Alexander Kaye on the idea of a halakhic state
In many quarters today, there appears to be a symbiotic relationship between demagogues peddling ethnic or racial nationalism and right-wing religious groups. Leaders from Turkey to India, Israel to the USA, are providing their religious nationalist supporters greater influence in legislation, public policy, and international affairs in return for sweeping support. This raises the question of whether there is a natural relationship between the totalitarian and the theocratic impulse. Is something intrinsically anti-democratic about the political aspirations of religion?
In the case of Israel, there is an unquestionable relationship between the “national-religious” community (the common name for Orthodox Jewish Zionists in Israel also known as “religious Zionists”) and right-wing politics. Religious Zionists vote for right-wing parties – which range from the moderate but hawkish to the dangerously bigoted – at far higher rates than other Jewish groups. But that is not the end of the story. “Religion” as a category may obscure more than it reveals. There are many large Jewish religious groups in Israel, in particular among Ultra-Orthodox Jews, which do not always align with the right. More generally, it is important to steer clear of the self-justifying posture of some secular liberals, who blame something they call “religion,” imagined as an irrational holdover of less civilized times, for processes that can be traced just as easily to the violent and tribalistic foundations of the modern state, and to the consequences of colonial expansion. A full understanding must both take seriously the internal histories of particular religious groups, while also acknowledging that those histories are embedded in larger processes such as the growth of nationalism, colonialism and post-colonialism, and globalization. The invisible ties that bind the religious worldview with the political right are not intrinsic to religion itself, but produced by global phenomena which have, in recent decades, influenced the direction of religious and secular politics alike.
My book, The Invention of Jewish Theocracy, investigates these phenomena with regard to one aspect of politicized religion in Israel: the desire of many Jewish nationalists for Israel to become a “halakhic state.” In common parlance, this phrase has become a catchall term for the fear among secular Israelis that religion is having too much impact on national politics, but I have been interested in its precise meaning: the idea the State of Israel should be run by Orthodox Jewish law. According to this vision, the ultimate source of legal authority in Israel would not be the people’s right to self-governance, but the word of God, as revealed in the Torah and interpreted by Orthodox rabbis. This vision has, naturally, been decried by secular liberals, who see it as undermining the democratic rule of law. As early as 1970, the left-wing politician Shulamit Aloni wrote bluntly that Israelis had a choice between a medinat halakha (a halakhic state) and medinat hok (a state of laws). In the meantime, the idea of the halakhic state has become a guiding star of religious nationalist politics. Betzalel Smotrich, a politician on the religious right, a proponent of Israeli territorial maximalism and a bigoted opponent of Palestinian rights, recently argued that he should become Minister of Justice to ensure that Israel would follow Torah law.
There is, then, a widespread assumption, shared by both Israel’s secular left and its religious right, that the religious mode of politics is inflexibly theocratic, that it champions the sovereignty of God over the sovereignty of the people, and that it will inevitably compete with the secular rule of law for the exclusive control of the state’s entire legal landscape. In other words, there seems to be an agreement among people on both sides of the divide that the tension between religious and secular politics is very old and that the theocratic impulse is built into the religious mindset. As Gershon Weiler, a Jewish Israeli philosopher who compared Jewish religious nationalists to the Taliban, wrote in 1976, “the Jewish religion … is inevitably bound to be destructive of a real state in the real world.” I question this assertion. Antagonism towards secular legal authority, and a desire to dominate the legal landscape, is not a primordial feature of traditional Judaism. In fact, close attention to the historical record shows that the idea of the halakhic state actually emerged at a specific moment in recent history: the late 1940s, around the time that the State of Israel was established.
