Yehudah Mirsky on Alexander Kaye

Alexander Kaye’s book stands at the confluence of three different scholarly traditions – the history of political thought of his teacher Quentin Skinner, the deep investigation of modern Jewish history in its historical sweep and granular detail of Yosef Hayim Yerushalmi, and the classic Talmudism of Dov Linzer. He synthesizes them beautifully, and I mean beautifully, as this book’s many pleasures are not only intellectual but aesthetic too. Kaye brings these disparate fields of political theory, Jewish legal history and the history of Zionism and Israel into mutually supporting focus in ways that few are able to do – while making larger contributions to political theory and the history of ideas.

Kaye’s central argument is that the halakhic state as an idea is from the 1940s, when legal pluralism was abandoned in favor of legal centralism, and that that development was in the context of global postcolonial nationalist legal movements. Thus the farther-reaching aspirations of religious Zionism were not a product of the heady victory of 1967, but present from the beginning – not in the National Religious Party’s political policies and programs but in the legal theory it developed and legal institutions it tried to build. 

Let’s unpack that. 

A key insight of many scholars in recent decades, starting in the 1930s and  40s with the work of Yerushalmi’s predecessor at Columbia, Salo Baron, and his neighbor down the block at Jewish Theological Seminary, Louis Finkelstein, was that, contrary to popular belief, pre-modern Jewish communities enjoyed a great deal of legal and even semi-political autonomy, recognized as they were by local authorities as collectives, in both Christian and Muslim countries. This was not anomalous or even distinctively Jewish, as pre-modern societies were characterized by all kinds of legal jurisdictions – clerical and ecclesiastical orders, mercantile organizations, guilds, as well as overlapping baronies, dukedoms, and all the rest, even as kings and the occasional emperor asserted more all-encompassing authority. Indeed, it was precisely the ending of that Jewish communal autonomy (in American terms, the disestablishment of Jewish community) that ushered in Jewish modernity, a world in which Jewish communities no longer had the legal authority entirely to define their own boundaries – which meant that Jews, driven by the push of new kinds of economic duress and Jew-hatred in the form of modern antisemitism or the pull of new economic opportunities, as well as new kinds of philosophy and culture, could leave.

Central to the explorations of another of Kaye’s scholarly forerunners, Jacob Katz, is the attempt to detail both how this communal disestablishment dissolved Jewish society and fueled internal Jewish intellectual change, most obviously un- or anti-traditional, but also fiercely and ideologically traditionalist, namely Orthodoxy, in its various, distinctively new forms.

In this way, Kaye is also moving forward Katz’s project of seeing dramatic intellectual change and innovation within the precincts of self-described Orthodoxy and the ways in which Orthodoxy, which sees itself, in many ways justifiably, as the standard bearer of unreconstructed tradition, is itself in many ways deeply innovative and regularly takes stands very different from those of the tradition. 

I must add that another way in which Kaye is following Jacob Katz and, I think, Katz’s great student the medievalist Haym Soloveitchik, is the way he reads, mines, Jewish legal texts for their historical significance and theoretical content – crucially, avoiding the temptation simply to read legal texts for their substantive conclusions, but carefully attending to the sinuous twists and turns of legal argument, and what they tell us about a jurist’s assumptions, aspirations, and, crucially, the limits, political, jurisprudential and theological, that set the terms within which they work.

So, back to Kaye’s key claim – that legal thinkers of religious Zionism adopted a new and in some ways unprecedented model of Jewish law as a centralized system, drawing from, and reinterpreting elements of halakhic tradition, refashioning halakha as a centralized, unitary system very deliberately mirroring the centralized, unitary system of the modern nation-state. Moreover, this development is to be seen not only diachronically, i.e. over time as part of the history of Jewish legal development, but synchronically, i.e. in its time and place, as a legal movement characteristic of other movements of decolonization. To be sure, that any number of Jewish jurists would think that any new Jewish state would be run according to halakhah is not in itself surprising. But the interest here lies in just how they thought it might look, and the ways in their thinking reflected currents of nationalist legal thought around them.”

