Failure and Resistance

The attempts of religious Zionists to establish halakha as the law of Israel failed. This chapter examines the response of religious Zionist leaders to this failure, and their bitter resentment of Israel’s secular legal institutions that, in their view, had usurped halakhic rule. It shows that, resigned to these circumstances, religious Zionists adopted a double strategy. Among themselves, they persevered in their commitment to the idea of the halakhic state. When speaking to others, however, they embraced a more pragmatic position. In Knesset speeches, for example, they argued for a pluralistic position in which the rabbinical courts would have equal authority to the state’s secular courts. The chapter also shows how the legal rhetoric of religious Zionists, particularly of Zerah Warhaftig, shored up the identity of the community during the time of setback.

Modernizing the Chief Rabbinate

This chapter deals with the effects of legal centralization on the institutions and procedures of the Chief Rabbinate of Palestine and, after 1948, Israel. An institution established by the British Mandate, the Chief Rabbinate became far more powerful in the late 1940s and early 1950s, under the tenure of Isaac Herzog and Benzion Ousiel. During that time, a series of reforms were enacted that imported the structure and procedures of modern European law into the Israeli rabbinate. As part of these reforms, regional rabbinical courts were, under protest, made subordinate to a rabbinical court of appeals in Jerusalem and made subject to new procedural rules. Rabbinical enactments were crafted to create a uniformity of practice among Israel’s diverse Jewish communities. At the same time, rabbinical court rulings were published for the first time in the format of secular law reports and rabbinical committees composed halakhic law books, in the model of modern legal codes, which they intended to be the law for all citizens of Israel.

The Persistence of Jewish Theocracy

This chapter examines the place of the idea of the halakhic state in Israel today, and how the legacy of its early years has contributed to ongoing tensions in Israeli society. Decades after it was crafted by religious Zionist leaders in the early years of the state, the ideology of the halakhic state emerged even more strongly at the end of the twentieth century and the goal of halakhic supremacy became an ever more salient point of contention between religious and secular Israelis. The chapter challenges the common assumption that there was an abrupt change in religious Zionist attitudes, from accommodation to confrontation, after 1967, arguing instead that the more assertive stance of religious Zionists after 1967 would not have been possible without the earlier ideological groundwork laid by Isaac Herzog and his supporters. The chapter also puts the history of religious Zionism into conversation with recent scholarship on religion and state more globally and tentatively suggests how a fuller understanding of the history of the halakhic state might help alleviate social conflict in Israel today.

Isaac Herzog before Palestine

The creator and champion of the ideology of the halakhic state was Isaac Herzog, Israel’s first Ashkenazic Chief Rabbi. Prior to his arrival in Palestine in 1937, he was the Chief Rabbi of Ireland. This chapter accounts the history of Herzog’s intellectual development, and in particular his writing about law. It places his legal philosophy in the context of the prevailing jurisprudence of the day, including ideas about the evolution of law and the centralizing reforms of European states at the end of the nineteenth century. It also shows how Herzog’s experience of the struggle for Irish independence from the British, and the role of law and religion in that struggle, helped to shape his attitudes to law and colonialism once he had arrived in Palestine.

The Pluralistic Roots of Religious Zionism

This chapter shows that before 1948, religious Zionists were legal pluralists: that is, that they imagined the state being run by several parallel legal regimes, of which only one would be halakha, traditional Jewish law as interpreted by the rabbis. They were willing to accept a democratic legislature and did not call for halakha to rule Israel. This legal pluralism drew on a very long history of Jewish law and was congruent with the way that Jews had organized their legal institutions for centuries. Thinkers who adopted this position included Reuven Margulies, Shlomo Gorontchik (Goren), Shimon Federbusch, and Haim Ozer Grodzinski.

“Gentile Courts” in a Jewish State

After failing to impose halakha as the law of Israel, religious Zionists had to negotiate between their desire for the successful establishment of the state and their sense that the state had abandoned the Torah. To do so, they interpreted halakhic precedent in a way that endorsed the state and its institutions but did not concede their pursuit of halakhic law. In the 1950s, Shaul Yisrael and other rabbis argued that the biblical monarchy could serve as a model for a Jewish democratic government. But while their innovative interpretations endorsed Israel’s government, they often condemned Israel’s courts and judges at the same time. Many religious Zionist rabbis considered these courts, even though they were run mainly by Jews, to be classified as “Gentile courts” according the halakha, and prohibited Jews to use them. Although this prohibition was generally observed in the breach, it underlined the antagonism between the state’s legal institutions and Jewish religious leaders.

A Constitution for Israel According to the Torah

This chapter describes the new legal centralism that Herzog brought to religious Zionism in Palestine and Israel. He composed the draft of a constitution for Israel that was based on traditional Jewish law (halakha). To allow halakha to be more suited to the needs of a modern democracy, he used inventive interpretations of precedent to make halakha more egalitarian and more acceptable to people who were not Orthodox Jews. He also created a vision of halakha that conformed to the theoretical framework of modern European legal centralism. These changes are understood against the backdrop of European colonialism. Herzog’s adoption of European jurisprudence was similar to the intellectual strategies of many nationalist leaders, who resorted to European modes of thought in their struggle against European colonial rule.

Introduction

The introduction to The Invention of Jewish Theocracy introduces the idea of the halakhic state, which is the belief that the State of Israel should be governed by traditional Jewish law (halakha). It offers a definition and history of the religious Zionist community, whose leaders are the main proponents of this belief, and provides an overview of the idea’s origins and development. The chapter proposes a framework and methodology, which is based on legal and political thought, and especially the ideas of legal centralism and legal pluralism. It lays out some of the main arguments of the book and its implications for Israeli society today, as well as for key debates in the fields of history and religious studies, particularly debates over theories of secularization in the modern world.