The Legal Philosophies of Religious Zionism 1937-1967 Alexander Kaye Submitted in partial ...

292 Pages·2012·2.07 MB·English

The Legal Philosophies of Religious Zionism 1937-1967

Alexander Kaye

Submitted in partial fulfillment of the
requirements for the degree of
Doctor of Philosophy
in the Graduate School of Arts and Sciences

COLUMBIA UNIVERSITY

2013
© 2012
Alexander Kaye
All rights reserved
ABSTRACT
The Legal Philosophies of Religious Zionism 1937-1967
Alexander Kaye

This dissertation is an attempt to recover abandoned pathways in religious Zionist thought. It
identifies a fundamental shift in the legal philosophy of religious Zionists, demonstrating that
around the time of the establishment of the State of Israel, religious Zionists developed a new
way of thinking about the relationship between law and the state.

Before this shift took place, religious Zionist thinkers affiliated with a variety of legal and
constitutional philosophies. As shown in chapter 1, the leaders of the religious kibbutz
movement advocated a revolutionary, almost anarchic, approach to law. They (in theory, at
least,) only accepted rules that emerged spontaneously from the spirit of their religious and
national life, even if that meant departing from traditional halakha. Others had a more positive
attitude towards law but, as chapter 2 shows, differed widely regarding the role of halakha in the
constitution of the Jewish state. They covered a spectrum from, at one extreme, the call for a
complete separation between religion and state to, on the other, the call a rabbinic oversight of all
legislation. They all, however, were legal pluralists; they agreed that a single polity may have
within it a plurality of legitimate sources of legal authority and that, even in a Jewish state, other
kinds of legislation may hold authority alongside halakha.

In the late 1940s, this wide variety of legal pluralisms in the religious Zionist camp was replaced
by a new legal philosophy: legal centralism. This doctrine maintained that all legal authority in
the state must derive from a single source of authority, in this case halakha. As chapters 3 and 4
demonstrate, this shift was associated strongly with the first Ashkenazic chief rabbi of Israel,
Isaac Herzog, whose scholarly life had been dedicated in large part to portraying the sources of
Jewish law according to the image of state-centered jurisprudence that was valorized by modern
legal scholars in Britain and in Palestine. Chapters 5 and 6 make clear that Herzog was not the
only figure to adopt this position. It became so influential among religious Zionist leaders that it
molded their constitutional fantasies, determined the way they represented themselves to the
state and guided the construction of the new system of rabbinical courts.

As well as identifying the shift from legal pluralism to legal centralism, this dissertation attempts
to uncover its origins. Through a close reading of rabbinical court records, constitutional
pamphlets, speeches, journal articles and halakhic decisions, it traces trends in religious Zionist
legal philosophy to modern European jurisprudence. In particular, it demonstrates the influence
of British and German jurisprudence on the thinking of religious Zionists. It also places religious
Zionist jurisprudence in the context of the legal philosophy of other twentieth-century
nationalisms. In so doing, it sheds new light on the conflicts between religious and secular
Zionism and on the way that religious Zionists throughout the history of Israel have understood
their relationship to the law and politics of the Jewish state.
Contents

List of Figures ................................................................................................................................. ii
Transliteration and Translation ...................................................................................................... iii
Acknowledgements ........................................................................................................................ iv
Introduction ..................................................................................................................................... 1
1. Law and Revolution on the Religious Kibbutz ......................................................................... 12
2. The Rise and Fall of Religious Zionist Legal Pluralism ........................................................... 62
3. Isaac Herzog Before Palestine ................................................................................................ 106
4. A Constitution for Israel According to the Torah ................................................................... 144
5. The Imperialism of the Chief Rabbinate ................................................................................. 189
6. Centralization of the Rabbinical Courts .................................................................................. 220
Conclusion .................................................................................................................................. 246
Bibliography ............................................................................................................................... 255
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List of Figures

Figure. 1: First page of a ruling from Israel’s [civil] Court of Appeals, 1959……………...…234
Figure. 2: First page of a ruling from the Rabbinical Court of Appeals, 1957…………..……234
Figure. 3: Ruling from the Jerusalem Rabbinical Court, 1938……………………….....…….235

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Transliteration and Translation

Transliteration from Hebrew follows the SBL General-Purpose Style except where common
convention differs.

All translations are my own unless stated otherwise.

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Acknowledgements

This dissertation could not have been written without the support of many people and
institutions.

