According to Amnon Rubinstein, a liberal Israeli politician and professor of law, religious Zionists in Israel’s first two decades “bore the message of humanism and universalism bequeathed by enlightened Zionism.”1 Although they did not see eye to eye with the secular majority on every issue, he wrote, they were willing to compromise with the establishment for the greater good. But then, in the aftermath of the 1967 war, a “new religious militancy” arose, which transformed the religious Zionist community into a more assertive, less cooperative, and sometimes more violent group.2 This narrative, in which the euphoric victory of 1967, and the controversial “land for peace” diplomacy that followed it, changed religious Zionism from a marginal element in Israeli politics to an active social force with theocratic tendencies, is widely believed.3 The historical evidence, however, complicates the picture and calls upon us to question whether 1967 really marked such an abrupt break in the history of religious Zionism.
It is true that religious Zionists in the state’s first decades were committed to the success of its institutions and sympathetic to democratic culture.4 But many religious Zionists, especially rabbinical leaders, had other commitments, too. They were faithful in their desire for Israel, in principle, to become a halakhic state. “Facing outward,” the spiritual leaders of religious Zionism continued to endorse compromise and they did what they could to legitimize the state that they believed to be messianic, despite its fundamental shortcomings.5 Internally, however, the ideal of the halakhic state remained a guiding light. It was subdued, suppressed, and rarely expressed outside of the religious Zionist leadership. But it persevered.
The legal and political philosophy of religious Zionists before 1967 continues to have an impact today. Indeed, secular-religious tensions in twenty-first-century Israel cannot be understood without a careful consideration of its legacy. Herzog, Warhaftig, Yisraeli, Ousiel, and others discussed in this book would have opposed the political extremism exhibited by many religious Zionists today. Their theocratic principles were balanced by a sense of duty to national unity in the service of the state, even if that state did not fulfill their deepest religious aspirations. In recent years, however, the religious Zionist enchantment with the secular state has diminished. The ideology of the halakhic state is no longer tempered by an affiliation with liberal democratic culture, at least to the degree that it was for religious Zionists of previous generations. Unfettered by a countervailing liberalism, that ideology, laid down in the early years of the state, is finding expression in a new, more forceful way. In some religious Zionist circles, this development has given rise to a kind of religious fanaticism that would have been unheard of in the 1950s, and would certainly have been repudiated by Herzog and his followers. This new phenomenon, however, has old roots. Its origins lie in the ideology of the founding generation, which created a theocratic orientation that lay dormant for many years until it re-emerged in an unforeseen way and drastically altered the Israeli political landscape.
Such a claim may seem far-fetched. After all, religious society in Israel has changed substantially since its founding. Israel’s Ultra-Orthodox population has grown in both real and relative terms and its rabbinical leaders have a far more significant role in the country’s Jewish religious institutions than they once did. The Chief Rabbinate, once primarily the preserve of religious Zionist rabbis, is now dominated by Ultra-Orthodox rabbis.6 In the religious Zionist community itself, there has been a gradual erosion of rabbinic authority, partly as a result of the increased interest in individualistic, rather than communal, religious expression.7 Since the rise of Gush Emunim in the 1970s, religious Zionism has also redirected much of its ideological energy away from the cause of the public enforcement of halakha and toward the Jewish settlement of the Occupied Territories. Despite these developments, however, it remains the case that the early development of the idea of the halakhic state is a major cause of social tensions in Israel today. Although the intellectual output of elites is only one significant historical factor among many, ideas do matter. The ideology created by religious elites in the 1940s and 1950s continues to resonate in contemporary Israeli society and to exacerbate tensions in the twenty-first century.
The belief that the law of the State of Israel should be halakha is a pervasive and persistent element of religious Zionist thought. Even today, the majority of religious Zionist rabbis, many of whom are state functionaries themselves, only provisionally recognize Israel’s democratically legislated laws. Many rabbis consider Israel’s laws legitimate only if they do not contradict halakha, and it is often a matter of debate whether this condition has been satisfied. For example, Avraham Shapira, who succeeded Zvi Yehudah Kook as the head of the Merkaz Ha-rav Yeshiva and served as the Ashkenazic Chief Rabbi of Israel from 1983 to 1993, devised a religious test for secular legislation. During his tenure as Chief Rabbi, he wrote that legislation was legitimate only if it had not been opposed by religious representatives in the Knesset:
If a law passed without opposition from the religious representatives in the Knesset, there is an assumption that it is “kosher.” And if [the religious representatives] opposed it, there is the assumption that it contradicts halakha and is not binding because the religious representatives are aware of the laws on the one hand, and they consult with rabbis on the other hand. So they would not agree to a law that contradicts halakha.8
Because Shapira assumed that religious politicians would take direction from rabbis, he deemed their support for legislation as a condition of its legitimacy. Whether or not Shapira was correct in implying that religious parties in the Knesset always vote according to their understanding of halakha rather than political considerations, his position seems to make all of Israel’s laws provisional on religious approval. In his view, if religious representatives vote against a bill in the Knesset (which, of course, happens regularly), then it is not legitimate, even if it is passed as law by the majority.
