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 i 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 ii 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. iii 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 iv 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 v 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.