Treaty of 1922, Britain gave Ireland a measure of independent rule, but the Irish Free State, created by the treaty, remained under the ultimate sovereignty of the British crown. Many Irish accepted this compromise but others decried the submission to British control and a bloody civil war ensued. De Valera had been the first president of the Free Irish State, but he could not accept a situation in which total sovereignty did not reside in the state, and he left the Parliament in protest after the treaty was signed. After a year of civil war, he finally supported a cease-fire and dedicated himself to fighting for independence through legislative means. He succeeded fifteen years later, shepherding Ireland to full independence from Britain and becoming the first Taoiseach (prime minister) of Ireland. It was during the preparation of the new constitution for a fully sovereign Ireland that de Valera consulted with Herzog about the clause concerning minority religions.75
De Valera’s constitution was important for Herzog as a blueprint for national independence from British rule. It was also a model of how to incorporate religious law into a modern democratic constitution. Ireland’s 1937 constitution was an early example of a document that attempted to balance religious tradition and social values with modern constitutionalism.76
The religious framing of the constitution is impossible to overlook. It opens as follows:
In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
Do hereby adopt, enact, and give to ourselves this Constitution.77
The prominent place of Christian symbols in the Irish constitution points to its religious character. Even more significant is the inclusion of the phrase “dignity . . . of the individual,” which was a concept borrowed from the Catholic Church. Although subsequently the term has largely shed its religious overtones, “human dignity” at the time was a way of expressing in ostensibly neutral language the elevation of religious natural law over democratic legislation.78 The Irish example was the model of a constitution that was democratic and religious at the same time and promoted religious teachings in many areas of social and political life, including constitutional law.
Christian doctrine was not limited to the preamble of the Irish constitution; it also had an impact on its substantive law. While the constitution provided for freedom of conscience, outlawed discrimination on the basis of religion, and recognized minority religious communities, it also recognized “the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.”79 It gave a special reverence to Catholic identity as a national heritage and as a religious value, proclaiming that “[t]he State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.”80 Indeed, under the constitution, divorce was impossible in Ireland.81 Only under the fifteenth amendment, enacted in 1996, did divorce become lawful and, even then, constitutional restrictions remained.82
Herzog was keen to point out the central place of the Catholic religion in the Irish constitution. Shortly before the establishment of Israel, Herzog took issue with the draft constitution of Leo Kohn because it did not grant Judaism and halakha the prominence that Herzog desired. Herzog used Ireland as an example to support his case. In a memorandum criticizing Kohn’s draft, he wrote,
Although our country is democratic, this does not prevent the state from granting special official recognition in the constitution to the religion of the vast majority in the State of Israel.
There is a precedent to this, which is alive and well. Ireland is also democratic, and no one has ever doubted its democracy. . . . In the Irish Constitution it says clearly that the Catholic Church is recognized as the official church of the Irish people, because it is the church of most of the citizens. However, it also says explicitly that the rights of other churches, Anglican, Presbyterian, etc. and Jewish, are firmly and energetically guaranteed. I argue that in view of the fact that there is a precedent in the constitution of a new democratic state in Western Europe, not only can the Constitution interpret that the Jewish religion has a special status as the religion of the majority of the citizens, but it must grant this respect for our holy religion.83
Herzog’s experiences in Ireland, then, brought him into intimate contact with an independence movement that fought for years for a constitution that centralized all sovereign authority in the new state. It was also a democratic constitution that enshrined religious doctrine. The year the Irish constitution was ratified, Herzog left Dublin to become Chief Rabbi of Palestine. Herzog’s experience in Ireland goes a long way to explaining his consistent commitment to the principle of legal centralism and its indispensability to Zionist national goals. It also suggests why he did not consider “theocratic-democratic” constitution to be paradoxical. If Ireland could give the Catholic religion such pride of place in its new constitution, why should Israel not do the same?84
Ireland was not the only archetype for Herzog’s jurisprudence; something beyond his individual experience was at play. Herzog was composing his halakhic constitution in the midst of a global trend of postcolonial nationalists creating legally centralist states.
