The Chief Rabbinate, and the rabbinical court system that it oversees, is among the most contentious institutions in the State of Israel. For many secular Israelis, it is a reviled blemish on Israeli democracy. Meanwhile, most religious Israelis, even those who acknowledge some of its flaws, condone the Rabbinate’s control over all Jewish marriages and divorces in the state. Few of its supporters or detractors know just how new the institution is. What is more, its ideological origins are counterintuitive. The rabbinate is often taken to be a bulwark against secularizing forces in Israeli society (for better or for worse). Many of its defining features, however, were modeled on modern European law. Far from being a holdover in a modern state, the Israeli rabbinate is, in many important details, quite unlike any previous Jewish institution. In designing the rabbinate as they did, its architects explicitly departed from halakhic precedent in numerous ways.
The formation of the Israeli rabbinate is an outgrowth of the legal philosophy of religious Zionism. Just as Isaac Herzog’s creation of a legally centralist constitution for a halakhic state was a departure from the legally pluralist approach to law of religious Zionists who preceded him, so the creation of a centralized rabbinic authority was a departure from the pluralistic structure of rabbinic institutions before the 1940s. The new rabbinate was created in conscious imitation of modern legal institutions, in the hope of convincing Israelis that halakhic authority was capable of having a central role in the modern state. It deliberately adopted practices that were unprecedented in the history of halakhic institutions but were vital aspects of modern legal systems. These practices included the centralization of regional rabbinical courts into a single court system, the creation of a halakhic court of appeals, the promulgation of rules of procedure for rabbinical courts, the official publication of rabbinical rulings, and the homogenization of halakhic practice among Israel’s diverse Jewish communities.
The Great Sanhedrin, which rabbinic literature presents as the most important Jewish court of antiquity, was long considered an idealized model for the rabbinate in a Jewish state. After World War I, as the prospects for the establishment of a Jewish state appeared increasingly plausible, religious Zionist leaders dreamed of the reconstitution of this ancient body. The ways in which religious Zionist rabbis imagined their new Sanhedrin changed over time. Early attempts to establish a new Sanhedrin anticipated that it would be a kind of annual rabbinic conference, a religious body for the global Jewish community. Later attempts, however, which coincided with the shift to legal centralism spearheaded by Herzog and his followers, imagined it as a national Israeli institution, part of the legislative branch of a modern government. This change reflects wider developments in religious Zionist thought and points the way to the ideology of the halakhic state.
The nature of the Great Sanhedrin is disputed by historians.1 Religious Zionists generally accepted the rabbinic tradition according to which it was an ancient Judean supreme religious body, which functioned as a high court and also advised on difficult questions of rabbinic law. Throughout Jewish history, the memory of the Sanhedrin functioned as a symbol of supreme rabbinic authority. It was also loaded with eschatological significance. In religious thought, the reinstitution of the Sanhedrin accompanied the return of Jewish sovereignty in the Land of Israel and the central role of rabbinic authority in Jewish governance. The idea of a restoration commonly accompanied messianic yearnings through centuries of Jewish history.2 Indeed, many believed that its re-establishment was a necessary condition for the advent of the Messiah.3 It is therefore no surprise that some religious Zionists, who saw messianic significance in the rise of the Zionist movement and Jewish migration to Palestine, should have attempted to bring about the establishment of the Sanhedrin in their own time.
One initiative to reconstitute the Sanhedrin came from Tsvi Makovsky. Originally the rabbi of Melitopol, in Soviet Ukraine, Makovsky migrated to Palestine and became a rabbi in the Tel Aviv–Jaffa district. He believed that the immigration of Jews to the Land of Israel in his generation was a sign that “there has been awakened in the heart of the people of Israel [a desire] to redeem its soul.”4 For Makovsky, Zionism had brought about a redemption not just in theory but also in practice. “Zion has already ceased to be merely [a] romantic [fantasy],” he wrote. “It is an established fact and has become a desired refuge for all the groups among our people.”5 The time was right, he believed, for the re-establishment of the Sanhedrin. He composed a long pamphlet, which was published in 1928, in which he laid out his halakhic arguments in favor of the endeavor, along with responses that he elicited from many of Europe’s senior rabbinical figures. Most of the responses approved of the plan in theory but rejected it in practice as impractical and potentially divisive. Few rabbis thought it would be possible to achieve the level of consensus required to make the project a success.
The comments of Abraham Isaac Kook are particularly instructive as a window into attitudes among religious Zionists during this period. In the last year of his life, Kook wrote to Makovsky, expressing a general enthusiasm for his plan but advising against its immediate implementation. Kook warned that he saw “no possibility of creating a consensus among the Torah scholars of our generation” and that therefore proceeding “without prior heartfelt and practical preparation will lead only to polemic and no practical benefit will come out of it.”6 However, Kook wrote, he had long been in favor of some kind of global rabbinical assembly based in Jerusalem. He remarked that early in his time as Ashkenazic Chief Rabbi, at the beginning of the British Mandate, he had proposed the following enterprise:
If we are able to organize the rabbinate properly in the Land of Israel in its branches and centers, then we will be able to turn to the whole people of Israel, especially the most influential rabbis and scholars in the exile, . . . so that they will be our partners in a single association, and send representatives from all over the exile. . . . Every year, one month will be designated for the representatives to appear. . . . The joint meeting, which will include the greatest of the rabbis of the Holy Land and of the exile, this great conference, will be called “the general rabbinate,” meaning the rabbinate of the entire Jewish people. And if God desires, we will be successful and this conference and its association will achieve right and good things, whether to strengthen the state of the Torah in all areas of religion, or to solve the greatest most general questions connected with the life of the people in the Land of Israel and in the exile, or to improve the situation of the people with regard to its external relations to the nations.7
So although he opposed Makovsky’s call for a formal reinstitution of the ancient Sanhedrin, Kook let him know that he had previously recommended the establishment of a global rabbinic network that would send delegates annually to a meeting in Jerusalem. Kook’s plans for a global rabbinical assembly never materialized, presumably because it required the collaboration of too many rabbis with different outlooks and allegiances. Kook himself, though beloved by many, was excoriated by others who were disgusted by his willingness to collaborate with secular Jews.8
Kook’s unrealized plan is significant as much for what it was not as for what it was. His proposed rabbinical assembly would have been a glorified religious convention. He never imagined that it would play a central role in the apparatus of a Jewish state. Moreover, the proposed rabbinical body would have been global, rather than national. It did not resemble a national legislature but rather an international scholarly conference. To be sure, Kook entirely supported the idea of Jerusalem being a Jewish religious center. The thought of a rabbinic body based there inevitably resonated with his strong messianic orientation. There is not, though, any hint that he imagined that it would be a supreme rabbinic body responsible for all the laws of a Jewish state in Palestine. A few years later, another attempt to revive the Sanhedrin had a very different outlook. A comparison of the two attempts indicates a shift in the understanding of religious Zionists of the role of halakha in the legal institutions of the Jewish State.
