By the early 1950s, it became clear that the halakhic state would not be realized, at least in the short term. Resigning themselves to the fact that Israel would not be governed entirely by halakha, religious Zionists redirected their efforts toward more modest goals. Although it fell very short of the dream of a fully halakhic state, they pushed for what became known as “religious legislation” (haqiqah datit). This meant urging the Knesset to incorporate halakha into state law in a piecemeal fashion through laws that, for example, restricted the operation of businesses and public transport on the Sabbath and that gave the state rabbinate exclusive control over kosher certification.1 On the whole, however, religious Zionists adopted a pragmatic attitude toward politics, tending to prioritize the flourishing of the state over their hopes for halakhic control.2 Their accommodation to the secular state, though, was only superficial. It masked a powerful internal resolve to protest the secular state. Law played a central role in this protest. Religious Zionists used law not only as a tool for achieving political goals but also as a way of organizing their own community and strengthening their long-term commitment to the idea of the halakhic state, even as the prospects of its immediate success were very slim. From the 1950s, arguing about Israel’s law helped religious Zionists to signal their support for the Zionist project and, simultaneously, their opposition to what they saw as the secular betrayal of religion.
Very soon after the establishment of the state, it became clear to religious Zionist leaders that their constitutional plans would come to naught. The Zionist establishment was dominated by Jews whose attitude toward religion ranged from indifference to active opposition. Ben-Gurion had reached a “status quo” agreement with the Ultra-Orthodox Agudat Yisrael party in 1947, an agreement that guaranteed, among other things, public funding for religious education, and the rabbinical courts’ exclusive jurisdiction over marriage and divorce. But this agreement was a matter of expediency only. Ben-Gurion wanted to be sure that the Orthodox would join the forthcoming Zionist delegation to the UN Special Committee on Palestine that visited Palestine later that year.3 Ben-Gurion himself did not really think of the agreement as a compromise; he believed that the future of Orthodox Judaism was tentative at best and that commitments to that community had little political cost. He showed no interest in the constitutional discussions among religious Zionists. Herzog’s work on a Jewish constitution, the books of halakhic civil legislation that were already being printed, and debates and discussions about the role of women and non-Jews in the Jewish state were ignored by the Zionist leadership. At no point in those early years was it a serious possibility that halakha would become the exclusive law of Israel.4
It is therefore justified to ask why religious Zionists themselves thought that their goal of a halakhic constitution had any chance of success. In a speech in the Great Synagogue in Jerusalem in July 1948, Herzog declared his continued commitment to the idea of a halakhic state. “We will not give up on the law of the Torah,” he proclaimed. “I am ready to sacrifice my life for it.”5 The extreme nature of this declaration seems to indicate Herzog’s continued belief in the possibility of a Torah constitution. Similarly, the rabbis who were composing halakhic civil law books under the leadership of Herzog and Rabinowitz-Te’omim continued their initiative into the early 1950s and presumably hoped that their labors would have immediate practical application.
This apparent optimism might have been sustained by a common tendency among religious Zionists to view divine impulses behind ostensibly secular processes.6 Perhaps their ideological investment in the faith that the Zionist movement would produce a religious state obscured the evidence that their dreams were far from realization. It is also possible that the hopes of religious Zionists were fueled by a resurgence of interest in Mishpat Ivri just before the establishment of the state. Although the Mishpat Ivri movement had a secular orientation, and had therefore previously aroused Herzog’s disdain, it ostensibly pursued the compatible goal of using Jewish law as a resource for Israeli law. In 1946, for example, Haim Cohn, who would later become a Supreme Court Justice, spoke in favor of constructing a civil law “that would continue our ancient traditions” and that would reflect “the character and the destiny” of the Jewish people.7 Sentiments like Cohn’s, however, would never have resulted in the formal adoption of halakha as the law of the state. Even had the interest in Mishpat Ivri continued, the state would still have been a secular state whose laws, even as they drew from traditional sources, would have been given authority by the Knesset, not by God.