Colonialism was bound up in legal pluralism, postcolonial independence in legal centralism. In the first years of European colonialism, imperial powers made no effort to alter the legal regimes in the places they ruled. In fact, they preserved the existence of multiple legal regimes in their colonies because this preservation made it easier to deal with the challenges of ruling unfamiliar territories with limited bureaucratic resources. They therefore did not attempt to form any kind of centralized legal order, nor did they make any claim to the monopoly on legal authority in their colonies.85 During the nineteenth century, this policy gradually changed as European powers began to impose a more centralized and hierarchical idea of law over the areas that they controlled. Their colonies remained legally pluralistic, but the imperial state became a kind of ordering power that organized the various legal regimes within each part of the empire.86
With the decline of empire and the establishment of independent postcolonial states, there was a further shift, away from state-dominated pluralism and toward a full-fledged legal centralism. Law played a significant role in the achievements of independence movements, the leaders of which had often received their legal education in imperial capitals and used that training against the imperial powers in their struggle for independence.87 This interaction between postcolonial leaders and the imperial center meant that the self-understanding of postcolonial independence movements was often based on European myths and ideas. These movements frequently absorbed the Western myth of the backwardness of colonial law and considered modern law on the European model as the pinnacle of legal evolution.88 It was not just the hegemonic influence of imperial education that produced this effect; there was also a strategic advantage in embracing European jurisprudence.89 Legal centralism, with its emphasis on the omnipotent sovereign power of the state and the integration of all cultural streams into a single state-based regime, was a legal philosophy that naturally supported the goals of independence movements.
The shift from the legal pluralism of imperial colonies was replicated across the globe, throughout the twentieth century, as newly independent nations repeatedly embraced legal centralism. It was the case, for example, in the 1960s and 1970s in Central Africa, where the new leaders of independent Zaire, Rwanda, and Burundi rejected the legal pluralism of the colonial period in favor of a unified legal regime in their new states.90 Earlier, and closer to Palestine, the same dynamics were at work in Turkey. During the imperial period, in the 1870s, the Ottoman Empire had established a civil code called the Mejelle, which existed alongside religious law. The result was classic legal pluralism, in which civil and religious law, two bodies of law, which received their authority from different sources, were in force at the same time.91 This all changed with the Turkish nationalist movement. Many of the founders of the independent state of Turkey had received their legal education in Europe. In 1926, as a founding act of the new state, the Swiss Code civil was received into Turkish law. This code brought an abrupt end to pluralism in Turkey. It established an all-encompassing legal centralism, which was based on European law and intended to strengthen Turkish independence.92
The legal history of Palestine and Israel mirrors the pattern of the global shift from colonial pluralism to postcolonial centralism. During the period of colonial rule, the British governed Palestine as a legally pluralistic regime in much the same way that they governed India and their other colonies. The British bureaucracy imported its own regulations, particularly in the areas of commercial and criminal law, and organized and arbitrated between the legal regimes of the various religious communities.93 The Mandate government never, however, claimed to be the source of all legal authority. It recognized, for example, that the rabbinical courts had their own systems of law, with their own sources and procedures, which preexisted the arrival of the British. Although the Mandate tried to create some kind of order among these regimes, it never claimed to be the only sovereign, the single source of all law within the state.
Yet, even as Britain governed Palestine as a pluralistic legal regime, the legal curriculum followed by law students in British Palestine presumed the superiority of legal centralism every bit as much as that in the imperial center. Henry Maine’s theories of legal evolution were hugely influential in Palestine, as they were in other areas under British rule. They provided a seductive conceptual framework for an imperial society that both romanticized and scorned the cultures of “oriental” colonies.94 Maine himself was an important figure in Britain’s colonial apparatus. He served as a member of the council of the governor-general of India and was heavily involved with the codification of Indian law. His jurisprudence laid the theoretical ground for the widespread belief that the “religious” and “tribal” law of the colonies (as it was called by the British) was less evolved than the law of the civilizing imperial power.95 Imperial rule drew its authority from, and reinforced, the myth of modern, secular, state-centered, codified law as the pinnacle of evolutionary progress.96
The evolutionary theory of law, for example, characterized the British approach to the law of the Ottoman Empire after its decline. In Mandate Palestine, British judges portrayed the residual Ottoman laws as “outdated and archaic, intricate and obscure, illogical and unreasonable, harsh and monstrous,” not to mention inefficient and corrupt.97 For example, one British judge in Palestine considered the Mejelle, the Ottoman legal regime, to have a “barbarous” air and believed that its backwardness indicated “how remote is the working of the Asiatic mind from that of the European.”98 Another referred to the Ottoman Penal Code as “a delightful piece of juridical nonsense,” a comment that simultaneously displays both the condescending romanticism and the disdain of imperial judges toward colonial law.