Other rabbis impose even more stringent conditions before recognizing state law. Mordekhai Eliyahu, for example, who was the Sephardic Chief Rabbi from 1983 to 1993, believed that most of Israel’s criminal law is automatically illegitimate because its procedure is different from that of halakhic criminal law.9 Yaakov Ariel, the chief rabbi of the city of Ramat Gan and an influential religious Zionist leader, accepts only state law that does not address an area of law already addressed by halakha. By this standard, much of Israel’s civil law is illegitimate. Even those religious Zionist rabbis who do accept the state’s laws often do so only grudgingly. Shlomo Aviner, for example, the rabbi of the Bet El settlement and head of the Ateret Kohanim yeshiva in Jerusalem’s Muslim Quarter, endorses Israeli democracy (as long as it is what he calls an “ethnocentric democracy”) but still believes that “in principle, the law should be according to the Torah.”10
The ambivalence of many religious Zionist rabbis toward secular legislation is expressed most emphatically in their antipathy to Israel’s civil courts. Since 1948, when both chief rabbis boycotted the opening of Israel’s Supreme Court, many religious Zionist rabbis have continued to see Israel’s civil courts as a symbol of the state’s abandonment of halakha and have consistently questioned their legitimacy.11 This approach is not universal. Some contributors to the journal Ha-torah veha-medinah, for example, found precedent for Israel’s civil courts in talmudic accounts of Jewish judges ruling according to non-halakhic law. Many, however, defined Israel’s civil courts as “Gentile courts.” This definition automatically amounts to a halakhic ruling that the civil courts are illegitimate and that Jews are prohibited from making use of them. Ovadiah Yosef, Sephardic Chief Rabbi from 1973 to 1983, whose teachings are still extremely authoritative (and whose son Yitzhak Yosef, the current Sephardic Chief Rabbi of Israel, adheres closely to his father’s rulings) was uncompromising on this point: “It is strictly prohibited to deal in any of these laws [inheritance law, or civil law more generally] in courts that judge according to the laws of Gentiles . . . whether the judges are Gentiles or Jews who judge according to the laws of Gentiles, which are not like the law of the Torah.”12
Similarly, Haim Druckman, the head of the Bnei Akiva youth movement popular among religious Zionist youth, and the leader of the prominent Ohr Etsion Yeshiva in the West Bank, believes that Israel’s courts are fundamentally flawed and that they should in principle be replaced with halakhic civil and criminal courts.13 Yaakov Ariel also wrote harshly in support of this position:
A religious Jew who knows that there is Torah law and that there are Torah scholars who know [rabbinical] law, but nonetheless prefers to be judged by these [civil judges], who are sinful heretics, is considered a blasphemer and reviler and a rebel against the Torah of Moses. Their transgression is considered by Torah law to be a desecration of the name of God.14
Jewish judges in the civil courts, writes Ariel, are heretics. Jews who make use of those courts, knowing that they could instead take their case to rabbinical judges, are desecrating God’s name. While particularly vehement in its formulation, Ariel’s basic position is quite common. Well into the twenty-first century, it appears that a large majority of Israel’s rabbis consider the state’s civil courts to be illegitimate “Gentile courts.”15
While most religious Zionist rabbis believe that halakha should control civil law, most secular Israeli jurists hold the inverse belief that civil law should control the rabbinical courts. This approach to law is quite common in the modern state. Proponents of modern legal regimes generally claim that state law has the monopoly on legal authority within the territory of its jurisdiction.16 Thus, both religious Zionist and secular jurists share the belief that, in principle, they alone should have control of the legal apparatus of the state. Given these conflicting claims to legal supremacy, religious-secular tensions in Israel are almost inevitable. According to Israeli legal scholar Yedidia Stern, proponents of halakha and civil law in Israel see themselves in a “zero-sum game” in which the supremacy of one kind of law requires the subordination of the other.17
The most public recent manifestation of this conflict has been a debate in the Knesset and the Supreme Court with regard to the authority of the state rabbinical courts to hear civil cases. Although the state grants jurisdiction to rabbinical courts only in the realm of personal status law, rabbinical courts have historically heard cases in the realm of civil law also. Indeed, because many rabbis think that it is forbidden for Jews to use the state’s civil courts, they believe that the rabbinical courts are the only legitimate forum in which civil cases can be adjudicated between Jews. The rabbinical courts claim that their authority to hear civil cases derives from the Torah. But they also support this claim with a legal argument that appeals to secular legal institutions. They demand that even the state should recognize their authority in civil law because, even if they are not recognized as official civil courts in the state system, they should still be recognized as binding courts of arbitration, with the agreement of the parties. In 2006, however, the Supreme Court decided in Amir v. the Great Rabbinical Court in Jerusalem that the rabbinical courts do not have the authority to hear cases outside their jurisdiction, even as courts of arbitration.18 According to the majority opinion, written by Supreme Court Justice Ayala Procaccia, the authority of the state’s rabbinical courts to hear cases is limited to the jurisdiction determined by the state. Because the rabbinical courts “derive their power and authorities from the state statute,” she ruled, “they have no authority other than what is vested in them by the statute.”19 The Supreme Court therefore decided that state rabbinical courts are not permitted to hear civil cases, even as courts of arbitration.