The second attempt of the twentieth century to reinstitute the Sanhedrin took place in the late 1940s. In contrast with the dreams of Makovsky and Kook earlier in the century, the Sanhedrin was imagined for the first time as a central legislative institution in the framework of a modern state. This attempt was championed by Yehudah-Leib Fishman-Maimon. Born in Russia, Maimon migrated to Palestine from Russia in 1913 and became an early leader of the Mizrahi movement.9 He was a rabbi and educator who was close to Rabbi Kook, founding a publishing house in his name. After the establishment of the state, he became Israel’s first Minister of Religious Affairs. A signatory of the Declaration of Independence, he was also one of the few religious Zionist leaders who had a friendly relationship with Ben-Gurion. Ben-Gurion appreciated Maimon’s boldness and flexibility and called him “one of the finest men in Orthodox Judaism in our times, if not the finest.”10
In language reminiscent of Herzog’s, Maimon made clear his desire to see halakha become the basis of Israeli law. In a 1949 article published in the religious newspaper Ha-tsofeh, he wrote, “I hope that just as I have had the privilege of seeing the rebirth of the State of Israel, I will be privileged to witness the revival and flowering of Israeli jurisprudence, a system of law that is built upon the foundations of the Torah and the tradition, based on equity and justice the likes of which are not to be found in the jurisprudence of any other nation, ancient or modern.”11
Like all religious Zionists who aspired to apply halakha to the modern Jewish state, Maimon recognized the challenges involved in this project, challenges that arose from the incommensurability of halakha and democratic politics. Maimon’s solution was the reinstitution of the Sanhedrin. He expressed this vision to the Mizrahi convention in 1949. “The challenge of linking the Torah and the State is new and difficult,” he acknowledged. “It is not the task of individuals, even especially great scholars, but of a large team of men of distinguished eminence, a select rabbinic body that possesses supreme Torah authority and governmental power, namely: a paramount legislative institution in the image of a Sanhedrin.”12
Maimon claimed that his proposal was based upon that of Abraham Isaac Kook, noting that Kook had hoped that the Chief Rabbinate would serve as a foundation for a future Sanhedrin. He failed to note, however, the significant ways in which his vision of the Sanhedrin differed from Kook’s earlier description. Whereas Kook had imagined an institution that would serve as a global rabbinical assembly, Maimon dreamed of a Sanhedrin that would be a “legislative institution.” This term implied that Maimon’s Sanhedrin would not merely “solve . . . questions,” as Kook had proposed, but it would also create new halakhic legislation, fit to be applied in a modern Jewish state.
Maimon worked for years to garner support for this project. He wrote about it incessantly, in particular in a series of articles in Ha-tsofeh.13 He was also joined by partners such as Shlomo Zalman Shragai, a leader in Ha-Po’el Ha-Mizrahi. Because of his authority in the religious Zionist community and his position as chief rabbi, Herzog’s approval was also crucial to the success of Maimon’s Sanhedrin. Although Herzog agreed with Maimon’s vision of a halakhic law for the State of Israel, he did not throw his weight behind the institution of the Sanhedrin. He expressed abstract approval of the project but repeatedly postponed dealing with it in practice. When he did address it directly, it was to counsel patience and pragmatism. Even though Maimon insisted that the Sanhedrin would “adopt regulations, not reforms,” Herzog was afraid that Maimon’s idea would be criticized by more conservative rabbis as an attempt to evade the strictures of halakha by using the Sanhedrin to change rabbinic law.14 For many Orthodox rabbis, this approach smacked of the methods of Reform rabbis, who openly revised or rejected halakha. Even Herzog himself was concerned that there was public interest in the Sanhedrin among “people who don’t have full faith in the Torah” and who wrongly thought that the Sanhedrin would have “the power to change the laws” so as to release them from their halakhic obligations. This interest, which was “not totally pure,” Herzog wrote, moved him to oppose the establishment of a Sanhedrin, “despite my strong desire for a kingdom of Torah in Israel.”15
Herzog was also skeptical of the project because he was sure the Sanhedrin would not be accepted by the Zionist leadership. Herzog, like Maimon, understood the proposed Sanhedrin to be a state institution with political power and he was certain that “the government of Israel will in no way allow a committee of rabbis . . . to deal with political matters and the like.”16 Furthermore, Herzog was concerned that establishing a formal Sanhedrin as a branch of government could also become a threat to halakha. Because, he wrote, “we live in a democratic era,” the members of the Sanhedrin would be democratically elected. That process would remove control over the institution from the rabbinate, and make it impossible to determine its members. As a result, “it is clear that against our will we will be tripped up and that inappropriate people, from the perspective of their [observance of the] Torah and their fear [of God], will be brought in.”17
The nature of Herzog’s hesitation makes it clear that he envisaged a modern Sanhedrin that would not simply be a religious organization but would also be an official institution of the government of Israel. He assumed that it would therefore have to be constituted democratically, like other state institutions. A democratically elected Sanhedrin, he feared, would be vulnerable to control by the secular majority, opening up the possibility of the state’s most powerful halakhic body including members who knew nothing about halakha and who were not committed to its practice. Herzog’s objections eventually led to the demise of Maimon’s idea; the reinstitution of the Sanhedrin became a footnote in the history of religious Zionism.18
Herzog’s objections to the reinstitution of the Sanhedrin were based, to a degree, on a pragmatic fear of failure that had also characterized Kook’s lukewarm reception of Makovsky’s proposal fifteen years earlier. However, there are some important differences between the two episodes. Whereas for Makovsky and Kook the idea of a Sanhedrin was primarily a matter of religious revival and a way to deal with the halakhic problems of world Jewry, Maimon and Herzog both imagined it as an institution that would be responsible primarily for the Jews of Israel. Furthermore, both Maimon and Herzog imagined that the Sanhedrin would be an official state institution. These differences offer insight into changes in the outlook of religious Zionism that were taking place in the late 1940s. During that time, religious Zionist leaders began to think of rabbinic leadership as intrinsically bound up with the state, as associated not only with religious law but also with civil legislation. This change in outlook was also reflected in institutional changes in one of the most important religious institutions in the State of Israel: the rabbinical court system itself.
Ironically, considering its subsequent embrace by religious Zionists, the Chief Rabbinate was in fact the invention of the British Empire. It was an office that initially had to be forced onto rabbinical leaders, who were reluctant to accept its authority. In its early days, the bureaucracy of the Chief Rabbinate was resisted by many rabbis, including Kook himself, who objected to the role of secular authorities in its establishment.19 By the 1940s, however, the Chief Rabbinate was embraced by Isaac Herzog and his followers. This shift in attitude is yet another illustration of the tendency, from the 1940s, to interpret halakha according to the model of modern European law and to embrace the political and legal centralization that were hallmarks of the modern state.