These attitudes were transmitted to Zionist lawyers who, in Palestine as in other British colonies, were educated in British law. They were trained in the Law Classes, an institution established in Jerusalem in 1920 that heavily emphasized British jurisprudence. The textbook for the course on jurisprudence was An Introduction to the Study of Law: A Handbook for the Use of Law Students in Egypt and Palestine, by Frederic Goadby, an English jurist who had taught in England and Cairo and was brought to Palestine to direct the Law Classes there.99 Goadby distinguished between religious and primitive legal systems and the law of the modern state. For Goadby, only state law, the will of the sovereign backed by coercive force, could be considered modern law and was the hallmark of “a high state of civilization.”100 He believed that European law had reached a higher state of evolution than the “half barbaric” legal systems outside of Europe, including those in the Ottoman Empire and the Mandate itself. This view was certainly true of religious law, which he believed to be quite backward compared to the mostly secular law of modern Europe.101
This pejorative approach to religious law, including Jewish law, was widespread at the time. The Law Classes for which Goadby’s Introduction was a textbook were founded by the Attorney General of Mandate Palestine, Norman Bentwich. A British Jew, Bentwich was a Zionist who, after leaving his position with the Mandate government, remained in Palestine as a professor in the Hebrew University until 1951. In 1927, Bentwich published an article describing the role of Jewish law in the mandatory legal regime. He noted that the Jewish community, like all religious communities, had internal control over personal law like marriage and divorce. He did not oppose that arrangement in principle, but he did express a hope that Jewish religious law would in time become more modern and liberal:
There is reason to expect that in the free atmosphere of Palestine, Jewish law will be systematically developed to accord with the liberal views of our time as to the relations of men and women. That development has been impaired by the abnormal conditions of the Jewish communities in Eastern Europe since the Middle Ages. As soon as a Jewish religious centre is established in the national home, the authority of the rabbinical body to change the law would be recognized throughout the diaspora, and Jewish law on matters of family right could be modified, as it was modified in the happier days of the great jurists of Babylon, Persia, Egypt and Spain during what are known as the Dark Ages of Europe.102
Bentwich, despite his general sympathy for Jews and Jewish law, was clear about the problems of its discrimination between men and women in family law, which compared unfavorably with “the liberal views of our time.” Bentwich attributed this bias to the “abnormal conditions” of Ashkenazic Jewry in the previous centuries. On the face of it, this explanation is reminiscent of Herzog’s laying the blame for the unnatural development of Jewish law at the feet of the Romans. There was, however, another aspect to Bentwich’s analysis. Although dismissive of the dominant strain of Jewish law in recent centuries, he talked nostalgically about Jewish jurists in “Babylon, Persia, Egypt and Spain.” Bentwich was presumably referring to the rabbis of Late Antiquity and the Middle Ages, particularly during the ascendancy of Spanish Jewry, when philosophers and rationalists like Sa’adia Gaon and Maimonides dominated the world of Jewish law. This romanticization of the Sephardic legacy is part of the myth of Sephardic supremacy that pervaded enlightened Jewish scholarship from the nineteenth century.103 It is characteristic of a kind of Jewish orientalism that repudiated the apparent backwardness of Eastern European Judaism and embraced a mythical older Judaism that was more akin to the enlightened universalist monotheism of modern Europe. Therefore, even as he defended the ability of Jewish law to evolve in line with contemporary liberalism, Bentwich implicitly agreed with Goadby and others like him, that Jewish law as it was currently constituted was inferior to contemporary liberal European law.