For their part, the rabbinical courts have always rejected the claim that their authority derives from state legislation. In the early 1980s, for example, Shlomo Daikhovsky, a judge in the rabbinical courts for over thirty years, wrote that “[a]ccording to the Torah, the authority of the rabbinical courts is unlimited because it derives from the divine legislator not from the human legislator.” For this reason, Daikhovsky rejected any authority on the part of the state to limit the jurisdiction of rabbinical courts. He even rejected the possibility of discussing the question of jurisdiction with the civil courts because such a deliberation would itself “constitute a kind of admission of limits delineated by the human legislator, against the law of the Torah.”20
In keeping with this position, the rabbis reacted sharply to the Amir decision of 2006, which prohibited them from hearing civil cases, even as courts of arbitration. A month after the verdict of the High Court was issued, rabbinical judges issued a statement calling the ruling “a severe blow to the status quo and to the relations of the rabbinical court with the civil courts.” They continued,
The rabbinical courts were not born with the establishment of the state. These courts have existed since the revelation on Mount Sinai . . . There have been rabbinical courts in the Land of Israel for thousands of years . . . [Although the state] granted them formal authority in a narrow segment of family law, the status of the courts remains intact in all other areas, with the consent of the parties.21
As often before, the rabbis insisted that the authority of the rabbinical courts preexisted the establishment of the state and that the state has no authority to undermine the capacity of rabbinical courts to arbitrate in civil cases. Moreover, the rabbinical judges noted, the use of the rabbinical courts in all areas of law is a requirement of halakha: “Note that citizens observant of the Jewish law are commanded by the halakha to litigate in rabbinical court, and they do so by agreement of both parties.”22 This remark amounted to a counterclaim against the High Court. Just as the state’s civil justices rejected the authority of the state’s rabbinical courts to hear civil cases between Jews, the rabbis rejected the authority of the state’s civil courts to do the same.
This dispute about the limits of the authority of the rabbinical courts is far from over. In early 2017, a bill was proposed in the Knesset to reverse the effects of the Amir decision by explicitly allowing state religious courts to arbitrate in civil cases. The bill was proposed by members of a Jewish religious party, United Torah Judaism, and passed its first reading in the Knesset in February 2017. If it passes into law, it will once again expand the authority of the rabbinical courts and override the limits placed upon it by the state’s civil judicial institutions.
In recent years, numerous new institutions have promoted a rabbinical judiciary and challenged the state’s claim to being the exclusive source of legal authority. Since 1988, several private rabbinical courts have been founded, which attempt to attract Israel’s Jewish citizens to use them instead of the state’s civil courts. They now exist in towns in Israel and the Occupied Territories, such as Qiryat Arba, Qiryat Ono, Neve Nof, Har Nof, and Alon Shevut.23 A network of private rabbinical courts, called Gazit, is associated with Eretz Hemdah, a yeshiva founded under the auspices of Shaul Yisraeli. In keeping with Yisraeli’s ideology of support for the state while also promoting the superiority of halakha, the Gazit courts offer to arbitrate cases in keeping with both halakha and Israeli civil law. They encourage Israeli Jews to use their courts in place of the state’s courts, claiming that they process cases more quickly and cheaply. They also appeal to religious and nationalist sensibilities. “Sizeable portions of Israeli society are alienated” from Israel’s courts, the Gazit website proclaims, “feeling that they are not based on the foundations of Jewish law.” Indeed, using Israel’s civil courts is a “severe halachic problem” and also a “cultural-social problem” because the “Zionist vision” requires that “the judicial system reflect the Jewish judiciary tradition and Jewish values of justice.” The website also professes that halakha can deal with “even the most complex, sophisticated problems of the modern economy” and that the Gazit courts “will apply the principles of the Torah and halachah in all aspects of public and commercial life and in the ever-changing modern world.”24
Alongside the private rabbinical courts, a number of rabbinical training institutes have also been established, in order to train rabbinical judges to serve on them. Halakhic scholars associated with these institutes frequently publish research in Jewish law that is designed to demonstrate how it can be applied in the circumstances of the modern state. One such institute is Mishpetei Eretz, situated in the West Bank settlement of Ofrah. According to its head, Rabbi Abraham Geisser, its aim is to undo the “strategic decision” by the State of Israel to bring about the “abandonment of the Torah legal system.” Jewish law, according to Geisser, should “take first place” in Israel and “displace foreign expressions and laws which have found a place of honor in the halls of Israeli justice.”25
Other supporters of the rabbinical courts have openly called for the replacement of civil law in Israel with halakha. An example is a 2008 lecture by Reuven Heller, a rabbi of the city of Hod Ha-sharon entitled “The Transition from the Laws of the Gentiles to the Laws of the Torah: How?” Heller lamented the fact that most people did not know about “the wonderful treasure of Torah laws,” including “the moral level of rabbinical judges and of the speed of judgment in the Torah courts.” Heller believed that if private rabbinical courts operated for long enough in areas permitted by the state, then this “treasure” would become better known. This would “create a pressure from below, which will eventually bring about a reversal, making Hebrew law into the official law book of the State of Israel.”26 Promises of lower cost and greater efficiency were meant to attract people to the court but the long-term goal was a revolution in which halakha would officially govern the entire state.
