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Structural Models of Religion and State in Jewish and Democratic Political Thought: Inevitable Contradiction? the Challenge for Israel

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Structural Models of Religion and State in Jewish and Democratic Political Thought: Inevitable Contradiction? the Challenge for Israel STRUCTURAL MODELS OF RELIGION AND STATE IN JEWISH AND DEMOCRATIC POLITICAL THOUGHT: INEVITABLE CONTRADICTION? THE CHALLENGE FOR ISRAEL Elazar Nachalon∗ TABLE OF CONTENTS INTRODUCTION ...........................................................................617 I. RELIGION AND STATE: THE NEED TO FIND AN OVERLAP BETWEEN JEWISH AND DEMOCRATIC ATTITUDES....................................................................................621 A. An Initial Overlap as a Condition for Israeli Public Discussion about Religion and State...............................622 1. Religion and State in Israel: Background .................622 2. The Current Need for Handling the Issue of Religion and State......................................................623 3. Contemporary Attempts to Deal with the Issue of Religion and State......................................................626 4. The Obstacles in the Way of an Honest and Open Public Discussion on Religion and State ...................631 B. An Initial Overlap as a Facilitator of the Integration of Jewish and Democratic Cultures.....................................635 ∗ Associate, Agmon & Co. Law Offices, Jerusalem; LL.B., B.A, The Hebrew University of Jerusalem; LL.M, Harvard Law School. The author would like to thank Professor Martha Minow and Professor Morton Horwitz for their contribution to this Article. 614 TOURO LAW REVIEW [Vol. 22 C. The Jewish and Democratic Discussion as a Model for Dialogue between Democratic and Muslim Cultures .....635 II. DEFINING METHODOLOGY.................................................639 A. Judaism and Democracy: Other Attempts to Establish Connections.....................................................................639 B. The Proposed Attempt to Establish a Connection between Jewish and Democratic Attitudes on Religion and State: A Comparison between Democratic Ideas and Medieval Jewish Political Theories..........................643 C. The Framework of Structural Models ..............................646 1. The Framework ..........................................................646 2. The Difficulties of the Framework.............................647 3. Brugger’s Framework ................................................650 4. The Frameworks and Their Advantages ....................650 5. The Structural Framework of Religion and State and its Relation to McConnell’s Methodology in Classifying Christian Sects ........................................653 D. Intermediate Conclusion ..................................................655 III. RELIGION AND STATE IN AMERICAN POLITICAL AND LEGAL THOUGHT ..............................................................656 A. Religion and State in Modern American Discourse.........659 1. Locke and Lockean Arguments on Religion and State............................................................................659 a. General Background: Protestantism and State Involvement in Religion ......................................659 b. Locke in Context..................................................662 2006] THE CHALLENGE FOR ISRAEL 615 c. Locke on Religion and State ................................663 d. Locke: Conclusion ..............................................672 2. The Modern American Discussion on Religion and State............................................................................673 a. Arguments in the Religious Mode .......................673 b. Arguments in the Secular Mode ..........................679 3. Religion and State in the American Discourse: Intermediate Conclusion ............................................688 B. State Neutrality Toward Comprehensive Doctrines.........690 1. Rawls’ Political Liberalism and State Neutrality.......690 2. Critiques of Rawls......................................................693 a. Political Liberalism as a Non-Neutral Doctrine...693 b. State’s Goals and Communitarism, Republicanism, and Perfectionist Liberalism ......695 3. Skepticism ..................................................................699 4. The Application of the Debate on the Models of Relationship between Religion and State ..................700 C. Religion and State in the American Discourse: Conclusion.......................................................................703 IV. RELIGION AND STATE IN JEWISH POLITICAL AND LEGAL THOUGHT ........................................................................706 A. Maimonides......................................................................707 1. Maimonides in Context ..............................................707 2. Philosophical Roots....................................................708 a. Religion and Politics: The Nature of Divine Law ......................................................................708 616 TOURO LAW REVIEW [Vol. 22 b. Jewish Law as the Divine Law .............................712 3. Religion and State: The Civil Authority and Religion......................................................................714 a. Methodological Remark........................................714 b. Civil Authority? ....................................................715 c. The King Messiah .................................................718 4. Maimonides: Conclusion...........................................719 a. Union and Subordination .....................................719 b. Maimonides’ Theory as a Tradition in Jewish Law ......................................................................720 B. R. Nissim Ben Reuben Gerondi (“Ran”) .........................721 1. Ran in Context............................................................721 2. Ran on Religion and State: The Core Ideas ..............723 a. The Launch of the Theory: A Biblical Difficulty .723 b. Religion and Politics.............................................724 c. Religion and State .................................................726 3. Ran’s Political Ideas in Theoretical Context..............728 4. The Role of Jewish Law: Ran’s Withdrawal ............730 5. Ran: Conclusion ........................................................734 a. Incorporating Change into a Timeless Normative System................................................734 b. Ran’s Theory and the Legitimate Structural Models..................................................................736 V. CONCLUSION..........................................................................739 A. An Overlap between Structural Models..........................739 B. Reflections and Broader Implications.............................742 2006] THE CHALLENGE FOR ISRAEL 617 INTRODUCTION Toward the end of its sixth decade, the State of Israel faces significant external and internal challenges for its ongoing existence and social stability. The main external challenges are Iran’s nuclear program and terror attacks by regional and global terrorist organizations like Hamas, Hezbolla, and Al-Qaeda. The main internal challenges are connected to Israel’s dual identity as a Jewish and democratic state. This unsolved duality appears in two of the most significant Israeli basic laws, as well as in the 1948 Proclamation of Independence,1 and is the main issue that Israeli society is nowadays concerned about. It has a direct impact on two different spheres, both of which involve bitter social conflicts: the identity of Israel as the national homeland of the Jewish people, and the role of the Jewish religion in the Israeli secular regime. This Article focuses on the latter aspect, proposing a new methodology to deal with the challenge. I will show that, as opposed to the prevailing view, the conflict between Jewish and democratic ideas on religion and state is not unsolvable. Israel can structure the relationship between religion and state in a way which might be endorsed by both Jewish and democratic thought, and propose the initial methodology that should be employed to achieve it. Thus, this Article starts from 1 See Basic Law: Human Dignity and Liberty, 1992 S.H. 90 (Isr.), available at http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm (“The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”); see also Basic Law: Freedom of Occupation, 1994, S.H. 90 (Isr.), available at http://www.knesset.gov.il/laws/ special/eng/basic4_eng.htm; STATE OF ISRAEL: PROCLAMATION OF INDEPENDENCE (Isr. 1948), available at http://www.knesset.gov.il/docs/eng/megilat_eng.htm. 618 TOURO LAW REVIEW [Vol. 22 Israel’s dual identity, but eventually illuminates the meaning of this duality in a different light. It is quite clear that the external challenges mentioned above are related not only to Israel. In the beginning of the third millennium, the whole world is concerned about Iran’s nuclear program and about terror. The debate over the legitimacy of Israel’s identity as the Jewish national state is also related to the general debate over the legitimacy of the idea of a “nation state” (or “ethnic state”),2 and over the status of ethnic minorities in such a state. It is less apparent, however, that finding an overlap between Jewish and democratic ideas on religion and state is relevant beyond the Israeli context—Israel is the only country which defines itself as both Jewish and democratic. Nevertheless, the attempt to find a common ground between Judaism and democracy on religion and state is very relevant outside of Israel, as well. Different from modern Christianity, both Judaism and Islam are closely
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