For most of their history, religious Jews expressed no aspiration for legal supremacy. For centuries, the most influential Jewish approaches to law adopted a kind of legal pluralism. By contrast with legal centralism, which assumes that a state or other political unit should have only a single source, legal pluralism is an approach to law that recognizes multiple sources of legal authority even within a single territory. (Legal pluralism is different from cognitive pluralism. It is possible to believe – as many Jews, Christians, Muslims, and others did – that one’s own religious beliefs have an exclusive claim to truth, while also recognizing the legitimacy of multiple normative systems.) Legal pluralism was not unique to the Jews; before the rise of the modern state, people in many political contexts and religious traditions recognized themselves to be subject to overlapping legal orders and institutions. Legal pluralism was not a matter of pragmatism, a concession to an imperfect world. It was a principled way of ordering law and politics among and between different communities of people, and of organizing the distribution of authority between spiritual and temporal authorities.
Just like the wider societies in which they lived, pre-modern Jews understood themselves to be governed by many overlapping systems of law. They considered themselves to be bound to halakha, which, in their understanding, derived its authority from God’s revelation on Sinai, accompanied by the interpretations and injunctions of the rabbis. They also recognized, however, the binding authority of both Jewish and non-Jewish political institutions. They submitted themselves to the authority of Gentile legal regimes not only out through coercion but also out of a principled obedience to governmental legal authority, which was endorsed by their religious outlook. As the Talmud put it in late antiquity, dina de-malkhuta dina, “the law of the land is the law.” Jewish communities also recognized the legitimacy of lay legislation, quite distinct from halakha, produced by community leaders. As Rabbi Nissim of Gerona put it in the fourteenth century, the laws of the Torah were intended to bring “divine flow” into the Jewish community but they “include commandments that are ultimately not concerned with political order.” Political order being a necessity, the kehilla, the political body of the medieval Jewish community, was led by lay authorities who served alongside rabbis. These non-rabbinic leaders effectively governed Jewish communities by enacted extensive communal legislation and setting up courts on which they served as judges.
In the first decades of the Zionist movement, religious Zionists drew heavily on the Jewish legacy of legal pluralism. These thinkers wanted halakha and the Jewish religious tradition to have a role in the Jewish state, but they also knew that the state would be democratic, that few of its leaders would be Orthodox Jews, and, indeed, that many of its citizens would not be Jewish at all. (The Zionist movement was dominated by fiercely secular leaders. The fact that Israel would be a democratic regime was taken for granted by all parties at the time.) Religious thinkers imagined a Jewish state that recognized two legal systems, each with its own source of authority and its own system of courts. One of these legal systems would be halakha, traditional Jewish law as interpreted by the rabbis, and the other would be a democratic legal system, created by an elected parliament. These proposals always remained in the realm of theory, so some wrinkles, such as the question of what to do in the case of conflict between the two systems, were never entirely worked out. The existence of these models, though, indicate that religious thinkers were keen to come up with ways in which religious and democratic norms could exist side by side without any necessary conflict between them.
This all changed at the end of the 1940s. For the first time, religious Zionist legal thinkers rejected the model of legal pluralism, adopting legal centralism in its place. A key instigator of this change was Isaac Herzog, Israel’s first Ashkenazic chief rabbi, who vehemently opposed the very idea of legal pluralism. He and his followers argued that the entire State of Israel should be governed exclusively by a single centralized system of halakha, proposing that Israel’s constitution include a clause designating the Torah as the fundamental law of the state. He wanted all Israel’s citizens, Jewish or not, to be governed by halakhic civil and criminal law. He did not propose imposing Jewish ritual laws, such as the laws of Sabbath, on anyone. Herzog himself described his envisioned constitution as a “theocracy.” He converted many followers to this point of view and convened a large group of rabbis who set about composing halakhic legal codes in the form of modern law books. “We will not give up on the law of the Torah,” he insisted. “I am ready to sacrifice my life for it.” Herzog’s aspirations for a modern Jewish theocracy were ignored by Israel’s political leaders, who were mostly secular Jews who despised the idea of a theocracy. Within the religious Zionist community, though, the ideology of legal centralism laid down deep roots. It influenced the reorganization of Israel’s rabbinical courts, transforming them from the independent regional courts that they had been for generations into a hierarchical system, with the Jerusalem court functioning as a newly empowered court of appeals. It also ushered in a series of rabbinical enactments, which enforced a uniformity on the religious practices of Israel’s very diverse Jewish communities, particularly in areas of marriage and divorce law. It also embedded a resentment of Israel’s secular courts in the religious nationalist community. During the decades in which the political power of the community was very limited, this resentment survived as an underground ideology. With the rise to prominence of religious politics since the 1970s, religious dissatisfaction with Israel’s secular legal system, along with the desire for more power for religious courts and legislation, has steadily grown.