By the second half of 1948, though, Herzog had begun to doubt his chance of success. About two weeks before he declared his readiness to sacrifice his life for the sake of a Torah state, he wrote to Simhah Assaf, a rabbinical scholar, professor of Jewish law, and one of Israel’s first Supreme Court Justices, admitting that he was “very doubtful whether they will agree” to his proposed constitutional clause that the laws of the state should be based on the laws of the Torah.8 It seems, then, that Herzog’s speech about self-sacrifice was a rhetorical call to arms at a time of impending failure rather than a sign of optimism. In later years, Moshe Una, a leader of the religious kibbutz movement and a member of Knesset for twenty years, also recorded his skepticism that the goal of a halakhic constitution could ever have succeeded. “It is unclear to me,” he later wrote, “on what basis they hoped that it would be possible.”9 As early as mid-1948, therefore, it seems that the commitment to the idea of the halakhic state had become an identity marker of the religious Zionist community rather than a pragmatic template for political action.
The deliberations of the Zionist establishment over the constitutional and legislative structure of the state actually had an outcome that few could have predicted. Although Israel’s Declaration of Independence called for the adoption of a constitution, the Knesset ended up postponing the adoption of a constitution indefinitely. Indeed, independence had little impact on most of its laws, which initially remained almost identical to those under the British mandate. (Decades later, Israel still has not completed its constitution, although many jurists argue that some of Israel’s laws—those designated as “Basic Laws”—have constitutional standing.10)
It is commonly believed that Israel’s failure to adopt a constitution was the result of the opposition of religious parties, who considered the adoption of a written constitution to be a negation of the Torah. This is only partly true. Although the Ultra-Orthodox Agudat Yisrael party did oppose the constitution on these grounds, the other religious parties did not, at least at first.11 In fact, it was Ben-Gurion himself who impeded the adoption of a constitution for fear that it would place limits on his executive powers. He took every opportunity to oppose the ratification of a constitution, believing that strong executive leadership, unencumbered by a written constitution, was necessary to place the young state, beset by war, on a firm footing.12
Primarily as a result of Ben-Gurion’s opposition, plans for an immediate constitution were aborted. Indeed, initiatives for most new legislation were postponed in 1948, as war absorbed Israel’s energies. The first law passed by the Provisional State Council (the forerunner of the Knesset) was the Law and Administration Ordinance, which established that the law in force on the last day of the British Mandate would continue to be in force in the new state, subject to legislation by the new government.13 As under the British, and the Ottomans before them, personal status laws in Israel (marriage, divorce, etc.) remained under the jurisdiction of the religious courts, but the religious courts enjoyed no jurisdiction over civil or criminal law.14
This continuity marked the failure of the attempt by Herzog and his colleagues to implement a Torah constitution and halakhic rule. However much they doubted the success of their aspirations, they were no less distraught when they finally failed. In March 1948, the two chief rabbis, Herzog and Benzion Ousiel, wrote to the Jewish Agency to express their dismay over the decision to establish secular courts in the embryonic state:
We were troubled to hear of your preparations to establish a secular court for all civil matters. This, the establishment of a permanent secular court on foundations foreign to the laws of Israel, means the uprooting of one of the basic and sacred principles of generations of Judaism. We Jewish leaders must protest against it with all our might and oppose it with every means at our disposal. We request of you and admonish you, in every possible way, that you remove this plan from your agenda and allow the law of the Torah to have its way.15
Ousiel, like Herzog, was a proponent of halakhic rule. On another occasion, he expressed his desire to have a halakhic legal system in Israel. “Now that God has blessed us with political deliverance, and a sovereign, independent Israeli government has emerged,” he wrote, “it is incumbent upon us to establish beside it a national court that will judge according to the Torah.”16 The establishment of secular courts thwarted this dream.
