The following abbreviations are used in the notes:
| ISA | Israel State Archives |
| RZA-MRK | Religious Zionist Archives, Mosad Ha-Rav Kook, Jerusalem |
| RZA-BI | Religious Zionist Archives, Bar-Ilan University Library |
1.Yair Ettinger, “Ne’eman: Yesh la-hafokh et ha-halakhah la-hoq ha-mehayev ba-medinah,” Haaretz, December 7, 2009. All translations are my own, unless noted otherwise.
2.This criticism was made at the time by Haim Oron, the chairman of the Meretz party. Yair Ettinger, “Se’arah ba-ma’arekhet ha-politit be-ikvot devarav shel sar ha-mishpatim, ya’aqov ne’eman,” Haaretz, December 8, 2009.
3.Yair Ettinger, “Justice Minister: Rabbinical Courts Should Support, Not Replace Civil Courts,” Haaretz, August 12, 2009.
4.This event is reported in the memoirs of Isaac Herzog’s son, Chaim, who served as President of the State of Israel from 1983 to 1993. Chaim Herzog, Living History: A Memoir (New York: Pantheon Books, 1996), 12. See also Dermot Keogh, Jews in Twentieth Century Ireland: Refugees, Anti-Semitism and the Holocaust (Cork, Ireland: Cork University Press, 1998), 77.
5.On the relationship between the two men, see Shulamit Eliash, The Harp and the Shield of David: Ireland, Zionism and the State of Israel, Israeli History, Politics and Society 48 (Abingdon, Oxon: Routledge, 2007), 50 ff.
6.For the broader relationship between Zionism and Irish nationalism, see Aidan Beatty, “Zionism and Irish Nationalism: Ideology and Identity on the Borders of Europe,” Journal of Imperial and Commonwealth History 45, no. 2 (March 4, 2017): 315–38.
7.A terminological note: In this book, I use “Palestine” to refer to the British Mandate for Palestine before its termination in 1948 and “Israel” or “the State of Israel” to refer to the state after its establishment. I occasionally use “Jewish state” to refer to the idea of a Jewish state in the abstract. This term is not intended as a synonym for “the State of Israel” per se. I generally employ it to describe the state that Zionists were planning to establish before its name had been decided. On the revolutionary nature of Zionism, see David Vital, “Zionism as Revolution? Zionism as Rebellion?” Modern Judaism 18, no. 3 (October 1, 1998): 205–15.
8.The political-theological aspect of secular Zionism does not negate this general point. See, for example, Shmuel Almog, Jehuda Reinharz, and Anita Shapira, eds., Zionism and Religion, Tauber Institute for the Study of European Jewry 30 (Hanover, NH, and London: University Press of New England, 1998), especially pp. 237 ff.; Yael Zerubavel, Recovered Roots: Collective Memory and the Making of Israeli National Tradition (Chicago: University of Chicago Press, 1995); David Ohana, Nationalizing Judaism: Zionism as a Theological Ideology (Lanham, MD: Lexington Books, 2017).
9.On Zionism as a “secular revolution” in the context of nationalist movements globally, see Michael Walzer, The Paradox of Liberation: Secular Revolutions and Religious Counterrevolutions (New Haven, CT: Yale University Press, 2015), xii.
10.Although they have been represented in every Knesset, religious Jewish parties combined have rarely received more than 15 percent of the vote.
11.Rachel Rafael Neis, “The Seduction of Law: Rethinking Legal Studies in Jewish Studies.” Jewish Quarterly Review 109, no. 1 (Winter 2019): 119–38.
12.Before the establishment of the Chief Rabbinate in Mandate Palestine and the enforcement of new procedural rules, there are almost no examples of an appellate process in Jewish law. For very rare exceptions to this rule, see Simhah Assaf, Batei ha-din ve-sidrehem aharei hatimat ha-Talmud (Jerusalem: Defus Ha-po’alim, 1924).
13.The phrase comes from the writings of Herzog’s colleague and senior religious Zionist rabbi, Meir Bar-Ilan. Meir Bar-Ilan, “Hoq u-mishpat be-medinatenu,” in Ha-mishpat ha-ivri u-medinat yisra’el, ed. Yaakov Bazaq (Jerusalem: Mosad Ha-rav Kook, 1969), 22.
14.It has been well established that Jewish Orthodoxy should be seen as a modern expression of Judaism rather than a holdout of premodern society. In a sense, the transformation of Orthodox law in an independent Jewish state is another example of that phenomenon. Among many studies, see Jacob Katz, A House Divided: Orthodoxy and Schism in Nineteenth-Century Central European Jewry (Hanover, NH: Brandeis University Press, 1998); Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,” Tradition: A Journal of Orthodox Jewish Thought 28, no. 4 (1994): 64–130; David Ellenson, After Emancipation: Jewish Religious Responses to Modernity (Cincinnati, OH: Hebrew Union College Press, 2004); Leora Batnitzky, How Judaism Became a Religion: An Introduction to Modern Jewish Thought (Princeton, NJ: Princeton University Press, 2011). For a contemporary case study, see David N. Myers and Nomi Stolzenberg, “Rethinking Secularization Theory: The Case of the Hasidic Public Square,” AJS Perspectives, Spring 2011: 37–8.
15.Eliezer Don-Yehiya, “Stability and Change in a Political Party: The NRP and the ‘Young Guard’ Revolution,” Medinah mimshal ve-yahasim ben-le’umi’im 14 (1980): 26.
16.For an overview of the varieties of religious Zionism, see Dov Schwartz, Religious-Zionism: History and Ideology (Boston: Academic Studies Press, 2009). On religious Zionist theology, see Dov Schwartz, Faith at the Crossroads: A Theological Profile of Religious Zionism (Leiden; Boston: Brill, 2002).
17.Ehud Luz, Parallels Meet: Religion and Nationalism in the Early Zionist Movement (1882–1904) (Philadelphia: Jewish Publication Society, 1988).
18.Schwartz, Religious-Zionism, vii.
19.The phrase “sacred rebellion” (ha-mered ha-qadosh) was coined by Shmuel Haim Landau, a religious Zionist leader of Hasidic descent. See Haya Frumer, ed., Shahal: Holem ve-lohem (Jerusalem: Erez, 2008). Key texts by Landau were collected in Shmuel Hayim Landau, Kitve Sh. H. Landau (Jerusalem: Ha-tenu’ah ha-olamit shel ha-mizrahi-ha-po’el ha-mizrahi, “yad shapira,” mif’al hantsahah le-zikhro shel H M Shapira, 1984).
20.Aviezer Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism (Chicago: University of Chicago Press, 1996); Menachem Friedman, “The State of Israel as a Theological Dilemma,” in The Israeli State and Society: Boundaries and Frontiers, ed. Baruch Kimmerling (Albany: SUNY Press, 1989), 165–215.
21.Despite the claim by some that Shai Agnon wrote the prayer, it has been demonstrated that the true author was Herzog. Yoel Rafel, “Zehuto shel mehaber ha-tefilah li-shlom ha-medinah,” in Masu’ah le-yitshaq, ed. Shulamit Eliash, Itamar Warhaftig, and Uri Desberg, 2 vols. (Jerusalem: Yad Ha-rav Herzog; Mekhon Ha-entsiklopediah Ha-talmudit; Mekhon Ha-talmud Ha-yisre’eli Ha-shalem, 2008), 1:594–620.
22.Whether Reines genuinely saw Zionism as a political solution rather than a movement of messianic import is a matter for debate. In Messianism, Zionism, and Jewish Religious Radicalism, 32 ff. Ravitzky argues that Reines was interested principally in the physical safety of persecuted Jews, whereas Schwartz claims that Reines esoterically encoded his apocalyptic beliefs in his political writing. Schwartz, Religious-Zionism, 13–15.
23.Quoted in Dov Schwartz, Faith at the Crossroads, 165.
25.Quoted in Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism, 113.
26.Not all secular Zionists appreciated this position. See ibid., 115. Amos Oz, a secular Zionist writer, put it this way: “Zionism began among people who rebelled against the dominion of religious law, refused to live in accordance with it. . . . You can adopt a patronizing, insulting interpretation in which the early pioneers thought they were acting from an idealistic world view but were really no more than an instrument of God and that the holy sparks flew out of their secular, socialist ‘shell’ without their intending it. This is trampling the spiritual autonomy of others, and it has always made me feel insulted and bitter.” Amos Oz, In the Land of Israel (Orlando, FL: Houghton Mifflin Harcourt, 1993), 149.
27.Shlomo Zalman Shragai, “Hazon mizrahi u-matarato,” in Mizrahi: Qovets yovel le-melot k”h shanah le-qiyumah shel histadrut ha-mizrahi be-ameriqah (5671–5796), ed. Pinchas Churgin and Aryeh Leib Gelman (New York: s.n., 1936), 69.
28.For more on the Religious Kibbutz Movement, see Aryei Fishman, Judaism and Modernization on the Religious Kibbutz (Cambridge: Cambridge University Press, 1992).
29.On Kook’s circle, see Dov Schwartz, Etgar u-mashber be-hug ha-rav kook, 224 (Tel Aviv: Am Oved, 2001).
30.Dov Schwartz, “Ideas vs. Reality: Multiculturalism and Religious-Zionism,” in The Multicultural Challenge in Israel, ed. Avi Sagi and Ohad Nachtomy, Israel (Boston: Academic Studies Press, 2009), 200–225; Shlomo Fischer, “Fundamentalist or Romantic Nationalist: Israeli Modern Orthodoxy,” in Dynamic Jewish Belonging, ed. Harvey Goldberg, Steven Cohen, and Ezra Kopelowitz (New York; Oxford: Berghahn Books, 2012), 91–111. A recent survey of the beliefs and practices of religious Zionists carried out by Bet Hillel, an organization of Israeli Jewish religious leaders, demonstrates the diversity of the religious Zionist community. Accessed October 12, 2019, https://eng.beithillel.org.il/docs/beit-hillel-religious-zionism-survey-2014.pdf.
31.Tamar Hermann et al., “Dati’im? Le’umi’im!—Ha-mahaneh ha-dati le’umi” (Jerusalem: Israel Democracy Institute, 2014). The survey discussed those identifying as dati le’umi, which is a term roughly equivalent to, though not identical with, religious Zionism.
32.“This data expresses, in our opinion, the advancement of this camp into the center of the social stage in Israel and its transformation into a focus for an attitude of identity and values above and beyond the Orthodox halakhic way of life.” Hermann et al., “Dati’im? Le’umi’im!,” 2. This data needs further analysis, especially given the complexity attending the concept of “identity.” Rawi Abdelal et al., “Identity as a Variable,” Perspectives on Politics 4, no. 4 (2006): 695–711.
33.The term “wall of separation between church and state” was coined by Thomas Jefferson in his 1802 letter to the Danbury Baptist Association. It was first used by the Supreme Court in Reynolds v. United States (1878). It was not until the late 1940s, however, that it became a real touchstone of American jurisprudence. Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2009), especially Part IV.
34.Pinhas Kohn [=Leo Kohn], “The State of Israel: Draft Constitution,” March 5708, G-542524 43.06/2941, ISA. The constitutional draft bears the Hebrew date of Marheshvan 5708, the month on the Jewish calendar that fell between mid-October and mid-November 1947. Other drafts were presented to the Provisional State Council Constitution Committee but Kohn’s was officially accepted as the basis for the committee’s deliberations. Amihai Radzyner, “A Constitution for Israel: The Design of the Leo Kohn Proposal, 1948,” Israel Studies 15, no. 1 (2010): 2.
35.Kohn, “The State of Israel: Draft Constitution,” 1.
36.Kohn, “The State of Israel: Draft Constitution,” 2, 1.2, 1.4.
37.Quoted in Radzyner, “A Constitution for Israel, 7. Warhaftig’s observation is complicated by the fact that Kohn himself identified as a religious Zionist. Kohn’s constitutional writing, however, was shaped more by his academic scholarship than by his religious convictions.
38.Quoted in Arthur Hertzberg, The Zionist Idea: A Historical Analysis and Reader (Philadelphia: Jewish Publication Society, 1997), 550.
39.John Locke, A Letter Concerning Toleration and Other Writings, ed. Mark Goldie (Indianapolis, IN: Liberty Fund, 2010), 12.
40.Quoted in Michael Stanislawski, Zionism and the fin de siècle: Cosmopolitanism and Nationalism from Nordau to Jabotinsky (Berkeley: University of California Press, 2001), 19–20.
41.Although he was a deist, Ben-Gurion was opposed to traditional Jewish law halakha. Zvi Tsameret, “Judaism in Israel: Ben-Gurion’s Private Beliefs and Public Policy,” Israel Studies 4, no. 2 (1999): 64–89; Anita Shapira, Ben-Gurion: Father of Modern Israel (New Haven, CT: Yale University Press, 2014), 192–93.
42.Charles S. Liebman and Eliezer Don-Yehiya, Civil Religion in Israel: Traditional Judaism and Political Culture in the Jewish State (Berkeley: University of California Press, 1983), 90.
43.On the belief that all Jews would return to halakhic practice, and on some resistance to it, see Asher Cohen, Ha-talit veha-degel: Ha-tsiyonut ha-datit ve-hazon medinat ha-torah bi-yeme reshit ha-medinah (Jerusalem: Yad Yitshak Ben-Tsvi, 1998), chap. 7.
44.Menachem Friedman, Hevrah va-dat: Ha-ortodoksiyah ha-lo-tsionit be-erets yisra’el, 1918–1936, Sifriyah le-toldot ha-yishuv ha-yehudi be-erets yisra’el (Jerusalem: Yad Yitshak Ben-Tvi, 1977), 146–84; Zvi Zohar, “Traditional Flexibility and Modern Strictness: Two Halakhic Positions on Women’s Suffrage,” in Sephardi and Middle Eastern Jewries: History and Culture in the Modern Era, ed. Harvey E. Goldberg (Bloomington: Indiana University Press, 1996), 119–33.
45.United Nations General Assembly Resolution 181 2.2.
46.This is a common understanding of sovereignty, following the tradition of Thomas Hobbes. The term has also been used in other ways. Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995); Quentin Skinner, “The Sovereign State: A Genealogy,” in Sovereignty in Fragments: The Past, Present and Future of a Contested Concept, ed. Hent Kalmo and Quentin Skinner (Cambridge: Cambridge University Press, 2010), 26–46.
47.J. Griffiths, “What Is Legal Pluralism?” Journal of Legal Pluralism and Unofficial Law 18, no. 24 (1986): 1–55, 3.
48.This definition follows Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22, no. 5 (1988): 870.
49.Griffiths, “What Is Legal Pluralism?” 39.
50.This is the position of Griffiths, for example, who posits that “legal pluralism is the fact. Legal centralism is myth, an idea, a claim, an illusion.” Ibid., 4.
51.For a description of this state of affairs, see Brian Z. Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global,” Sydney Law Review 30 (2007): 377.
52.Lauren Benton, “Historical Perspectives on Legal Pluralism,” Hague Journal of the Rule of Law 3, no. 1 (March 2011): 57–69.
53.Assaf Likhovski, “The Ottoman Legacy of Israeli Law,” Annales de la Faculté de droit d’Istanbul 39 (2007): 71–86; Iris Agmon, Family and Court: Legal Culture and Modernity in Late Ottoman Palestine (Syracuse, NY: Syracuse University Press, 2006).
54.Assaf Likhovski, Law and Identity in Mandate Palestine (Chapel Hill: University of North Carolina Press, 2006); Assaf Likhovski, “Between Mandate and State: On the Periodization of Israeli Legal History,” Journal of Israeli History 19, no. 2 (1998): 39–68.
55.Kohn’s draft constitution, for example, at 5.70(5), laid out that among the state’s courts would be “[r]eligious courts of the Jewish community, the Muslim community and the Christian community, which will judge matters of personal status and religious endowments.”
56.Herzog included this comment in a speech in the Great Synagogue in Jerusalem at the end of July 1948, later published in the religious newspaper Ha-tsofeh, 25 Tammuz 5708 and quoted in Itamar Warhaftig, “Mavo,” in Tehuqah le-yisra’el al pi ha-torah, ed. Itamar Warhaftig (Jerusalem: Mosad Ha-rav Kook; Yad Ha-rav Herzog, 1989), 1:28 fn. 11.
57.Derek J. Penslar, “Zionism, Colonialism and Postcolonialism,” Journal of Israeli History 20, nos. 2–3 (June 2001): 85. For an updated version of that article, and a discussion by other scholars, see Ethan B. Katz, Lisa Moses Leff, and Maud S. Mandel, eds., Colonialism and the Jews (Bloomfield: Indiana University Press, 2017).
58.See, for example, Amnon Rubinstein, The Zionist Dream Revisited: From Herzl to Gush Emunim and Back (New York: Schocken Books, 1984), 47. Others place less emphasis on universalism in religious Zionist politics, but still maintain that pragmatism outweighed ideology in religious Zionist politics between 1948 and the rise of Gush Emunim. See, for example, Cohen, Ha-talit veha-degel, chap. 6.
59.Before 1977, the Allon Plan, which proposed Jewish Israeli settlements in strategic locations, in particular along the Jordan Valley, implicitly guided government policy, even though it was never officially endorsed by the Labor-led government. Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict, 1881–1998 (New York: Vintage, 2001), 328. After the accession of Prime Minister Begin in 1977, governmental support for the settlements continued.
60.Anita Shapira, Israel: A History (Hanover, NH: University Press of New England, 2012), chap. 14.
61.David K. Shipler, “Israelis Assess Role of Religion,” New York Times, October 26, 1981; Shulamit Aloni, Ha-hesder: Mi-medinat hoq le-medinat halakhah (Tel Aviv, 1970), 37.
62.Other scholars have placed less emphasis on 1967 as a turning point and have pointed to a certain continuity in the development of religious Zionism. Gideon Aran has argued that the ideological position of the settler movement was formulated among young religious Zionists as early as the 1950s. Specifically, he discusses the importance of the Gahelet group of the 1950s in laying the groundwork for Gush Emunim. Gideon Aran, “From Religious Zionism to Zionist Religion: The Roots of Gush Emunim,” in The Challenge of Modernity and Jewish Orthodoxy, ed. Peter Medding, Studies in Contemporary Jewry 2 (Bloomington: Indiana University Press, 1986), 116–43; Gideon Aran, “Bein halutsi’ut le-limud torah: Ha-reqa le-ge’ut ha-datit le-umit,” in Me’ah shenot tsiyonut datit, ed. Avi Sagi and Dov Schwartz, 3 vols. (Ramat Gan, Israel: Bar-Ilan University, 2003), 3:31–72. This position is disputed in Avi Sagi and Dov Schwartz, “Bein halutsi’ut le-limud torah: Zavit aheret,” in Me’ah shenot tsiyonut datit, ed. Sagi and Schwartz, 3:73–75. Aran also, though, identifies the significance of 1967 in the development of the movement’s mythology. Gideon Aran, “A Mystic-Messianic Interpretation of Modern Israeli History: The Six Day War as a Key Event in the Development of the Original Religious Culture of Gush Emunim,” in The Jews and the European Crisis, 1914–1921, ed. Jonathan Frankel, Peter Y. Medding, and Ezra Mendelsohn, Studies in Contemporary Jewry 4 (New York: Oxford University Press, 1988), 263–75. Aran’s most recent and comprehensive treatment of the subject is Gideon Aran, Quqism: Shorshei gush emunim, tarbut ha-mitnahalim, te’ologiah tsi’onit, meshihi’ut bi-zmanenu (Jerusalem: Carmel Publishers, 2013). Others have identified elements of intellectual and spiritual continuity between Gush Emunim and strands in the thinking of Abraham Isaac Kook, whose more moderate aspects were jettisoned by some of his spiritual heirs. See Schwartz, Etgar u-mashber. For an extended study of the ideological development of Kook’s students, see Yehudah Mirsky, Rav Kook: Mystic in a Time of Revolution (New Haven, CT: Yale University Press, 2014), especially the conclusion.