This opinion is by no means marginal. It plays a role in politics at the national level. In June 2019, Bezalel Smotrich, the head of the right-wing nationalist religious party Tequmah, made a bid for the position of Minister of Justice. Speaking to a gathering at the religious Zionist yeshiva Merkaz Harav, Smotrich said that he wanted this particular portfolio, in order to “restore the system of Torah justice.” In other words, a politician on the national stage publicly sought responsibility for the state’s judiciary in order to implement halakhic law in Israel. In an interview the day after the speech, Smotrich confirmed that he believed that halakhic civil law was better than the state’s civil law, and that the rabbinical courts should be granted “a higher status.” When asked by his interviewer whether he was calling for a halakhic state, Smotrich seized the opportunity to criticize the Supreme Court. Right-wing politicians in Israel frequently lament what they see as the liberal activism of the Supreme Court, particularly under its influential president Aharon Barak, who retired from the court in 2006, and they often stand on a platform of reining in future activism of the judiciary. (Needless to say, this characterization of the judiciary is disputed by many politicians on the left.) With clear irony, Smotrich said that the return of Torah law would be superior to the “halakhic state founded by Aharon Barak.” The implication was that he considered the liberal judiciary, not the rabbinical courts, to be coercive, and that he would prefer to see the state subordinate to halakhic rule than to secular law.27
The antagonism toward the state’s laws and its courts by many rabbis today and the proliferation of institutions in support of the halakhic state are, at least in part, a consequence of the ideological positions established by religious Zionist leaders in the late 1940s and early 1950s. They are reminiscent of the call to religious Zionists issued in 1949 by Meir Bar-Ilan “to prepare immediately for war . . . for a state law that is based on the laws of our holy Torah . . . This law and no other.”28 Despite the failure of Bar-Ilan and his allies to achieve their goal in the short term, the principle of the halakhic state has remained an ideal for many religious Zionist rabbis since that time.
The role of the theocratic ideology formulated in the late 1940s in secular-religious tensions in Israel today complicates the standard historiography. According to the more common understanding, relations between religious Zionist Jews and Israel’s political and judicial institutions deteriorated as a consequence of events that have transpired only since the 1970s.29 By this account, in Israel’s first thirty years religious Zionists were political pragmatists who supported the political establishment. Yosef Burg, a long-serving religious Zionist politician, was a typical representative of this friendly face of religious Zionism. In a famous, though undocumented, anecdote, Burg said that the most important element in “religious-Zionism” was the hyphen between the two terms. As the anecdote implies, religious Zionism in the early years of the state understood itself as a force able to bridge the secular-religious divisions in Israeli society.
According to this narrative, things began to change only in the late 1970s when Israel evacuated territories conquered in the war of 1967 as part of a peace agreement with Egypt and, for the first time, the press carried pictures of Israeli soldiers physically removing Israeli children with knitted skullcaps from their homes. Religious Zionist disillusionment with the government intensified after the signing of the Oslo Agreements in 1993 and the evacuation of Jewish settlements in the Gaza Strip in 2005. These events caused many in the religious Zionist community to come to the conclusion that the state was forcing them to abandon their sacred mission of settling the Land of Israel. It could no longer even be said, in the spirit of Abraham Isaac Kook, that the secular state was fulfilling the plan of God. On the contrary, the state appeared to some to be actively rebelling against God’s plan. As a result, religious Zionists moved away from compromise and toward new kinds of engagement with the state. Rather than supporting the state’s institutions, religious Zionists began to try to control them. They became far more prominent in the Israel Defense Forces, particularly among elite combat units and officer ranks. They also became increasingly hostile to the state’s secular leaders. The nadir of this hostility was the assassination of Yitzhak Rabin by a religious Zionist student. A brief period of soul-searching after the assassination was followed by a further intensification of antagonism toward the state in the wake of the evacuation of Jewish settlements from Gaza in 2005.30 It is against this background, the argument goes, that religious Zionists began to challenge the state’s institutions, and to attack the courts, which many of them saw as a tool of the liberal secular elite.