The attraction to modern European jurisprudence even infiltrated the Mishpat Ivri movement. Although the movement had been formed to celebrate Hebrew law as a national resource, as early as the 1920s Mishpat Ivri scholars changed their approach. In an attempt to demonstrate the viability and enlightened nature of Jewish law, they began to downplay the uniqueness of Jewish law and to emphasize how similar it was to European law and how different from Muslim and Ottoman law. Imitating European jurists, they characterized Muslim law as primitive, passive, and tribal and they took pains to emphasize its difference from Jewish law, which they characterized as more refined and evolved.104
The influence of European jurisprudence was also apparent among Zionists in Palestine during Herzog’s tenure as chief rabbi. In the late 1940s, on the verge of independence, there were renewed calls among Israeli jurists and politicians for the creation of a national law that would be based on Jewish law.105 Even supporters of this goal, however, had no interest in a halakhic constitution. They intended to create a modern, secular law that, in the interests of national revival, could draw on Jewish precedent. In 1947, the Zionist National Council set up a Legal Council to discuss the legal system of the future state.106 The council had a special subcommittee to deal with Jewish law, headed by Abraham Haim Freimann, a scholar of Maimonides and medieval Jewish law. The subcommittee did not complete its work, in part because Freimann was killed in the ambush of a Jewish convoy to Mount Scopus in April 1948. In any case, the interest of the Legal Council in Jewish law was primarily the function of a nationalist rather than a religious impulse and would never have advocated for the indiscriminate imposition of halakha in Israel.
Moshe Silberg, an Orthodox Jew who later became an Israeli Supreme Court Justice, was one of the most consistent supporters of Mishpat Ivri. Even he, however, believed that Israeli law could not simply adopt traditional Jewish law wholesale. Discussing the proposal to write a law for Israel based on halakha, he wrote,
This code will not be in the nature of a “condensed Shulhan Arukh,” and it will not claim for itself the traditional authority—religious and sacred—of the existing codes. This will be 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. The objective will be: to winnow and sift, to bring closer and to reestablish what still cleaves to life, and to keep away and reject the dry growth which became shriveled and impoverished in the course of centuries. In other words somewhat more graphic: to pour out the wine that has become sour, and to keep the barrel so as to fill it with new wine which will become permeated with the aroma that has seeped into it, and that its aroma and its taste may be like the aroma and the taste of the old wine.107
In short, even the most ardent supporters of Mishpat Ivri wanted Israel to be governed by modern secular law. To the extent that Jewish law would have any place in the modern state, it would be as a nationalist institution, not a religious one, and its authority would flow from the secular state and not from divine command.
The Zionist commitment to modern European jurisprudence was also expressed in the interest in a constitution and in codification. Israel’s Declaration of Independence of May 14, 1948 explicitly called for the adoption of a constitution no later than October of the same year. It was assumed by almost all major jurists and politicians in the late 1940s and early 1950s that a constitution would soon be adopted.108 Ultimately, though, a constitution was not adopted, primarily because of Ben-Gurion’s reluctance to constrain his executive powers at a time of war and political fragility. Even Ben-Gurion, however, wanted the state eventually to adopt a constitutional legal regime based on the British or European model.109
Israeli jurists also desired a codified legal system on the European model. Although the Mandate had imported Britain’s common law tradition into Palestine, there was a strong move among Zionist jurists toward a continental-style codification.110 Like the constitutional project, the codification project stalled in 1948, in part because of a reluctance to borrow from German culture in the aftermath of World War II and the Holocaust. It did not, however, dissipate entirely. The move to codification re-emerged in the 1960s and intensified in the 1970s under the tenure of Aharon Barak, who was then attorney general of Israel and later became a particularly influential Supreme Court Justice. (A civil code was finally adopted in Israel in 2004.)111
It was not just the British authorities, then, but also the Zionists themselves who regarded as ideal the European legal model, complete with a constitution and a civil code. Zionist jurists had been educated under the auspices of the British in Palestine or in European universities that espoused the same ideology of the supremacy of the law of the centralized state.112 The legal culture among the Zionist elite was deeply rooted in continental Europe.