63.Moshe Hellinger and Itzhak Hershkovits, Tsiut ve-i-tsiut be-tsionut ha-datit: Mi-gush emunim ve-ad tag mehir (Jerusalem: Israel Democracy Institute, 2015).
64.This widely reported comment was allegedly made by Netanyahu to Yaakov Vider, an Ultra-Orthodox member of Netanyahu’s Likud party, in connection with discussions over a proposed Basic Law regarding the Jewish identity of the State of Israel. Ari Yashar, “Report: Netanyahu Promises Talmud Will Be Israeli Law,” Arutz Sheva Israel National News, September 5, 2014; Marissa Newman, “Netanyahu Reported to Say Legal System Based on Talmud,” Times of Israel, August 5, 2014.
65.Works such as José Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994) and Peter L. Berger, The Desecularization of the World: Resurgent Religion and World Politics (Grand Rapids, MI: W. E. Eerdmans, 1999) have criticized secularization theory on an empirical basis, by pointing to the continued centrality of religion in contemporary society. They advocate the decoupling of the concepts of modernity and secularization. Others have complicated the definition of “religion” and have thereby observed religious vitality in previously under-examined corners of society. Hubert Knoblauch, “Spirituality and Popular Religion in Europe,” Social Compass 55, no. 2 (2008): 140–53. Still others have pointed to the centrality of religious ideas in the creation of modernity, arguing in different ways that religion underpins the modern age, or at least helped to lay its foundations. Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003); Charles Taylor, A Secular Age (Cambridge, MA.: Belknap Press of Harvard University Press, 2007).
66.Mark Lilla, The Stillborn God: Religion, Politics, and the Modern West, reprint edition (New York: Vintage, 2008), 55 ff.
67.José Casanova, “The Secular, Secularizations, Secularisms,” in Rethinking Secularism, ed. Craig Calhoun, Mark Juergensmeyer, and Jonathan VanAntwerpen (New York: Oxford University Press, 2011), 54–74.
68.One of the most influential claims that Western Christianity is distinctive in this respect is Samuel P. Huntingdon, The Clash of Civilizations and the Remaking of the World Order (New York: Simon and Schuster, 1996). Huntingdon’s articulation has been the focus of significant debate. For a critique, see, for example, Alfred C. Stepan, “Religion, Democracy, and the ‘Twin Tolerations,’” Journal of Democracy 11, no. 4 (2000): 37–57.
70.The term “immanent frame” is from Taylor, Secular Age.
71.See, for example, Eric Nelson, The Hebrew Republic (Cambridge, MA: Harvard University Press, 2010); Michael Allen Gillespie, The Theological Origins of Modernity (Chicago: University of Chicago Press, 2009).
72.Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 1st ed., trans. George Schwab (Chicago: University of Chicago Press, 2006), 36.
73.This position is forcefully expressed by José Casanova, a leading sociologist of religion: “Rather than seeing the common structural contexts of modern state formation, inter-state geopolitical conflicts, modern nationalism and the political mobilization of ethno-cultural and religious identities, processes central to modern European history that became globalized through the European colonial expansion, Europeans prefer seemingly to attribute those conflicts to “religion”—that is, to religious fundamentalism and to the fanaticism and intolerance that is supposedly intrinsic to “pre-modern” religion, an atavistic residue which modern secular enlightened Europeans have fortunately left behind.” José Casanova, “Religion Challenging the Myth of Secular Democracy,” in Religion in the 21st Century: Challenges and Transformations, ed. Margit Warburg et al. (Farnham, Surrey, England; Burlington, VT: Ashgate, 2010), 27.
74.José Casanova, “The Stillborn God: The Great Separation,” The Immanent Frame, accessed April 13, 2017, http://blogs.ssrc.org/tif/2007/12/07/the-great-separation/. For similar reflections on the relationship between religion, secularism and violence, see Ted A. Smith, Weird John Brown: Divine Violence and the Limits of Ethics (Stanford, CA: Stanford University Press, 2014); William T. Cavanaugh, The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict (New York: Oxford University Press, 2009).
75.Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1996), 113.
76.J. G. A. Pocock, “The Concept of Language and the métier d’historien: Some Considerations on Practice,” in The Languages of Political Theory in Early-Modern Europe, ed. Anthony Robin Pagden (Cambridge: Cambridge University Press, 1987), 21. Ultimately, if we follow Quentin Skinner, the goal is to understand the thinkers under consideration from within their own worldview in order “to grasp their concepts, to follow their distinctions, to appreciate their beliefs and, so far as possible, to see things their way.” Quentin Skinner, Visions of Politics (Cambridge; New York: Cambridge University Press, 2002), 1:3.
77.Lawrence Rosen, Law as Culture: An Invitation (Princeton, NJ: Princeton University Press, 2006). Of course, the field of legal history is quite diverse. At least twelve distinct approaches to the relationship between law and culture have been identified by Menachem Mautner, “Three Approaches to Law and Culture,” Cornell Law Review 96 (2010): 839.
78.For one articulation of this insight, see Austin D. Sarat, “Redirecting Legal Scholarship in Law Schools,” Yale Journal of Law & the Humanities 12, no. 1 (2013): 129–150, 134.
79.Ashkenazim constituted the clear majority of the leadership of religious Zionism during the period that is the focus of this book. For the approach of Sephardic rabbis to Zionism, see, for example, Marc Angel, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel (Northvale, NJ: Jason Aronson, 1999); Zvi Zohar, “Sephardic Tradition on Galut and Political Zionism: The Halakhic Position of Rabbi Ya’akov Moshe Toledano,” in From Iberia to Diaspora: Studies in Sephardic History and Culture, ed. Yedida Kalfon Stillman and Norman A. Stillman (Leiden: Brill, 1999), 223–34; Marc Angel and Hayyim J. Angel, Rabbi Haim David Halevy: Gentle Scholar and Courageous Thinker (Jerusalem: Urim Publications, 2006); Zvi Zohar and Avi Sagi, eds., Yahadut shel haim: Iyunim be-yetsirato ha-hagutit-hilkhatit shel ha-rav hayim david halevi (Jerusalem: Mekhon Shalom Hartman; Keter, 2007); Zvi Zohar, Rabbinic Creativity in the Modern Middle East (New York: Bloomsbury Academic, 2013).
1.The slogan appeared in David Grossman’s lyrics for the Sticker Song by the band Hadag Nahash. Its chiasmus exploits the fact that the letters h-l-kh-h in Hebrew can be read either as halakhah (Jewish law, literally “the way”) or as halkhah (“it has gone”).
2.Aloni, Ha-hesder, 37.
3.Gershon Weiler, Te’oqratiah yehudit (Tel Aviv: Am Oved, 1976). The quotation is from the book’s English translation, Gershon Weiler, Jewish Theocracy (Leiden: Brill, 1988), 331.
4.Shipler, “Israelis Assess Role of Religion.”
5.Isaac Herzog, Tehuqah le-yisra’el al-pi ha-torah, ed. Itamar Warhaftig (Jerusalem: Mosad Ha-rav Kook; Yad Ha-rav Herzog, 1989), 1:3. The passage from which this quotation was taken appears in translation in Isaac Herzog, “Rabbi Herzog on the Chief Rabbinate (ca. 1948),” in The Origins of Israel, 1882–1948: A Documentary History, ed. Eran Kaplan and Derek Penslar, trans. Alexander Kaye (Madison: University of Wisconsin Press, 2011).
6.Meir Bar-Ilan, “Hoq u-mishpat be-medinatenu,” in Ha-tsi’onut ha-datit veha-medinah: Qovets ma’amarim li-shloshim shenot ha-medinah, ed. Yosef Tirosh and Avraham Tirosh (Jerusalem: Ha-histadrut ha-tsionut ha-olamit; Ha-mahlaqah le-hinukh ule-tarbut torani’im ba-golah, 1978), 327.
7.Ze’ev Falk, “Proposal for a Constitution of the State of Israel,” RZA-BI PA/1616000171. Falk wrote a great deal over the years about the relationship between Jewish law, and about human values and the place of Jewish law in modern society. See, for example, Ze’ev W. Falk, Law and Religion: The Jewish Experience (Jerusalem: Mesharim, 1981).
8.The plan of the Peel Commission was not ultimately implemented, but ten years later the United Nations approved a similar resolution for the partition of Palestine.
9.For a biography of Grodzinski, see Shlomo Yosef Zevin, Ishim ve-shitot: Shurat ma’amarim al ishei halakhah ve-shitotehem ba-torah (Tel Aviv: A. Tsioni, 1966), 189–223. See also the biographical sketch at Benjamin Brown, “Grodzenski, Hayim Ozer,” The Yivo Encyclopedia of Jews in Eastern Europe, accessed July 19, 2017, http://www.yivoencyclopedia.org/article.aspx/Grodzenski_Hayim_Ozer. For the relationship between Mizrahi and Agudat Yisrael, see Daniel Mahla, “No Trinity: The Tripartite Relations between Agudat Yisrael, the Mizrahi Movement, and the Zionist Organization,” Journal of Israeli History 34, no. 2 (July 3, 2015): 117–40. Although Agudat Yisrael never totally accommodated itself to Zionism, it collaborated with the Zionist organization and eventually lent its support to the establishment of Israel in 1948. Menachem Friedman, “The Structural Foundation for Religio-Political Accommodation in Israel: Fallacy and Reality,” in Israel: The First Decade of Independence, ed. S. Ilan Troen and Noah Lucas (Albany: SUNY Press, 1995), 51–81.
10.Isaac Herzog, Tehuqah le-yisra’el, 2:75.
11.Ibid., 2:75 fn. 10. The translation is based on that in Michael Walzer et al., eds., The Jewish Political Tradition (New Haven, CT: Yale University Press, 2000), 1:475 with some modifications. See also Warhaftig, “Mavo,” 31 fn. 19.
12.Herzog, Tehuqah le-yisra’el, 1989, 2:75.
13.Aviezer Ravitzky, Religion and State in Jewish Philosophy: Models of Unity, Division, Collision and Subordination (Jerusalem: Israel Democracy Institute, 2001), 13; Suzanne Last Stone, “Religion and State: Models of Separation from within Jewish Law,” International Journal of Constitutional Law 6, nos. 3–4 (2008): 641. Stone’s article summarizes this position well: “It does not require much guesswork to discern the motivations behind Grodzinski’s response. Grodzinski was opposed to the state’s creation altogether. For him, Zionism was blasphemy, the human forcing of a messianic ideal and, potentially, idolatry—the setting up of an alternative sovereign. He wished to protect the garden of religious halakha from any state but especially a Jewish state, by separating the two at the outset.”
14.Tamanaha, “Understanding Legal Pluralism,” 377.
15.Ido Shahar, “Legal Pluralism and the Study of Shariʿa Courts,” Islamic Law and Society 15, no. 1 (2008): 112–41.
16.The Talmud itself is replete with references to sources of law that operated in parallel with halakha. For example, rabbinic literature maintains that the Noahide Laws, a basic set of criminal, civil, moral, and theological norms, are binding on all of humanity. According to many rabbinic interpretations, the authority of these laws derives not from Sinaitic revelation but from a human intuition for moral norms. For a persuasive argument that the rabbinic tradition considers the Noahide Laws to apply to Jews even after the Sinaitic revelation, see Suzanne Last Stone, “Sinaitic and Noahide Law: Legal Pluralism in Jewish Law,” Cardozo Law Review 12 (1990): 1157–1214. See also Steven Robert Wilf, The Law before the Law (Lanham, MD: Lexington Books, 2008).
17.For a study of the relationship between Jewish communities and kings, see Salo W. Baron, “‘Plenitude of Apostolic Powers’ and Medieval ‘Jewish Serfdom.’” in Ancient and Medieval Jewish History: Essays by Salo Wittemayer Baron, ed. Leon Feldman (New Brunswick, NJ: Rutgers University Press, 1972), 308–22; Salo W. Baron, A Social and Religious History of the Jews, 18 vols. (New York: Jewish Publication Society, 1952–1983), 4:36–43 and 9:135–92; Yosef Hayim Yerushalmi, “Servants of Kings and Not Servants of Servants: Some Aspects of the Political History of the Jews,” in The Faith of Fallen Jews: Yosef Hayim Yerushalmi and the Writing of Jewish History, ed. David N. Myers and Alexander Kaye (Lebanon, NH: University Press of New England, 2013), 245–76; Yosef Hayim Yerushalmi, The Lisbon Massacre of 1506 and the Royal Image in the Shebet Yehudah (Cincinnati, OH: Hebrew Union College–Jewish Institute of Religion, 1976).
18.m. Avot 3:2.
19.The principle of dina de-malkhuta dina is attributed in several places in the Talmud to Samuel, a Jewish leader of the third century.
20.Robert Ignatius Burns, Jews in the Notarial Culture: Latinate Wills in Mediterranean Spain, 1250–1350 (Berkeley, CA: University of California Press, 1996); Pinchas Roth, “Legal Strategy and Legal Culture in Medieval Jewish Courts of Southern France,” AJS Review 38, no. 2 (November 2014): 375–93; Jessica M. Marglin, Across Legal Lines: Jews and Muslims in Modern Morocco (New Haven, CT: Yale University Press, 2016). Recent research on Early Modern Jewish communities has revealed that not only were Jewish courts familiar with the terminology and procedures of local Gentile civil law but Gentile civil courts were familiar with halakhic terminology also. See, for example, Edward Fram, Ideals Face Reality: Jewish Law and Life in Poland, 1550–1655 (Cincinnati, OH: Hebrew Union College Press, 1997); Jay R. Berkovitz, Protocols of Justice: The Pinkas of the Metz Rabbinic Court 1771–1789, 2 vols. (Leiden: Brill, 2014).
21.See, for example, Simhah Assaf, Ha-onshin aharei hatimat ha-talmud: Homer le-toldot ha-mishpat ha-ivri (Jerusalem: Defus Ha-po’alim, 1924).
22.For a thorough examination of the principle in Jewish law and history, see Shmuel Shilo, Dina de-malkhuta dina (Jerusalem: Defus Akademi Bi-Yerushalayim, 1974). See also Samuel Atlas, “Dina d’Malchuta Delimited,” Hebrew Union College Annual, 1975, 269–88.
23.1 Samuel 8:11 ff.
24.See, for example, Maimonides, Mishneh Torah, “Laws of Kings and Wars,” 4:1.
25.Menachem Elon, “On Power and Authority: The Halakhic Stance of the Traditional Community and Its Contemporary Implications,” in Kinship & Consent: The Jewish Political Tradition and Its Contemporary Uses, 2nd edition, ed. Daniel Judah Elazar (New Brunswick, NJ: Transaction Publishers, 1997), 294. The historical origins of Jewish political authority are very old, stretching back earlier than talmudic times. Yitzhak Baer placed the origins of the kehilla in the talmudic period or earlier. Others have argued that the dual political-religious leadership of Jewish communities was structurally evident in the institutions of monarchy and priesthood in the Bible. See Yitzhak Baer, “Ha-yesodot veha-hathalot shel irgun ha-qehilah ha-yehudit be-yemei ha-benayim,” Zion 15 (1950): 1–41. See also Stuart A. Cohen, “The Concept of the Three Ketarim: Their Place in Jewish Political Thought and Implications for Studying Jewish Constitutional Theory,” in Kinship & Consent: The Jewish Political Tradition and Its Contemporary Uses, 2nd edition, ed. Daniel Judah Elazar (New Brunswick, NJ: Transaction Publishers, 1997), 47–76; Daniel J. Elazar, “The Kehillah,” in Kinship & Consent: The Jewish Political Tradition and Its Contemporary Uses, 2nd edition, ed. Daniel Judah Elazar (New Brunswick, NJ: Transaction Publishers, 1997), 233–36; Bernard Susser and Eliezer Don-Yehiya, “Prolegomena to Jewish Political Theory,” in Kinship & Consent: The Jewish Political Tradition and Its Contemporary Uses, 2nd edition, ed. Daniel Judah Elazar (New Brunswick, NJ: Transaction Publishers, 1997), 117–38; Walzer et al., Jewish Political Tradition.
26.b. Bava Batra 8b.
27.For a historical overview of this communal legislation, see Louis Finkelstein, Jewish Self-Government in the Middle Ages, 2nd edition (New York: Jewish Theological Seminary of America, 1964). Avraham Grossman and Menachem Elon both effectively demonstrate that Jewish communities in the Middle Ages were governed by lay leaders rather than rabbis. Avraham Grossman, “Yahasam shel hakhmei Ashkenaz ha-rishonim el shilton ha-qahal,” Shenaton ha-mishpat ha-ivri 2 (1975): 175–99; Menachem Elon, Jewish Law: History, Sources, Principles, (Philadelphia: Jewish Publication Society, 1994), 1:678–731. See also Gerald J. Blidstein, “On Lay Legislation in Halakhah: The King as Instance,” in Rabbinic and Lay Communal Authority, ed. Suzanne Last Stone (New York: Michael Scharf Publication Trust of the Yeshiva University Press, 2006), 1–18.
28.Sometimes rabbis sat on these courts, but often the courts entirely comprised lay communal leaders. Grossman, “Yahasam shel hakhmei Ashkenaz ha-rishonim el shilton ha-qahal”; Assaf, Batei ha-din, 86–92 and passim.
29.Aharon Lichtenstein, “Religion and State,” in Contemporary Jewish Religious Thought: Original Essays on Critical Concepts, Movements, and Beliefs, ed. Arthur Allen Cohen and Paul R. Mendes-Flohr (New York: Free Press, 1988), 774–75.
30.Aharon Lichtenstein, “Communal Governance, Lay and Rabbinic: An Overview,” in Rabbinic and Lay Communal Authority, ed. Suzanne Last Stone (New York: Michael Scharf Publication Trust of the Yeshiva University Press, 2006), 42. On lay legislation, see Finkelstein, Jewish Self-Government in the Middle Ages; Elon, Jewish Law, 1:678–731.
31.Rashba, Responsa 3.393, translated in Walzer et al., Jewish Political Tradition. Rashba’s talmudic quotation is from b. Bava Metzia 30b.
32.Nisim ben Reuben Gerondi, Derashot ha-ran ha-shalem, ed. Leon A. Feldman and Mordekhai Leyb Katzenelenbogen (Jerusalem: Mosad Ha-rav Kook, 2003). For a partial translation, see Walzer et al., Jewish Political Tradition, 1:156–61. The translations here are based upon that version.
33.Walzer et al., Jewish Political Tradition, 1:158.