Herzog’s disappointment was palpable in his speech to the Eighteenth Council of World Mizrahi on August 16, 1949. The hope of the religious Zionists, he said, had been for the political elite to come to the rabbis to ask for advice about the law of the state. This move would have ensured that the democracy of the Jewish state would not just be a “pastiche, an aping of, and subordination to, the spirit of the democracy of other nations,” but rather a democracy that drew from the Torah “the spring of our life, the source of Israel.”17 These hopes had been shattered. Instead, he lamented, “a mix of Turkish Ottoman and British law has taken the place of the law of the Torah of Israel in the State of Israel.”18 Given Herzog’s beliefs in the superiority of Jewish civilization over both the Ottoman and the British, he felt this disappointment particularly acutely. “These peoples,” he told the assembled members of Mizrahi, “did not reach the level of civilized peoples until thousands of years after we stood at Mount Sinai. The wisdom of their laws . . . is like a monkey before a human being when compared to the wisdom of our [Jewish] laws . . . and I am talking to you as someone who is well versed in the laws of Rome and England.”19
The fact that personal law remained under the jurisdiction of the rabbinical courts was small consolation. From the point of view of the state, the rabbinical courts now derived all of their legal authority from the secular state. This was not purely a theoretical matter; the state interfered in the workings of the religious courts. The most significant early intervention of the state in the practice of the rabbinical courts came in 1951, when the newly enacted Women’s Equal Rights Law specified that “a man and a woman shall have equal status with regard to any legal proceedings.”20 The law explicitly imposed gender equality upon all courts in the state, including the rabbinical courts, except when they were dealing with cases of marriage and divorce.21 Without such an exception, the application of Jewish law in the rabbinical courts would have ceased to have any meaning, given the fundamental place of gender difference in traditional Jewish marriage law. In other areas, however, the rabbinical courts were bound to observe total gender equality. This obligation affected in particular the administration of marital assets, regarding which halakha distinguishes between husband and wife.22 Even when the law was still in its draft stages, Herzog expressed alarm at the threat that it posed to the operation of the rabbinical courts and the future of religious law in the state. He also expressed his fear that if the rabbinical courts did not have free rein in this area, a situation would develop in which Orthodox Jews in Israel would not trust the state to execute marriages and divorces properly. The result, he believed, would be a situation in which Orthodox Jews would avoid marrying other Jews, out of a fear that they were not eligible to marry under halakha.
We are under threat of a bill regarding full equality between man and woman in all areas of the law. With this law, the arm of the sovereign will not only uproot the laws of Torah in the field of civil law but will also badly harm family law in Israel—marriage itself. This is likely to split, God forbid, the people of Israel in its land, to divide them in matters of marriage.23
The state did not heed the opposition of religious parties, however. Ben-Gurion himself told the Knesset that it would be “inconceivable” for the rabbinical courts to operate without state oversight.24 Religious Zionists felt besieged. Their fight for a centralized halakhic regime had failed. Ultimately, they did find themselves under a legally centralized state, but the all-powerful law was secular legislation, not halakha.
By the early 1950s any hope of the realization of a Torah state, the cornerstone of religious Zionist thinking, had been dashed. The secular state ruled supreme. What was the response to this setback?
Religious Zionist leaders continued to subscribe in principle to a centralist philosophy of law. They did not stop believing that the State of Israel should have a single unified halakhic law. Some idealists continued openly to fight for this goal. Most, however, particularly religious Zionist politicians, recognized that it was no longer useful publicly to proclaim their commitment to this principle; the fight for the control of Israel’s centralist legal infrastructure had already been decisively lost. But while not totally satisfied with the secular legal regime in Israel, they were willing to cooperate with the state in the political arena in the hope of preserving religious control over marriage and a separate religious educational stream.
As a result, from the early 1950s there developed an internal tension among religious Zionists between principle and pragmatism, resulting in a dual rhetoric. Externally, religious Zionists advocated a pluralist approach to law, an approach that allows for different legal systems with different sources of authority to coexist within the same political territory. This posture helped them to argue that rabbinical courts should be granted greater autonomy and that they should operate alongside, rather than be subordinate to, secular courts. This pluralist rhetoric, however, was a strategic move only. Among themselves, religious Zionists continued to adhere to the doctrine of legal centralism that had guided them up to that point. They remained committed in principle to the ideal that the entire state and its law should be governed by halakha.25
This jurisprudential doublethink is clearly displayed in a speech that Herzog delivered to the Mizrahi council on August 6, 1949. Calling it a “programmatic proposal,” Herzog began by noting the dissatisfaction of religious Zionists with the failure of the state to implement traditional Jewish law in its entirety:
[Our duty is] . . . [t]o solemnly declare that we are not in principle ([though] in practice we have no power over this) in any way at peace with the current situation, which is the abolition of the vast majority of the law of the Torah, and that our most fervent desire is to return the law of the Torah to its place . . . under the leadership of the Chief Rabbinate of the Land of Israel.26
Conceding that this goal had become impractical in the short term, Herzog went on to describe a constitutional structure that, though less desirable than his ideal of a halakhic state, was still better than the current situation. According to this arrangement, rabbinical courts would constitute a parallel and entirely independent legal system to which any citizen of the state could have recourse. Like the civil courts, they would have jurisdiction in civil matters as well as in personal law. In this vision, cases heard in rabbinical courts could be appealed only to the Great Rabbinical Court; the Supreme Court of Israel would have no jurisdiction whatsoever in the rabbinical system. This structure would mean that the rabbinical courts would not be subsumed under the hierarchy of the state’s secular legal system.