There are two deeply ironic aspects to the religious Zionist shift to legal centralism in the late 1940s. The first irony upends our expectations about the inflexibility of fundamentalism. One might associate the abandonment of legal pluralism and the call for exclusive halakhic jurisdiction with the uncompromising mindset common among religious fundamentalists today. In fact, however, the opposite is true. Pluralistic approaches could resolve tensions between traditional religious law and secular democratically-enacted law by separating the two systems. This allowed rabbis who supported legal pluralism to resist progressive reforms to religious law. Indeed, some religious champions of legal pluralism cited this as the reason for their position. If people objected to aspects of rabbinical law, they argued, they could go elsewhere, and make use of the secular court system instead. They believed, as part of their messianic faith, that all Jews would eventually come round to their way of thinking. In the meantime, they strove to protect the tradition from the encroachments of modernity. By contrast, those who thought that halakha should have exclusive jurisdiction in Israel were required offer halakhic responses to contemporary challenges, and to ensure that halakhic law would treat all people equally, including men and women, Jews and non-Jews. Herzog, for example, was excoriated by his ultra-Orthodox colleagues for proposing an egalitarian overhaul to Jewish inheritance, which traditionally favored first-borns and male offspring. Indeed, it was the proponents of halakhic legal supremacy who controversially developed halakhic mechanisms that would allow women and non-Jews to act as judges and witnesses in a Jewish legal system. This flexibility does not always characterize the self-declared spiritual heirs of Herzog and his colleagues who, some decades later, tend to be far more combative and uncompromising than their forebears. Israel’s religious nationalist leaders today have inherited Herzog’s commitment to the halakhic state, but have largely abandoned his commitment to other values, including a degree of halakhic flexibility, political compromise, and diplomatic temperament. This development has made it harder to remember the counter-intuitive fact that it is sometimes the pluralists who are the most reactionary and the centralists the most flexible.
The second irony is the reason that the shift from legal pluralism to legal centralism took place. Religious Zionists did not embrace legal centralism for its convenience; we have already seen that it created rather than resolved jurisprudential and theological problems. Its proponents claimed that they wanted a state governed exclusively by halakha because choosing “foreign” (i.e., European) law over Jewish law would be a heretical abandonment of God and of the Jewish nation. In fact, however, the idea of a “halakhic state” draws on modern democratic theory, as much as it draws on traditional Jewish jurisprudence. To be sure, the vision of a centralized theocracy is very different in substance from a secular democracy. Its sovereign is God, not “the people.” But structurally speaking, a halakhic theocracy – in which everyone within the borders of the state, whatever their religious affiliation, is subject to the same system of law, centralized under the auspices of the state itself – was a mirror of the very European states whose influence religious Zionists claimed to repudiate. The architecture of Herzog’s theocracy was a lot closer to the constitutionalism of the modern state than it was to that of the application of halakha in traditional Jewish communities, where halakhic decisions were highly localized, there was no hierarchy of courts, and halakha was always applied to those belonging to the trans-national Jewish community, rather than those living within the borders of a particular state. So even though the establishment of the halakhic state was presented as a way of ensuring allegiance to the past, its supporters frequently found difficulty in creating a modern theocracy which was rooted in religious precedent. As one of his followers wrote to Herzog, writing modern halakhic law books for a democratic state was like producing something “ex nihilo.” While presented as a project of conservation, the idea of the halakhic state was actually an invention of a new theocracy.
