Jewish law and modern Israeli democracy
Alexander Kaye addressed the wide diversity of constitutional models that an earlier generation of religious Zionist thinkers proposed for a modern Jewish state.
Published: Tuesday, January 28, 2014
The idea that Halachic law needs to “supervise” state policy making is still very much in force in Israel.
by Catherine Schuknecht
International Institute, January 28, 2014 — In a lecture on January 16, Alexander Kaye claimed that increasing tensions between the religious and secular sectors of Israeli society are rooted in the legacy of mid–twentieth-century constitutional debates. Kaye is a post-doctoral fellow in Jewish thought at Princeton University.
His lecture, “Israel’s Rabbinate Confronts Jewish Democracy” was cosponsored by UCLA’s Younes and Soraya Nazarian Center for Israeli Studies, Department of History, Center for Jewish Studies and Center for the Study of Religion.
The dual commitment of religious Zionists
Religious Zionists were committed to upholding a dual commitment: to Halacha, traditional Jewish law, and to the modern Jewish nation state, said Kaye.
In 1948, these thinkers were grappling with fundamental questions. What should the law of the state be? What should be the relationship between religion and government in the state? Should the State of Israel be a theocracy or a democracy?
Yitzhak HaLevi Herzog, Ashkenazi Chief Rabbi of Mandate Palestine (and of Israel after its creation), articulated this dual commitment in two seemingly contradictory quotes related by the speaker:
“Is it necessary for the Jewish state to be a theocracy? Emphatically, yes!”
“[Israel's] constitution and its laws will guarantee complete equality for all of its citizens.”
Herzog and other religious Zionists faced three fundamental challenges, noted Kaye. The first was the contradiction between the Israeli declaration of independence and Jewish religious law. The former, observed the speaker, says the state will uphold the “full social and political equality all of its citizens, without distinction of race, creed or sex,” whereas the latter discriminates between such groups, for example, between men and women.
The second challenge was the lack of sovereignty in Jewish history. Kaye argued that because Halacha was developed “entirely outside of the context of a sovereign state," it lacked concrete details on issues of governance. As a result, it is difficult to apply traditional Jewish law to questions such as military policy or the regulatory procedures of the state.
Modern technologies, a necessary component of a contemporary state, were a third challenge. For example, the state must keep the electricity running even on the Sabbath. Here again, noted Kaye, Jewish traditional law lacks guidance on how to approach these issues because it was developed before the modern period.
Unchosen historical models
Twentieth-century religious Zionists, related the speaker, formulated several constitutional models for the state of Israel. The first model, which Kaye labeled the “holy rebellion” (a phrase coined by Shemuel Hayyim Landau), required Jews to delve into sources of religious law for answers to the questions of existence. At the same time, it encouraged Jews to rebel against an “exile mentality” by embracing the pioneering attitude of labor Zionism.
This model encouraged Jews to push the limits of religious law, noted the speaker, even if that meant diverging slightly from traditional ways. It thus allowed members of religious kibbutzim (collective settlements) to address, for example, dilemmas regarding farming practices and private property.
Another constitutional model proposed separating religion and the state in Israel, enjoining religious leaders to use moral suasion to influence their followers and leave the law of the state to political leaders and a legislature. Shimon Federbusch, a learned religious Zionist, notably argued that “religious and political power have been separated from each other throughout the course of Jewish history.”
A third constitutional model, derived from the writings and speeches of Isaac Herzog, proposed a centralized, unified Jewish legal system (and rabbinate) in which the law of the Torah would govern the entire state. Yet Kaye noted that Herzog and other proponents of this approach believed it crucial to limit the law of the Torah to areas of civil law so as to prevent “coercive enforcement” of ritual law.
This model required creative adapation, said the speaker. For example, traditional Jewish law, which historically emphasized the ideal of a monarchic political system, had to be "translated" into a democratic framework. Similar reasoning was used to justify the position of women and Gentiles in positions of political authority.
Much to the disappointment of religious Zionist leaders, none of these constitutional models were adopted by the primarily secular labor Zionists who formulated Israel’s constitution and legal system.
Looking to the future
In the midst of increasing tensions between the religious and secular sectors of Israeli society, the debates surrounding these early constitutional models have re-emerged to influence and shape Israel's political landscape, said the speaker.
Herzog’s principle of a centralized rabbinate is still very much in force in Israel, he observed, as is the idea that Halachic law needs to “supervise” state policy making.
Admitting that he did not have the faintest idea of what the future would bring, Kaye was optimistic about the impact of what he called the “increasing religious diversification in the Jewish community [of Israel].”
The rise of progressive religious streams, coupled with efforts by political and religious leaders to investigate new constitutional proposals, he continued, have led to a rediscovery of these earlier models as Israel again tries to resolve the tensions between Jewish law and modern democracy.