Regarding civil cases, [even] outside the framework of personal status, there should be a law that every Jew who is taken to a state court has the choice to declare: “I am going to the Torah court.” In such a case the Torah courts should have the full authority of law and their rulings appealed only before the Great Rabbinical Court of the Chief Rabbinate of the Land of Israel in Jerusalem. . . .
Herzog ended by conceding that if even this contingency could not be realized then at the very least the rabbinical courts must have independent and exclusive authority over the personal status laws that were traditionally within its jurisdiction. This authority was something over which no compromise could be tolerated.
Whatever happens, we must insist with all force and power on the request for exclusive authority in the field of personal status. And ultimately I caution and warn from the bottom of my heart and soul that we must be ready to fight with absolutely all our power, even to the point that our ministers will leave the coalition and our representatives will leave the Knesset, against any law that is likely to impinge on the prohibitions of the personal laws of our holy Torah.27
Now that a centralized system of law meant the subordination of the rabbinical courts to a secular state, Herzog reluctantly encouraged his followers to make the case to the secular state for legal pluralism. His concession was a classic example of legal pluralism, exactly the kind of legal system that Gorontchik had suggested and Herzog had vigorously opposed only two years earlier. However, crucially, this pluralism was only part of a strategic argument toward the world outside religious Zionist circles. When talking to those inside his own camp, he made it clear that he still held fast to centralist principles. Herzog explicitly distinguished between the pluralistic rhetoric “facing outward, i.e. to the government authorities in the State of Israel” and the “internal requests” reserved for fellow religious Zionists. Internally, his goal of centralization continued unabated and he persisted in his attempt to introduce “efficient procedures” into the rabbinical courts so that they would be more readily acceptable to the Israeli public. Everything rested on the success of these courts, “upon whose perfection, honor and glory the honor of our holy Torah and its influence to no small degree depend.”28
The aspiration for centralization reached its apogee at the end of Herzog’s speech, as he launched the idea of establishing a “world union of rabbis of Israel,” which, he said, would be “like the Council of the Four Lands, based on its precedent and structure.” He imagined a council “composed of Torah authorities from the Diaspora and Israel. It will be convened regularly by the Chief Rabbinate of the land of Israel, in Jerusalem our holy city, for the purpose of clarifying contemporary and future halakhic problems. It will be accepted as a supreme halakhic authority.”29
As Herzog most likely knew, however, the Council of the Four Lands was nothing like the kind of institution that he wanted to establish. The Council of the Four Lands was an early modern institution made up of representatives of most of the Jewish communities in Eastern Europe. From the sixteenth to the eighteenth centuries, it was responsible primarily for assessing the tax responsibilities of its member communities. It also passed legislation on a wide variety of topics regarding the economic and religious lives of about a million Jews and served as a representative of Jewish communities before the Polish authorities. Crucially, though, the members of the Council of the Four Lands were not rabbis at all, but Jewish lay leaders. Rabbis were occasionally invited by the Council to compose legislation, but there was no doubt that they were subordinate to the lay leadership in the organization. Rather than being a precedent for a centralized system under a “world union of rabbis,” the Council was, if anything, a paradigm of legal pluralism. It demonstrated the parallel existence of several sources of legal authority: the legislation of Jewish lay leaders, halakha as interpreted by rabbis, and non-Jewish political authority.30 Herzog’s reinterpretation of history underlines how committed he was to the principle of legal centralism even as he was encouraging his followers to argue for pluralism to the secular State of Israel. It illustrates the point that the pluralist position adopted by religious Zionists after 1949 was purely strategic. Internally, the philosophy of legal centralism continued to be a centerpiece of religious Zionist belief and rhetoric.
After religious Zionist leaders failed to achieve their ideal goals, law took on an even more intense function as a focus of their identity. Legal rhetoric became a mode of resistance against the secular state that, many religious Zionists felt, had abandoned and oppressed them.