What explains the unprecedented, and largely unconscious, adoption of modern European jurisprudence by rabbis who were, by their own definition, traditionalists? Many Religious Zionists were educated and raised in a European legal and political culture which, through a series of nineteenth-century legal reforms, rejected legal pluralism in favor of the undivided sovereignty of the centralized state. European imperialists considered legal centralism to be a mark of their superiority over backward “tribal” laws, including traditional Jewish law. Writing in England and Ireland, long before he came to Palestine, Herzog’s response to these criticisms of halakha was to show how Judaism and Jewish law were superior even by the light of modern jurisprudence. To make this case, he often read Jewish sources against the grain, reinterpreting the traditional sources so that they would be seen in a favorable light according to the standards of the “external sources” that he decried as inferior to halakha. It has become commonplace to recognize the secularized theological concepts at the core of the modern state. We should become equally aware of the sanctified secular concepts at the heart of some modern religious movements.
The religious Zionist adoption of European jurisprudence bears an affinity to the dynamics of postcolonial politics. Anti-imperialist leaders often established independent states by mobilizing the legal and political theory they studied in the imperial centers. It was therefore common for the constitutions of postcolonial states to mirror the very imperial powers from which they achieved independence. Herzog understood this process well. Before becoming chief rabbi in Palestine, he received an academic, as well as a political, education in England, France, and Ireland. In fact, he served as Chief Rabbi in Dublin in the years leading up to Irish independence in 1937. It was there that he saw firsthand the importance of legal centralism for those who – not unlike the Zionists in Palestine – wanted to throw off the yoke of British rule and to set up an independent state. Through his friendship with the Irish leader Éamon de Valera, Herzog also learnt about the role that religious law could play in nationalist movements. He was a consultant in the drafting of the first constitution of the Republic of Ireland in 1937, which entrenched Catholic doctrine in Irish law, and recognized “the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.” The idea of the halakhic state, like the constitution of Ireland, was a new creation, a hybrid of modern constitutionalism and religious tradition.
So where does this leave us in regard to the larger question of the relationship between religion and extremism and demagoguery? It shows that any simple distinction between religious (irrational, violent, tribal) and secular (rational, deliberative, universalistic) is itself a product of the modern age. Historically, religious Jews never wanted halakha to be the exclusive source of all legal norms. The fact that both religious and secular Jews in Israel have come to believe that it did tells us only how globally pervasive the idea of legal centralization has become since the rise of the modern state. A fuller understanding of history also suggests untapped resources for those resisting extremism and bigotry in its various forms. In places where the democratic left is in decline, its supporters tend to look to the liberal tradition for intellectual resources that can bolster their cause. This is a sound strategy, though insufficient for several reasons. First, the liberal corpus, while rich in theories about equality and justice, has also been a theoretical underpinning for systems of racial and economic oppression. Second, appeals to liberal thinkers are unlikely to convince religious communities that see secular liberalism as a threat. Third, looking exclusively to liberalism as the salvation of democratic societies is likely to intensify the problematic secular “us” vs. religious “them” tension that is more likely to be a cause of social conflict than its solution.
Alongside liberal sources, then, we should also be looking to dimensions of religious thought that receive less attention during times that religious communities have been tending towards the political right. In the Israeli context, this means paying closer attention to those rabbinical leaders, who believe their religious traditions hold the seeds of peace, to the thought of religious socialists, committed to both peace and economic justice, to religious feminists who find support for feminism in religious teachings, and to non-European rabbinical traditions, which are often differently attuned to pluralistic values than their European equivalents. It is tempting to seek understanding of the messy world of politics today in simple binaries, but that strategy is unlikely to succeed in bringing people together to resist the worst impulses of extremist politics. If that is our goal, a clear-eyed understanding of history and an appreciation for the fuzziness of social categories like “religious” and “secular” provide a good place to begin.
Alexander Kaye is the Karl, Harry, and Helen Stoll Chair of Israel Studies, and an assistant professor in the Department of Near Eastern and Judaic Studies at Brandeis University. He researches the history of Jewish political and legal thought. His most recent book is The Invention of Jewish Theocracy: The Struggle for Legal Authority in Modern Israel(OUP, 2020).