Since the nineteenth century, the Ottoman Empire had recognized the Jewish community as a formal political body whose official representative was the Hakham Bashi, or Head Rabbi. After their conquest of Palestine in 1917, the British, as elsewhere in their empire, had an interest in recognizing the religious courts that existed before they took control. They had neither the desire nor the capacity to rule their colonial subjects by English law, and so continued to allow religious communities to control their own affairs in matters of personal law. They did, however, require communal religious courts to conform to what the British considered to be proper legal procedure. They demanded that all courts in Palestine must have an appeals process, formally register their judges, and enact official rules of procedure.
The office of the Hakham Bashi did not fulfill these requirements. On British initiative, therefore, the Chief Rabbinate was created in 1921 as an institution that would satisfy their administrative and procedural demands. It was, in fact, the first institution of the Jewish community of Palestine to be formally recognized by the Mandate authorities. Abraham Isaac Kook became the first Ashkenazic Chief Rabbi and Yaakov Meir the first Sephardic Chief Rabbi.20 With the establishment of the Chief Rabbinate, a new series of rules was promulgated for all the rabbinic courts in the country. These rules covered everything from the location of trials, to the composition of the courts to the procedures for appeal.21 In addition, a rabbinical court of appeals was introduced. Before the establishment of the Chief Rabbinate, the rabbinical court of Jerusalem had no special status. It was simply one of a number of regional rabbinical courts. From 1921, however, it was given an additional function and a new name. It became the bet din ha-gadol, the Great Rabbinical Court, and was given the power to act as a court of appeals for cases heard in any of the other rabbinical courts. This change effectively demoted the other rabbinical courts, making them first-tier courts in a new juridical framework in which the Jerusalem court held, for the first time, higher authority.
These changes were resisted by rabbinical authorities, including Kook himself, because they were not a Jewish initiative but a British one and they were not drafted by rabbis, but by lawyers.22 Furthermore, the creation of a rabbinical court of appeals was a radical innovation in halakhic terms. Halakha provides no right to appeal as a privilege of the due process of law and there was almost no precedent in Jewish history of a judicial institution that existed to scrutinize the decisions of other rabbinical courts.23 Some of the new procedural rules were also departures from halakha. They stated, for example, that the rabbinical judge must formally record the reasons for his ruling. This rule was required for the proper administration of a court of appeals because an appeal cannot take place unless the court of first instance has duly recorded its decision. The classic Jewish codes, however, explicitly state that the rabbinical judge need not record his reasoning.24
It was not just Kook who objected to these innovations. The four regional rabbinical courts (Haifa, Tel Aviv–Jaffa, Petah Tikvah, and Jerusalem) typically ignored the new regulations and each continued to follow its own procedures, which were generally ad hoc and often even internally inconsistent. Indeed, there were frequent complaints from lawyers about the unpredictability of the rabbinical court system, attesting to the fact that the rabbinical courts were not systematically following the new procedural rules.25 Although the court in Jerusalem did hear many appeals, the regional rabbinical courts frequently objected to its jurisdiction. The new requirement for rabbinical judges to record their reasoning was also widely disregarded. Until the 1940s, rabbinical court records often consisted of a terse summary of the court’s ruling, with no accompanying explanation. In short, the procedural regulations of 1921 made little impact on the rabbinical courts.26
With Isaac Herzog’s installation as Chief Rabbi in 1937, following Kook’s death, the attitude of his office to the rabbinical court of appeals and to the new procedural regulations quickly changed. This change once again reflects the shifting attitude of religious Zionists who were beginning to reimagine halakha as a centralized legal system on the model of modern European jurisprudence. The initial impetus for the change was a landmark case in 1939, in which, for the very first time, the High Court of the British Mandate reversed a ruling of the rabbinical court in Jerusalem. The grounds for the reversal were the failure of the rabbinical court to adhere to the regulations that had been promulgated in 1921. The British ruling was fiercely contested by both chief rabbis, who considered the ruling to be an unjustified interference in their jurisdiction. The jurisdiction of rabbinical courts over personal law, they claimed, extended not only to the law itself but also to legal procedure. They believed that they should have autonomy to rule “not only according to the material law of the Jewish community but also according to laws and principles of judgment that are customary in the Jewish religious courts and which constitute an inseparable part of the general Jewish law.”27
This moment marked a turning point in the administration of the rabbinical courts. To avoid future appeals to the Mandate courts, the Zionist government of the Jewish community of Palestine, the Va’ad Le’umi, proposed, yet again, new procedural regulations for the rabbinical courts. Within a year, lawyers for the Va’ad Le’umi had composed the regulations. They were presented to the chief rabbis, who made few changes, and they were published in November 1942.
Although the 1942 regulations were very similar to those of 1921, their reception was entirely different. The 1921 regulations had made such little impact that even experts, oblivious to the similar regulations promulgated less than twenty years earlier, thought that the new regulations of 1942 were the first of their kind.28 By contrast, the 1942 regulations were publicly defended and enforced by the chief rabbis. The different attitudes to the regulations of 1921 and 1942 are, in large part, a result of the shift in approach to Jewish law that had come about in the leadership of religious Zionism in the intervening two decades.29 Gradually, the Chief Rabbinate had thrown its authority behind a regulatory apparatus that transformed a disparate body of loosely connected rabbinical courts with inconsistent procedures into a single hierarchical structure with uniform procedural regulations.