35.This is the most widespread modern interpretation of the Ran’s sermon. See Stone, “Religion and State”; Suzanne Last Stone, “Law without Nation? The Ongoing Jewish Discussion,” in Law without Nations, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford, CA: Stanford University Press, 2011), 101–37. Another interpretation reads the Ran’s sermon as a prototype of the doctrine of the separation of powers. See Warren Zev Harvey, “Liberal Democratic Themes in Nissim of Girona,” in Studies in Medieval Jewish History and Literature III, ed. Isadore Twerski and Jay M. Harris (Cambridge, MA: Harvard University Press, 2000), 197–211. But see also Blidstein, “On Lay Legislation in Halakhah,” 8. The debate over the original meaning of the Ran’s sermon, while interesting, is tangential to our discussion because all of the religious Zionists discussed here understood the Ran according to the interpretation summarized previously.
36.Maimonides, for example, had a more restrictive understanding of the King’s law than the Ran. However, it still performed an important function in his constitutional thinking: “Murderers and similar [criminals] who are not sentenced to death by a halakhic court [bet din]—if the king wishes to kill them under the king’s law [din malkhut] and [his prerogative to] sustain society [taqanat olam], he is permitted to do so. Likewise, if a halakhic court [bet din] saw fit to kill them as an emergency measure, if the times require it, they are permitted to do as they see fit.” Mishneh Torah, “Laws of Murder and the Preservation of Life,” 2:4.
Menachem Lorberbaum, a scholar of Maimonides’s political thought, notes that, for Maimonides, the king’s law is an “alternative system” to halakha. In Lorberbaum’s strong formulation, “there is no ‘halakhic polity,’ and the term itself is an oxymoron. . . . There is therefore an inescapable conflict between the two sovereignties implicit in [Maimonides’s] account—royal law and Torah law.” Menachem Lorberbaum, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought (Stanford, CA: Stanford University Press, 2001), 75. According to Lorberbaum, “the breadth of extralegal authority 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.” Ibid., 68.
37.The Mishpat Ivri movement was a notable example. See Assaf Likhovski, “The Invention of ‘Hebrew Law’ in Mandatory Palestine,” American Journal of Comparative Law 46, no. 2 (1998): 339–73 and, more generally Likhovski, Law and Identity in Mandate Palestine.
38.Abraham Isaac Kook, Mishpat kohen, 2nd edition (Jerusalem: Mosad Ha-rav Kook, 1966), 144:14. The responsum was written on 19 Tevet, 5676, which corresponds to December 26, 1915.
39.Reuven Margulies, “Batei ha-mishpat be-erets yisra’el,” in Tal tehi’ah (Lwow, Poland: Bet meshar sefarim hadashim ve-atiqim, 1922), 41–51.
40.Margulies, Tal tehi’ah, 3.
41.Margulies, “Batei ha-mishpat,” 41.
44.This is a paraphrase of Numbers 23:9.
45.Margulies, “Batei ha-mishpat,” 41. For Jews calling for minority rights, see James Loeffler, Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (New Haven, CT: Yale University Press, 2018).
46.Margulies, “Batei ha-mishpat,” 41.
47.Ibid., 42. cf. Proverbs 29:4.
53.Shlomo [Goren] Gorontchik, “Huqah toranit ketsad?” in Tehuqah le-yisra’el, 1:146–56. The article was first published in three parts in 1948 in Ha-tsofeh on 19 Shevat (January 30) 3 Adar I (February 13) and 17 Adar I (February 27).
54.Gorontchik, “Huqah toranit ketsad?,” 156.
59.In the Talmud, “Syria” generally refers to the area of the Roman Empire that was north and east of the Land of Israel.
60.“They taught [the teaching mentioned in the passage] with regard to Syrian courts and not with regard to experts.” b. Sanhedrin 23a. To drive home the interpretation that the Talmud did not believe that “Syrian Courts” judged according to halakha, Gorontchik quoted also a lesser-known parallel passage in the Palestinian Talmud that makes the distinction between these courts and halakhic courts more explicit: “They said [the teaching] with regard to Syrian courts and not with regard to Torah law.” p. Sanhedrin 3:2.
61.Gorontchik, “Huqah toranit ketsad?,” 150.
62.Ibid., 151. This is the consensus of most traditional commentaries. Among modern scholars, Saul Lieberman, “Achievements and Aspirations of Modern Jewish Scholarship,” Proceedings of the American Academy for Jewish Research 46–47 (1979): 369–80 suggests that the “Syrian Courts” were under the auspices of the Roman Empire, but were run by Jews and were expected to judge by Jewish law. It seems likely, however, that although their Jewish judges were sometimes familiar with Jewish law, or were willing to consult with rabbis, they were often ignorant of Jewish law and judged by precedent or common sense. Gedalyahu Alon, Mehqarim be-toldot yisra’el (Tel Aviv: Ha-qibuts Ha-me’uhad, 1957), 2:30.
63.Gorontchik, “Huqah toranit ketsad?” 151. The phrases in quotation marks are taken from Meiri, quoted previously.
64.Gorontchik, “Huqah toranit ketsad?,” 151.
65.Gorontchik discussed the status of non-Jews in the state in greater detail at ibid., 152–55. For more on this aspect of his constitutional thinking, see Alexander Kaye, “Democratic Themes in Religious Zionism,” Shofar: An Interdisciplinary Journal of Jewish Studies 31, no. 2 (2013): 8–30.
66.Gorontchik, “Huqah toranit ketsad?” 156.
69.Shimon Federbusch, Mishpat ha-melukhah be-yisra’el (Jerusalem: Mosad Ha-rav Kook, 1952).
72.Ibid., 32. Federbusch slightly, though inconsequentially, misquotes de Tocqueville. The full quotation is “[t]he emigrants who came to settle the shores of New England all belonged to the comfortable classes of the mother country. Their gathering on American soil presented, from the beginning, the singular phenomenon of a society in which there were neither great lords, nor lower classes, neither poor, nor rich, so to speak.” Alexis de Tocqueville, Democracy in America: Historical-Critical Edition of “De la démocratie en Amérique,” ed. Eduardo Nolla, trans. James T. Schleifer, bilingual French-English (Indianapolis, IN: Liberty Fund, 2010), 53. It is not clear which edition Federbusch used. His own footnote reads “Democratie en Amerique [sic], I, 48.” In the 1848 edition, the quotation appears at vol. 1, p. 49. Alexis de Tocqueville, De la démocratie en Amérique, 4 vols. (Paris: Pagnerre, 1848).
73.De Tocqueville does mention in an aside in this passage that Europeans who migrated to America were “in general largely equal” and of course equality is a key theme in De la démocratie en Amérique. But it is not the import of the passage quoted by Federbusch.
74.Federbusch, Mishpat ha-melukhah be-yisra’el, 33.
76.Reynolds v. U.S., 98 U.S. 145 (1878) referred to Jefferson’s letter in the context of a ruling on Mormon polygamy but judicial references to the letter remained an exception until the mid-twentieth century, when the doctrine of separation began to be widely used American jurisprudence. For a historical overview, see Philip Hamburger, Separation of Church and State.
77.Everson v. Board of Education, 330 U.S. 1 (1947).
78.Jonathan D. Sarna, “Church-State Dilemmas of American Jews,” in Jews and the American Public Square: Debating Religion and Republic, ed. Alan Mittleman, Robert Licht, and Jonathan D. Sarna (Lanham, MD: Rowman & Littlefield, 2002), 57.
79.Federbusch, Mishpat ha-melukhah be-yisra’el, 27.
81.In the rest of his book, Federbusch applied these theories to minority rights, criminal law, workers’ rights, military law, and many other issues. There is sometimes a tension between his vision of a rather paternalistic state and his insistence on personal liberty, and between his doctrine of separation of church and state and his belief in religion as a moral presence in society. For an analysis, see Alan Mittleman, The Scepter Shall Not Depart from Judah: Perspectives on the Persistence of the Political in Judaism (Lanham, MD: Lexington Books, 2000), chap. 8.
82.Herzog, Tehuqah le-yisra’el, 1989, 2:75. This translation is taken from Walzer et al., Jewish Political Tradition, 1:475.
83.Isaac Herzog, “Be-qesher le-ma’amarav ha-hashuvim shel ha-rav r. shlomo gorontchik beha-tsofeh,” in Tehuqah le-yisra’el, 1:174.
84.Herzog mentions Margulies’ proposal in Herzog, Tehuqah le-yisra’el, 1989, 2:75.
85.Herzog, Tehuqah le-yisra’el, 2:76.
88.Herzog, “Be-qesher le-ma’amarav.”
89.Gorontchik, “Huqah toranit ketsad?,” 156.
90.Herzog is presumably referring to “United Nations General Assembly Resolution 181: Resolution Adopted on the Report of the Ad Hoc Committee on the Palestinian Question” (1947) Section I.C.2.2: “No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex.”
91.“The family law and personal status of the various minorities and their religious interests, including endowments, shall be respected.” Ibid.
92.Herzog, “Be-qesher le-ma’amarav,” 174.
94.See Elon, Jewish Law, 1:132–37 and 2:707–12. For a classic example of this distinction, see the statement of the Ribash in fourteenth-century Spain, in his Responsa 305 quoted in ibid., 2:708: “If a community enacted that legal documents accepted in non-Jewish courts [but invalid in Jewish courts] are as fully valid for us as they are for non-Jews under their law . . . the community certainly may legislate on such matters, as these are conditions involving civil law and it is as if every single individual in the community so stipulated an undertook for himself. . . . Nevertheless, the community may not enact legislation that involves condoning usury, since usury is prohibited by the Torah even when the debtor pays it voluntarily.”
95.Herzog referred to one proponent of this latter view, Siftei Kohen on Hoshen Mishpat 73:14, at Herzog, “Be-qesher le-ma’amarav,” 175.
96.Herzog, “Be-qesher le-ma’amarav,” 163.
98.At the time of Herzog’s writing, the authorship of the sermon was under question. It has since been demonstrated beyond doubt that the Ran was the author.
99.Herzog, “Be-qesher le-ma’amarav,” 167.
102.Ibid., 169. See also Herzog, Tehuqah le-yisra’el, 1:53, 80–81.
103.Herzog, “Be-qesher le-ma’amarav,” 169.
104.Menachem Lorberbaum has argued persuasively that Jewish political thought has always left room outside of halakha for an independent realm of politics. “The central question of Jewish political theory should not be whether to choose a secular or theocratic state but instead how to draw the line between the secular and the sacred.” Lorberbaum, Politics and the Limits of Law, 156.
1.Isaac Herzog, Pesaqim u-khetavim, vol. 9: Teshuvot ‘al hoshen mishpat (Jerusalem: Mosad Ha-rav Kook, Yad Ha-rav Herzog, 1989), 405, quoted and translated in Amihai Radzyner, “Between Scholar and Jurist: The Controversy over the Research of Jewish Law Using Comparative Methods at the Early Time of the Field,” Journal of Law and Religion 23, no. 1 (2007): 189–90. The dating of this excerpt follows Radzyner.
2.For somewhat hagiographic, but nonetheless useful, biographical material, see Shaul Mayzlish, The Rabbinate in Stormy Days: The Life and Teachings of Rabbi Yitzhak Isaac Halevi Herzog, the First Chief Rabbi of Israel, trans. Yoreh Tanhum (Springfield, NJ: Gefen, 2017) and Shaul Mayzlish, “Toldot ha-rav hertsog,” in Masu’ah le-yitshaq, ed. Shulamit Eliash, Itamar Warhaftig, and Uri Desberg, 2 vols. (Jerusalem: Yad Ha-rav Herzog; Mekhon Ha-entsiklopediah Ha-talmudit; Mekhon Ha-talmud Ha-yisre’eli Ha-shalem, 2008), 1:13–53.
3.Herzog was ordained by Yaakov Dov Vilovski of Slotzk, Yosef Skuper of Slonim, and Meir Simha of Dvinsk. Ibid., 14. Some of Herzog’s correspondence to Vilovski was appended to his father’s book about the book of Genesis at Yoe’l Leib Ha-levi Herzog, Imrei yo’el al sefer bereshit (London: Express, 1921), 209 ff. Similar correspondence to Vilovski was appended to Herzog’s commentary on Tractate Bekhorot, which was published alongside his father-in-law’s commentary on the same tractate. Samuel Isaac Hillman, Or ha-yashar al masekhet bekhorot (London: Express, 1921), 140 ff. Herzog’s father-in-law, Samuel Isaac Hillman, was a distinguished rabbi from Lithuania who eventually became a rabbinical judge in London before retiring to Jerusalem. In Jerusalem, he was the head of an advanced yeshiva for the training of rabbinical judges in Rehavia, Jerusalem, called Ohel Torah. When Herzog moved to Palestine, he taught a class there on Maimonides’s laws of Sanhedrin, “to prepare [his students] to sit in the seats of justice in the cities of Israel.” Samuel Isaac Hillman, ed., Mikhtevei ha-rabanim ha-gedolim de-ara de-yisra’el al ha-yeshivah gedolah “ohel torah” beit david bet midrash gavoah le-hishtalmut avrekhim rabanim (Jerusalem: Ohel Torah, n.d.), 3. Many future rabbinical judges of the State of Israel studied in that institution, including Shlomo Zalman Auerbach, Yosef Shalom Elyashiv, and Shmuel Halevi Wozner.
4.Herzog’s original dissertation was recently published along with other essays and scholarly apparatus in Isaac Herzog, The Royal Purple and the Biblical Blue: Argaman and Tekhelet; The Study of Chief Rabbi Dr. Isaac Herzog on the Dye Industries in Ancient Israel and Recent Scientific Contributions (Jerusalem: Keter, 1987).
5.Keogh, Jews in Twentieth Century Ireland, 107–8.
6.“Radio Programmes.” Irish Press, November 27, 1934.
7.Shulamit Eliash, “Po’alo shel ha-rav hertsog be-inyanei hatzalah,” in Masu’ah le-yitshaq, ed. Shulamit Eliash, Itamar Warhaftig, and Uri Desberg, 2 vols. (Jerusalem: Yad Ha-rav Herzog; Mekhon Ha-entsiklopediah Ha-talmudit; Mekhon Ha-talmud Ha-yisre’eli Ha-shalem, 2008), 1:54–83; Eliash, Harp and Shield of David, 49–70.
8.“Love of Zion,” a Jewish nationalist movement established in Eastern Europe in the early 1880s. Its followers were called Hovevei Zion, “Lovers of Zion.”
9.Meizlish, “Toldot,” 13.
10.His most significant halakhic writings are his collections of responsa: Isaac Herzog, Shu”t hekhal yitshaq (Jerusalem: Agudah le-hotsa’at kitve rosh ha-rabanim ha-gria”h Hertsog zts”l, 1960-72); Herzog, Pesaqim u-khetavim. For a full bibliography, see Shmuel Katz, “Bibliografiah le-kitvei hgry”y hertsog zts”l,” in Masu’ah le-yitshaq, ed. Shulamit Eliash, Itamar Warhaftig, and Uri Desberg, 2 vols. (Jerusalem: Yad Ha-rav Herzog; Mekhon Ha-entsiklopediah Ha-talmudit; Mekhon Ha-talmud Ha-yisre’eli Ha-shalem, 2008), 1:277–86.
11.Many of his English-language articles were collected into a volume overseen by his elder son, Chaim Herzog, later President of the State of Israel. Isaac Herzog, Judaism: Law and Ethics (London: Soncino Press, 1974). On the Jewish Forum, see Ira Robinson and Maxine Jacobson, “‘When Orthodoxy Was Not as Chic as It Is Today’: The Jewish Forum and American Modern Orthodoxy,” Modern Judaism 31, no. 3 (2011): 285–313.
12.Isaac Herzog, vol. 1 of 2, The Main Institutions of Jewish Law (London: Soncino Press, 1936); Isaac Herzog, vol. 2 of 2, The Main Institutions of Jewish Law (London: Soncino Press, 1939).
13.For a classic account of this trend, see Richard Hofstadter, Social Darwinism in American Thought (Boston: Beacon Press, 1993), especially pp. 3–12. For a survey of the application of evolutionary theory to Anglo-American jurisprudence, see E. Donald. Elliott, “The Evolutionary Tradition in Jurisprudence,” Columbia Law Review 85 (1985): 38–94. But see also the articles collected in Gralf-Peter Calliess and Peer Zumbansen, eds., “Law, the State and Evolutionary Theory,” special issue, German Law Journal 9, no. 4 (2008): 389–548. For its impact on Victorian social theory, see John W. Burrow, Evolution and Society: A Study in Victorian Social Theory (London: Cambridge University Press, 1966). (Chap. 5 deals with Henry Maine.) For Maine and the idea of social evolution and progress, see the articles in Alan Diamond, “The Victorian Achievement of Sir Henry Maine: A Centennial Appraisal” (Cambridge: Cambridge University Press, 1991), 55–69 and also Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, NJ: Princeton University Press, 2010), passim.
14.Robert R. Wilson, Sociological Approaches to the Old Testament (Minneapolis: Augsburg Fortress, 1984), 25.
15.It has been suggested that Maine intended to indicate his debt to Darwin by using the same publisher, but this notion is far from certain. Elliott, “Evolutionary Tradition in Jurisprudence,” 43 fn. 22; Burrow, Evolution and Society, 139–40.
16.Henry Sumner Maine, Ancient Law (Boston: Beacon Press, 1963), especially pp. 8–14. Maine believed that a critical moment in the evolution of societies is the emergence of the capacity to create legal fictions. This ability allows individuals to enter into legal relationships independent of their blood ties. Families and tribes give way to voluntary associations. Maine famously described this effect as “a movement from Status to Contract.” Ibid., 165.
18.“ . . . [T]here still exists a pervasive feeling that Jewish law is a ‘religious’ system (whatever that may mean), and therefore beyond the boundaries of legal history. The much misunderstood theories of Sir Henry Maine have implanted in the contemporary legal mind the view that early cultures are incapable of discriminating between religious and legal obligation. . . . Since Jewish law is a ‘religious system,’ it represents the law-religion ‘stage,’ and so falls outside the interest of the legal historian.” Bernard S. Jackson, Essays in Jewish and Comparative Legal History (Leiden: Brill, 1975), 1.
19.Robert Cover, “The Supreme Court, 1982 Term: Foreword: Nomos and Narrative,” Harvard Law Review 97, no. 4 (1983): 4–68. See also Suzanne Last Stone, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” Harvard Law Review 106, no. 4 (February 1, 1993): 813–94.
20.Isaac Herzog, “Samkhut ha-torah be-medinat yisra’el,” in Tehuqah le-yisra’el, 1:222.
22.Republished in Isaac Herzog, “The Outlook of Greek Culture upon Judaism,” in Judaism: Law and Ethics (London: Soncino Press, 1974), 211–23.
23.Matthew Arnold, Arnold: “Culture and Anarchy” and Other Writings (Cambridge: Cambridge University Press, 1993). Based on a series of articles, the book was originally published in 1869. The contrast between Greek and Hebrew was not new to Arnold. It has roots in antiquity and was a common literary trope in the nineteenth century. After Arnold’s elaboration, however, the dichotomy became a linchpin of Victorian cultural criticism, and was considered by many to be a key to the analysis of modernity. For more on how this dichotomy lay at the root of the “assertion of cultural and racial superiority on the part of its European exponents,” see Tessa Rajak, “Jews and Greeks: The Invention and Exploitation of Polarities in the Nineteenth Century,” in The Jewish Dialogue with Greece and Rome: Studies in Cultural and Social Interaction (Leiden: Brill, 2002), 554 and Jacob Shavit, Athens in Jerusalem: Classical Antiquity and Hellenism in the Making of the Modern Secular Jew (London; Portland, Or: Littman Library of Jewish Civilization, 1997), especially pp. 40 ff.