This account is largely correct. There is no question that events from the late 1970s and onward precipitated a transformation of religious Zionism and its relationship to the state. Placing too much emphasis on that period, however, risks obscuring an earlier, and possibly more fundamental, source of religious-secular tension in Israel. It was in the first decade of the state, long before the religious settlement movement, that religious Zionists developed the ideology of the halakhic state. Already by the 1950s, secular and religious Zionists were committed to mutually exclusive visions of Israel’s constitution and legal regime. The stage was set for a simmering confrontation between those who believe that the ultimate authority of law derives from God and those who believe that it derives from the will of the people. The principled pursuit of the halakhic state persisted beneath the pragmatic accommodations of religious Zionists in the state’s early years. In this sense, Isaac Herzog’s 1949 speech set the tone for religious Zionists for decades to come. Even as he cooperated with and supported the state, he urged his supporters to remember that “we are not in principle . . . at peace with the current situation. . . . [O]ur most fervent desire is to return the law of the Torah to its place.”31 Even as religious Zionists supported the State of Israel and its secular legal regime, they never gave up on this dream.
The developments among religious Zionists since the 1970s are not the result of the emergence of a new ideology but rather the erosion of the value of compromise that had previously kept the halakhic-state ideology in check. Many religious Zionists began to question whether the success of the Jewish state really depended on their compromise with the secular regime and wondered instead if they could be successful only if they refused to compromise. Some of those who have adopted this new position have been called Ultra-Orthodox Zionists (haredim le’umi’im, or hardalim for short) because they combine the religious Zionist belief in the redemptive nature of modern Zionism with a fundamentalist rejection of secular culture that has a lot in common with Ultra-Orthodoxy.
An example of the changing attitude to compromise is the writings of Elyakim Levanon, rabbi of the Elon Moreh settlement in the West Bank. In the aftermath of Israel’s disengagement from Gaza in 2005, Levanon called for a change. For most of the twentieth century, he said, religious Zionists followed a “pathway of partnership and cooperation” with secular Zionism and the State of Israel.32 This was a pragmatic choice, he claimed. Because secular politics was balanced between the left and right wing, “the religious bloc could always tip the scales.” In other words, the participation of religious Zionists in secular institutions was a strategy to exert political influence despite having relatively little power. When the state began to evacuate Jewish settlements in the name of peace, however, Levanon believed that God was sending a message that things had changed. The state was no longer balanced; it had fallen to the “liberal-labor” camp. As a result, religious Zionists had to adopt a different policy; they had to take total control: “No more integration—only leadership.”33 Levanon called on his community to “establish systems that will slowly but surely replace those of the state.”34 In particular, he called for the religious takeover of the education system and the judicial system. The judicial system “has already reached the heights of absurdity,” he claimed. “This system simply constitutes an attack on all the sanctity of Israel, an attack on the Land of Israel.”35 In response, he called for religious Zionists “to establish, slowly but surely, a parallel system of rabbinical courts that judge fairly and justly.”36 He believed that this rabbinical judicial system, parallel to that of the state, would attract the general public and pave the way for the establishment of a halakhic state.
Levanon adhered to the principle of the halakhic state developed by religious Zionist rabbis of the state’s first decades, but renounced their attitude of compromise that held it in check. The more a willingness to compromise is abandoned, the more fanatical and intransigent the idea of the halakhic state becomes. This effect can be seen in the writing of Shmuel Tal. Tal was the head of a yeshiva situated in the Gaza Strip, which was relocated after the Israeli disengagement from Gaza in 2005.37 In response to the disengagement, Tal said, religious Zionists should “disengage from the state.”38 In a controversial interview, he declared that religious Zionists should no longer pray for the welfare of the state, or celebrate Israel’s Independence Day.
. . . [I]t has become evident to us, in the clearest possible way, that the leadership, both as a whole and in all its parts—the government, the press, the judiciary, academia, and culture—is a kingdom that defies God’s kingship. These two kingdoms [the kingdom of God and the State of Israel] are entirely incompatible. We must decide: is God the ruler, or, heaven forfend, the kingdom that is alienated from Him and that fights against everything that is sacred and dear to Him?39
For Tal, Israel’s territorial disengagement meant that the age of compromise was over. The state was at war with God’s rule. Although Tal’s suggestion to abandon the celebration of Independence Day was not widely followed, his basic despair in the direction of the state was perhaps more representative.
A yet more extreme version of this position is held by Yitzchak Ginsburgh. A rabbi affiliated with the Hasidic Chabad movement, Ginsburgh is influential among many fundamentalist religious Zionists. Ginsburgh founded an organization, “The Way of Life Movement” (Tenu’at derekh hayim), whose purpose is to replace Israel with “a Jewish state according to the Torah.”40 Unlike Bar-Ilan, Herzog, Yisraeli, and others before him, however, Ginsburgh lacks a moderating impulse. For him, Zionism has run its course and the State of Israel needs to be wiped away and replaced by a halakhic state. In 2005, at the height of the religious resistance to the Gaza disengagement, Ginsburgh delivered a Sabbath lecture in which he said that “we must uproot the Zionist spirit.” He continued: “We must destroy the [Supreme] Court. . . . We must eliminate the Government, whether it is left-wing or right-wing. We must overthrow the Government, and when a new Government arises, we must overthrow it too, and so on and so forth, until the rule of Torah is established in the Land.”41 Ginsburgh’s battle cry is like a distorted version of religious Zionist ideology of earlier years. In his call for a “state according to the Torah,” it is easy to recognize the echo of Herzog and other religious Zionists of his generation but the spirit of compromise that softened the ideology of the previous generations has given way to fundamentalist intransigence.