Even before the new regulations were written, the chief rabbis had begun to insist on the authority of the Great Rabbinical Court in Jerusalem to request case materials from lower courts in order to properly conduct appeals. In 1937, the Chief Rabbinate wrote to the notoriously independent rabbinate of Tel Aviv–Jaffa with regard to a family law case: “We have not been honored with a response to our correspondence of 28 Iyyar 5697 [May 9, 1937] and we still have not received the legal material in your possession regarding Shlomo and Sophia Skorokhod. As this is impeding the appeal hearing, we would be grateful if you would request your agents promptly to send to us the full material of this case.”30
This letter was sent on 28 Sivan (June 7 ) a full month after the earlier request for the material. Behind the stylized honorifics, the reader senses the impatience of the Chief Rabbinate with the Tel Aviv–Jaffa court, which had not only failed to fulfill proper procedure, but had ignored their request altogether. This response was not unusual. The Tel Aviv–Jaffa rabbinate in particular objected strenuously to the centralizing thrust of the new regulations. In a private meeting with the Chief Rabbinate, the regional rabbis asserted that the Great Rabbinical Court was authorized to write regulations only for itself, and not for the regional courts. If regulations were required, they insisted that they be allowed to write their own. Besides, they claimed, the regulations contained rules that were contrary to halakha, such as the establishment of a rabbinical appeals court. The members of the Tel Aviv–Jaffa rabbinical court were unanimous in their opposition. One member said that the imposition of a rabbinical court of appeals would result in their total opposition to the regulations; another said he would organize all the rabbis in the country against them; a third labeled the regulations “Reform,” a forceful criticism in the eyes of the avowedly Orthodox rabbinate.31 Even after the 1942 regulations had been published, a commission of the Va’ad Le’umi found that the Tel Aviv–Jaffa rabbinate was still ignoring them. In blatant and explicit contravention of the regulations, they attempted to dissuade parties from challenging their rulings in the Great Rabbinical Court in Jerusalem by levying a tax on parties who sought an appeal.32
Despite all of this opposition, however, the chief rabbis began to enforce the regulations assiduously. To be sure, there was no overnight change. Over time, however, the chief rabbis, and Herzog in particular, fought to change this state of affairs and to strengthen Jerusalem’s position at the apex of the new hierarchy of rabbinical courts. In support of the status of the Great Rabbinical Court in Jerusalem as a court of appeals, Herzog attempted to enforce the rule that lower rabbinical courts had to keep a written record of their judicial reasoning. Without a record of judicial reasoning the system of appeals would be undermined because the appeals court would not be able to consider the legal basis on which earlier decisions had been made. In the face of explicit statements in halakhic codes that rabbinical judges do not need to record their reasoning, Herzog made the argument that under the new circumstances, halakha did mandate the cooperation of the lower courts. In a responsum of 1948, he accepted that “according to the strict halakha there is no right to request written arguments” and he recognized that the opposing rabbis relied on this long-established precedent. He even conceded that the regulations were “a great innovation.” Nevertheless, he wrote, these rabbinical courts “are not acting properly,” because “they are contravening our enactment which was made with their agreement.”33
Notably, Herzog made no mention of the fact that the regulations had originated with the insistence of the British authorities. He took full ownership of them and threw the weight of his authority behind them. Even though the regulations were written by lawyers and not by rabbis, Herzog attributed halakhic authority to the regulations on the basis that this was “our enactment.” In other words, he argued that the new regulations had the status of a rabbinical enactment with the binding force of halakha, and not merely of the Mandate authorities. He even stated that the enactment had received the approval of the regional courts, although it was not in fact the case.
Similarly, the Jerusalem court insisted on its right to hear appeals from the regional rabbinical courts. In 1950, a case was heard in the Tel Aviv–Jaffa rabbinical court in a civil matter. This was a legal field over which the rabbinical courts had no state-enforced jurisdiction. From the perspective of the state, therefore, the court was functioning merely in the capacity of an arbitration board and not as a formal court.34 Herzog claimed that even in this instance, the parties had the right to appeal, “for our authority as a rabbinical court of appeals flows from a communal enactment.”35 In other words, he argued, the centralization of the rabbinical court system was not a result of enforcement by the secular state alone; it had real halakhic validity. This approach was repeatedly affirmed in discussions in Great Rabbinical Court cases about the jurisdiction of the rabbinical court of appeals. In one example of many, the court ruled in a 1945 case, “The Great Rabbinical Court finds that it indeed does have the authority to judge this appeal, since the matter of appeals was accepted by rabbinical enactment, which is [as authoritative] as a law of our holy Torah. Therefore, anyone who comes to court comes with this in mind.”36
Here again, the rabbinical court in Jerusalem insisted upon its authority to overturn the decision of a lower court. They defended this authority on the basis that the new regulations of 1942 were “accepted by rabbinical enactment.” The rabbinical court thereby incorporated the desire of the British Mandate to impose its legal infrastructure, with its tendency to centralization and hierarchy, onto Jewish law. Far from resisting this as the imposition of a foreign legal system, they accepted it as their own innovation and took pains to enforce it. Against halakhic precedent, and against the protests of local rabbinic authorities, the rabbinical court system was gradually remade in the image of a European court system. Today, few people are aware of the British origins of the Israeli rabbinical courts, and it is very rare for a local rabbinical court to resist the right of appeal to the Great Rabbinical court in Jerusalem.
Another sign of the transformation of Israel’s rabbinical courts system into a modern court structure on the European model was the decision of the Chief Rabbinate to begin to publish official collections of rabbinical court rulings.37 The first volume was published in 1950 and edited by Zerah Warhaftig, a religious Zionist politician and lawyer with close ties to Herzog. The book was the first of its kind. For centuries, rabbis had published collections of responsa, which sometimes included the rulings of their rabbinical courts. The formal records of Jewish communities also frequently included the final rulings of rabbinical cases. Warhaftig’s collection, however, was quite different. Its format was far from that of traditional responsa and evinced the newly institutionalized and centralized bureaucracy of the rabbinical system. Its arrangement and design were almost identical to that of the records of the Supreme Court of Israel, which were first published at around the same time. Like the publications of the secular court reports, each case in the rabbinical collection bears a reference number and the name of the court. It then lists the names of all of the judges, the president of the court for the hearing, the plaintiff, the respondent, and their legal counsel.38 There follows a short summary of the subject of the case, a statement of the facts, the terms of the decision, the reasoning of the judges, and a numbered list of the “conclusions,” meaning points of law decided in the case that could be applied as binding precedent in future cases.
The new rabbinical court reports were a striking departure from earlier practices of the rabbinical courts in Palestine and Israel. Before 1950, there were no formal collections of rabbinical court rulings. When those rulings were issued in writing, they took the form of simple typed letters, signed by the rabbinical judges who heard the case. Unlike the later published reports, earlier decisions make no mention of the points of law considered in the case, or the findings of fact. And unlike the later reports, which tended to cover several pages, the earlier decisions were typically very short. One decision from 1938, for example, which has been preserved in the archives, consists of a single sheet of paper bearing the letterhead of The Chief Rabbinate of Palestine. It begins with the names of the plaintiff and defendant and the subject of the case and concludes with the signatures of three rabbinical judges. The rest of it, in its entirety, reads as follows:
There have appeared before us in law Mr. Pinhas Ehrlichman, plaintiff, and his representative, Mr. Goldberg Esq., and Mrs. Rivkah Shapira-Ehrlichman, respondent, and her representative Rabbi Yitzhak Levi. After hearing the claims and responses of the two sides, we have decided: According to the inquiry she is held to be a married women. The plaintiff may not force her to accept a divorce until he pays her damages in the sum of 15 Palestinian pounds. Then he will be exempt from marital support.39
No law or political pressure pushed the rabbinical court to change this state of affairs. The innovative decision to print its court reports in a new format, identical to the printed reports of the secular courts of Israel, was born of a desire to present the rabbinical courts as professional, regulated, and uniform; to encourage the Jewish population of Israel to patronize the rabbinical courts rather than the secular courts; and to centralize the authority of the rabbinical courts into a hierarchy with the Jerusalem court at its peak.