24.Arnold sometimes seemed to favor Hellenism as he associated Hebraism with the strict Puritanism that he believed was hampering social reforms. On other occasions, however, he advocated a balance between Hebraism and Hellenism. Donald D. Stone, “Matthew Arnold and the Pragmatics of Hebraism and Hellenism,” Poetics Today 19, no. 2 (1998): 179–98. Many Christians, however, wanted to reject Judaism altogether, and attempted to distance Christianity from its Jewish roots. Shmuel Almog, “The Borrowed Identity: Neo-Pagan Reactions to the Jewish Roots of Christianity,” in Demonizing the Other: Antisemitism, Racism and Xenophobia, ed. Robert S. Wistrich (Abingdon, Oxon: Routledge, 2013), 131–47.
25.For example, from Théodore Reinach, Textes d’auteurs grecs et romains relatifs au judaïsme (Paris: E. Leroux, 1895) and David Neumark and Samuel Solomon Cohon, Toldot ha-pilosofiyah be-yisra’el (New York: A. I. Shtibel, 1921). Reinach was a French Jewish scholar. Neumark was a German scholar who had recently moved to Hebrew Union College in Cincinnati.
26.Herzog, “Samkhut ha-torah be-medinat yisra’el,” 226.
27.Herzog, “The Outlook of Greek Culture upon Judaism,” 222.
31.Isaac Herzog, “John Selden and Jewish Law,” Journal of Comparative Legislation and International Law 13, no. 4 (1931): 236–45. The article was republished at Isaac Herzog, “John Selden and Jewish Law,” in Judaism: Law and Ethics by Isaac Herzog (London: Soncino Press, 1974), 67–79. Page numbers refer to that edition.
32.See Amihai Radzyner, “Jewish Law in London: Between Two Societies,” in Jewish Law Annual 18, ed. Berachyahu Lifshitz (London; New York: Routledge, 2009), 81–135.
33.On Selden’s Jewish writings, see Jason P. Rosenblatt, Renaissance England’s Chief Rabbi: John Selden (Oxford: Oxford University Press, 2006).
34.Herzog, “John Selden and Jewish Law,” 68.
40.Isaac Herzog, Main Institutions of Jewish Law, 2 vols. (paperback) (London, New York: Soncino Press, 1980), 2:viii.
41.Isaac Herzog, “The Sources of Jewish Law,” Temple Law Quarterly 5 (January 1930): 47–65; Isaac Herzog, “Possession in Jewish Law,” Temple Law Quarterly 4 (1929–30): 329–38; Isaac Herzog, “Possession in Jewish Law Part II,” Temple Law Quarterly 5 (January 1930): 260–71; Isaac Herzog, “Possession in Jewish Law Part III,” Temple Law Quarterly 5 (January 1930): 598–612; Isaac Herzog, “Moral Rights and Duties in Jewish Law,” Juridical Review 41 (1929): 60; Isaac Herzog, “The Assignment of Rights in Jewish Law,” Juridical Review 43 (1931): 127; Isaac Herzog, “Legacies to Creditors and Satisfaction of Debt in Jewish Law,” Temple Law Quarterly 6 (1931): 87.
42.Herzog, Main Institutions, 1936; Herzog, Main Institutions, 1939. A second edition of both volumes was published in 1965 and reissued in 1980. A Hebrew translation has just been issued as Isaac Herzog, Ha-mosdot ha-ikari’im shel ha-mishpat ha-ivri, trans. Moshe Hershkovits (Tel Aviv: Yediot Ahronot; Sifrei Hemed, 2016). Originally, five volumes were planned but the work was cut short by Herzog’s work as Chief Rabbi along with, presumably, his efforts to aid refugees during and after World War II and his subsequent ill health. Herzog himself explained the gap between the publication dates of the first two volumes: “That a relatively long interval has elapsed between the appearance of Volume I and the present volume has been due to the fact that in the meantime I was suddenly transferred by the directing hand of Providence to an infinitely wider sphere of activity. My election to the Chief Rabbinate of the Land of Israel at a critical and momentous juncture in our history has had the inevitable effect of diverting my attention to other channels, while the severe trials and tribulations of Palestine Jewry, which, alas, have not yet ended, have not been conducive, to say the least, to that state of mind which is a necessary pre-requisite of literary work of this kind.” Herzog, Main Institutions, 1939, vii.
43.Herzog, Main Institution, 1:xvii.
46.George Mousourakis, Roman Law and the Origins of the Civil Law Tradition (Cham, Switzerland: Springer, 2015); Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 1999); Michael H. Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century (Athens, GA: University of Georgia Press, 1997).
47.Herzog, Main Institutions, 1:xvi.
48.Likhovski, “Invention of ‘Hebrew Law,’ ” 341 and passim.
49.Ibid., 342; Rudiger Schott, “Main Trends in German Ethnological Jurisprudence and Legal Ethnology,” Journal of Legal Pluralism 20 (1982): 37–67.
50.Asher Gulak, Yesodei ha-mishpat ha-ivri: Seder dine memonot be-yisra’el al-pi mekorot ha-talmud veha-poskim, 4 vols. (Berlin: Devir, 1922). On Gulak, see David N. Myers, Re-Inventing the Jewish Past: European Jewish Intellectuals and the Zionist Return to History (New York: Oxford University Press, 1995), 88–89; Amihai Radzyner, “Mi-dogmatist le-historion: Asher gulak ve-heqer ha-mishpat ha-ivri be-universitah ha-ivrit 1925–1940,” ed. Gershon Bacon et al., Mada’ei yahadut 43 (June 2005): 169–200.
51.For more on Gulak, and this work in particular, see Likhovski, Law and Identity in Mandate Palestine, 162–66; Radzyner, “Between Scholar and Jurist.”
52.Radzyner, “Between Scholar and Jurist,” 206; Radzyner, “Jewish Law in London.”
53.A reasonable distinction between the methodologies of halakhah and Mishpat Ivri was made by Mishpat Ivri scholar Shmuel Shilo in “The Contrast between Mishpat Ivri and Halakah,” Tradition: A Journal of Orthodox Jewish Thought 20, no. 2 (1982): 92–93. Writing in 1982, Shilo took pains to observe that the study of Mishpat Ivri does not per se imply a rejection of the sanctity of halakhah: “It should be noted that for either type of halakhist Jewish law is first and foremost a religious law, that is to say, a law commanded by God. For the secularist, however, Jewish law is of interest because of its cultural-national components, as a part of the Jewish heritage, independent of the autonomous authority of the halakhah. The great interest in Jewish law in our century was and is undoubtedly linked with the idea of a Jewish homeland in the land of Israel and a cultural renaissance; it is similar to the type of cultural aspiration best reflected in the rebirth of the Hebrew language as a spoken, modern means of communication. That the scholar engaged in Mishpat Ivri does not, in his work, emphasize its religious normative dimension, does not negate that dimension, just as the Hebrew language can be treated as a secular tongue without negating its sanctity, or even the land of Israel can be considered in terms of national-cultural import for the Jewish people without negating its religious importance. The orientation of Mishpat Ivri thus does not contradict that of halakhah, but, nonetheless, serves as a basis of differentiation.” Herzog would likely have rejected Shilo’s analysis of Mishpat Ivri, at least as it pertained to its practitioners before 1948.
54.This view was particularly, though not exclusively, true of the cultural Zionist program. Joseph E. David, “Beyond the Janus Face of Zionist Legalism: The Theo-Political Conditions of the Jewish Law Project,” Ratio Juris 18, no. 2 (2005): 223.
55.Shmuel Eisenstadt, Tsion be-mishpat (Tel Aviv: Hamishpat, 1967). Quoted and translated in Radzyner, “Between Scholar and Jurist,” 194–95.
56.For a discussion of Herzog’s critique of comparative Jewish law in general, see Radzyner, “Between Scholar and Jurist,” passim.
57.Herzog, “Possession in Jewish Law [Part I],” 329.
58.Herzog, Main Institutions, 1:xvi. See also Radzyner, “Between Scholar and Jurist.”
59.Herzog, Main Institutions of Jewish Law, 1:xv.
61.“The Palestinian Talmud is much older than Justinian, and although direct dependence is improbable, the idea of the all-embracing praescriptio longissimi temporis may have been partly suggested by some juridic practice in the eastern provinces.” Ibid., 1:231–32.
65.John William Salmond, Jurisprudence: Or the Theory of the Law (London: Stevens and Haynes, 1907); William Reynell Anson, Principles of the English Law of Contract (Oxford: Clarendon Press, 1879). Salmond was in fact from New Zealand, which, as a Commonwealth country, had the same law as England at the time. Anson’s work on contract is still in print today.
66.Buckland made the comment at a meeting of the Society of Public Teachers of Law in 1931. His comment was transcribed at H. G. Hanbury, “The Place of Roman Law in the Teaching of Law to-Day,” Journal of the Society of Public Teachers of Law (1931): 25.
67.Herzog, Main Institutions, 1:xvii.
69.Isaac Herzog, “The Administration of Justice in Ancient Israel,” in Judaism: Law and Ethics, by Isaac Herzog (London: Soncino Press, 1974), 141.
73.Herzog, “Administration of Justice,” 1974, 142.
74.Ibid., 141. Herzog was not the only modern scholar of halakha who addressed the question of the death penalty. For an overview of approaches, see Beth A. Berkowitz, Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (New York: Oxford University Press, 2006), 44 ff.
75.Herzog, Main Institutions, 1:xxii–xxiv fn. 3.
76.Herzog, “Administration of Justice,” 1974, 141.
77.Gulak, Yesodei ha-mishpat ha-ivri, 1:171.
78.Herzog, Main Institutions, 1:227.
80.A. H. Manchester, A Modern Legal History of England and Wales 1750–1950 (London: Butterworths, 1980), 126–29.
81.William Blackstone, Commentaries on the Laws of England, 5th edition (Oxford: Clarendon Press, printed for William Strahan, Thomas Cadell, and Daniel Prince, 1773), 3:382.
82.Jeremy Bentham, “An Introductory View of the Rationale of Evidence for the Use of Nonlawyers as Well as Lawyers,” in The Works of Jeremy Bentham with an Outline of His Opinions on the Principal Subjects Discussed in His Works, ed. John Bowring, 11 vols. (Edinburgh: W. Tait, 1843), 6:43.
83.Manchester, Modern Legal History of England and Wales 1750–1950, 175 ff.
84.Walter Bagehot, The English Constitution (New York: Cambridge University Press, 2001), 194.
85.For an overview of the role of codification in European jurisprudence, see John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (Stanford, CA: Stanford University Press, 2007), 27–33; R. C. van Caenegem, An Historical Introduction to Private Law (Cambridge: Cambridge University Press, 1992).
86.The argument for a uniform German legal code was made by A. F. Thibaut, who believed that a unified legal system was an essential tool of unification. Initially, Thibaut was opposed by Von Savigny and his Historical School, who believed that laws should emerge from the societies that they govern and not be indiscriminately imposed by a small elite. Tellingly, though, Thibaut’s position won out. The Historical School itself was instrumental in the gradual adoption of Roman law as the model for the German code. See Susan Gaylord Gale, “Very German Legal Science: Savigny and the Historical School,” Stanford Journal of International Law 18 (1982): 123–46. The move to centralization continued during the course of the nineteenth century when jurists like Paul Laband continued to argue that law was nothing more than the will of the state and that therefore all laws and all institutions of state had, by definition, to be coordinated with one another. Peter Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Durham, NC: Duke University Press, 1997), 13–39.
87.“I believe that scholarly accounts of the early history of Jewish Law have been much affected by the dominant legal positivism of the modern age, leading to an unreflecting importation of models of the operation of law and justice which are simply inappropriate.” Bernard S. Jackson, “Judaism as a Religious Legal System,” in Religion, Law and Tradition: Comparative Studies in Religious Law, ed. Andrew Huxley (Abingdon, Oxon: Routledge, 2012), 36–37. Jackson’s comment pertains primarily to jurists like Menachem Elon but apply equally well to some of Herzog’s writings.
88.The articles were originally published as Isaac Herzog, “The Administration of Justice in Ancient Israel: 1. The Reconstruction of the Judiciary by Ezra,” Jewish Forum 14, no. 3 (March 1931): 84–88; Isaac Herzog, “The Administration of Justice in Ancient Israel: 2. The Bet Din,” Jewish Forum 14, no. 11 (November 1931): 404–8; Isaac Herzog, “The Administration of Justice in Ancient Israel: 3. The Appointment of Judges and Their Ordination,” Jewish Forum 14, no. 12 (December 1931): 436–39; Isaac Herzog, “The Administration of Justice in Ancient Israel: 4. The Sanhedrin,” Jewish Forum 15, no. 5 (May 1932): 165–70. They were republished as Herzog, “Administration of Justice.” 1974. Page numbers here refer to that publication.
89.Maimonides, Mishneh Torah, Hilkhot Sanhedrin, chap. 1. See also b. Sanhedrin, especially chap. 1.
90.b. Sanhedrin 16b.
91.Herzog, “Administration of Justice,” 1974, 137.
92.Ibid., 137–38. Gulak’s discussion is at Gulak, Yesodei ha-mishpat ha-ivri, 4:9.
93.Herzog, “Administration of Justice,” 1974, 136.
98.Ibid., 113. The reference is to Ezra 7:25 where Ezra is commanded to appoint shaftin and daynin, Aramaic for shoftim and dayanim.
99.Herzog, “Administration of Justice,” 1974, 114.
101.Isaac Herzog, Tehuqah le-yisra’el, 3:289.
102.Herzog, “Administration of Justice” (1974), 135–36.
103.Herzog, Tehuqah le-yisra’el, 2:75. This translation is from Walzer et al., Jewish Political Tradition, 1:475.
1.Herzog, Tehuqah le-yisra’el, 1:3.
2.See, for example, the constitutions of Iran (1979) and Iraq (2005).
3.Shulamit Eliash, “The ‘Rescue’ Policy of the Chief Rabbinate of Palestine before and during World War II,” Modern Judaism 3, no. 3 (1983): 291–308; Eliash, “Toldot”; Mordecai Paldiel, Saving One’s Own: Jewish Rescuers during the Holocaust (Lincoln: University of Nebraska Press, 2017), 69–70. Zerah Warhaftig was also instrumental in these rescue missions. Zerah Warhaftig, Refugee and Survivor: Rescue Efforts during the Holocaust (Jerusalem: Yad Vashem; Torah Education Dept. of the World Zionist Organization, 1988).
4.Herzog visited Maisky in London in 1940. Eliash, “Toldot,” 68.
5.Ibid., 60–66.
6.Ibid., 66–76.
7.Ibid., 69.
9.Ibid., 26 fn. 6. See also Warhaftig’s own description of this period in Zerah Warhaftig, Huqah le-yisra’el: Dat u-medinah (Jerusalem: Mesilot, 1988) especially pp. 22–85.
10.Elyaqim Rubinstein, Shoftei erets (Jerusalem; Tel Aviv: Schocken, 1980), 46.
11.A proposed table of contents for the work was found in Herzog’s archive and published in Herzog, Tehuqah le-yisra’el, 1:243.
12.The chapter about the king’s law and its relationship to halakha was included in a pamphlet that Herzog wrote in an attempt to make Jewish inheritance law more egalitarian. It was published in an American Jewish journal as Isaac Herzog, “Din ha-melekh ve-din ha-torah,” Talpiyot 7, no. 1 (Tishrei [5]718 [1947]): 4–32 and republished in Herzog, Tehuqah le-yisra’el, 1989, 2:65–89. For Herzog’s writings on inheritance law, see Tehuqah le-yisra’el, 1989, 2:passim. See also the discussion at Ben Tzion Greenberger, “Rabbi Herzog’s Proposals for Takkanot in Matters of Inheritance,” in The Halakhic Thought of R. Isaac Herzog, ed. Bernard S. Jackson, Jewish Law Association Studies V (Atlanta: Scholars Press, 1991).
13.Isaac Herzog, Tehuqah le-yisra’el al-pi ha-torah, ed. Itamar Warhaftig, 3 vols. (Jerusalem: Mosad Ha-rav Kook; Yad Ha-rav Herzog, 1989). Herzog originally called the book The Foundations of the Constitution, Law and Its Orders, and the State Government in the Jewish State in the Framework of the Torah. He also referred to it by other titles, such as The Constitution in Israel According to the Torah. It was eventually published by Warhaftig under the title A Constitution for Israel According to the Torah. The title of the book is discussed at Warhaftig, “Mavo,” 33.
14.Isaac Herzog, “Ha-tehiqah veha-mishpat be-medinah ha-yehudit,” Yavneh: Qovets akadema’i dati 3 (1949): 9–13. The article was published in 1949 but an editorial comment indicates that it was received in Shevat 5708, which corresponds to January or early February 1948. It was republished as Herzog, “Ha-tehiqah veha-mishpat be-medinah ha-yehudit,” in Tehuqah le-yisra’el, 1:205–9. Page numbers will refer to the latter publication.
15.On the contested election, see Friedman, Hevrah va-dat, 383–4. Friedman notes that Herzog’s victory marked the end of the domination of the “Old Yishuv” of Ashkenazic Ultra-Orthodox rabbis in the Chief Rabbinate.
18.United Nations General Assembly Resolution 181.
19.Herzog, Tehuqah le-yisra’el, 1:3. See also his similar comments at ibid., 1:96.
21.Herzog, Tehuqah le-yisra’el, 1:1, 39.
24.Herzog, Tehuqah le-yisra’el, 1:43. The question of women’s involvement in politics had a contentious history in the religious Zionist community. In 1919–20 Herzog’s predecessor as Ashkenazic Chief Rabbi of Palestine, Rabbi Abraham Isaac Kook, had ruled that women should not be allowed to vote. (Women’s suffrage was, though, allowed by Rabbi Benzion Hai Ousiel, who was at the time the Chief Rabbi of Tel Aviv and, in 1939, became the Sephardic Chief Rabbi of Palestine.) See Friedman, Hevrah va-dat, 146–84; Zohar, “Traditional Flexibility and Modern Strictness.”
25.Beverly B. Cook, “Women Judges: A Preface to Their History,” Golden Gate University Law Review 14, no. 3 (1984): 576. In France, women were admitted to the bench only in 1946. Sara L. Kimble, “No Right to Judge: Feminism and the Judiciary in Third Republic France,” French Historical Studies 31, no. 4 (2008): 609–41.
26.Herzog, Tehuqah le-yisra’el, 1:43.
33.Josephus, Contra Apionem II.17.
34.Baruch Spinoza, Spinoza: The Complete Works, ed. Michael L. Morgan, trans. Samuel Shirley (Indianapolis: Hackett Publishing, 2002), 544.
35.Thomas Erastus himself believed that the state and not the church should control the power of excommunication but he did not hold as extreme a position about the civilian control over ecclesiastical matters as devotees of “Erastianism,” an idea that came to bear his name only in the 1640s and was popularized by English thinkers like Richard Hooker. See Weldon S. Crowley, “Erastianism in England to 1640.” Journal of Church and State 32, no. 3 (1990): 549–66, 558; John Neville Figgis, The Divine Right of Kings (Cambridge: University Press, 1922), 293–342.