Law is not just a way of getting things done. It is also a way of understanding reality, shaping the categories through which we define ourselves.31 Law is a discourse through which identity, power, and social roles are negotiated. For groups who feel marginalized or threatened by a state’s hegemonic authority, the law can become a battlefield on which struggles for identity are fought and power imbalances addressed. Law can produce a “counter-hegemony” that challenges dominant power structures and prevailing cultural assumptions.32 Thinking about law in this way allows us to see legal rhetoric from a different perspective. Legal rhetoric that appears ineffectual in practice may still be useful as a way of mounting resistance or shoring up identity.33
This analytical framework adds texture to the religious Zionist interest in religious legislation. Their interest reflected a desire to achieve specific political outcomes. But, perhaps even more importantly, it represented the urge to mount resistance against what they perceived to be the secular hegemony of the state. They imagined the law as the arena in which they would fight for their own identity and the creation of social meaning.
Zerah Warhaftig is the perfect character through which to illustrate the role of legal discourse as a tool of resistance. Warhaftig was born in Russia, received a law degree at the University of Warsaw, and later received a doctorate in law from the Hebrew University. During and after World War II he was extremely active in helping Jewish refugees from Poland and Lithuania, facilitating many of them in their escape to Japan. He came to Palestine in 1947 and represented Ha-Po’el Ha-Mizrahi in the Va’ad Le’umi, founding its department of law and justice. Warhaftig was a signatory to the Declaration of Independence and served in the Knesset until 1981 on the religious Zionist slate, first for Ha-Po’el Ha-Mizrahi and then for the National Religious Party.34
Warhaftig was a valuable asset for the religious Zionist community because he was a key participant in discussions over the drafting of legislation. He served on the Knesset’s subcommittee that was charged with writing the state’s constitution, serving as its chairman in 1948. Warhaftig’s value was recognized by religious Zionist rabbinical leaders. Meir Bar-Ilan wrote to Warhaftig in March 1948, telling him, “It seems to me that the main key for bringing about the desires of the Mizrahi now rests in your hands more than any of our other representatives.”35 When Herzog was drafting his own halakhic constitution, Warhaftig composed three separate memoranda containing notes on the draft and offering advice about the legislative process.36
While fulfilling his obligations to the state, Warhaftig devoted himself to the goals of the religious Zionist community in legislation and politics. Both his public speeches and his private correspondence reveal that he understood arguments over law to be about identity as much as policy. He often explicitly portrayed his legislative activity in terms of the resistance of an oppressed minority against the state.37 Warhaftig shared the principled legal centralism of Herzog and other religious Zionist leaders. His decision to participate with the secular legislature did not imply that he had come to terms with the failure to establish halakha as law. It was, rather, a strategic move in what Warhaftig believed would be a long-term battle with the state. The “war over Hebrew law,” he wrote, “. . . will last for many years.”38
Like Herzog, Warhaftig wanted the constitution to be based on Jewish sources. Before the Knesset decided to postpone the adoption of a constitution, Warhaftig made a speech in the Knesset, arguing as such. “We must search for material for our constitution in our own sources,” he insisted. “The constitution of Israel [yisra’el] will be a Jewish [yisre’eli] constitution, only if it reflects the spirit of Israel. . . .”39 He never gave up on this principle. As late as 1988, he compared the successful revival of the Hebrew language in Israel with what should have been the revival of Jewish law:
[Hebrew] law is the language of the state and the spirit of the people. When we returned to the Land of Israel, we accepted the Hebrew language. We redeemed it from pages of books and brought it out to the city street. We did not go to seek other languages, despite the many difficulties in reviving an ancient language.40 Similarly, the State of Israel should have announced its acceptance of Hebrew Law in its first constitution.41
Warhaftig marshaled the memories of Zionist resistance against British colonial rule to argue for the use of halakha in state legislation. He suggested that the failure to choose halakha over the law of imperial Britain in 1948 kept Israel as a colonial subject of the British Empire. Until Jewish law would be adopted, he declared in 1952, “we are still the slaves of Queen Elizabeth.”42 Warhaftig made this comment in Aramaic, rather than Hebrew, in order to paraphrase the talmudic phrase, “we are still the slaves of King Ahasuerus.” Its original context is a talmudic discussion about the Purim story in the Book of Esther. The rabbis of the Talmud were pointing out that even after the apparently supremely successful Jewish victory at the end of that book, the Jews remained a people subservient to the Persian king.43 So too, Warhaftig was intimating, despite its independence, and despite its military victory in 1948, Israel would remain a colony of Britain until it adopted a truly independent legal system that, in his mind, could only be halakha. In 1958, he was still arguing that, because Israeli legislation was interpreted by Israeli courts by reference to English law, “from this perspective we remain an English colony in every respect.”44
Warhaftig felt so strongly about promoting the role of halakha in Israel that he surreptitiously enlisted the aid of religious Zionists outside of Israel to support that goal. In January 1948, for example, he wrote to Raphael Gold, the president of Ha-Po’el Ha-Mizrahi in New York, urging him to push the religious Zionist community there to put pressure on Israel to adopt Jewish law. “The battle for the religious character of the Jewish State will have to be waged and won here on the spot,” he wrote, “but nonetheless the pressure of Jewish public opinion outside Palestine will surely be of value.”45 Warhaftig knew, however, that if it was discovered that he had been recruiting foreign pressure to achieve his own political ends, his own position might be compromised. He therefore implored Gold “to see to it that there is no needless publicity on my contacts with you in this matter which I intend to further in a private capacity.”46 The political risk that Warhaftig was willing to take to promote the idea of the halakhic state signifies the importance that it held for him.