The initiative to publish the decisions of the rabbinical court came from Warhaftig himself. He was assisted by a number of lawyers, including Mordekhai Levanon, who was one of the authors of the procedural regulations of both 1921 and 1944. The reports were not verbatim copies of the rabbinical rulings, but were “abstracted by the editors” from court materials.40 As a result, some rabbis were initially resistant to the project and had to be reassured by the editors.41 According to Warhaftig, the goal of publishing the decisions was to modernize the workings of the rabbinical court and to showcase the world of halakha to those unfamiliar with it, to provide “jurists and scholars with access to the world of the rabbinical courts and the methods by which they reach their decisions.”42 Warhaftig recognized the challenge of presenting the rulings of rabbinical courts in a language that could be understood by nonspecialists and acknowledged “the doubters,” who questioned whether he would “succeed in getting the rabbinical judges to speak in a general legal fashion.” 43 Ultimately, he found that these doubters were “pleasantly surprised” with the outcome.44 As he published their rulings, Warhaftig found that rabbis used to writing in the traditional mold began to express themselves in a more accessible way, “to communicate their opinions in a clear and orderly manner comprehensible to those unschooled in Jewish law, whether jurists or members of the public.”45 Warhaftig’s hope was that if the halakhic process could be widely understood, then people would not question the competence of rabbinical courts to operate under modern conditions. He anticipated that they would thereby be endorsed by the Israeli public as a key element of Israel’s legal establishment.
The commitment of the Chief Rabbinate to legal centralism and bureaucratization is also evident in a flurry of rabbinic legislation from the middle of the 1940s. Before that time, rabbinical courts tended to apply customary Jewish law, inscribed in halakhic texts and communal practice, rather than regulations that they had drafted themselves. Abraham Isaac Kook had considered the possibility of rabbinic legislation but, even in the abstract, he thought that this should only be a rare event, reserved for times of pressing need, and he never created any legislation in practice.46 The only regulations that the Chief Rabbinate did endorse were the procedural regulations discussed previously. While significant in their own way, these regulations were entirely procedural and did not address any substantive legal issues. This all changed in 1944, when the Chief Rabbinate enacted a series of substantive statutory regulations for the first time. More regulations followed in 1950. This fact in itself is an indication of a centralizing approach. These statutes diminished the interpretive authority of individual judges, further serving the centralization of legal authority and the imposition of uniform practice.
The statutes of the Chief Rabbinate were concerned primarily with Jewish marriage law.47 They set a formal structure for the Jewish marriage ceremony and set a minimum age for marriage of sixteen years for women. They also outlawed polygamy and the practice of levirate marriage. (In the case that a married man with a brother dies childless, halakha requires either that his brother marry his widow—levirate marriage—or that the halitsah ceremony, by which the brother is released from that obligation, be performed.) The statutes were designed to bring the workings of the rabbinical courts in line with the norms of modern European society. They also had another consequence, however, which was to efface the communal practice of many of Israel’s Sephardic communities.
Hundreds of thousands of Sephardic Jews from North Africa and the Middle East arrived in Israel in its first few years, and many of them had practices that differed from Ashkenazic custom. The rabbinate favored Ashkenazic practice, in part because Ashkenazic rabbis were more numerous at the time, but in part because their custom in marriage law was closer to the accepted norms of modern Europe. Sephardic and Ashkenazic practices surrounding marriage differed in a number of important ways. Whereas Ashkenazic custom had banned the practice of polygamy early in the Middle Ages, polygamy continued in some Sephardic communities.48 The Yemenite Jewish community maintained the custom of men betrothing young girls, sometimes girls even younger than twelve, who were therefore minors from a halakhic perspective. (This practice was criticized by other Sephardic communities as well as by Ashkenazim.)49 More general Sephardic practice was also to estimate a lower value for the silver shekels mentioned in a traditional ketubah marriage document (which specifies the obligations of the husband toward the wife), meaning that Ashkenazic rabbis granted women higher marriage settlements in real terms. Furthermore, Sephardim tended to perform levirate marriages, whereas Ashkenazim tended to prefer the halitsah ceremony. The new statutes forbade all of these Sephardic customs in Israel’s rabbinical courts. They outlawed polygamy, specified that no woman younger than the age of sixteen years and one day could be betrothed, aligned the real value of the ketubah with the Ashkenazic custom, and mandated halitsah, thereby attempting to eradicate levirate marriage.
Ironically, in 1938, only six years before the promulgation of the first round of the new statutes, Herzog had defended Jewish polygamy, one of the very practices that the new regulations prohibited. Soon after Herzog became chief rabbi, he had been asked to provide his expert opinion in a case in the British Mandate courts in which an Ashkenazic Jewish man was being prosecuted for polygamy. Herzog’s defense was that the man’s own religious law, halakha, allowed polygamy. Given that personal status came under the exclusive jurisdiction of the religious courts, he argued, the man should not be convicted. Herzog maintained that polygamy was not a criminal act even for Ashkenazim and that therefore both the man’s first and second marriages were legal and valid.50 It seems clear, however, that Herzog’s vociferous defense of this polygamous act came from his desire to preserve rabbinic autonomy in marriage law before the British courts.51 When it came to his own rabbinical court, he was loathe to accept the practice. Indeed, not only did he uphold the traditional eschewal of polygamy for Ashkenazim, but he also pushed for its abolition among Sephardim. Historically, it was unremarkable for different Jewish communities to follow their own customs and laws, even if they lived side by side with one another. The various Jewish communities of Palestine had followed diverse customs for centuries. This legal diversity, however, could not be countenanced by a centralized rabbinical authority.
It did not escape the attention of Sephardic rabbis that the statutes imposed uniformity according to the Ashkenazic rite. The reasons for this choice are not difficult to discern. At the time, the majority of the rabbinical authorities in Israel were Ashkenazic. More importantly, people like Herzog, whose entire legal philosophy was motivated by the desire to create a halakha that would be seen to compete with any modern state’s legal system, wanted to eradicate practices such as child marriage and polygamy that would have made halakha seem backward, even barbaric, to modern observers. In a sense, the statutes not only represented the imposition of a centralized rabbinical authority; they also supported a kind of civilizing mission with regard to the newer immigrants from Middle Eastern countries that characterized the policies of the State of Israel in those years.52 This rabbinical orientalism was resisted by rabbis such as Ovadiah Yosef, who became a champion of Sephardic independence. In 1951, just one year after the statute mandating halitsah, a case came before Yosef in the rabbinical court of Petah Tikvah. He ruled that, irrespective of the new statute, Sephardim should continue to perform levirate marriages rather than halitsah. The legislation of the Chief Rabbinate, he concluded, should be ignored because “they have no authority in this matter.”53
Yosef correctly perceived this legislation as an attempt both to centralize authority in the Chief Rabbinate and to impose a uniform law on all Jews in the state at the expense of Sephardic custom. He resisted both tendencies.54 His criticisms, however, were not sufficient to stand in the way of the centralization of the rabbinate. The new rabbinical statutes, like the establishment of a rabbinical court of appeals and the new publication of rabbinical court records, were part of the inexorable trend toward modernization, centralization, and bureaucratization that recreated Israel’s Chief Rabbinate in the image of a modern legal system.