36.Nelson, The Hebrew Republic, 130–131. Julie E. Cooper points out that Spinoza’s discussion of theocracy was also directed toward the Jewish community, as a way of talking about, and critiquing, the possibility of sustainable politics in the absence of a sovereign. Julie E. Cooper, “Reevaluating Spinoza’s Legacy for Jewish Political Thought,” Journal of Politics 79, no. 2 (January 18, 2017): 473–84.
37.Herzog, Tehuqah le-yisra’el, 1:2.
38.Other religious Zionists were also wary of this term. Making reference to Josephus, Shimon Federbusch wrote, somewhat apologetically, about how “theocracy” means simply a state under the law of God, in contradistinction to a “hierocracy,” which is a state run by the priesthood (or, in the case of Israel, the rabbinate). Federbusch, Mishpat ha-melukhah be-yisra’el, 26 ff. See also Aviezer Ravitzky, “Is a Halakhic State Possible? The Paradox of Jewish Theocracy,” Israel Affairs 11, no. 1 (2005): 137–64; Eliezer Goldman, “Hoq ha-medinah veha-halakhah—Ha-omnam setirah?” in Mahshavot al demoqratiah yehudit, ed. Benny Porat and Aviezer Ravitzky (Jerusalem: Israel Democracy Institute, 2010), 165–75.
39.Isaac Herzog, “Ha-medinah ha-yisre’elit ap”i hashqafat ha-mesoret veha-demoqratiah,” in Tehuqah le-yisra’el, 1:11.
41.Henry Hart Milman, The History of the Jews: From the Earliest Period down to Modern Times, 5th edition (London: J. Murray, 1883), 1:215–16.
42.Oscar S. Straus, The Origin of Republican Form of Government in the United States of America (New York: G. P. Putnam’s Sons, 1901), 108.
43.Herzog, Tehuqah le-yisra’el, 1:4.
44.Herzog, “Ha-medinah ha-yisre’elit,” 1:8.
45.Herzog made this remark in the course of his comments on Leo Kohn’s draft constitution. Herzog, Tehuqah le-yisra’el, 1989, 3:28.
47.Herzog, Tehuqah le-yisra’el, 1:25.
48.Technically, Herzog wanted the jurisdiction of the rabbinical laws to be expanded so that they would have exclusive jurisdiction of all cases in their remit. Under the British Mandate, as under Ottoman rule, rabbinical courts had exclusive jurisdiction over certain kinds of law and concurrent jurisdiction over others. Rabbinical courts therefore had, in fact, a narrower jurisdiction than the Muslim religious courts. The fact that this difference between Muslim and Jewish courts was in fact preserved in the early years of the State of Israel was a source of great disappointment to many rabbis. See, for example, Herzog, Tehuqah le-yisra’el, 1:26, 239–42. On the jurisdiction of the different religious courts in the early years of the state, see Chigier, “Rabbinical Courts,” 147–81.
49.Herzog, Tehuqah le-yisra’el, 1:26.
56.Ibid., 1:20. Herzog considered the possible difference between forging a partnership with Muslims and Christians, whom he did not categorize as idolaters, and others like “Indians, Chinese and Japanese.” He concluded that a “partnership” would also be legitimate with these peoples and noted that he had not done sufficient research to establish whether those nations were, in fact, defined idolatrous according to his interpretation of halakha.
57.This is the description given in the official Prayer for the State of Israel produced by the Chief Rabbinate.
58.Deuteronomy 17:15.
59.Maimonides, Mishneh Torah “Hilkhot melakhim” 1:4.
60.Herzog, Tehuqah le-yisra’el, 1:23, 44–45.
63.Ibid., 1:28. cf. Leviticus 24:22.
64.Shulamit Eliash, “Ha-rav veha-medina’i, ha-rav ke-medina’i: Ha-yehasim bein ha-rav hertsog ve-emon de valera,” in Bein masoret le-hidush: Mehqarim be-yahadut tsionut u-medinat yisra’el, ed. Eliezer Don-Yehia (Ramat Gan, Israel: Bar-Ilan University, 2005), 297–319.
65.Herzog, Living History, 12; Keogh, Jews in Twentieth Century Ireland, 77.
66.Herzog, Living History, 12.
68.Keogh, Jews in Twentieth Century Ireland, 77.
69.Herzog publicly criticized British policy in Palestine even when he was still a rabbi in Ireland. An example of this criticism is the following sermon. The sermon was presumably a response to the Passfield White Paper, published a few days earlier, which was anti-Zionist in tone, restricted Jewish immigration to Palestine, and was understood by many Zionists to be an abrogation of promises made under the 1917 Balfour Declaration. This is a rare extant example of Herzog’s sermonizing in English. That, and the strength of his statements about Britain, make it worth quoting the sermon at some length, as it was reported in the Irish press:
“Rev. Dr. Isaac Herzog, M.A., D.Litt., Chief Rabbi of the Jewish community in the Free State, preaching at the Adelaide Rd., Dublin, Synagogue, on Saturday morning, referred to the Palestine question, and condemned the British Government’s recent statement of policy. ‘We stand amazed,’ he said. ‘How did it come about that the British Government has dared to turn into a sham, into a farce, most solemn obligations contracted towards an ancient, historic race of 17 millions; towards a race which has given to the world religion and morality; towards a race which has outlived all its tormentors and would-be destroyers, including the mightiest empires of antiquity; towards a race which is now in the forefront of every sphere of progress—humanitarian, industrial, scientific, literary and artistic? We refuse to believe that the British people are at one with the present Government in this singular breach of faith. When the latent conscience of the British public has been aroused to the true facts of the case, when it realises what a travesty, what a parody, the present Government has made of the Palestine Mandate, Englishmen throughout the Empire may yet proceed to echo the great cry of sorely-disappointed Israel. But come what may, we shall never lose heart. Palestine is the land of Israel, not by virtue of the Balfour Declaration, but by a Divine Declaration embodied in the Book of Books. No power on earth can tear us away from our prophetic cradle-land to which we are bound by ties innumerable, indissoluble.’ ” “Dublin Rabbi’s Protest.” Irish Independent, October 27, 1930.
70.Eliash, Harp and the Shield of David, 24–26.
71.Reuter, A. P. Agence France-Presse. “Palestine Tensions Grow: Fortified Camps Erected by the British,” Irish Press, February 7, 1947. This comparison was not accepted by all readers. A letter to the editor in response to the article, from a London address, claimed that in fact the Jews in Palestine were more like Ulster Unionists and that “the quarrel between British and Jewish Imperialism is simply an example of thieves falling out.” Reginald Reynolds, “Palestine and Ireland,” Irish Press, February 11, 1947.
72.“Dr. Sokolow Received by Mr. de Valera,” Irish Press, May 19, 1933.
73.Keogh, Jews in Twentieth Century Ireland, 91.
74.Isaac Cohen,“De Valera’s Wartime Condolences.” Irish Times, March 29, 2005.
75.Keogh, Jews in Twentieth Century Ireland, 110. Keogh notes that the official documents do not mention Herzog as a participant. On the basis of an oral interview, however, he maintains that Herzog was consulted about the constitutional clause relating to minorities in Ireland.
76.Samuel Moyn has called this “religious constitutionalism,” defined as “a new form of constitutionalism navigating between the vehement rejection of the secular liberal state . . . and the widespread demand for an integrally religious social order.” Samuel Moyn, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015), 27.
77.“Constitution of Ireland,” 1937. Preamble.
78.Moyn has shown that “human dignity” in the Irish constitution was “a religiously inspired root concept connected (as in the later West German case) to the subordination of the otherwise sovereign democratic polity to God—and, for many, to the moral constraints of His natural law.” Moyn, Christian Human Rights, 31.
79.“Constitution of Ireland,” Art. 44.1.
80.Ibid., Art. 44.1.
81.Ibid., Art. 44.3.
82.Under the fifteenth amendment, a court may grant a “dissolution of marriage” only if the spouses have lived apart for at least four years and there is no reasonable prospect of reconciliation between them.
83.Herzog, Tehuqah le-yisra’el, 1989, 3:29–30. For more on Herzog’s references to the Irish example, see Amihai Radzyner, “The Irish Influence on the Israeli Constitution Proposal, 1948,” in The Constitution of Ireland: Perspectives and Prospects, ed. Eoin Carolan (Haywards Heath: Bloomsbury Professional, 2012), 84 ff. The translation here is based on Radzyner’s.
84.It is interesting to note that Leo Kohn, whose draft constitution formed the basis for the discussions of the constitutional committee of the Jewish Agency, also thought of Ireland as a model. Kohn’s doctoral dissertation was a study of the constitution of the Irish Free State and he subsequently consulted in the drafting of the 1937 constitution of Ireland. Certainly, his study of Ireland played a role in his own constitutional thinking for Israel, although he also studied many other constitutions as part of that process. On Kohn, see Radzyner, “Constitution for Israel,” See also Radzyner, “The Irish Influence on the Israeli Constitution Proposal, 1948.”
85.“Colonial states did not in an important sense exist as states in the early centuries of colonialism. They did not claim or produce a monopoly on legal authority or on the assignment of political and legal identity.” Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002), 229.
86.Ibid., passim and especially 28, 264.
87.Likhovski, Law and Identity in Mandate Palestine, 106. Arnulf Becker Lorca, “Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation,” Harvard International Law Journal 51 (2010): 475–552, 475, for example, discusses “the work of non-Western jurists who studied international law in Europe, internalized the categories of classical international law, and ultimately used them in order to change, in the direction of equality, the rules of international law applicable vis-à-vis their polities.”
88.Writing of national liberation movements, Michael Walzer observed that “the militants go to school with the very people whose imperial rule they are fighting, and they have a view of their own nation that is remarkably close to what Edward Said called ‘orientalism.’ ” Walzer, Paradox of Liberation, xiii.
89.For the hegemonic effects of imperial education, see Gauri Viswanathan, Masks of Conquest: Literary Study and British Rule in India (New York: Columbia University Press, 1989).
90.Filip Reyntjens, “The Development of the Dual Legal System in Former Belgian Central Africa (Zaire-Rwnda-Brundi),” in European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th-Century Africa and Asia, ed. W. J. Mommsen and J. A. de Moor (Oxford; New York: Berg, 1992), 126.
91.Esin Örücü, “The Impact of European Law on the Ottoman Empire and Turkey,” in European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th-Century Africa and Asia, ed. W. J. Mommsen and J. A. de Moor (Oxford; New York: Berg, 1992), 49.
93.Assaf Likhovski, “In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine,” Israel Law Review 29, no. 3 (Summer 1995); Likhovski, Law and Identity in Mandate Palestine; Assaf Likhovski, “Two Horwitzian Journeys,” in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwtiz, ed. Morton J. Horwitz, Daniel W. Hamilton, and Alfred L. Brophy (Cambridge, MA: Harvard Law School; distributed by Harvard University Press, 2009), 300–318.
94.Despite the high regard in which Maine was held by his contemporaries, his historicist theories did not have a serious impact on English jurisprudence. Legal scholars and legislators in the United Kingdom, unlike those in the colonies, were suspicious of a theory that understood law to develop from the bottom up. They preferred a more analytical theory, positing that law was made up of pure categories, unaffected by context and history, in order to justify the imposition of legal reform by a political and academic elite. Raymond Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 2002), 141–95. In the colonies, however, even though his ideas were sometimes criticized, Maine was extremely influential. Elliott, “Evolutionary Tradition in Jurisprudence,” 45–46.
96.“The colonized are relegated to a timeless past without a dynamic, to a ‘stage’ of progression from which they are at best remotely redeemable and only if they are brought into History by the active principle embodied in the European. It was in the application of this principle that the European created the native and the native law and custom against which its own identity and law continued to be created.” Peter Fitzpatrick, The Mythology of Modern Law, Sociology of Law and Crime (Abingdon, Oxon: Routledge, 1992), 110.
97.Likhovski, Law and Identity in Mandate Palestine, 52.
98.Judge Anthony Bertram in 1909, quoted in ibid., 54.
102.Norman Bentwich, “The Application of Jewish Law in Palestine,” Journal of Comparative Legislation and International Law 9, no. 1 (1927): 65.
103.Ismar Schorsch, “The Myth of Sephardic Supremacy,” Leo Baeck Institute Yearbook 34, no. 1 (1989): 47–66.
104.Likhovski, Law and Identity in Mandate Palestine, 144–50; Likhovski, “Invention of ‘Hebrew Law’ in Mandatory Palestine,” 362–65.
105.Likhovski, “Between Mandate and State,” 60–64; Rubinstein, Shoftei erets, 45–49.
106.Yehudit Karp, “Ha-mo’atsa ha-mishpatit: Reshit alilot haqiqa,” in Sefer Uri Yadin, ed. Aharon Barak and Tara Shpanitz (Tel Aviv: Bursi, 1990), 2:209–56.
107.Moshe Silberg, Talmudic Law and the Modern State (New York: Burning Bush Press, 1973), 148–49.
108.Emanuel Rackman, Israel’s Emerging Constitution, 1948–51 (New York: Columbia University Press, 1955).
109.Shlomo Aronson, “David Ben-Gurion and the British Constitutional Model,” Israel Studies 3, no. 2 (1998): 193–214.
110.Nir Kedar, “Law, Culture, and Civil Codification in a Mixed Legal System,” Canadian Journal of Law and Society 22, no. 2 (2007): 177–95; Likhovski, “Between Mandate and State:,” 64–66.
111.Kedar, “Law, Culture, and Civil Codification in a Mixed Legal System.”
112.Many secular Jewish jurists had been educated in Germany or in universities that sought to emulate German legal scholarship. This legal education took place in the period during which positivism, and particularly the theories of Hans Kelsen, an influential theorist of the centralized legal state, were dominant. Fania Oz-Salzberger and Eli Salzberger, “The Secret German Sources of the Israeli Supreme Court,” Israel Studies 3, no. 2 (1998): 159–92. Kelsen’s theories remained very popular in Israeli legal circles. Izhak Englard, a jurist who became a Supreme Court Justice, based his entire legal philosophy on Kelsen’s theories. See, for example, Izhak Englard, Religious Law in the Israel Legal System (Jerusalem: Hebrew University of Jerusalem Faculty of Law, Harry Sacher Institute for Legislative Research and Comparative Law, 1975). Kelsen himself published the very first article of the first issue of the Israel Law Review in 1967. Hans Kelsen, “On the Pure Theory of Law,” Israel Law Review 1, no. 1 (1966): 1–7. Other jurists were educated in Poland and cited the new postwar Polish constitution as precedent in Israeli constitutional law. Assaf Likhovski, “Peripheral Vision: Polish-Jewish Lawyers and Early Israeli Law,” Law and History Review 36, no. 2 (2018): 235–66.
113.Guido (Gad) Tedeschi, “On the Choice between Religious and Secular Law in the Legal System of Israel,” in Studies in Israel Law, ed. Guido (Gad) Tedeschi (Jerusalem, 1960), 274. Note that this article was first published in its Hebrew original in 1952. Although he was writing during the state period, the author is explicitly talking about the legal regime of the British Mandate.
114.Warhaftig, Huqah le-yisra’el, 130.
115.Quoted in Nir Kedar, Ben-Gurion veha-huqah (Or Yehudah: Devir; Bar-Ilan University Press, 2015), 101.
116.Skornik v. Skornik C.A. 191/51. Piskei Din 8:179–180. Quoted in Englard, Religious Law, 43.
117.Englard, Religious Law, passim.
118.For a long list of similar cases, see Asher Maoz, “Ha-rabanut u-vet ha-din: Ben patish ha-hoq le-sadan ha-halakhah,” Shenaton ha-mishpat ha-ivri 16–17 (January 1990): 33 ff.
119.Balaban v. Balaban C.A. 313/59. Piskei Din 14:285.
120.Quoted in Menachem Elon, Haqiqah datit (Tel Aviv: Ha-kibuts ha-dati, 1968), 39.
122.Billett C.A. 291/74. Piskei Din 29(1):102. Quoted in Yitzhak Kohen, “Shiput rabani ve-shiput hiloni,” Diné Israel 7 (1976): 205.
123.Aharon Barak, “The Tradition and Culture of the Israel Legal System,” in European Legal Traditions and Israel, ed. Alfredo Mordechai Rabello (Jerusalem: Harry and Michael Sacher Institute for Legislative Research and Comparative Law; Hebrew University of Jerusalem, 1994), 474.
1.For a summary of the literature on the Sanhedrin, see James S. McLaren, Power and Politics in Palestine: The Jews and the Governing of Their Land, 100 BC–AD 70 (Sheffield, UK: JSOT Press, 2015), 18–23.
2.For the history of attempts to restore the Sanhedrin, see Julius Newman, Semikhah (Ordination): A Study of Its Origin, History, and Function in Rabbinic Literature (Manchester, UK: Manchester University Press, 1950).
3.See, for example, Maimonides, Perush ha-mishnayot, Sanhedrin 1:3. Maimonides’s opinion was based on Isaiah 1:26: “I will restore your judges as before and your counselors as at first. After that you shall be called city of justice, faithful city.” Maimonides interprets the verse to mean that there will be a return of judges to Jerusalem (“city of justice”) before the messianic restoration of Jerusalem as the “faithful city.” For Maimonides, this indicates that the restoration of the Sanhedrin is a precondition for the Messiah’s arrival. This belief posed a problem for Maimonides because he also believed that the restoration of the Sanhedrin required the restoration of the Mosaic chain of ordination. According to the rabbinic tradition, rabbinical authority was granted to Moses by God. Moses transmitted this authority to his student Joshua through a process called semikhah (literally, the “laying” of hands, but often translated as “ordination”). Joshua, in turn, transmitted this authority to his students, and so on through the generations in an unbroken line. However at a certain point, probably in the fourth century, the chain of rabbinic transmission was interrupted. From that point, rabbis were qualified to rule Jewish law but they did not have the authority of their predecessors. They could not, for example, impose corporal or capital punishment. Nor could they constitute a Sanhedrin.
For many rabbinic thinkers, the Mosaic line of ordination would be restored by the Messiah himself but this was not an acceptable solution for Maimonides, because, in his interpretation, the messiah’s arrival itself depended on the reinstitution of the Sanhedrin, which in turn depended on the restoration of Mosaic ordination. Maimonides resolved the problem by asserting, entirely without precedent, that Mosaic rabbinic authority could be resurrected: “It seems to me that if all the sages in the Land of Israel would agree to appoint judges and to ordain them, then they are ordained” (Maimonides, Mishneh Torah “Hilkhot Sanhedrin” 4:11).
In 1538, the rabbis of Safed under the leadership of Jacob Berab attempted to use Maimonides’s innovation to reinstitute Mosaic ordination. Berab himself became the first person formally to receive semikhah in over a thousand years, and others received it from him, including Joseph Karo, the most influential halakhic authority of the Early Modern period. Ultimately, though, the ordination initiative ended up making little impact and fizzled out within a few generations.
4.Zvi Makovsky, Ve-ashiva shoftayikh (Tel Aviv: Defus A. Moses, 1938), 7.
5.Ibid., 7. There is a mistake in the original source. Emdo should read amenu.
6.Ibid., 37. Kook’s letter was first published in an article by Makovsky in the religious newspaper Ha-hed. Zvi Makovsky, “A”d yesod by”d ha-gadol bi-yerushalayim,” Ha-hed 12 (1935).
7.Makovsky, Ve-ashiva shoftayikh, 37.
8.See, for example, Mirsky, Rav Kook, 202–4.