I am indebted to my doctoral advisor, Michael Stanislawski, who has been my guide throughout
my time at Columbia and beyond. His dedication to my work and his personal example of
erudition and scholarship were crucial touchstones of my graduate career. The other members of
my dissertation committee, Elisheva Carlebach, Jeremy Dauber, Samuel Moyn and Suzanne Last
Stone, were each unfailingly generous sources of wisdom and guidance. They gave invaluable
feedback on drafts of my work and were always available to offer support and advice.

I was deeply privileged to study under Professor Yosef H. Yerushalmi in his last years at
Columbia, which also turned out to be among the last years of his life. His careful attention to
my intellectual development equipped me with lifelong lessons in what it means to be a Jewish
historian. I could do no better than to emulate his scholarship and his humanity. His loss is
keenly felt.

My doctoral work was made possible by the education I received long before arriving at
Columbia. Rabbi Dr. Yehuda Abel first taught me how to read and appreciate Jewish texts. That
education was continued under Rabbi Mordechai Friedman and the faculty of Yeshivat Har
Etzion and Rabbi Michael Rosenzweig at Rabbi Isaac Elhanan Theological Seminary. The years
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studying under Rabbi Dov Linzer and the faculty of Yeshivat Chovevei Torah Rabbinical School
provided me with an invaluable training in the substance of the Jewish tradition and in
techniques for interpreting its texts. Rabbi Linzer also suggested directions for my scholarly
work. I am grateful to them all.

I first engaged with the history of political thought in a serious way during my undergraduate
years at the University of Cambridge, where I was also taught to write good history. There, I
studied under Annabel Brett, Chris Clark, William Golding, Quentin Skinner and many others,
upon whose teaching I still regularly draw today. The excitement of the intellectual stimulation
of my undergraduate days is still with me. David Abulafia was my first guide in the application
of the methods of intellectual history to Jewish history and shepherded me through my
undergraduate dissertation on the thought of Isaac Abravanel and my M.Phil. dissertation on the
semikha episode of 1568 Safed with tremendous attention and care.

My dissertation owes a great debt to the many scholars who read drafts, suggested ideas and
provided all kinds of advice and guidance, including: Leora Batnitzky, Hanina Ben-Menahem,
Rabbi Shaar Yashuv Cohen, Arye Edrei, Jonathan Gribetz, Aviad Hacohen, Moshe Halbertal,
David Horowitz, Amos Israel, Bernard Jackson, Shahar Lifshitz, Assaf Likhovski, Yair
Lorberbaum, Menachem Lorberbaum, Menachem Mautner, Kenneth Moss, Yehudah Mirsky,
Douglas Morris, David Myers, David Novak, Derek Penslar, Amihai Radzyner, Lawrence
Rosen, Tamar Ross, Yaakov Ross, Alan Rubinstein, Pinchas Roth, Arieh Saposnik, Alan Segal,
Joshua Shanes, Anita Shapira, Elana Stein-Hain, Nomi Stolzenberg, Steven Wilf and Ron Zweig.
The process of writing the dissertation was facilitated enormously by a number of fellow
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graduate students who spent hours reading and discussing drafts of my dissertation chapters with
great insight and good humor, including: Shira Kohn, Josh Teplitsky, David Weinfeld, Julie
Yanofsky-Goldstein and Jennifer Young.

My research was made possible by the expertise and devotion of the staff at a number of
archives, particularly those at the Central Zionist Archive, the Israel State Archive, the archives
of the Religious Kibbutz Movement at Kvutsat Yavneh, the personal papers of Rabbi Isaac
Herzog that were until recently housed in Hekhal Shlomo in Jerusalem, and the Religious Zionist
Archives at Mosad Ha-rav Kook in Jerusalem and at Bar-Ilan University Library. I am grateful to
the foundations and institutions that supported my work. My dissertation writing was supported
by dissertation completion fellowships from the ACLS/Mellon Foundation, the Foundation for
Jewish Culture and the Memorial Foundation for Jewish Culture. The first years of my doctoral
studies were supported by the Richard Hofstadter Faculty Fellowship of the history department
at Columbia University as well as by Columbia’s Institute for Israel and Jewish Studies. I was
also a fellow at the Cardozo Law School Center for Jewish Law and Contemporary Civilization,
where Suzanne Last Stone and Ari Mermelstein, trained me in legal theory and its applications,
which became a crucial component of my scholarly work.

Finally, I want to express my gratitude to my family. To my parents, David and Lindsey Kaye, I
of course owe everything. My intellectual growth has always been nourished by their inspiration
and enthusiasm. I want to thank my sister, Tamara, for her humor and wisdom, my grandparents
for their endless encouragement, my parents-in-law, Sally Zanger and Daniel Nadis, and my
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