This modernizing dynamic also characterized the remarkable attempt by religious Zionists to draft a comprehensive halakhic law for the State of Israel. Like other reforms, this massive effort to codify new halakhic legislation exemplifies the tension between resistance to “foreign” law and adoption of its basic structures and methods. In pursuing their goal to present halakha as the equal of modern Western jurisprudence, vying to replace it as the law governing the state, religious Zionist rabbinical leaders embraced the nature of the very jurisprudence that they wanted to reject.
The codifying project went even further than Herzog’s earlier attempt to sketch out the basic structure of a halakhic state. It was an attempt to write a complete series of halakhic legal codes for all areas of law. The objective was to produce halakhic law books that could be understood even by those without rabbinical training and would be adopted as the legal code of the entire state. Yet, although the idea of the project was to promote halakha in place of the British law that Israel had inherited or the European-style civil codes that were being considered by the Knesset, the newly written halakhic codes were themselves based on a modern European legal model.
The project was initiated in 1948 by one of the most senior religious Zionist leaders of the time. Rabbi Meir Bar-Ilan was born Meir Berlin in Volozhin, then part of the Russian Empire, to a preeminent rabbinical family. His father was the revered Rabbi Naftali Tsvi Yehudah Berlin (widely known by the acronym Netziv), head of the Volozhin Yeshiva. After receiving an extensive religious education, Berlin attended the University of Berlin. It was in Germany that he became a member of the Mizrahi party and later the secretary of the world Mizrahi movement. After his move to Jerusalem in 1926, he became the president of the Center of World Mizrahi, holding that office until his death in 1949. In 1948, Bar-Ilan was one of the senior representatives of the Yishuv, the grandfather of religious Zionism, and a deeply authoritative voice who was connected to the religious establishment of prewar Europe.
Given his deep investment in religious Zionism, Bar-Ilan had naturally given thought to the relationship between politics and Judaism. As early as 1922, he made the claim that the Jewish tradition knows of no separation between church and state.55 His thoughts remained in the realm of theory for decades. It was not until 1948 that he outlined a detailed position on what a modern Jewish state might look like in practice. In the immediate aftermath of the Declaration of Independence, only months before his death, he published an article called “Law and Justice in our State.”56 Originally a memorandum circulated among like-minded rabbinical scholars, the article was later reprinted in Yavneh, a newly founded journal of religious Zionism. At the time, Herzog’s work had not yet been published or widely shared, so this was one of the first and most detailed treatments of the role of halakha in the laws of the state.
The article began with Bar-Ilan stating outright that he believed that all areas of law in the Jewish state, including civil law, should be governed by halakha. “Foreign” law, he believed, had no place in the Jewish state: “We are obliged to . . . arrange statutes and laws, not just in matters of religious ritual [isur ve-heter] but also in matters of civil law [hiyuv u-petur], by which we will live and by which we will judge in our independent and sovereign state.”57
Bar-Ilan conceded that there were serious obstacles to this goal of imposing a halakhic civil law on the citizens of a modern state. Like Herzog, he recognized that modifications would have to be made, in order to allow the full participation of women and Gentiles in public life. Without this, he knew, halakha would certainly not be adopted by the majority of citizens, in which case “the whole shape of social life in our state will be neither by our spirit, nor according to our outlook.”58 He also acknowledged that Jewish law, particularly criminal law, fell short of what the modern state required. He readily admitted that in their exile, Jewish communities had not generally been responsible for administering their own criminal or civil law without the oversight of non-Jewish authorities.59 This was no small admission. The two millennia of Jewish exile, which Bar-Ilan portrayed as merely an unfortunate historical hiccup, actually incorporated the entire history of halakhic development. Nevertheless, Bar-Ilan maintained that the Torah in principle contained all the necessary resources for governing a modern state. All that was needed was reorganization. “We have the entire Torah,” he wrote, and “we have only to put these laws in order and to make their realization in day to day life to a real possibility.”60
Bar-Ilan excoriated the popular view that the state would have to adopt the laws of other nations, “to go and graze in other fields and to draw the basis of the laws of our state from the strange wells of the other nations.”61 This assumption, he believed, was nothing but “the evil inclination [produced by] the long exile.”62 The halakhic corpus, he insisted, had all the resources necessary to create a modern civil code. He observed that even within the Orthodox community itself there were those who were prepared to accept a pluralistic legal model in which halakha could operate in parallel with a secular legislation. “Within our religious circles,” he wrote, “there is a kind of secret agreement that if the State of Israel has a double system of law, with religious or rabbinical courts, on the one hand and secular ones on the other . . . that will be enough for them and they will not ask for more.”63
For Bar-Ilan, however, as for Herzog, this legally pluralist solution was entirely unacceptable. He expressed this view in a bold, even aggressive, way.
The only path for every believing Jew is to request with all force and to strive with all might and every effort for us to have one law in all realms of our state. Not just for us but for all those who live in the state, even those who are not of the covenant, just as in every land and country the political territory determines [the law] and not personal [religious] affiliation . . . and this one law should be based on the Torah of Israel and what derives from it, and not on another law and another Torah.
. . . Therefore it is our obligation . . . to prepare immediately for war, with the right and with the left, for a state law that is based on the laws of our holy Torah in all the streets of our state and in all the fields of its life. This law and no other, none besides it.64 [Emphases in the original.]
In this striking passage, Bar-Ilan explicitly articulated his belief that halakha must be the only legal system endorsed by the state. He stopped short of calling for the imposition of all ritual aspects of halakha, such as dietary law, on every citizen. He did, however, issue a call to arms in the struggle to establish a halakhic civil and criminal law as the only law for every resident in the state, whether they were Jewish or not. The originality of this statement cannot be overstated. It was a radical innovation to seek to impose the civil and criminal aspects of Jewish law not just on Jews but on all those within the territory of the state, irrespective of their religious identity. His picture of the law represented the epitome of legal centralism and he was willing to tolerate serious divergences from tradition in order to establish and defend it.
