2012 Theses Doctoral

The Legal Philosophies of Religious Zionism 1937-1967

Kaye, Alexander Lewis

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.