9.Fishman-Maimon was born Fishman. He and his sister Ada, a pioneering feminist leader in the Yishuv, changed their name to Fishman-Maimon in 1949 as a reference to their ancestor, Maimonides. A full biography of Fishman-Maimon was written by his daughter. Geulah Bat-Yehudah, Rabbi Maimon in His Generations (Jerusalem: Mossad Harav Kook, 1998).
10.Tsameret, “Judaism in Israel,” 67; Zvi Tsameret, “Ben-Gurion, ha-’shulhan arukh’ veha-’shulhan’ ha-hadash: Le-shorshei ha-metah bein Ben-Gurion u-vein ha-yahadut ha-datit,” in Me’ah shenot tsi’onut datit, ed. Avi Sagi and Dov Schwartz (Ramat Gan, Israel: Bar-Ilan University, 2003), 3:403–4.
11.The article, entitled “Justice in the State of Israel,” was published in Ha-tsofeh on January 23, 1949. Quoted and translated in Bat-Yehudah, Rabbi Maimon in His Generations, 642.
12.Quoted in Bat-Yehudah, Rabbi Maimon in His Generations, 644.
13.The articles were collected shortly thereafter in Yehudah Leib and Hakohen Maimon Fishman, Hidush ha-sanhedrin bi-medinatenu ha-mehudeshet, 2nd edition, Kitvei ha-rav Y. L. Maimon 4 (Jerusalem: Mosad Ha-rav Kook, 1951).
14.Maimon’s protest is quoted at Bat-Yehudah, Rabbi Maimon in His Generations, 646.
15.Quoted in Herzog, Tehuqah le-yisra’el, 1989, 3:261.
18.For more on the topic, including its other supporters and detractors, see Cohen, Ha-talit veha-degel, chap. 3.
19.Aryeh Morgenstern, Ha-rabanut ha-rashit le-erets yisra’el: Yisodah ve-irgunah (Jerusalem: Shorashim, 1973), 72.
20.For a full account of the establishment of the Chief Rabbinate and its early history, see ibid. See Itamar Warhaftig and Shmuel Katz, Ha-rabanut ha-rashit le-yisra’el: Shivim shanah le-yisudah, 5681–5751; Samkhutah, pe’uloteha, toldoteha, 3 vols. (Jerusalem: Hekhal Shlomo, 2001); Shulamit Eliash, “The Political Role of the Chief Rabbinate of Palestine during the Mandate: Its Character and Nature,” Jewish Social Studies 47, no. 1 (1985): 33.
21.They were published, some years after their initial promulgation, as “Sidrei ha-mishpatim be-vatei ha-din be-erets yisra’el,” Ha-Mishpat 2 (1921): 241–50, 290–98.
22.Amihai Radzyner, “Al reshitan shel taqanot ha-diyun be-vatei din ha-rabani’im: ‘Sidrei ha-mishpatim,’ [5]681,” Bar-Ilan Studies in Law 25, no. 1 (2009): 37–76 passim, and especially 22–31.
23.The Talmud establishes that a rabbi may not overturn the ruling of a colleague: “What a sage has declared impure, his colleague may not declare pure. What he has forbidden, his colleague may not permit.” (b. Hullin 44b, b. Niddah 20b.) Also, “[a]court does not scrutinize the decision of another court.” (b. Baba Batra 138b.) Many premodern commentators allowed for a rabbi to overrule a colleague’s ruling in the case of a clear mistake in the law or, according to some, in the case of a mistake in judgment. Some allow for a rabbi to overrule any ruling of a less eminent colleague. (See, for example, Rama on Yoreh De’ah 242:31 and Shakh on Yoreh De’ah 242:53.) Even these interpretations, though, imagine an ad hoc process resting on the eminence and learning of particular judges rather than a permanent institution, whose role is to inspect and potentially overrule the decisions of other courts. There are, though, some historical examples of rabbinical courts that functioned as appeal courts. The Council of the Four Lands, for example, an Early Modern interregional Jewish body, sometimes performed this function, although this was not its primary function. Simhah Assaf, a law professor in Mandate Palestine, noted other precedents for rabbinical courts of appeal. Assaf, Batei ha-din, 74–86. Herzog appreciated Assaf’s work and quoted it in his book on the constitution. Zerah Warhaftig also referred to Assaf’s work in defense of the idea of the rabbinical court of appeals. Warhaftig’s apologetic tone hints at the rabbinic opposition to which he was implicitly responding: “The rabbinical court of appeals should not be considered a revolutionary innovation because rabbinical courts of appeal have existed for centuries in several places. And I do not want to return to that discussion. Only, for those who are interested, I mention the research of Rabbi Professor S. Assaf, “‘Rabbinical Courts and Their Procedures after the Talmudic Period.’ ” Divrei ha-keneset 16 (1954) p. 2182. The protests of Herzog, Warhaftig, and others notwithstanding, the idea of a rabbinical appeals court remained largely foreign to the Jewish tradition, and many rabbis in Palestine, and later Israel, were unconvinced that the Chief Rabbinate had the authority to overturn their decisions. For more on the role of appeals and precedent in Jewish law, see J. David Bleich, “The Appeal Process in the Jewish Legal System,” in Contemporary Halakhic Problems, vol. 4, (New York: KTAV Publishing House, Inc., 1995), 17–45.
24.Shulhan Arukh Hoshen Mishpat, 14:4.
25.Amihai Radzyner, “Reshitan shel taqanot ha-diyun be-vatei din ha-rabani’im: Taqanot [5]703,” Diné Israel 25 (2008): 117.
26.See the contemporary report in Paltiel Dickstein, “Sidrei ha-din be-vatei dinenu ha-leumi’im,” Ha-mishpat ha-ivri 3 (1928): 191–95. See also Radzyner, “Reshitan shel taqanot ha-diyun,” 153 fn. 70.
27.Radzyner, “Reshitan shel taqanot ha-diyun,” 117.
28.One scholar, who wrote an entire book about rabbinical procedure, later claimed that, in 1942, laws of legal procedure were drafted “for the first time in the history of the literature of halakha.” Eliav Shochetman, Seder ha-din le-or meqorot ha-mishpat ha-ivri: Taqanot ha-diyun u-fesiqat batei ha-din ha-rabani’im be-yisra’el, Library of Jewish Law (Jerusalem: Misrad ha-mishpatim: Moreshet ha-mishpat be-yisra'el: ha-qeren le-qidum ha-mishpat ha-ivri, 1988), 11.
29.Radzyner, “Reshitan shel taqanot ha-diyun,” suggests that the success of the 1942 regulations is a result of the capitulation of the Chief Rabbinate in the face of external pressure from the Mandate authorities and the Va’ad Le’umi. This opinion is true, but a deeper reason is needed to explain the different response to the almost identical regulations in 1921.
30.ISA B/23517/83.
31.Radzyner, “Reshitan shel taqanot ha-diyun,” 131.
32.For the approach of the Rabbinical Court of Appeals to the procedural irregularities of the courts of first instance, see Zerah Warhaftig, ed., Osef pisqei din (Jerusalem: Ha-midpas Ha-memshalti, 1950), 1:20–24, 48–52, 72–79, 91–92, 132–39.
33.Herzog, Pesaqim u-khetavim, vol. 9, Siman 9.
34.Since the Mandate period or earlier, the rabbinical courts had functioned as arbitration tribunals in areas outside of their legal jurisdiction. This role of the rabbinical courts was recognized in law under the British Mandate. In 2006, however, in HCJ 8638/03 Amir v. the Great Rabbinical Court in Jerusalem, the state ruled that Israel’s state-funded rabbinical courts were prohibited from acting as arbitration tribunals, even where the private parties submitted themselves to their binding authority, and were allowed to adjudicate cases only that the state explicitly placed under their jurisdiction. Legislation currently passing through the Knesset might make the Amir ruling irrelevant. See Menachem Mautner, Law and the Culture of Israel (Oxford; New York: Oxford University Press, 2011), 189–90; Adam S. Hofri-Winogradow, “Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State,” Journal of Law and Religion 26, no. 1 (2010): 76–78 and passim.
35.Herzog, Pesaqim u-khetavim, vol. 9, Siman 11.
36.Warhaftig, Osef pisqei din, 1:71. For more about the way the official position of the Chief Rabbinate affected the perception of its courts in the halakhic mind, see Maoz, “Ha-rabanut u-vet ha-din.”
37.Warhaftig, Osef pisqei din.
38.In family cases, the rabbinical reports, like secular law reports, generally conceal names in order to preserve the anonymity of the parties: for example, “The plaintiff A (the wife); The respondent B (the husband).”
39.ISA B/23527/15.
40.The fact that the published court records were summaries written by lawyers rather than by the rabbinical judges themselves is made clear in a note by Warhaftig in the forward to the first collection of edited decisions: “The selection of the rulings herein published was guided by the desire accurately to portray the workings of the Court. . . . The opinions of the judges, with a few exceptions, are not published as written, but have been abstracted by the editors from the contents of the pamphlets appended to the case files. This volume thus does not constitute a formal record and the editors assume full responsibility for the adaption and wording of the judicial opinion.” Warhaftig, Osef pisqei din, 1:3.
41.Zerah Warhaftig, “Precedent in Jewish Law,” in Authority, Process and Method: Studies in Jewish Law, ed. Hanina Ben-Menahem and Neil S. Hecht Jewish Law in Context 2 (Amsterdam, The Netherlands: Harwood Academic Publishers, 1998), 13 fn. 73.
43.Warhaftig originally spoke these words at a conference for a lawyers’ organization under the auspices of the national religious party. They were later published as Zerah Warhaftig, “Ha-mishpat ha-ivri be-haqiqat medinat yisra’el ba-esor ha-rishon,” Ha-tsofeh, September 14, 1958.
45.Warhaftig, “Precedent in Jewish Law,” 14.
46.On the occasion of the establishment of the Chief Rabbinate in 1921, Abraham Isaac Kook spoke in his inaugural speech about the potential, in rare circumstances, for the Chief Rabbinate to introduce halakhic legislation: “In our national life in the Land of Israel, there will surely at times be a dire necessity to issue some significant legislation, which, if agreed upon by a majority of the rabbinate, the generally recognized sages of Israel, and accepted by society, will then gain the status and power of Torah law.” Warhaftig and Katz, Ha-rabanut ha-rashit le-yisra’el, 1:23. Kook, however, never himself embarked on this vision of rabbinical legislation.
47.The full text of the statutes and associated contemporary material is at Herzog, Tehuqah le-yisra’el, 1989, vol. 3. See also Zorach Warhaftig, “Rabbi Herzog and Rabbinic Legislation,” in The Halakhic Thought of R. Isaac Herzog. (Note that Zorach is an alternative transliteration of Zerah.)
48.Ashkenazim ceased the practice of polygamy long before it was formally outlawed in the tenth century under Rabenu Gershom. Finkelstein, Jewish Self-Government in the Middle Ages, 23 ff.
49.Aharon Gaimani, “Marriage and Divorce Customs in Yemen and Eretz Israel,” Nashim: A Journal of Jewish Women’s Studies & Gender Issues, no. 11 (2006): 43–83.
50.Attorney General v. Melnik Criminal Appeal no. 85 (1938), Palestine Law Reports 6 (1939): 34. See Emanuel Rackman, “The Religious Problems in the Making of the Israeli Constitution (1948–1951),” Lawyers Guild Review 13 (1953): 71.
51.For the criminalization of bigamy under the British Mandate, see Amihai Radzyner, “Milhamot he-yehudim: Itsuvo shel isur ha-bigamiah la-yehudim be-erets yisra’el ha-mandatorit,” in Huqah ahat u-mishpat ehad la-ish veha-ishah, ed. Ruth Halperin-Kaddari, Margalit Shilo, and Ayal Katvan (Ramat Gan, Israel: Bar-Ilan University, 2010), 151–98.
52.For the ethnic dimensions of the policies over levirate marriage, see Elimelech Westreich, “Levirate Marriage in the State of Israel: Ethnic Encounter and the Challenge of a Jewish State,” Israel Law Review 37, nos. 2–3 (July 2004): 426–99. This entire episode can perhaps be best understood in the highly politicized context of the relationship between Sephardic and Ashkenazic Israelis in Israel, particularly after the troubling policies of the state with the regard to the Yemenite immigration of 1949. See, for example, Tom Segev, 1949: The First Israelis, trans. Arlen Neal Weinstein (New York: Free Press; Collier Macmillan, 1986), pt. II.
53.Yabi’a Omer, vol. 6, Even Ha-Ezer 14 (9).
54.For more on Yosef’s resistance to “Ashkenazic imperialism,” particularly in the context of polygamy, see Elimelech Westreich, “Haganat ma’amad ha-nisu’in shel ha-ishah ha-yehudi’ah be-yisra’el: Mifgash ben mesorot mishpati’ot shel edot shonot,” Pelilim 7 (5759 [1999]): 273–347; Binyamin Lau, Mi-maran ad maran: Mishnato ha-hilkhatit shel ha-rav Ovadiah Yosef (Tel Aviv: Yedi’ot Aharonot; Sifrei Hemed, 2005), 192 ff.; Amihai Radzyner, “Halakhah, Law and Worldview: Chief Rabbis Goren and Yosef and the Permission to Marry a Second Wife in Israeli Law,” Diné Israel, no. 32 (2018): 261–304, 281 ff. The imposition of Ashkenazic custom, and Yosef’s resistance to it, can also be seen in the politics of the discussion about the pronunciation of Hebrew. Isaac B. Gottlieb, “The Politics of Pronunciation,” AJS Review 32, no. 2 (2008): 335–68.
55.Hertzberg, Zionist Idea, 550.
56.Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 29–33 and 151. Republished as Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 1969 and later as Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 1978. Page numbers refer to the latter publication.
57.Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 1978, 324.
63.Ibid., 326. Bar-Ilan is presumably here referring to the agreement, later called the “status-quo agreement,” made between Ben-Gurion and the Agudat Israel party in June 1947. Part of that agreement granted the rabbinical courts continued control over personal status law, but reserved the right of the state to control all other realms of law. The full text of the agreement is at Itamar Rabinovich and Jehuda Reinharz, Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present (Waltham, MA: Brandeis University Press; Hanover: University Press of New England, 2008), 58–59. For a full discussion, see Friedman, “Structural Foundation for Religio-Political Accommodation in Israel.”
64.Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 1978, 326–27.
67.This date, Sivan 5708, is reported in Zvi Kaplan, “Avodat va’adat ha-haqiqa she-al-yad ha-merkaz ha-olami shel ha-mizrahi” (Jerusalem, April 23, 5709), RZA-MRK 330/38/4/1949.
68.“Batei mishpat.” This term refers specifically to state civil courts, as opposed to rabbinical courts, which are called batei din.
69.Zvi Kaplan, “Avodat va’adat ha-haqiqa she-al-yad ha-merkaz ha-olami shel ha-mizrahi”.
70.Bar-Ilan, Correspondence of 12 Av 5708, RZA-MRK, 330/38/4/1948.
71.They were Avraham Shapira, Aharon Bialistotski, Yaakov Ginzburg, A. Z. Gerber [?], Sh. A. Yedelewitz, Dr Y. Z. Kahana, Binyamin Rabinowitz-Te’omim, Avraham Shadmi, and Mordekhai Elon. A further three rabbis also worked for a short time on the committee: D. Kreuzer, G. Arieli, Y. Salmon. (The list is taken from ibid.) Bar-Ilan, in a meeting of the same month, said there were sixteen workers on the project rather than twelve. It seems there were also other members of the committee not included on Kaplan’s list: for example, Bezalel Zolti and M. D. Bakesht, who were both present at a meeting of 11 April 1949. “Du”ah hever ovdei avodat ha-haqiqah,” 12 Nisan 5709, RZA-MRK, 330/38/4/1949.
72.Ibid.
73.Lit. “to greaten and ennoble the Torah” i.e., to study the Torah as an exercise of religious devotion, rather than for practical purposes.
74.Letter from Zvi Kaplan to Avraham Shadmi, 2 Elul 5708, RZA-MRK, 330/38/4/1948.
75.Mordekhai Elon to Bar-Ilan 17 Av 5708, RZA-MRK, 330/38/4/1948.
76.Avraham Shapira to Bar-Ilan 24 Av 5708, RZA-MRK, 330/38/4/1948.
77.Ibid.
78.“Du”ah hever ovdei avodat ha-haqiqah,” 12 Nisan 5709, RZA-MRK, 330/38/4/1949.
79.Binyamin Rabinowitz-Teomim, Ha-haqiqah al-pi mishpat ha-torah: Erkah, ba’ayotehah, u-derakhehah (Jerusalem: Bet ha-midrash le-mishpat ha-torah, mahlakat ha-hakika, 1950).
80.In 1907 Switzerland had enacted its own civil code, similar to the German BGB. The Swiss code had been adopted by Turkey in the 1920s.
81.Yitzhak Ginzberg, Mishpatim le-yisra’el: Ha-hoq ha-pelili ve-dinei ha-onshin bizman hazeh le-fi mishpat ha-torah, ha-talmud u-meforshim (Jerusalem: Mechon Harry Fischel, 1956); Binyamin Rabinowitz-Teomim, Hilkhot mekhira (Jerusalem: Mechon Harry Fischel, 1957).
82.Ginzberg, Mishpatim le-yisra’el, 116 ff.
1.Religious Zionists sometimes found secular partners for this kind of legislation. The desire of secular Zionists for cultural hegemony and the symbolic significance of pork products in Jewish tradition, for example, played a role in establishing legislation around kosher laws. Daphne Barak-Erez, Outlawed Pigs: Law, Religion, and Culture in Israel (Madison: University of Wisconsin Press, 2007).
2.An analysis of the idealistic and pragmatic streams within religious Zionism is found in Cohen, Ha-talit veha-degel, chap. 8. Cohen maintains that the pragmatic stream ultimately dominated. His analysis is sound but I believe that the role of principle even among the pragmatists is important to recognize, as I argue later.
3.Friedman, “The Structural Foundation for Religio-Political Accommodation in Israel.”
4.The main constitutional proposal under consideration, by Leo Kohn, was amended over time to include additional symbolic references to the Jewish tradition but the substantive impact of Jewish law on the proposal was very minimal. Radzyner, “Constitution for Israel.”
5.Isaac Herzog, “Tehei yerushalayim birat yisra’el ve-torato—huqatah,” Ha-tsofeh, August 1, 1948.
6.Dov Schwartz, Faith at the Crossroads, 159.
7.Quoted in Likhovski, “Between Mandate and State,” 62. Cohn’s statement is particularly striking, given that he would become a clear opponent of the use of Jewish law in Israel, advocating instead a thoroughly modern legal system. For more on the temporary interest in Mishpat Ivri just before the establishment of the state, see ibid., 60–64 and especially fn. 101. For more on Cohn and the changes in his thinking about Jewish law, see Amihai Radzyner and Shuki Friedman, “Ha-mehoqeq ha-yisre’eli veha-mishpat ha-ivri: Hayim kohn ben mahar le-etmol,” Iyunei Mishpat 29, no. 6 (2005): 167–244.
8.The letter is published in Herzog, Tehuqah le-yisra’el, 1:229.
9.Moshe Una, “Mashma’utah shel ha-hashpa’ah ha-hilkhatit ‘al ha-haqiqah,” in Ha-mishpat ha-ivri u-medinat yisra’el, ed. Yaakov Bazaq (Jerusalem: Mosad Ha-rav Kook, 1969), 101–9. Other religious Zionists were similarly skeptical. See Warhaftig, Huqah le-yisra’el, 351.