The strength of Bar-Ilan’s rhetoric belied its paradoxical nature. He maintained that Jewish law is capable of governing a modern state and that the adoption of a pluralistic legal system, incorporating the laws of other nations, would be folly. Despite this belief, however, he fought for a centralist model of halakha precisely on the grounds that this was the legal model of other modern states. He argued that the halakha should apply to everyone, “just as in every land and country [where] the political territory determines [the law] and not personal [religious] affiliation.” So even as he called for a pure Jewish law unsullied by foreign influence, he promoted innovations that would make Jewish law more like the law of other nations, especially the European countries where legal centralism reigned supreme.
Bar-Ilan laid out the method by which the halakhic code would be compiled. He called for the formation of committees of Torah scholars, which would each focus on a specific area of law. They would “conduct a great search in the responsa from the early to the late” in order to find applicable halakhic material. The fruit of these committees would be reviewed by a further set of committees, after which a final product would be composed. Even this, however, would first need to be edited into “a concise and pithy literary form.” In addition to halakhic experts, Bar-Ilan assumed that the work would have to recruit “[secular] lawyers familiar with the Torah and perhaps other proof readers.” Once complete, the code, he imagined, would then be placed “in the hands of every judge” so that even judges without a prior knowledge of halakha would be able to apply it.65 The modern bureaucratic nature of this endeavor is remarkable. Never before had a halakhic code been compiled by committee.
Bar-Ilan also wanted the form of his halakhic code to resemble the form of the law codes of other modern states. He took pains to explain to his potential collaborators that the finished product should not contain the extended legal analysis customarily found in halakhic texts. Rather, it was to be concise and consistent. It was to contain the law and nothing more. In this respect, Bar-Ilan acknowledged the innovative nature of the project he was proposing and explicitly acknowledged its distinctiveness from earlier modes of halakhic literature:
Every generation has its own literary form. . . . In this generation and for the needs of our time a book of laws has to be edited in the accepted form of [modern secular] law books, with sources at the bottom [of the page] and, in exceptional cases, comments as either footnotes or endnotes. But the people working on this should not include in the law books the many new theories and lengthy explanations that will certainly occur to them [because the law books] will be in the hands of every judge, including those who are not real Torah scholars.66
It is difficult to overlook Bar-Ilan’s apologetic tone and the fact that he felt the need to defend the literary form of his proposed code. He was quite aware that the form he was describing had little in common with traditional halakhic compilations, which were typically incomprehensible to nonexperts and were published together with commentaries whose sheer volume dwarfed the main text. In place of this traditional model, Bar-Ilan wanted the new halakhic code to mirror European codes like the German BGB or the French Code civil. It would be composed of precise and well-organized legal statements. References to the original halakhic sources would be kept out of the main text. Commentary would be rare and unobtrusive.
The language with which Bar-Ilan described his vision of the new halakhic code gives a sense of the extent to which modern European law was the touchstone for his entire project. Many of the terms that Bar-Ilan used were direct Hebrew translations of terms from German jurisprudence. Thus, he called his legal code a “law book” (sefer huqim), a direct translation of the German Gesetzbuch. He referred to “civil law” (hoq ezrahi), a translation of bürgerliches Recht; “penal (i.e., criminal) law” (hoq pelili), a translation of Strafrecht; and “public law” (hoq tsiburi), a translation of öffentliches Recht. This terminology was common in legal circles in the Berlin of Bar-Ilan’s youth and also among the secular jurists of the State of Israel, who were mostly educated in the German legal system. It is, however, entirely foreign to the Jewish legal tradition. There is not a single instance of any of these terms in halakhic literature before the rise of religious Zionist jurisprudence. Indeed, these are not just foreign terms, but foreign categories as well. Halakha knows no distinction between, for example, civil and criminal damages; they are both categorized under “damages” (neziqin). Nor does halakha know of a “law book” in the sense of a modern civil code. No halakhic code, however influential, is ultimately authoritative in every situation. Case law and “compromise” (pesharah) are as important to halakhic adjudication as halakhic codes. Yet despite the categorical differences between halakha as traditionally applied and modern European law, Bar-Ilan chose to adopt this terminology for his legal code.
Bar-Ilan insisted on using an unadulterated Jewish law for the Jewish state. But his entire vision of that law, its application to the citizens of a state rather than to a religious community, its all-encompassing scope, its codification, its terminology, and its central categories were drawn entirely from modern European jurisprudence. The adaptation of halakha to this foreign model required innovations that Bar-Ilan, for the sake of his vision, was ready to accept. He understood that legal centralism was the only kind of legal model that was valued by modern jurists. For halakha to be taken seriously and to make its mark in a newly independent state, it had to be refashioned according to that structure.
Bar-Ilan set about implementing his vision of a halakhic civil code together with Herzog. The two of them had the seniority, funding, and institutional respectability to take practical steps to bring their ideas to fruition. In the summer of 1948, only weeks after the proclamation of independence, Bar-Ilan and Herzog convened a “legislative committee” of the World Mizrahi movement.67 The committee, as its secretary Zvi Kaplan later described, was to pursue the following goal:
The preparation of a book of laws for the State of Israel according to our Torah . . . It is forbidden for two kinds of law to rule in our state, a “civil” law and a Torah law. All the state and all the courts68 within it must be run according to the law of the Torah. . . . To that end . . . there is the need first of all for internal work in order to create a book of laws in the modern form so that it will be comprehensible to every judge and lawyer, even those who are not religious.69 [Emphasis in the original.]
Kaplan’s description precisely echoed Bar-Ilan’s call for a single halakhic law for the state and for a new halakhic code that would be comprehensible to all the state’s lawyers and judges, including those with no experience of halakha.
On August 17 of that same year, Bar-Ilan personally wrote to a number of rabbis to enlist their participation in the project.70 He explained the urgency “to go as fast as possible to prepare samples of a book of laws in topical matters in both civil and criminal matters.” He presumably knew that the sooner the halakhic code would be ready, the higher the chance of its success. He outlined a tremendous array of specific areas of law that required their attention. These included contract, extortion, insurance, tort, treason, espionage, draft evasion, forging currency, theft, robbery, and murder. Although religious Zionist jurists sometimes said that they would limit the application of halakha to civil matters, and not to criminal law, Bar-Ilan and Herzog at this point clearly intended to compose halakhic codes dealing with criminal law too. Bar-Ilan also mentioned some of the procedural problems that needed to be overcome in the application of halakha to the state such as the appointment of judges and the inclusion of testimony from women or Gentiles. The work, he said, would require them to find appropriate precedent and work it into the form of the finished code. He encouraged the rabbis to tell him which areas of law they most wanted to research and how much they would like to be paid. Ultimately, a fixed committee was established, comprising nine rabbis, whose work was supplemented by other members.71
The work of this committee, and the intellectual problems that it encountered, reflected the paradoxical nature of the project, which was caught between the repudiation of foreign sources of law and the reliance on European legal models. First, there were questions about the literary form of the work. Bar-Ilan had already stipulated that the halakhic code would have to be written in the genre of a European civil code, quite different from the discursive nature of most rabbinical legal texts. He reiterated this requirement in a meeting of the legislative committee on April 11, 1949:
Whatever is published must be acceptable to the public and must be intended for this particular purpose. There is no place for length but for summary. The give and take of halakha must be curtailed. The work must be edited by one, directed hand. . . . Attention must be paid to the form, which must be comprehensible not just to Torah scholars, for our work is not just intended for them.72
Despite his clear instructions, though, not all members of the committee understood what was required. Kaplan had to write to one of the rabbis on the committee, who had apparently failed to follow the required format: “You must understand that this work with which we are occupied is not intended for the sake of study alone;73 it has a practical goal: the ordering of a law book for the State of Israel. And in the context of this work, we must attend only to matters pertaining directly to the laws of the contemporary state and not to other matters.”74 [Emphasis in the original.] The rabbi’s confusion over what was expected of him underlines the differences between the proposed modern halakhic code and the conventional forms and methods of halakhic scholarship.
