David S. Katz on Alexander Kaye
Professor Kaye begins his book with a quotation from Ya’akov Ne’eman (1939-2017), when just appointed again as the Minister of Justice in Israel. “Step by step,” he proclaimed, “we will bestow the laws of Torah upon the citizens of Israel and we will turn halakha into the binding law of the nation.” This declaration caused a huge outcry at the time. Ne’eman, after all, was not only the Minister of Justice, but also a partner in the distinguished law firm of Herzog, Fox, Ne’eman. The Herzog was Chaim Herzog (1918-97), former president of Israel (1983-93). The Fox was Michael Fox (1934-2009), a prominent British-Israeli.
The Invention of Jewish Theocracy is mostly about Chaim Herzog’s father Isaac Herzog (1888-1959), the first Ashkenazi Chief Rabbi of Israel. It is “the first intellectual history of the halakhic state,” and also “an intellectual history of the religious Zionism.” Isaac Herzog had a very active public life. Born in Poland, he was brought at the age of nine to Leeds when his father became rabbi there. Ordained at the age of twenty, he took his BA at the University of London in 1909, graduating with a degree in mathematics and classical and Semitic languages. His MA there (1912) was in ancient languages, followed by another MA (1913-14) from the Sorbonne. Isaac Herzog was awarded a PhD in 1914 from the University of London in marine biology, having submitted a thesis on “The Royal Purple and the Biblical Blue: Argaman and Tekhelet.” But he chose a clerical career path, and in 1916 became a rabbi in Dublin, and six years later was created Chief Rabbi of Ireland after the Anglo-Irish treaty established the Irish Free State. Being a committed Zionist, he moved to Palestine in 1937, and there he stayed.
Once in the Holy Land, Isaac Herzog dedicated his life to the attempt to make halakha the law of the emerging Jewish state, to be enshrined in a written constitution (still not written in Israel). This was to be based on the principle of legal centralism as opposed to legal pluralism, which was the view of many of his colleagues who argued that a separate system of secular courts would insulate the rabbinical courts from unacceptable concessions to democratic values and gender equality. Herzog called his vision a “theocracy,” which he rebranded in 1953 as “nomocracy,” a state ruled by law, in this case, the law of God.
Professor Kaye takes Herzog’s ideas seriously, not only as an intellectual enterprise, but as a project of contemporary relevance for Israel today, a society divided between the religious and secular worlds:
In searching for the causes of religious-secular conflict in Israel, then, political developments since the late 1970s and the ascendency of the settlement movement should not be given exclusive attention. The conflict has been exacerbated by these developments but its genesis was much earlier. The ambivalence of religious Zionist rabbinical leaders to Israel’s civil court system, their support for a centralized system of rabbinical courts, and the recent proliferation of organizations whose goal is to make halakha into the civil law of the state, all flow directly from the legal philosophy that religious Zionists began to promote in the late 1940s.
Isaac Herzog’s dream of a halakhic Jewish state in Palestine was thought to be utopian even by many other religious Zionists. Where did he get such an eccentric idea?
Professor Kaye stresses Isaac Herzog’s Irish connection, forged from living in Ireland for twenty-one years. Herzog was friends with Éamon de Valera (1882-1975), the leader of those who rejected the compromise treaty signed by the Irish Republicans with Great Britain in December 1921 that created the Irish Free State, not fully independent of Britain until 1949. De Valera was said to have gone into hiding from time to time in Herzog’s home during the Irish Civil War (1922-3). In 1933, now as Prime Minister, Éamon de Valera received Nahum Sokolow (1859-1936), the president of the Jewish Agency and World Zionist Agency, with Herzog present. As it happens, many Irish Roman Catholics saw the 1937 Peel Commission Palestine partition plan as similar to Irish partition, that is, not granting full independence, and they understood Zionist frustration. De Valera visited Israel in 1950 and talked with Ben Gurion about their mutual struggles.
Isaac Herzog did indeed spend twenty-one years in Ireland and twenty-two years in Israel, but one should also emphasize the fact that at bottom, he was essentially English, with three degrees from the University of London, and should also be seen as the product of the pre-war Anglo-Jewish intellectual milieu, which had a huge influence on his conception of a halakhic state, unlike his rabbinic contemporaries who had been socialized in Lithuania and Poland. Indeed, Isaac Herzog thrust himself into some very English intellectual discussions about key religious issues.
We see in Professor Kaye’s book how Herzog struggled with the theory of legal evolution developed by the British jurist Henry Maine (1822-88), who argued that religious and tribal law was less evolved than British colonial law, that legal pluralism was less evolved than a centralized legal authority. Herzog could hardly disagree with the great Henry Maine, but turned the tables on him by claiming that the Jewish case was exceptional because Jewish law is unique, having been given by God himself. Having a divine origin, Jewish law did not need to evolve, only to be adapted to specific circumstance. Herzog accepted the premise of British arrogance but insisted that even in those terms, the Jews were better.
Isaac Herzog in fact was repeating the same argument used by Benjamin Disraeli (1804-81) a hundred years earlier, who positively embraced his Jewish origins as he climbed up the greasy pole of British politics to become Prime Minister in the face of Gentile opposition. Disraeli argued that as a born Jew, even though a convert to Christianity, his nobility was greater even than that of the English kings, pointing out that God has only ever spoken to Jews. How different he was, Disraeli said, from the proud English, “sprung from a horde of Baltic pirates, who never were heard of during the greater annals of the world.”