Ultimately, though, despite all his political maneuvering, Warhaftig, like Herzog and others, recognized that the implementation of halakha in the state courts was a utopian dream. As a concession, Warhaftig pursued another strategy, which was to urge the Knesset to adopt a law stating that if a judge found a lacuna in Israeli law, he or she would be required to have recourse to halakha.47 Warhaftig modeled his law on the procedure in force during the British Mandate that legal lacunae had to be filled by recourse to English Common Law.48 His attempt failed, however, forcing him to follow Herzog’s strategic retreat into pragmatic pluralism.49 Herzog had told his followers that if the whole state could not be governed by halakha then they should at least fight for the rabbinical courts to be treated as an independent judicial system. Warhaftig adopted this strategy exactly, as he stated in a Knesset speech of 1954:
We have in Israel two court systems. Most matters are under the legal authority of the general courts which judge not necessarily by original Hebrew law but according to the laws of the Knesset. . . . And there is a second system, of rabbinical courts. . . . The rabbinical courts rule according to the laws of the Torah. . . . The secular law does not get involved, and it cannot get involved, in the internal affairs of these rabbinical courts or in the cases that they hear. Secular law only defines the jurisdiction [of the rabbinical courts] . . . But it does not involve itself in their judicial activity because they are founded on the law of the Torah and not on human law.50
Warhaftig’s assertion that Israel has “two court systems” was a direct attack on the jurisprudence prevalent among Israel’s secular jurists. In the very same year of Warhaftig’s speech, the Supreme Court ruled in Skornik v. Skornik that “every religious law, in its application in this country, flows from an act of the secular legislature.”51 In this view, the rabbinical courts were part of the state hierarchy and they had authority only to the extent that the secular legislature granted it to them. By contrast, Warhaftig insisted that the relationship between religious and state law is not the relationship between a higher and lower tier of a single hierarchy but rather the relationship between two independent legal systems, each with its own source of authority. Once the original hope of rabbinical law governing the entire state had failed, Warhaftig pushed for this pluralist position as a pragmatic strategy to enhance the authority of the rabbinical courts.
Perhaps Warhaftig’s most striking statement about the independence of the rabbinical courts came in the context of a discussion about the oaths that were taken by rabbinical judges. Judges in the civil courts, Warhaftig noted, swear to “be faithful to the State of Israel and to its laws.” Rabbinical judges swear only to “be faithful to the State of Israel,” omitting the phrase “and to its laws.” Warhaftig’s explanation was that
[t]he rabbinical judge . . . judges according to the laws of the Torah. . . . [The civil] law does not interfere with internal matters of the rabbinical court and so the rabbinical judge has no more obligation than any other citizen of Israel. He therefore has no reason to insert the phrase “and to its laws [into the oath.]”52
Warhaftig claimed that rabbinical judges, even though they were employed as judges by the state in state institutions, and empowered by state law, had no reason to swear loyalty to the laws of Israel. From the perspective of the state, this claim was utterly wrong. The judges in rabbinical courts were subordinate to the laws of the state. Their legal authority was derived from those laws and their verdicts were open to review by Israel’s secular Supreme Court. But, as far as Warhaftig was concerned, the authority of the rabbinical courts was entirely independent of the state. The rabbinical courts drew their authority from halakha, not from the Knesset.