The paradoxical nature of the project also surfaced in the search for legal materials on which to base the code. Members of the committee were conscious of the paucity of relevant materials in the halakhic corpus, especially pertaining to criminal matters. One of them called their work “a creation ex nihilo,” clearly identifying the innovative nature of the project.75 Avraham Shapira, who later served on the rabbinical court in Jerusalem and, from 1983 through 1993, as the Ashkenazic Chief Rabbi of Israel, was also a member of the committee. His letter to Bar-Ilan perfectly manifested the tension implicit in undertaking such a radically new project while claiming that it arose naturally from traditional sources. He began by expressing his confidence that “any legal problem in any area can find a fitting solution according to the foundations and roots of traditional halakha.”76 However, he went on to undermine this certainty, particularly with regard to criminal law. “Apart from the paucity of material in our possession,” he wrote, “there is the additional factor that criminal law, apart from establishing guilt or innocence, needs to effect punishments that fit the crime. This is an indispensable part of the law and in this area there are no sources at all in the halakha.”77 Whereas in theory Shapira shared Bar-Ilan’s belief that halakha could be implemented as the law of a modern state, he had substantial reservations in practice. He was bothered by the lack of relevant precedent in halakhic criminal law. Most of all, he realized that the punishments for criminal acts recognized by halakha were scarcely fitting for modern circumstances.
Despite these problems, and hesitations, the project to create a halakhic law for the State of Israel forged ahead. By April 1949, less than a year after it had begun, the committee had produced pamphlets on murder, theft, robbery, extortion, incarceration, contract, business law, laws of partnerships, tort, labor law, inheritance law, laws pertaining to the national mint, and the jurisdiction of rabbinical courts. Not all of it had been edited, but some had been approved by Bar-Ilan and Herzog.78
In this same month, though, Bar-Ilan died. The project found itself without a leader and consequently without a budget. It appears that the entire undertaking was shut down, at least temporarily. The Mizrahi archive contains letters from participants in the project who had been informed that it would have to be closed because of lack of funds. All was not lost, however. Yehudah Leib Fishman-Maimon, the champion of the failed attempt to re-establish the Great Sanhedrin, had become Israel’s first Minister of Religious Affairs and apportioned funds to the project. Funding was also provided by the Harry Fischel Institute. The institute was named for its patron, a Russian-born Orthodox Jew who had become a successful real estate developer and philanthropist in New York. The institute had been funding Torah scholarship in Jerusalem for some years and eventually absorbed the efforts toward a halakhic codification under its auspices.
After Bar-Ilan’s death, the project remained under the ultimate supervision of Herzog, but its management passed to Binyamin Rabinowitz-Te’omim. Rabinowitz-Te’omim, a nephew of Abraham Isaac Kook’s second wife, had been educated in the Slobodka Yeshiva in Kovno, Lithuania, and immigrated to Palestine in 1930. He had been a member of the original committee on halakhic codification and published a programmatic pamphlet about its future in March 1950.79 As the pamphlet made clear, the intellectual problems and the inherent paradox of the project persisted, despite its change of management. Like his predecessors, Rabinowitz-Te’omim stressed the importance of a uniquely Jewish approach to law but at the same time conceded the need to consult with experts in other legal systems. He especially recommended the consultation of “Swiss law which is accepted in many countries.”80 Indeed, one adviser to the project was Zvi Arman, a law graduate of the University of Bern and an expert on Swiss law. Rabinowitz-Te’omim explicitly stated that there was a need to use new terminology of the kind Bar-Ilan had already introduced. He also repeated the requests, already made by Bar-Ilan and other leaders of the project, that the law be understood by anyone, even those who were not scholars of the Torah.
Ultimately, Bar-Ilan’s dream was realized only in part. The Harry Fischel Institute published two books of Jewish law, one dealing with commercial law, the other with the authority of the courts and government, and the laws of murder.81 These books were the first legal codes ever produced in the rabbinical tradition that were intended to apply to all the citizens of a modern state. They roughly fit the literary form that Bar-Ilan had envisioned, although they contain more commentary and digression than he would probably have approved; the traditional rabbinic idiom was apparently too difficult to break away from entirely. Each book presents the law in clear, numbered paragraphs. Beneath the main text there are footnotes that direct the reader to the sources of the law and a commentary that delves into the law in greater detail, occasionally making comparisons with other legal systems. The section on criminal liability, for example, surveyed German, Ottoman, and British Mandate law before discussing halakha.82 These law books were the only ones published before it became clear that they would never be accepted as law by the secular Israeli establishment. The Harry Fischel Institute continues to produce works of Jewish law to this day and also trains halakhic judges for Israel’s rabbinical courts. Bar-Ilan’s great initiative, however, never achieved its goal of establishing a halakhic law for all residents of the State of Israel.
The efforts of religious Zionist leaders in these early years of the state was, by their own standards, a failure. They had undertaken a reform of the Israeli rabbinate and a reimagining of halakha in a modern idiom in the hope that secular leaders would be convinced that halakha could meet the modern state on its own terms and would grant it pride of place in the state’s legal apparatus. This endeavor produced the paradoxical effect that religious Zionist leaders consistently lobbied for the rejection of “foreign” influence on Jewish law while simultaneously remaking halakha, sometimes in radically new ways, on the very model of the law they were trying to reject. By the early 1950s, however, it had become clear that the state would not adopt halakha as its national code. Despite this failure, however, the bold new thinking of their leaders in these years established among religious Zionists the principle that the state can and should be run according to halakha. The principle was pursued with such force in that critical period that it has persevered over the decades and continues to motivate many religious Zionists even today.