Like Disraeli, Isaac Herzog wrote against the highly influential English critic Matthew Arnold (1822-88), who posited the famous epic contradiction between Hebraism (bad) and Hellenism (good). Disraeli in one of his novels turned Arnold into the pompous self-important artist called “Mr Phoebus.” Herzog wrote an article attacking Arnold called “The Outlook of Greek Culture Upon Judaism,” published in the prestigious Hibbert Journal (1930). Herzog also published an article on the seventeenth-century English Hebraist, “John Selden and Jewish Law.” Even Herzog’s signature term “nomocracy” came from an English classic, Henry Hart Milman’s (1791-1868) The History of the Jews (1829).
The point is that despite his hugely important later history in Palestine and then in Israel, Isaac Herzog was always part of the Anglo-Jewish academic cousinhood. We see this clearly as Herzog had the confidence to take on Oxford University itself in 1936, joining with his friend Herbert Loewe (1882-1940), lecturer in Semitic languages at Exeter College, Oxford (and later professor at Cambridge), in a campaign to allow Jewish students at Oxford to be exempted from written examinations on the Sabbath, with victory only in 1949. Herbert Loewe was the grandson of Louis Loewe (1809-80), secretary to the central figure of Anglo-Judaism, Moses Montefiore (1784-1885). Herbert Loewe’s son Raphael (1919-2011) later became professor of Jewish history at University College London. Raphael Loewe said many times that he and his father and his father’s entire set had hoped that the new State of Israel would be established as a halakhic state, as a kind of Jewish Vatican, and would then return its sovereignty to Great Britain.
Not to go too farther afield, Isaac Herzog’s own son Chaim “Vivian” Herzog, sometime president of Israel, was born in Belfast and came to Palestine with his father in 1935, aged seventeen. Chaim Herzog served in the British army in the Second World War, graduated in law from University College London, was a barrister at Lincoln’s Inn, and the sister of his wife Aura (Ambache) was Suzy, who married Abba “Aubrey” Eban (1915-2002). They called each other “Vivian” and “Aubrey” and communicated in English, of course. In other words, the mental world of Isaac Herzog is as much a part of Anglo-Jewish intellectual history as it is part of Israeli constitutional theory.
Historians often believe that to know the origin of a thing is to possess that thing. Professor Kaye’s study puts one in mind of the methodology of Michel Foucault (1926-84), which he termed not history but “genealogy,” stressing the foreignness of the past, as it delegitimizes, relativizes, and undercuts the legitimacy, the inevitability of the present. Foucault’s system was to begin with the present and to go backwards in time until a difference is located, then proceeding forward, tracing the transformation but preserving the discontinuities as well as the connections, emphasizing what might have been in a sort of counter-factual history.
Following Foucault, we are tempted to ask, what would have happened if Isaac Herzog’s dream of a halakhic state had been realized? Would Israeli society have been better off? Professor Kaye ends on an optimistic note, arguing that secular Israelis today need to engage with religious Zionist Israelis because their needs are legitimate, and religious Zionism can make a significant moral contribution to society. One might argue, however, that the difference between Isaac Herzog’s time and now is the ascendency of davka, an untranslatable term that can only be understood in context: “The plumber was supposed to have come today, but davka when he rang the doorbell, I was in the shower and didn’t hear him.” Or: “I said that you didn’t have to go out in the snowstorm to get more bread, but you had to go and do it davka.”
Successful demands from religious Zionists in the new State of Israel began by receiving a monopoly over marriage, divorce, kashrut and conversion, as part of a theory based on a kind of legal pluralism under the aegis of the secular Israeli legal system. These demands were extended during the 1970s to cynical arguments about the need to end Daylight Savings Time months before the end of the hot season in order to bring forward by one hour the end of Yom Kippur fasting, explained every year with one facetious argument after another until 2005, when religious parties dropped their opposition to extending Summer Time.
However, with the gradual increase of political power being the tipping point between the left and the right wings of Israeli society, religious parties – Agudat Yisrael, Degel haTorah, later Shas (1984) and even later haBayit haYehudi (2008: formerly the Mafdal), and others – have by now perfected the art of davka, micro-victories that do nothing except gratify their base and infuriate secular Israelis. Weekday traffic is sometimes stopped on the main road between Tel Aviv and Jerusalem for repairs so as to avoid working on the Sabbath. Saturday work on the railroad link between Jerusalem and Tel Aviv, and the Tel Aviv light rail system, is constantly the victim of political negotiations with religious parties. Even the Bituach Leumi Social Security website is inoperative from sunset Friday night to sunset Saturday night.
But the biggest davka of them all is the new constitution-like “Basic Law – Israel: the Nation State of the Jewish People” (19 July 2018):
(a) The Land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established.
(b) The State of Israel is the nation state of the Jewish People, in which it realizes its natural, cultural, religious and historical right to self-determination.
(c) The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.
Prime Minister Netanyahu reinforced the point very clearly in an Instagram post eight months later (10 March 2019): “Israel is not a state of all its citizens. According to the Basic Law that we passed, Israel is the nation state of the Jewish people and of it alone,” despite the fact that Jews make up less than 75% of the total Israeli population. Why did Netanyahu and his religious Zionist supporters on his far right push for this new and totally unnecessary Basic Law? Davka.
When one reads Professor Kaye’s wonderful book, and looks back at the serious and respectful debates between Rabbi Isaac Herzog and his learned colleagues, haRav Abraham Isaac Kook (1865-1935), Zerah Warhaftig (1906-2002), and Meir Berlin/Bar-Ilan (1880-1949), one can only think of that old Yiddish saying, “we don’t know what to thank God for.” But we do know to thank Professor Alexander Kaye for such a stimulating book, indeed a pioneering intellectual history of religious Zionism.
David S. Katz is Director of the History of Ideas Program and a member of the History Department at Brandeis University, to which he came after teaching at Tel Aviv University for 41 years. He has published three books about the Jews in early modern England; three books about Christianity and radical Christian thought, same time and place; and one book about Turkey in the British imagination, 1776-1923. He is now writing a book about William James as an historian of religion.