In searching for the causes of religious-secular conflict in Israel, then, political developments since the late 1970s and the ascendency of the settlement movement should not be given exclusive attention. The conflict has been exacerbated by these developments but its genesis was much earlier. The ambivalence of religious Zionist rabbinical leaders to Israel’s civil court system, their support for a centralized system of rabbinical courts, and the recent proliferation of organizations whose goal is to make halakha into the civil law of the state, all flow directly from the legal philosophy that religious Zionists began to promote in the late 1940s.
If this diagnosis is correct, can anything be done? Is it reasonable or realistic to expect anything other than conflict and confrontation between two mutually exclusive legal outlooks, one rooted in the will of the people, the other in the will of God? It is almost a contradiction in terms to expect the state to renounce its claim to legal supremacy. In the words of the anthropologist of religion Talal Asad, “the modern state describes itself as the law state. Law is central to how it sees its structures and processes.”42 At the same time, halakha is also perceived by many as a total law, given by God, which governs every aspect of Jewish life. By this definition, it seems no more reasonable to expect Orthodox jurists to relinquish the claim of halakha to legal supremacy than to expect secular jurists to relinquish the claim of the state to legal supremacy. So, is the conflict between mutually exclusive claims to legal supremacy inevitable, or do strategies exist that might ease the tension between them?
Some argue that halakha should abdicate any role in Israel’s political and legal life and recede into the private sphere. To be sure, religious coercion and any discriminatory elements of halakha should have no place in Israel’s public life, but the view that any reference to halakha must be banished comprehensively from the public square is problematic for several reasons. First, it is unrealistic. It is a secularist fantasy to imagine that the large number of Israeli Jews for whom halakha is of paramount importance will accept the elimination of their central beliefs from public discourse. Second, notwithstanding the position of orthodox liberal political philosophy that “comprehensive doctrines” like the metaphysical axioms of religious groups should be kept out of political discourse, critics have persuasively argued that it is both unfair and unrealistic to ask people to keep their most deeply held convictions out of public debate altogether.43 Third, attempts to separate between “religion” and “state” tend to be incoherent, or even paradoxical, on a theoretical level. Such attempts necessarily require the state to make its own inevitably controversial assessments of what counts as “religious” and what does not, thereby interfering in religious life and undermining the “separation” that is their very objective.44
More than these problems, though, the view that halakha should be entirely banished from Israel’s public life ignores the potential of religious traditions at their best to enhance the public good and to provide a source of legitimate and necessary critique of modern states. Modern states are imperfect and the State of Israel is certainly no exception. Religion can, of course, intensify violence and injustice. The prophetic mode of politics can be extremely dangerous. But it also has the capacity to act as a corrective to ethical limitations of state power.45 Religious voices have, at key moments of history, brought a voice of “moral grandeur and spiritual audacity” to the realm of power and politics.46 Religious rhetoric can divide society and incite hatred but it can also offer resistance against the total claims of the state, inspire the pursuit of justice, and encourage social unity.47 The problem with much religious Zionist legal ideology is not the fact that it resists the state, but the nature of that resistance and the actions through which it is sometimes expressed. Rather than shining a critical light on the state’s tools of power and coercion, religious Zionist thinkers too often simply aspire to co-opt them for their own ends.
Other religious Zionist voices exist, however. Religious Zionism is no monolith and, since the beginning of the state period, there have been thinkers within that community who offer a constructive critique of the State of Israel without attempting to appropriate its authority. These thinkers, typically outliers, insist that Jewish theology can act as a moral check on the instrumental rationality of liberal capitalism and on the coercive violence that inescapably accompanies modern statehood. Yeshayahu Leibowitz, for example, an Orthodox Jewish scientist who was one of Israel’s most outspoken intellectuals, condemned the attribution of any religious value to the state. He endorsed the state as a political tool, but rejected the position of Abraham Isaac Kook that the Jewish state is the “foundation of God’s seat in the world.”48 For Leibowitz, the role of religion in the state should always be one of opposition. He put it as follows:
It is very important that in the framework of any well-ordered state . . . there is an opposition within it, a power that acts as a brake against the government. And I think that if religion has any political function . . . then perhaps this is its function: To be the fundamental opposition to the government qua government. [To tell the government:] you are not the highest authority.49
Leibowitz did not want religious authority to take the place of the state apparatus. Nor did he think religious tradition should be used to formulate specific laws or policies. He wanted religion to have a symbolic function in politics. It would represent a moral authority beyond and above the state. Taking this authority seriously, he believed, would generate a humility in governmental politics that might counteract the state’s propensity to expand its power.