With the establishment of the State of Israel, Zionist leaders deepened their adherence to legal centralism. The British Mandate, even as it used law as a tool to serve its imperial ends, had remained legally pluralistic. Despite having disdained the supposedly less evolved systems of religious law, it continued to respect its jurisdiction over personal status law and to recognize that its authority originated not in the Mandate’s sovereignty but in the various communities that preexisted British rule. This pluralistic attitude is articulated well in the following description of the place of religious law in the Mandate constitution, by a professor of law at the Hebrew University:
[W]hat is the status of those norms of Jewish law which are recognized by our legislator? . . . Can we say that the Jewish law has become merged into the law of the state? If by “merged” as distinguished from “linked up” we mean . . . that their autonomy is denied, the answer is in the negative. . . . When the Palestine legislator in the Palestine Order in Council, 1922, made Jewish law and the systems of the other religious communities sources of Palestine law, with regard to a certain class of legal relations, he intended to incorporate it into his system as autonomous law.113
In other words, the British Mandate was a legally pluralistic regime. Religious law was deemed to be an autonomous law with its own source of authority, distinct from British law. This was typical in colonial regimes. Things changed, however, after the state was established. The jurists of the new State of Israel insisted that sovereignty belonged to the state alone and that the source of all law was the state. Even though religious courts continued to exist and to have jurisdiction over personal law, their status changed after 1948. They no longer had independent authority but were made part of the legal hierarchy of the state. As far as Israel’s leading jurists were concerned, religious courts had become one branch of the judicial administration of the state.
This is an important point because to this day in the State of Israel, personal status law (the law governing marriage, divorce, etc.) is under the jurisdiction of religious courts. It is sometimes believed that the State of Israel has more than one parallel legal system. From the perspective of the state, however, this is not the case. The state has a single, centralized legal system with a single source of authority. The state chooses to grant authority to properly registered rabbis and other religious officials in certain areas of law. This choice does not, however, diminish the centralist nature of the state’s legal regime. Ben-Gurion himself clearly expressed this legal philosophy. In response to rabbinical resistance to the Women’s Equal Rights Law of 1951, he declared that, to give legal force to their rulings, “the rabbinical courts require . . . the sovereign authority that is given by the power of the state.”114 The previous year, during a debate with some religious politicians, he expressed the same sentiment even more forcefully. “The office of the Rabbinate,” he proclaimed, “does not exist by the authority of [the religious law code] the Shulhan Arukh but by the law of [Norman] Bentwich [the first Attorney-General in Mandate Palestine]. And it is certainly possible to repeal Bentwich’s law.”115
This centralist approach to Israel’s religious courts also formed the basis for judicial decisions. A landmark case in 1951, Skornik v. Skornik, dealt with the status in Israel of a civil, nonreligious marriage between two Jews that had been contracted outside Israel. The question arose of the jurisdiction of the religious courts in the matter. Justice Alfred Witkon answered in a distinctly centralist vein, “Every religious law, in its application in this country, flows from an act of the secular legislator . . . and derives its force therefrom.”116 Itzhak Englard, a leading Israeli legal scholar who later became an Israeli Supreme Court Justice, wrote extensively about how religious law has no authority in Israel in its own right. Only when power is granted to them by the state do religious courts have any legitimate jurisdiction.117
The same theme arose in many cases that were decided by the Supreme Court in the early years of the state.118 For example, in a 1959 case dealing with a conflict between a husband and wife over spousal support, the case turned on the extent to which legislation in the Knesset could interfere with the application of rabbinical law in the rabbinical courts.119 Fundamentally, the question at stake was the extent to which the rabbinical courts were under the centralized authority of the state. Moshe Silberg, an Orthodox Jew, offered the sole dissenting opinion, reasoning that the rabbinical courts were independent within the area of their own jurisdiction because “the secular legislature . . . is not the source of the religious legislation.”120 The majority opinion, however, ruled that the state may indeed interfere in the jurisdiction of her religious courts because ultimately their authority flows from the state. As Justice Yitzhak Olshan, author of the majority opinion, put it, “I find no basis for the claim that the secular legislator cannot annul a religious law. In the absence of a constitution, the legislator is all powerful.”121