The practical outcome of Warhaftig’s legal battles was not his only concern. To be sure, like other religious Zionists, Warhaftig continued to push for religious legislation to be enacted in the Knesset. He celebrated the fact that “through a difficult and ongoing struggle we have succeeded more than once to incorporate here and there aspects of our original Jewish law” into the law of the state.53 Warhaftig’s arguments over the law, however, also served as a tool of resistance and a way of strengthening the identity of a community that felt beleaguered and oppressed. In fact, sometimes the identity-forming function of legal discourse took precedence over its strategic efficacy.
One example of the primacy of the identity-forming function of law was the debate in the Knesset over the Capacity and Guardianship Bill in 1961. The proposed bill concerned the legal guardianship of minors and contained a clause requiring all children to “honor thy father and thy mother,” a quotation from the Book of Exodus. One might expect the religious parties to have been in favor of this incorporation of religious law, one of the Ten Commandments no less, into an official statute. And yet, Warhaftig, then Minister for Religious Affairs, opposed the move: “There are things for which no law is needed,” he told the Knesset. “Why repeat the Ten Commandments and thus, if I may say so, reduce the level of this eternal precept to a matter of transient law?”54 Warhaftig worried that including one of the Ten Commandments in secular Israeli law would cheapen a divine command, presumably by implying that God’s word is not sufficient authority without the endorsement of the Knesset. But from the perspective of the religious Zionist interest in “halakhic legislation,” in which Warhaftig himself was deeply involved, this position is very curious. The incorporation of “eternal precepts” into Israeli law was one of Warhaftig’s principle objectives. The counterintuitive nature of Warhaftig’s argument was immediately recognized. Yitzhak Klinghoffer, a member of the Liberal Party, pointed out in response that the Law and Administration Ordinance (1948), Israel’s first law, establishes Saturday as Israel’s day of rest. He sarcastically asked whether that law also “reduce[s] the injunction ‘and on the seventh day you shall not do any work’ from its height to the level of a mere legality?”55 Others also failed to make sense of Warhaftig’s position, considering his strong support of incorporating halakha into legislation in general. Menachem Elon, an Orthodox jurist who became a Justice of Israel’s Supreme Court, called Warhaftig’s speech “exceptional and odd” and Moshe Una, another religious Zionist member of Knesset, supported the bill, against Warhaftig’s objections.56
How, then, can we understand Warhaftig’s speech? By way of explanation for his rejection of the clause, Warhaftig told a joke on the floor of the Knesset:
Forgive me for telling a famous joke. It is said that in a certain Jewish community they once put the Ten Commandments into the by-laws [pinqas] of the community. They asked, “Why are you putting the Ten Commandments into the community’s by-laws?” They answered, “They don’t observe what is written in the Torah but perhaps they will observe what is written in the by-laws of the community.”57
With the joke, Warhaftig was trying to point out the absurdity of treating human law as more important than divine law. For Warhaftig, preservation of the independence and primacy of Jewish law was paramount. “Even if the legislator succeeded in incorporating the [halakhic] laws of personal status in their entirety into secular law (though here we are very far from that) even then I would oppose the tendency to make these things into the law of the state. Because then the court would be detached from its source; we would be detaching it from the well of living water.”58
Warhaftig wanted halakha to be the law of Israel, but only if it retained its independent identity as halakha per se. He was concerned that if halakha was absorbed into the monolith of the state it would lose that identity. At that time, because of the legacy of British rule, the Israeli legislature was still interpreting Israeli law by reference to British precedent. Warhaftig was particularly fearful that halakha might be cut off from its own history of interpretation and made subject to the interpretation of the secular court. To address this concern, he insisted that if halakha was incorporated into secular law, it should be accompanied by a clause specifying that the interpretation of the law must be according to the halakhic tradition. Otherwise, he told the Knesset, the result would be the untenable outcome that “the court will interpret a law that is based on principles of Hebrew law according to English law. Then it will be a situation of a kind among a different kind [min be-she-eno mino], a kind of mixed threads [sha’atnez] or crossbreeding [kila’im] which are likely to destroy the law.”59 Warhaftig illustrated his position that it would be better to give up the chance of incorporating halakha into the law of the state rather that threaten its independence, with metaphors taken from halakhic literature. “A kind among a different kind” (min be-she-eno mino) is a term drawn from the laws of kashrut and priestly food laws; mixed threads (sha’atnez) is the biblical prohibition of wearing clothes that contain a mixture of wool and linen; and crossbreeding (kila’im) is a prohibition against mixing seeds or animals of different species. By using these halakhic metaphors one after the other, Warhaftig was, consciously or not, rhetorically emphasizing the centrality of halakha to his own identity.