A similar position was laid out more recently by the Israeli political philosopher Menachem Lorberbaum. Lorberbaum also thinks that theology can play the role of an external critic of the state:
It is the task of a theological critique of the political to constantly call our attention to the tendency of states to elide the saeculum and to render metaphorical reifications absolute and sacral. . . . By attenuating the grounding of human structures of rule it makes the excluded, “the sojourner, the widow, and the orphan,” visible, thus contributing to the circumstances of justice and charity.50
Here, Lorberbaum points out that states have a dangerous tendency to bolster their authority by appealing to religious metaphors. This tendency, he suggests, can be checked by refusing to allow the state to commandeer concepts like the sacred, thereby preserving the power of these concepts to protect the vulnerable and to spread justice.51 In this understanding, God’s sovereignty essentially undermines the claim of the state to supremacy and rejects its use of religious symbols and myths in the service of its own apotheosis.52
The reconstruction of the genealogy of the halakhic state supports the work of those who question halakhic supremacy on the basis of sources from within the Jewish tradition. The key to this effort is the recovery of the legacy of Jewish legal pluralism. Religious Zionist thinkers interested in this approach have already recognized the appeal of legal pluralism (though generally without using that terminology) as the basis for a legal philosophy that resists the hubris of the idea of the halakhic state but remains open to the possibility that traditional Jewish thought might be applied to contemporary politics in other ways.
An early example of this use of legal pluralism was Eliezer Goldman, a committed religious Zionist who was a leading intellectual of the religious kibbutz movement.53 One arena in which Goldman explored the idea was in his review of Jewish Theocracy, a book by Gershon Weiler, who was one of the Israeli thinkers most critical of the encroachment of the idea of the halakhic state on Israeli politics and law.54 Goldman recognized that the problem for Weiler was the belief that “halakha and the law of the state are two systems of norms, each of which claims supremacy.”55 But Goldman rejected Weiler’s premise. He argued that halakha does not need to be a “totalitarian” system that is necessarily opposed to the state.56 Goldman showed how halakha had historically recognized the legitimacy of non-halakhic legal orders, including the legislation of the king, of rabbis, of Jewish lay leaders, and of Gentile governments. His position is reminiscent of the legal pluralism of early religious Zionists, and of the interpretative strategies of people like Shaul Yisraeli. Goldman was unusual among religious Zionists in his continued endorsement of Jewish legal pluralism as an ideal even after the foundation of Israel. He demonstrated that the pluralistic strand in the history of halakha undercuts the claim that halakha demands supreme authority in a modern Jewish state.57
The Jewish historian and philosopher Aviezer Ravitzky has also argued compellingly that a Jewish theocracy, a state in which halakha alone can rule, is something that the religious sources of Judaism neither require nor condone.58 Drawing on sources like the Eleventh Sermon of the Ran, he noted that halakhic thinkers have always assumed that even an ideal Jewish state “is intended to encompass a [human] governmental and legal system that deviates from ‘the law of the Torah.’ ”59 Elsewhere, Ravitzky proposed four models of the relationship between religion and politics that are attested in the Jewish tradition.60 One of them, which he called, “mutual completion,” is a model of legal pluralism in traditional Jewish jurisprudence.
Menachem Lorberbaum himself has also made a significant contribution to the resurrection of the tradition of legal pluralism in Jewish jurisprudence in his analysis of the “limits of law” in the halakhic tradition.61 Lorberbaum’s work goes further than Ravitzky’s in some respects. Although Ravitzky held up the Ran as an example of a Jewish legal pluralist, he presented Maimonides, the greatest of medieval Jewish thinkers, as an advocate for a “unifying model” of religion and state.62 By contrast, Lorberbaum argued that even Maimonides did not imagine halakha as an exclusive legal system. Lorberbaum’s reading helps to explain why Maimonides acknowledged the extra-halakhic authority of the king:
The breadth of extralegal authority [that Maimonides] accords the king is so wide it is more than merely an auxiliary mechanism intended to support the halakhic hegemony. The king’s power to command on pain of death, to tax, to conscript, and to regulate political life by his decrees makes the king’s law a system that fully encompasses the political life of society.63
Lorberbaum’s interpretation of Maimonides shows that even those committed to a Maimonidean position need not pursue the ideal of the halakhic state. Maimonides himself recognized an entire realm of legal and political authority that is independent of halakha.
Yedidia Stern, an Israeli legal scholar and fellow of the Israel Democracy Institute, has brought this line of inquiry to bear more directly on contemporary Israeli society. Stern thinks that a fundamental source of the antagonism in Israeli society is the competition for supremacy between religious and secular legal systems. He writes that, in the eyes of their adherents, these two systems “entertain the idea of the totality of their scope in the regulation of reality, and both—at least on the rhetorical level—hold themselves to be exclusive in this regard.” He calls this a position of “normative duality,” in which the two systems are understood to be “mutually hostile.” This outlook “brings into sharp focus the confrontation over Israel’s cultural profile and over the identity of Jewish society in Israel.”64 Stern goes on to show that this perception of the mutual exclusivity of halakha and the secular state can be challenged by the history of Jewish legal pluralism. An understanding of this history, he believes, may help to ameliorate some of these tensions by showing that the Jewish tradition itself contains alternative views of the relationship between halakha and other kinds of law.