10.Technically, some have argued that Israel does indeed have a constitution, albeit one that is unwritten or incomplete. At the very least, Israel’s Basic Laws are often treated by the judiciary to have the status of constitutional law and are used as a basis for finding individual rights and justifying judicial review. Gideon Sapir, Daphne Barak-Erez, and Aharon Barak, eds., Israeli Constitutional Law in the Making (Oxford: Hart Publishing, 2013). In the words of Aharon Barak, former president of Israel’s Supreme Court, “Despite a common misconception, Israel does have a formal constitution as well as judicial review of constitutionality.” Aharon Barak, “The Values of the State of Israel as a Jewish and Democratic State,” in Israel as a Jewish and Democratic State, ed. Asher Maoz, Jewish Law Association Studies XXI (Atlanta: Scholars Press, 1991), 6.
11.This fallacy was noted in an early study of the constitution-making process. The study observed that “notwithstanding popular opinion to the contrary there was opposition to a written constitution from political parties other than the religious ones.” Rackman, Israel’s Emerging Constitution, 1948–51, x. See also ibid., 27–32; Rackman, “Religious Problems in the Making of the Israeli Constitution (1948–1951),” 72.
12.According to an analysis of the papers in the Israel State Archive, “Ben-Gurion stood like a wall against those who wanted a constitution. In discussions with supporters and opponents, in the Knesset and outside it, he found countless reasons to belittle the importance that the supporters of the constitution adduced to the document. Moreover, by pushing off the need for a constitution here and now, he sought to set himself up as the supreme defender of the democracy.” Eli She’altiel, David Ben-Gurion: Rosh ha-memshalah ha-rishon; mivhar te’udot (1947–1963) (Jerusalem: Medinat yisra’el, arkhi’on ha-medinah, 1997), 139. See also Amihai Radzyner and Shuki Friedman, Huqah she-lo ketuvah ba-Torah (Jerusalem: Israel Democracy Institute, 2006). For more historical background, and a more charitable view of Ben-Gurion’s opposition to a written constitution, see Nir Kedar, Ben-Gurion veha-huqah.
13.Law and Administration Ordinance No.1, 1948, Section 11.
14.Religious courts would probably have maintained their jurisdiction over personal law even had a constitution been adopted. There was a clause along these lines in Leo Kohn’s draft constitution, the most likely blueprint for a constitution in 1948. Radzyner, “Constitution for Israel.”
15.The letter was written on March 11, 1948 and was published in Warhaftig and Katz, Ha-rabanut ha-rashit le-yisra’el, 295.
16.Ousiel, Hegyonei uziel, vol. 1, p. 177, quoted in Dov Schwartz, Faith at the Crossroads, 174.
17.Herzog, “Samkhut ha-torah be-medinat yisra’el,” 222.
20.Women’s Equal Rights Law, 1951, para. 1.
21.Ibid., para. 7.
22.For more on the administration and precise jurisdiction of the rabbinical courts, see Chigier, “Rabbinical Courts in the State of Israel”; Chigier, Husband and Wife in Israeli Law. For a helpful collection of Knesset regulations pertaining to religion and state, see Warhaftig, Hefetz, and Glas, Dat u-medinah be-haqiqah, 42–104. For the consequences of the Women’s Equal Rights Law, see Elon, Ma’amad ha-ishah.
23.Herzog, “Samkhut ha-torah be-medinat yisra’el,” 223.
24.Quoted in Shapira, Ben-Gurion, 191.
25.Dov Schwartz finds three levels of motivation in religious Zionism: An “overt” level, which affirms concrete political life; a “subconscious” level, which views events in terms of a naturalistic messianism; and an “unconscious” level, which expects an apocalyptic messianism. For Schwartz, “[a]lthough the daily routine of religious-Zionists conveys an accommodation with secularization, the subconscious layer, for instance, views this routine as a realization of the first stages of natural redemption.” Schwartz, “Ideas vs. Reality,” 205–6. The distinction between pragmatism and idealism that I describe in this chapter is not identical to Schwartz’s taxonomy, but might roughly correspond to his first two levels. My distinction, however, does not describe a psychodynamic process. As I show later, Herzog is quite explicit about the need for internal and external rhetoric.
26.The speech was delivered on 21 Av 5709 at the Mizrahi Council. It is published in Herzog, Tehuqah le-yisra’el, 1:221–8.
27.Herzog, “Samkhut ha-torah be-medinat yisra’el,” 1:226–27.
30.For more on the role of rabbis in the Council of the Four Lands and in Poland in general, see Adam Teller, “Rabbis without a Function? The Polish Rabbinate and the Council of Four Lands in the 16th–18th Centuries,” in Jewish Religious Leadership: Image and Reality, ed. Jack Wertheimer (New York: Jewish Theological Seminary, 2004), 371–400; Fram, Ideals Face Reality.
31.“Law shapes society from the inside out by providing the principal categories in terms of which social life is made to seem largely natural, normal, cohesive, and coherent.” Sarat, “Redirecting Legal Scholarship in Law Schools,” 134.
32.“When they begin to find a voice, peoples who see themselves as disadvantaged often [resist] either by speaking back in the language of the law or by disrupting its means and ends.” John L. Comaroff, “Foreword,” in Contested States: Law, Hegemony and Resistance, ed. Mindie Lazarus-Black and Susan F. Hirsch (New York: Routledge, 2012), xii.
33.For the ways that the British used law as a tool of social construction, and the way that Zionists and Arabs used law as a site of resistance or collaboration, see also Likhovski, Law and Identity in Mandate Palestine; Ronen Shamir, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine (Cambridge: Cambridge University Press, 1999).
34.For more on Warhaftig, see Itamar Warhaftig, Alayikh zarah: Hayav u-po’alo shel ha-sar d″r zerah varhaftig zts″l (Ma’alaeh Adumim, Israel: Itamar Warhaftig, 2018).
35.Letter from Bar Ilan to Warhaftig, 24 Adar I 5708. ISA G-472722/98/04.
36.Warhaftig, Huqah le-yisra’el, 441–53.
37.See, for examples, Zerah Warhaftig, Al ha-shiput ha-rabani be-yisra’el: Neumim (Tel Aviv: Moreshet, 1955), 12.
38.Zerah Warhaftig, “Ba’ayot ha-mishpat be-medinat yisra’el,” Ha-tsofeh, September 2, 1949.
39.Bar-Ilan, “Hoq u-mishpat,” 20.
40.This romantic view of the revival of Hebrew and the abandonment of other languages was not entirely true to reality. See Liora R. Halperin, Babel in Zion: Jews, Nationalism, and Language Diversity in Palestine, 1920–1948 (New Haven, CT: Yale University Press, 2014); Anat Helman, Becoming Israeli: National Ideals and Everyday Life in the 1950s (Waltham, MA: Brandeis University Press, 2014), chap. 2.
41.Warhaftig, Huqah le-yisra’el, 45.
42.Divrei ha-keneset 11 (1952), 2107.
43.b. Megilla 14a.
44.Divrei ha-keneset 25 (1958), 232.
45.Letter from Zerah Warhaftig to Raphael H. Gold, 18 January, 1948. ISA G-472722/98/04.
46.Ibid.
47.Warhaftig, Huqah le-yisra’el, 45–46.
48.This procedure was legislated under Article 46 of the King’s Order in Council, a kind of constitution for the British Mandate of Palestine.
49.Although Warhaftig failed, a version of this law was eventually legislated in Israel’s Foundations of Law Act (1980), which reads, “Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case-law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace of Israel’s heritage.” The act, however, makes no reference at all to halakha and its vague language allows for many possible interpretations.
50.Quoted at Warhaftig, Huqah le-yisra’el, 429.
51.C.A.191/51 Leib Skornik v. Miriam Skornik.
52.Divrei ha-keneset 16 (1954), 2184.
53.Warhaftig, “Ha-mishpat ha-ivri be-haqiqat medinat yisra’el ba-esor ha-rishon.”
54.Divrei ha-keneset 32, no. 1 (1961), 54–57. For one treatment of Warhaftig’s speech, see Izhak Englard, “The Problem of Jewish Law in a Jewish State,” Israel Law Review 3 (1968): 260–2.
55.Quoted in Englard, “The Problem of Jewish Law in a Jewish State,” 260 fn. 18. I could not locate this comment in Divrei ha-keneset.
56.Menachem Elon, “Ha-mishpat ha-ivri be-mishpat ha-medinah: Al ha-matsui ve-al ha-ratsui,” Ha-praklit 25 (September 1968): 27–53. I am grateful to Amihai Radzyner for this reference.
57.Divrei ha-keneset 32, no. 1 (1961), 56.
58.Ibid., 57.
59.Ibid., 57.
60.Warhaftig, Al ha-shiput ha-rabani, 12.
63.RZA-BI PA/16001211. The nature of this source is unclear. It is certainly written by Warhaftig and seems to be a draft of an article or book that he did not publish.
64.Ibid.
65.Warhaftig, “Ha-mishpat ha-ivri be-haqiqat medinat yisra’el ba-esor ha-rishon.”
1.Moshe Zmoira, “Speech by Moshe Zmoira at the Inauguration of the Supreme Court,” Ha-Praklit 5 (1948): 187, quoted in Pnina Lahav, “The Supreme Court of Israel: Formative Years, 1948–1955,” Studies in Zionism 11, no. 1 (March 1990): 49. The translation here is Lahav’s.
3.ISA 80-4253/10. I am grateful to Amihai Radzyner for bringing this document to my attention.
4.The reference should be b. Betzah 25b.
5.Isaac Herzog, “Al mishpat ha-torah be-yisra’el,” in Halakhah pesuqah: Mishpat ha-torah li-meqorotav be-talmud u-posqim al seder ha-shulkhan arukh (Jerusalem: Mechon Harry Fischel, 1962), 1:11–15. These words were originally delivered by Herzog in a speech on July 23, 1948.
6.Ousiel originally wrote these words in a responsum sent on March 1, 1949 to the head of the rabbinical court of Tiberias, Refa’el Ha-Kohen Kook. The responsum was later published as Bentsion Meir Hai Ousiel, “Yesodot din ha-malkhut be-yisra’el uva-amim,” Ha-torah veha-medinah 5–6 (1953–54): 16.
7.On the Rabbinic Council of Ha-po’el ha-mizrahi, see Asher Cohen and Aaron Kampinsky, “Religious Leadership in Israel’s Religious Zionism: The Case of the Board of Rabbis,” Jewish Political Studies Review 18, nos. 3–4 (October 1, 2006): 119–40.
8.For more on Ha-torah veha-medinah, see Mark Washofsky, “Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity,” Modern Judaism 9, no. 3 (October 1989): 289–310.
9.Many of these bibliographic details come from the account of his son-in-law. Yisrael Sarir, “Sha’ul yisra’eli, ha-rav,” Entsiklopedia yahadut le-nosa’im be-tarbut yisra’el li-tehumeha, accessed June 11, 2019, http://www.daat.ac.il/encyclopedia/value.asp?id1=1070. See also Shmuel Katz, “Toldot hayav shel ha-rav sha’ul yisra’eli zts”l,” accessed June 11, 2019, http://www.eretzhemdah.org//Data/UploadedFiles/SitePages/896-sFileRedir.pdf. For more about Yisraeli, and particularly his halakhic work, see Yitzchak Roness, “Mishnato ha-hilkhatit shel ha-rav sha’ul yisra’eli” (Ph.D. Dissertation, Bar–Ilan University, 2012).
10.Shaul Yisraeli, “Im ha-qovets,” Ha-torah veha-medinah 1 (1949): 11.
12.For an overview of the application of these precedents in Ha-torah veha-medinah, see Washofsky, “Halakhah and Political Theory.”
13.Appeals to these diverse precedents might in theory have yielded different conceptions of the State of Israel. Their ramifications are explored in Benny Porat, “Hamishah musagim yehudi’im shel demoqratiah yisre’elit: masat petihah,” in Mahshavot al demoqratiah yehudit, ed. Aviezer Ravitzky (Jerusalem: Israel Democracy Institute, 2010), 17–27. In practice, however, the contributors to Ha-torah veha-medinah were often more interested in legitimizing the State of Israel than in the detailed consequences of choosing one kind of precedent over another. Their willingness to alternate between different precedents for non-halakhic law may reflect their intuition that extra-halakhic laws of any kind ultimately find their source in a Noahide law, a pre-Sinaitic natural law that applies to all peoples. Stone, “Sinaitic and Noahide Law,” especially pp. 1202 ff. See also Avraham Hayim Burgansky, “Qehilah u-mamlakhah: Yehasim shel ha-rav y”a hertsog veha-rav sha’ul yisra’eli le-medinat yisra’el,” in Dat u-medinah ba-hagut ha-yehudit ba-me’ah ha-esrim, ed. Aviezer Ravitzky (Jerusalem: Israel Democracy Institute, 2005), 267–94.
14.One scholar has noted that Yisraeli seemed willing to make whatever intellectual moves that were necessary to endorse the state’s authority: “One might receive the impression that the overriding goal that guides his position, consciously or unconsciously, is nothing less than to grant a comprehensive approval to the state that had just been established, an approval both structural and functional.” Gerald Blidstein, “Torat ha-medinah be-mishnat ha-rav sha’ul yisra’eli,” in Shenei ivrei ha-gesher, ed. Mordechai Bar-On (Jerusalem: Ben Zvi Institute, 2002), 360.
15.Kook, Mishpat kohen, 144:14.
16.I Samuel 8. The principal biblical reference for the dependence of the appointment of a monarch on the people’s consent is Deuteronomy 17:15 (“When you say ‘I will set a king over me’ . . . [y]ou shall surely set a king over yourself”), which was taken by many interpreters to imply that the consent of the people is necessary for the appointment of a king. This reading is born out by I Samuel 8. Neither source, however, implies that the king is subject to the consent of the people after his initial appointment, or provides for a legal method of removing a king should the people’s consent be rescinded. In fact, I Samuel 8 strongly suggests that once appointed, he has very wide discretion in his prerogative.
17.Maimonides, Mishneh torah, “Laws of Kings and Wars,” 1:3.
18.Blidstein, “Torat ha-medinah be-mishnat ha-rav sha’ul yisra’eli,” 353 fn. 8; Yosef Ahituv, “Le-bituyav ha-hilkhati’im shel ha-rav ha-rashi yitshaq ha-levi hertsog be-esor ha-rishon li-tequmat yisra’el,” in Etgar ha-ribonut: Yetsirah ve-hagut be-esor ha-rishon la-medinah, ed. Mordechai Bar-On (Jerusalem: Yad Yitshaq Ben-Tsvi, 1999), 205 fn. 14.
19.Many of Yisraeli’s articles were collected and published in Shaul Yisraeli, Amud ha-yemini (Tel Aviv–Jaffa: Moreshet, 1966), which was reissued as Shaul Yisraeli, Amud ha-yemini, 2nd edition (Jerusalem: Hotza’at ha-torah veha-medinah al shem maran ha-rav sha’ul yisra’eli ztz’l, 2010). Unless stated otherwise, page references refer to the second edition. The article under discussion was first published as Shaul Yisraeli, “Samkhut ha-nasi u-mosdot memshal nivharim be-yisra’el,” Ha-torah veha-medinah 1 (1949): 67–78. It was republished as Yisraeli, Amud ha-yemini, chap. 7.
20.Yisraeli, Amud ha-yemini, 35.
21.According to Gerald Blidstein, “[a]t least some of these conclusions seem fairly revolutionary; and if we pay attention to the halakhic argument of Rabbi [Yisraeli], we see that he enters into claims that are rather too forced to stand up.” Blidstein, “Torat ha-medinah be-mishnat ha-rav sha’ul yisra’eli,” 360.
22.Yisraeli, Amud ha-yemini, 39. The biblical quotation is from I Kings 16:25.
23.“Then the people of Israel were divided into two. Half of the people followed Tibni the son of Ginat, making him king; and half followed Omri” (I Kings 16:21). It is possible that Yisraeli picked a case in which only half the people supported the king in order to make the point that a majority is all that is needed to determine the will of the people.
24.Yisraeli, Amud ha-yemini, 39.
26.See, for example, b. Yoma 73b, interpreting 2 Samuel 15:24.
27.Yisraeli, Amud ha-yemini, 40.
28.For more on mamlakhtiyut, see Nir Kedar, “Ben-Gurion’s Mamlakhtiyut: Etymological and Theoretical Roots,” Israel Studies 7, no. 3 (2002): 117–33; Nir Kedar, Mamlakhti’ut: ha-tefisah ha-ezrahit shel david ben-gurion (Beersheba, Israel: Mekhon Ben-Gurion le-heqer yisra’el, Ben-Gurion University in the Negev; Yad Yitshak Ben Tsvi, 2009).
29.Shlomo Tenbitsky, “Dina de-malkhuta be-yisra’el uva-amim,” Ha-torah veha-medinah 1 (1949): 41.
30.Natan Tsvi Friedman, “Samkhuyoteha shel memshelet medinat yisra’el,” Ha-torah veha-medinah 1 (1949): 47.
31.For sources and discussion, see Elon, Jewish Law, 751–59.
32.Ovadiah Hadaya, Yaskil avdi (Jerusalem: n.p., 1931), 6:289 (Hoshen Mishpat 28:2:6). The context of this responsum is the question of the authority of the Knesset to levy taxes.
33.Hadaya opposed, for example, Herzog’s attempt to make the halakha regarding inheritance the same for sons and daughters. Traditionally, halakhic inheritance laws favor male descendants. For Herzog’s attempts at reform, see Herzog, Tehuqah le-yisra’el, 1989. See also Greenberger, “Rabbi Herzog’s Proposals for Takkanot in Matters of Inheritance.” For Hadaya’s rebuttal, see Ovadiah Hadaya, Yaskil avdi, 6:278–9 (Hoshen Mishpat 22).
34.Yaskil avdi, 6:289 (Hoshen Mishpat 28:2:7).
35.Nadia Urbinati, Representative Democracy: Principles and Genealogy (Chicago: University of Chicago Press, 2008), 122.
36.Elon, Jewish Law, 753–58.
37.These prohibitions, however, were often observed in the breach. In many times and places, the use of non-Jewish courts by the Jewish community was widespread, and sometimes officially endorsed by rabbis and other communal leaders. See, for example, Berkovitz, Protocols of Justice; Marglin, Across Legal Lines.
38.Yisraeli, Amud ha-yemini, chap. 8.
39.Yisraeli is not always consistent with his terminology in the Hebrew original but he generally seems to use hoq as a generic term for legislation, mishpat to refer to law, and taqanah to mean regulation.
40.I am grateful to David Schorr for suggesting that the distinction between law and policy might help to describe Yisraeli’s approach. On the Early Modern development of “policy,” see Karl Härter, “Security and ‘Gute Policey’ in Early Modern Europe: Concepts, Laws, and Instruments,” Historical Social Research 35, no. 4 (134) (2010): 41–65. On its place in the Anglo-American legal tradition, see Noga Morag-Levine, Chasing the Wind: Regulating Air Pollution in the Common Law State (Princeton, NJ: Princeton University Press, 2009), especially 67–70 and, for a linguistic analysis, see Arnold J. Heidenheimer, “Politics, Policy and Policey as Concepts in English and Continental Languages: An Attempt to Explain Divergences,” Review of Politics 48, no. 1 (January 1986): 3–30. Some jurists and political theorists object to the massive growth of the administrative state during the course of the twentieth century. See, for example, Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014). For an alternative perspective, see, for example, Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (Oxford: Oxford University Press, 2014).