The preceding examples of Warhaftig’s legal rhetoric are mostly drawn from his debates in the Knesset. In that context, he kept to Herzog’s policy of strategically appealing to legal pluralism when communicating with those outside religious Zionist circles. He also followed Herzog’s lead of leaving that pragmatism aside, and making a more principled stand, when talking to fellow religious Zionists. In these internal conversations, he was more idealistic and less compromising, calling for the strengthening of halakhic legal centralism. Warhaftig urged religious Zionist leaders not only to resist the state’s legal order but also to try to seize full legal control for themselves.
In 1953, Warhaftig delivered a speech to Israel’s rabbinical judges. He summarized for them the various legal matters on which he was working and noted the practical benefits of having a state to enforce rabbinical rulings in matters of personal status law. Fundamentally, however, the speech was a call to arms, an invitation to mobilize in preparation for an extended war with the government. “We are,” he said, “in a hard struggle with the Knesset and with the government over authority . . . fighting a war to save the oppressed from their oppression.”60
Warhaftig told the rabbis that the secular state had overrun the entire legal landscape in Israel, laying exclusive claim to legal authority. He suggested that the only way to overcome this situation was to reverse it, to meet the expansive claims of the state with equally expansive claims of the rabbinate. He quoted with approval one of the rulings of the Great Rabbinical Court in Jerusalem: “In principle everything belongs to us, just that the law removes certain things from us.”61 The appropriate response to the state, he insisted, was to reject the state’s claim to legal superiority. “The rabbinical courts need to be as imperialistic [imperialisti-im] as possible,” he said, “and not to give up on their authority.”62
The strategy of counteracting the legal reach of the state had become both harder and more necessary, Warhaftig believed, with the global expansion of state power during the twentieth century. Elsewhere, in an unpublished essay, Warhaftig reflected on the changes in the ambitions of the state:
What was perhaps possible at the end of the nineteenth century and the first years of the twentieth century, when the state was merely a political framework which did not penetrate into mens’ souls, is impossible today, when the state is becoming more and more totalitarian. . . . The time has passed when the state filled the role of a “dog,” guarding the borders, whereas social matters [and] problems of spirit and culture were left to the free initiative of society. The state today has returned to the age of absolutism.63
Whereas Warhaftig’s references to totalitarianism and absolutism might conjure the image of fascist or communist states, it seems that Warhaftig was in fact referring to the growth of the power of Western democracies and the expanding reach of their administrative apparatus. In Warhaftig’s understanding, the state had evolved from a kind of laissez-faire guard dog into a polity with an interest in the total control of its citizens’ lives. One aspect of this development, he felt, was the encroachment of the state onto the territory of religious life, and religious law in particular. He now saw the state and religion as competing for the same ground, “both aspiring to encompass all of man and society.”64 His plan was to mount a religious defense against the state’s absolutism, ideally reversing its tide. The battle for legal control, Warhaftig warned the rabbinical judges, was a zero-sum game in which either the government or the rabbinical courts, but not both, could win. Whatever his strategic rhetoric in the Knesset, Warhaftig’s legal philosophy remained absolutely centralist in principle.
Religious Zionists were both idealists and pragmatists. They were not, on the whole, unrealistic about what they could achieve. Although crushed by the failure to achieve a halakhic state, they recognized that there was little they could do to change this state of affairs. As a result, most of them began to pursue a political strategy that deferred the dream of a halakhic legal system. Instead, they fought to bolster the independent footing of the rabbinical courts in their own realm and to champion “halakhic legislation” when possible. This pragmatism, however, should not be confused with an abandonment of principle. On the contrary: religious Zionists remained committed to the principle of centralized halakhic rule for the whole state, even as they accepted that it was an unattainable goal for the foreseeable future.
The dissonance between the ideals of the religious Zionist community and the reality in which they found themselves gave rise to a new element in their legal rhetoric. They saw debates over law not only as a tool to bring about practical change, but also as a way to protect and promote the identity and ideology of the religious Zionist community. Warhaftig acknowledged that in practical terms “we have stumbled far more than we have succeeded.” But, as he himself recognized, “the essence of the struggle is important.”65 Even, or perhaps especially, in failure, the struggle over law performed an existential function. Religious Zionists held onto the principle of the halakhic state, even as they knew it could never succeed in practice, because it had become a core aspect of their identity, one that they were not willing to relinquish.