It is hard to predict how successful thinkers like Ravitzky, Lorberbaum, and Stern are likely to be in their attempts to reintroduce legal pluralism into religious Zionist discourse. But, given the entrenched place of the halakhic state in religious Zionist ideology, and given the fact that religious Zionists have more political power today than at any time in the past, it is difficult to imagine that the prevailing ideology will be easily abandoned. What is more, legal pluralism is not a panacea. Even some scholars who accept the descriptive power of legal pluralism as a theory consider it too vague and unstructured to be of practical utility or to manage social conflict effectively.65 Furthermore, some liberal thinkers are wary of the possible unintended consequences of applying a strong version of legal pluralism in the modern state. They are concerned that promoting the independent legal authority of some non-state groups, especially those that do not recognize liberal rights, may threaten the well-being of individuals within those groups. Some women, for example, may find themselves vulnerable if the state is not willing to intervene in the autonomous governance of religious communities when the rights of individuals are compromised under religious law.66
The possible shortcomings of legal pluralism as an applied system, however, do not diminish its value as a critique of ideologies of legal supremacy, whether those of the state or those of religious Zionists. In this sense, the renewed interest in legal pluralism by some contemporary religious Zionist thinkers is a welcome development. A dramatic shift in religious Zionist legal thinking is unlikely in the short term but, given the extent to which ideologies of legal centralism underlie many of the social tensions in Israel today, voices critical of those ideologies should be promoted. If the historical revelations presented in this book can contribute to that effort, so much the better.
The history of the halakhic state also has consequences far beyond the specific case of modern Israel. One of the greatest political questions today is how states should navigate the relationship between religion and law. It is often thought that this question comes down to the simple choice of “separation of church and state” on the one hand or “religious establishment” on the other. In the popular imagination, this choice sets up a dichotomy between theocratic states on the one hand, in which the constitution is based on religious principles, and liberal states on the other, in which religion is confined to the private sphere. Some claim that only theocratic politics can save us from the social crises and moral perversions of the modern world. Others insist that theocracies are incompatible with democracy, that they inevitably oppress dissenters, and that only a secular state can provide a neutral and rational politics that will protect the rights of individuals.
In recent years, the neatness of this dichotomy has been deconstructed by scholars of religion and of political thought. They have pointed out that the model of separation emerged from, and remains intertwined with, the history of Protestant Christianity. John Locke’s contrast between religion as a matter of “faith” and civil government as a matter of “laws” is underpinned by Martin Luther’s doctrine that man is saved “by faith alone.”67 Similarly, Thomas Jefferson’s call for a “wall of eternal separation between Church & State” rested on a long history of Puritan theology. Already in 1644, the Puritan minister Roger Williams had warned against making any “gap in the hedge, or wall of separation, between the garden of the Church and the wilderness of the world.”68 This Protestant conception of religion, though, is alien to traditions in which sacrament, ritual, and other communal means of belonging are no less significant than dogma. It is doubtful whether a clean separation between church and state is possible even in places with a Protestant history. In places like Israel (and countless other countries), where the Protestant legacy of religion as faith alone is quite foreign, separation is unlikely to be successful.
By the same token, it is impossible to attain a pure religious constitution. Those who want to escape the corrupting effects of modernity by establishing pure theocracies are chasing a phantasm. There is no such thing as an authentic core of a religious tradition that can be distinguished from external influences. Religious societies, like all societies, have porous boundaries. They are always in flux, endlessly negotiating their engagement with other people and ideas. Religion today cannot be immune from adulterations of modernity. It is therefore a fool’s errand to try to impose either side of the separation/establishment dichotomy. Secular law and religion are always intertwined.69
Recent works have analyzed the complex relationships between the amorphous categories of religion, politics, and law in countries where Christianity, Buddhism, Islam, or other religions are dominant.70 Jewish examples, though, are rarely discussed, perhaps in part because a halakhic state has never existed in fact. This book examines such a state, as it was imagined by religious Zionists. It shows how difficult it is to make an easy distinction between religious and secular, traditional and modern. Even the most uncompromising positions of religious Zionists, which unapologetically called for a Jewish theocracy, drew from the language and structures of modern European law. Conversely, many religious Zionists who endorsed the legal recognition of secular law did so not as a pragmatic concession to the modern state, but as a principled religious position drawing on a long history of Jewish legal pluralism.
These unexpected dynamics underline the fact that there is no simple, universal solution to the ordering of religion law and politics in Israel or anywhere else. There is no single formula that guarantees both the rights of individuals and the integrity of historical communities; that preserves the freedom of religion without regulating religion; that ensures an open and inclusive democratic society while defining where that society begins and ends. Balancing between these competing concerns requires constant and imperfect negotiation. To acknowledge these complexities, however, does not absolve us of responsibility. We persist in the collective goal of pushing our societies to deal with these issues ever more mindfully, toiling slowly, messily in the direction of equality, justice, and truth.71