41.Yisraeli calls this an “intellectual” [sikhli] determination. It is likely that Yisraeli here is alluding to Maimonides’s notion of the intellect, which provides humans the potential for communion with God’s own “intelligence” [ha-sekhel ha-elohi] through prophecy. See Guide for the Perplexed III 18. In his use of this terminology, Yisraeli is implicitly associating the ability to make halakhic determination with prophetic abilities.
42.Yisraeli’s distinction between the kinds of expertise required to legislate these two kinds of rules roughly equates to Aristotle’s distinction between sophia and phronesis. See Nicomachean Ethics, bk. 6.
43.Yisraeli, Amud ha-yemini, 46.
45.Quoted in Shmuel Hayim Weingarten, “Huqei ha-medinah ve-toqfam le-fi ha-halakhah,” Ha-torah veha-medinah 5–6 (1953–54): 311.
47.Ousiel, “Yesodot din ha-malkhut be-yisra’el uva-amim,” 21.
48.Hadaya, Yaskil avdi, 6:290 (Hoshen Mishpat 28:2:8).
49.Tenbitsky, “Dina de-malkhuta be-yisra’el uva-amim,” 41.
50.Yisrael Be’eri, “Samkhut ha-malkhut be-medinat yisra’el,” in Be-tsomet ha-torah veha-medinah: Mivhar ma’amarim mi-tokh kovtsei “ha-torah veha-medinah” be-arikhah mehudeshet, ed. Yehudah Shaviv 3 vols. (Alon Shevut, Gush Etsion, Israel: Mekhon Tsomet, 1991), 1:35. This collection is a selection of articles from Ha-torah veha-medinah.
51.The description of unfit leaders as “broken wells” comes from Jeremiah 2:13: “For My people have committed two evils: they have forsaken Me, a fountain of running water, and have hewn wells for themselves, broken wells, that cannot hold water.”
52.Be’eri, “Samkhut ha-malkhut be-medinat yisra’el,” 35.
54.Yehudah Segal, “Al ha-mishpat ha-hiloni ba-arets,” Ha-torah veha-medinah 7–8 (1956–57): 74.
1.Rubinstein, Zionist Dream Revisited, 49.
3.For example, see Avi Sagi and Dov Schwartz, Religious Zionism and the Six Day War: From Realism to Messianism (New York: Routledge, 2018).
4.There were exceptions to this rule. A group known as Brit ha-qana’im [Covenant of Zealots] attempted to use violent means to force traditional observance onto state institutions. This was a tiny radical fringe, however, that was quickly caught and imprisoned by the Israeli police. Ami Pedahzur and Arie Perliger, Jewish Terrorism in Israel (New York: Columbia University Press, 2009), 33–36.
5.Herzog, Tehuqah le-yisra’el, 1:227.
6.The trend to what has been called the “haredization” of the Chief Rabbinate was already recognized in the early 1990s. See, for example, Yehezqel Kohen, “Rabanut kevusha?” in Ha-tsionut ha-datit be-re’iyah mehudeshet, ed. Meir Roth (Ein Tsurim, Israel: Ne’emanei Torah Va-avodah, 1998), 215–19. Motti Inbari, Messianic Religious Zionism Confronts Israeli Territorial Compromises (New York: Cambridge University Press, 2014), also documents the increasing influence of Ultra-Orthodoxy on many religious Zionist leaders.
7.Indeed, the disparity between rabbinical ruling and the practices of the religious Zionist community has, if anything, become more pronounced over time. See, for example, Schwartz, “Ideas vs. Reality,” 214; Fischer, “Fundamentalist or Romantic Nationalist.”
8.Avraham Shapira, “Mabat torani al huqei ha-medinah ve-hatqanat taqanot be-yamenu,” Tehumin 3 (1982): 238.
9.Mordekhai Eliyahu, “Yahas ha-halakhah le-huqei ha-medinah,” Tehumin 3 (1982): 243.
10.Yair Sheleg, Aharei rabim le-hatot: emdot rabanim be-yisra’el klapei ha-demoqratiah, Mehqar mediniut 67 (Jerusalem: Israel Democracy Institute, 2006), 22.
11.It must be noted that this is an area of halakha in which the religious Zionist public does not tend to follow the guidance of their rabbis. Although most religious Zionist rabbis prohibit the use of Israel’s civil courts, the public uses them extensively. Maoz, “Ha-rabanut u-vet ha-din,” 53; Yedidia Z. Stern and Yair Sheleg, eds., “Ma’amadam shel batei ha-mishpat be-yisra’el: halakhah, idi’ologiah u-metsi’ut,” in Halakhah tsionit (Jerusalem: Israel Democracy Institute, 2017), 276–311. Indeed, sometimes the rabbis themselves have recourse to the civil courts. Yitzhak Nisim for example, used the state’s civil courts during the time that he served as Chief Rabbi. See Maoz, “Ha-rabanut u-vet ha-din,” 53 fn. 176.
12.Ovadiah Yosef, She’elot u-teshuvot yehaveh da’at, n.d., 4:65.
13.Sheleg, Aharei rabim le-hatot, 41.
14.Yaacov Ariel, “Ha-mishpat be-medinat yisra’el ve-isur arkha’ot,” Tehumin 3 (1980): 327.
15.Yizhak Brand, Arkhaot shel goyim be-medinat ha-yehudim (Jerusalem: Israel Democracy Institute, 2010), 71. See also Maoz, “Ha-rabanut u-vet ha-din,” 52 ff.
16.“[L]egal professionals and bureaucrats responsible for administering the law of a modern state typically claim that this state law prevails over every other law existing within its field of jurisdiction. . . . [T]he exponents of state law frequently seek to fortify their claims by asserting that no normative order other than state law can be properly given the title ‘law.’ ” Gordon R. Woodman, “The Possibilities of Co-Existence of Religious Laws with Other Laws,” in Law and Religion in Multicultural Societies, ed. Rubya Mehdi, 1st edition (Copenhagen: DJØF Pub, 2008), 24.
17.Yedidia Z. Stern, “Israeli Law and Jewish Law in Israel: A Zero Sum Game?” in Institutionalizing Rights and Religion: Competing Supremacies, ed. Leora Batnitzky and Hanoch Dagan (Cambridge: Cambridge University Press, 2017), 58.
18.Supreme Court acting as the High Court of Justice—HCJ 8638/03 Amir v. the Great Rabbinical Court in Jerusalem 8638/03 PD 61(1) 259. An English summary and translation of the case is at http://versa.cardozo.yu.edu/opinions/amir-v-great-rabbinical-court-jerusalem.
19.Amir, 287.
20.Shlomo Daikhovsky, “Samkhut batei ha-din ha-rabani’im be-re’i pesiqat batei ha-din,” Diné Israel 10–11 (March 1981): 9.
21.Quoted in Amihai Radzyner, “The Impact of Supreme Court Rulings on the Halakhic Status of the Official Rabbinical Courts in Israel,” in Institutionalizing Rights and Religion: Competing Supremacies, ed. Leora Batnitzky and Hanoch Dagan (Cambridge: Cambridge University Press, 2017), 225.
23.For further details and a more comprehensive list of private rabbinical courts, see Hofri-Winogradow, “Plurality of Discontent,” 110 ff.
24.Accessed June 6, 2019, http://www.eretzhemdah.org/content.asp?PageId=36&lang=en and http://www.eretzhemdah.org/content.asp?pageid=194.
25.Ido Rechnitz, Mishpat ha-torah be-medinat yisra’el (Ofra, Israel: Makhon mishpetei eretz, 2007), 4, 5.
26.Reuven Heller, “Ma’avar mi-mishpetei ha-goyim le-mishpat ha-torah ketsad?,” accessed July 17, 2017, http://www.yeshiva.org.il/midrash/6780.
27.“Smotrich Says He Wants to Be Justice Minister so Israel Can Follow Torah Law,” Times of Israel, June 3, 2019, accessed June 6, 2019, https://www.timesofisrael.com/smotrich-says-he-wants-justice-ministry-so-israel-can-follow-torah-law/.
28.Bar-Ilan, “Hoq u-mishpat be-medinatenu,” 1978, 327.
29.The account of contemporary Israeli scholar Yehonatan (Jonathan) Garb is typical: “In the period of the Yishuv and the first decades of the state, the basic decision of religious Zionism was to participate in the Zionist enterprise by, among other things, supporting the political establishment of the ruling Labor party. However, beginning in the 1970s, one can discern a decisive turn: religious Zionism gradually moves into a position of aspiring to lead and even to being made into the ruling establishment. This process led in the first years of the 1990s to a questioning of the very faith of wide circles of religious Zionists in the elected institutions of the state.” Yehonatan Garb, “Tse’irei ha-mafda”l ve-shorshav ha-ra’ayoni’im shel gush emunim,” in Ha-tsionut ha-datit: Idan ha-temurot, ed. Asher Cohen (Jerusalem: Bialik Institute, 2004), 171.
30.For the context of, and response to, the assassination of Rabin in the religious Zionist community, see Yoav Sorek, “Rega shel tsemarmoret: Ha-tsionut ha-datit le-nokhah retsah rabin,” in Ha-tsionut ha-datit: Idan ha-temurot, ed. Asher Cohen (Jerusalem: Bialik Institute, 2004), 475–532.
31.Herzog, Tehuqah le-yisra’el, 1:226.
32.Yedidiah Meir and Sivan Rahav-Meir, eds., Yamim ketomim: Ha-hitnatqut—Ha-heshbon veha-nefesh (Tel Aviv: Yedi’ot Aharonot; Sifrei Hemed, 2006), 17.
37.In 2019, Tal was subject to further controversy after he was accused of sexual misconduct and abuse of power. Jacob Magid, “Top Rabbi Blows Lid off Rabbinic Scandal, Rocking National Religious Public,” Times of Israel, May 30, 2019, accessed June 12, 2019, https://www.timesofisrael.com/top-rabbi-blows-lid-off-rabbinic-scandal-rocking-national-religious-public/.
38.“Lo mitpalel li-shlomah—Ra’ayon im shmuel tal,” Mishpahah: Ha-shevu’on la-bayit ha-yehudi, March 5, 2007, 18.
39.Ibid., 14. For Tal’s response to his critics, see Shlomo Tal, “Mi-melekh evyon le-melekh elyon,” Ha-tsofeh, January 6, 2007.
40.“Tenu’at derekh hayim,” accessed July 17, 2017, http://www.derech-chaim.org/.
41.Yitzchak Ginsburgh, “Ha-zeman le-fatse’ah et ha-egoz,” Yeshivat od yosef hai, accessed July 17, 2017, http://www.odyosefchai.org.il/TextHome/TextInfo/373.
42.David Scott and Talal Asad, “The Trouble of Thinking: An Interview with Talal Asad,” in Powers of the Secular Modern: Talal Asad and His Interlocutors, ed. David Scott and Charles Hirschkind (Stanford, CA: Stanford University Press, 2006), 294.
43.The classical articulation of the liberal position was made by John Rawls in A Theory of Justice (Cambridge, MA: Harvard University Press, 2009). For one line of criticism, see Robert Audi and Nicholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (Lanham, Maryland: Rowman & Littlefield, 1997).
44.Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton, NJ: Princeton University Press, 2005).
45.This argument is made, for example, in Smith, Weird John Brown.
46.Abraham Joshua Heschel, Moral Grandeur and Spiritual Audacity: Essays (New York: Farrar, Straus and Giroux, 1997).
47.For one account of the uses of prophetic discourse, and a proposal about its limits, Cathleen Kaveny, Prophecy without Contempt (Cambridge, MA: Harvard University Press, 2016).
48.Abraham Isaac Kook, Orot (Jerusalem: Mosad Ha-rav Kook, 1961), 160.
49.Yeshayahu Leibowitz and Aviezer Ravitzky, Vikuhim al emunah ve-filosofiyah, Universitah Meshuderet (Tel Aviv: Ministry of Defence, 2006), 63.
50.Menachem Lorberbaum, “Questioning Territory: A Jewish Reflection on Holy Land,” The Immanent Frame, June 29, 2017, accessed October 11, 2019, https://tif.ssrc.org/2017/06/29/questioning-territory-a-jewish-reflection-on-holy-land/ /.
51.For more on the use of the “sacred” in extremist religious Zionist politics, see, for example, the comments of Moshe Halbertal in Lawrence Susskind et al., “Religious and Ideological Dimensions of the Israeli Settlements Issue: Reframing the Narrative?” Negotiation Journal 21, no. 2 (2005): 177–91, 189–90.
52.These positions are reminiscent of Martin Buber, Kingship of God (New York: Harper & Row, 1967). For more on the critique of liberalism from the standpoint of Jewish political theology, see Randi Rashkover and Martin Kavka, eds., Judaism, Liberalism, and Political Theology (Bloomington: Indiana University Press, 2013).
53.For more on Goldman, see Avi Sagi, Tradition vs. Traditionalism: Contemporary Perspectives in Jewish Thought (Amsterdam; New York: Rodopi, 2008); Alexander Kaye, “Eliezer Goldman and the Origins of Meta-Halacha,” Modern Judaism 34, no. 3 (January 10, 2014): 309–33; Alan Jotkowitz, “Eliezer Goldman and Judaism without Illusion,” Modern Judaism 35, no. 2 (2015): 134–46. For the approach of the religious kibbutz movement to law, see Alexander Kaye, “The Legal Philosophies of Religious Zionism 1937–1967” (Ph.D. Dissertation, Columbia University, 2013), 12–61; Fishman, Judaism and Modernization on the Religious Kibbutz.
54.Goldman, “Hoq ha-medinah”; Weiler, Te’oqratiah yehudit.
55.Goldman, “Hoq ha-medinah,” 165.
57.For a different critique of Weiler’s book from the same period, see Aharon Kirschenbaum, “Jewish Theocracy,” Diné Israel 8 (1977): 223–34.
58.Ravitzky, “Is a Halakhic State Possible?”
59.Ibid., 152. This approach is mirrored by several articles of Gerald Blidstein, who has explored the ways in which religious Zionists have justified the legitimacy of Israeli democracy, even when it is in tension with halakha. See, for example, Gerald J. Blidstein, “Halakha and Democracy,” Tradition: A Journal of Orthodox Jewish Thought 32, no. 1 (October 1, 1997): 6–39; Blidstein, “On Lay Legislation in Halakhah.”
60.Ravitzky, Religion and State in Jewish Philosophy.
61.Lorberbaum, Politics and the Limits of Law.
62.Ravitzky, Religion and State in Jewish Philosophy, 30.
63.Lorberbaum, Politics and the Limits of Law, 68. As Lorberbaum pointed out, this position is different from the related position of Blidstein in Gerald J. Blidstein, “‘Ideal’ and ‘Real’ in Classical Jewish Political Theory,” Jewish Political Studies Review 2, nos. 1–2 (Spring 1990): 43–66. There, Blidstein claimed that Maimonides’s acceptance of a non-halakhic king’s law pertains to the “real” world of unredeemed politics rather than an “ideal” halakhic regime. Lorberbaum, by contrast, maintained that Maimonides’s acceptance of the need for a non-halakhic law is a permanent feature of politics and cannot be overcome even in an “ideal” Jewish polity.
64.Yedidia Z. Stern, “State, Law, and Halakhah—Part One: Civil Leadership as Halakhic Authority,” Position Paper (Jerusalem: Israel Democracy Institute, 2001), 5–6.
65.William Twining, “Normative and Legal Pluralism: A Global Perspective,” Duke Journal of Comparative and International Law 20 (2010): 485; Alexis Galán and Dennis Patterson, “The Limits of Normative Legal Pluralism: Review of Paul Schiff Berman, Global Legal Pluralism; A Jurisprudence of Law beyond Borders,” International Journal of Constitutional Law 11, no. 3 (July 1, 2013): 785.
66.Even with the oversight of Israel’s Supreme Court, the vulnerability of women in the rabbinical courts has been widely documented. See, for example, Ruth Halperin-Kaddari, Women in Israel: A State of Their Own (Philadelphia: University of Pennsylvania Press, 2004), chap. 11. Proponents of multiculturalism insist that it can be compatible, and even depends upon, liberal rights. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995). Some critics of multiculturalism, though, doubt the ability of states to recognize the rights of minority groups without endangering the rights of individuals within those groups. See, for example, Susan Moller Okin, Is Multiculturalism Bad for Women? (Princeton, NJ: Princeton University Press, 1999). Nonetheless, some secular jurists have begun to explore the application of theories of legal pluralism to Israeli law. Ruth Halperin-Kaddari, “Expressions of Legal Pluralism in Israel: The Interaction between the High Court of Justice and Rabbinical Courts in Family Matters and Beyond,” in Jewish Family Law in Israel, ed. M.D.A. Freeman, Jewish Law Association Studies 13 (Binghamton, NY: Global Publications, State University of New York at Binghamton, 2002), 185–244. For a nuanced exploration of how to “strike a balance between the accommodation of minority group traditions, on the one hand, and the protection of individuals’ citizenship rights, on the other,” see Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001), quotation: 1.
67.Locke, A Letter Concerning Toleration and Other Writings, 13–14.
68.Roger Williams, “Mr. Cottons Letter Lately Printed, Examined and Answered (1644),” in The Complete Writings of Roger Williams (New York: Russell & Russell, 1963), 1:392. For the theological history of the term, see Mark De Wolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1967).
69.Winnifred Fallers Sullivan, Robert A. Yelle, and Mateo Taussig-Rubbo, “Introduction,” in After Secular Law, ed. Winnifred Fallers Sullivan, Robert A. Yelle, and Mateo Taussig-Rubbo (Stanford, CA: Stanford University Press, 2011), 1–19. Not only do the categories of religion, law, and politics bleed into one another, but they also do so in different ways in different societies. There are diverse and “often unexpected ways in which the conjunction of religious, political, and legal texts and institutions inform, constrain and liberate human beings in various times and places.” Lori G. Beaman and Winnifred Fallers Sullivan, eds., Varieties of Religious Establishment (Abingdon, Oxon: Routledge, 2016), 2. Even states that explicitly commit themselves to the separation model apply it in ways that vary, depending on their particular histories. Ahmet T. Kuru, Secularism and State Policies toward Religion: The United States, France, and Turkey (Cambridge: Cambridge University Press, 2009); Charles Taylor, “Modes of Secularism,” in Secularism and Its Critics, ed. Rajeev Bhargava (Delhi; New York: Oxford University Press, 1998), 31–53.
70.Recent examples of such works include John Richard Bowen, Islam, Law, and Equality in Indonesia: An Anthropology of Public Reasoning (Cambridge: Cambridge University Press, 2003); Benjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Cambridge: Cambridge University Press, 2016); Noah Salomon, For Love of the Prophet: An Ethnography of Sudan’s Islamic State, reprint edition (Princeton, NJ: Princeton University Press, 2016).
71.Cf. Maimonides, Mishneh torah, “Laws of Kings and Wars,” 4:10. For a philosophical articulation of what it means to move toward justice even without an a priori definition of what ideal justice is, see Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009); Iris Murdoch, The Sovereignty of Good (New York: Schocken Books, 1971).