A similar attitude was expressed in a 1964 Supreme Court case in which the Chief Rabbinate was challenging the right of the civil court to hear an appeal to a rabbinical court decision. The rabbinate maintained that religious courts operated independently of the civil judiciary so the Supreme Court had no authority to hear an appeal to a rabbinical decision. Justice Yitzhak Kister of the Supreme Court disagreed. “When they are acting as rabbis with the authority bestowed upon them by the legislator,” he ruled, “rabbinical judges are an arm of the government and are subject to supervision like other authorities of the state.”122
There was, then, a distinct difference between the way that the Mandate authorities and the Israeli government understood the basis for the legal authority of the state’s religious courts. As with so many other newly independent postcolonial nations in which national unity was a priority, the legal pluralism of Mandate Palestine gave way to the strict centralism of the State of Israel. Although in Israel the religious courts continued to have jurisdiction over personal status law as they had under Mandate rule, the jurisprudential basis for that arrangement was quite different. Whereas the Mandate considered the various courts within the state to be operating autonomously and to have their own sources of validity, the State of Israel considered all law to flow directly from its centralized sovereignty. That has remained the case to the present day. Aharon Barak described Israel’s law thus:
Even the application of Torah law in the areas of marriage and divorce among Jews derives from a secular law. . . . From the standpoint of the State, the secular legislature is empowered to adopt a given set of religious law norms and to reject others. The application of religious law derives, then, from its absorption by the secular law. By the process of this absorption, the religious law becomes a law with a secular source.123
The history of the association between legal pluralism and colonial rule and the corresponding association between nationalism and legal centralism adds to the explanation of Herzog’s rejection of legal centralism as he formulated a halakhic constitution. Herzog’s intellectual life had begun among British scholars who disdained pluralist religious law as primitive and who had championed modern European centralist law as the telos of legal evolution. In Palestine, these ideas had been confirmed as secular Zionists created a national jurisprudence on a centralist model. Religious Zionists who proposed constitutional arrangements for the Jewish state before 1948 suggested models that were, at their core, legally pluralistic. They conceived of the Jewish polity as incorporating a number of parallel systems of law that, although they all were under the authority of God, each had its own source of authority and had distinct rules and procedures. Herzog repudiated this line of thinking and sharply opposed the notion that a Jewish constitution might accommodate multiple legal systems. The Jewish state, he argued, had to be a centralized, all-encompassing regime with a single legal hierarchy. Postcolonial nationalists from the Middle East to Central Africa adopted European-style centralized legal regimes in order to show themselves to be the equal of the European states from which they claimed independence and in order to support national unity. Herzog too believed that only a legally centralist constitution would be a viable model for a new state shrugging off the control of imperial domination. He also thought that halakha would have a chance of being made into the law of a new Jewish state only if it was considered to be the equal of modern European law. He therefore took great pains to describe Jewish law in centralist terms, taking every opportunity to demonstrate parallels between the ancient Jewish constitution, as he portrayed it, and the constitutions of modern Europe. He did this even though it required him to make substantial accommodations in his halakhic reasoning.
Ostensibly, there is an irresolvable tension between Herzog’s theocratic constitution and the democratic constitutional drafts of secular Zionists. After all, in Herzog’s halakhic state, the Torah would be the ultimate authority, whereas in a democracy the people are sovereign. But this tension masks a deeper identity between Herzog and secular jurists. Both had a constitutional vision in which the state was the exclusive source of legal authority and in which only one legal regime could rule within its borders. Ironically, the fact that the same centralist outlook was shared by Herzog and secular Zionists made the conflict between them more intractable. Because they both rejected legal pluralism, and both wanted exclusive authority for the legal regimes they championed, there was little room for compromise between them. The religious-secular tensions in Israel today may, in large part, be traced back to this basic disagreement.
The speed with which Herzog’s constitutional thinking rose to dominate the legal thought of the religious Zionist camp might indicate how clearly it resonated with general Zionist jurisprudence. Within a few years after the establishment of the State of Israel, legal centralism became a defining feature of the legislative goals of the religious Zionist leadership, and was the incentive for the institutionalization and bureaucratization of the Chief Rabbinate and the rabbinical courts.