This claim of Kaye’s seems to me fundamentally correct and eye-opening in many ways. I think his point can be made sharper by looking at some key figures here – some of whom he mentions, others he does not.

The key figure, and in some ways the hero of the piece, is of course, Rabbi Dr. Isaac Herzog – and Kaye’s own biography as a figure bridging the worlds of Talmudic scholarship and UK legal and political thought has enabled him to engage Herzog insightfully. In Rav Herzog we find a figure who was, by virtue of the university training that complemented his Rabbinic learning, equipped to do the kind of synthetic work called for and, by virtue of his position as Ashkenazi Chief Rabbi and an insider-outsider of the colonial power governing Palestine, in a position to do so.

Rav Herzog’s experience of Irish nationalism had impressed on him the importance of legal sovereignty for national movements. And the religious framing of the Irish constitution deeply impressed him. Crucially, this was a Catholic country. This is significant in that it highlights, once again, how deeply Protestant are the groundings and assumptions of much modern Western thought about politics and the state as institutions in which religion is not an integral part, and au fond something to be constrained and controlled. I would add that Kaye is thus contributing to the work of Samuel Moyn on Catholic human rights, as we see here another instance of pre-WWII Catholic social thought generating ideas for non-liberal yet humanely minded politics (human rights being another). 

But Ireland wasn’t the only prototype – in a number of places, colonial legal pluralism was giving way to post-colonial legal centralism. What’s more, British law schools in Palestine had taught the virtues of legal evolution towards centralism as a way of surpassing old decrepit empires. And of course centralism was very attractive to the newly emerging Jewish state, as centralizing forms of organization were appealing to all kinds of post-colonial states. 

In his draft constitution Herzog tried to reconcile theocracy with democracy – it’s necessary to get along with the international community and the majority of the citizens, for a number of reasons, including the well-being and safety of Jews around the world. In other words, adopting democracy in a halakhic state was a kind of pikuach nefesh. He used “theocracy” not in Spinoza’s sense of clerical rule, but for a state governed by Jewish law (even as he acknowledged the word had bad overtones), and, borrowing a term from Oscar Straus, called it a nomocracy. 

Because the nomos involved was halakha, the state as its actual institutions came into being could not be seen as a kingdom – since women, and heathens, Jewish and non-Jewish both, were actually in charge. So, the state would have to be thought of as something else, something akin to a vast court of arbitration, the kind in which Jewish law itself allows litigants great leeway in determining the court. 

Religious courts there would indeed be, especially for domestic relations, and arranged in a system of courts of appeal unknown since Talmudic times, and perhaps more imagined than real back then. These religious courts had been there under the British Mandate, as they had been under the Ottomans before them. But, as Kaye acutely observes, while under the British and the Ottomans, religious courts had held jurisdiction autonomously from their own validity qua religious institutions; under the new Jewish state, their authority derived from a grant by the State – and indeed the Israeli Supreme Court took care to delimit just how far, or not, those religious courts’ jurisdiction ran. 

Indeed, throughout this book the ironies abound – above all the ways in which Herzog’s legal centralism was a real departure from halakhic tradition – reminding me of something I’ve been thinking for a while, that when it comes to the classic categories of rhetoric, the one that best captures the work of historical scholarship is irony.

Another one of Kaye’s arresting insights is seeing Judah Leib Maimon’s proposal to revive the ancient Sanhedrin not as an instantiation of halakhic theocracy – but a means of introducing something like the suppleness of parliamentary law-making into the halakhic framework – and for me this harked back to Maimon’s argument with Rav Kook over women’s suffrage in 1920, when, in response to Rav Kook’s ruling against, Maimon said that on matters of religion we will consult the rabbis and on matters of politics they will consult us. Ever the practical politician, even as he was a genuine scholar, Maimon was trying to come up with a way to introduce something like the ebb and flow of politics in Weber’s sense of the ethic of ongoing reconciliation of ideas with values, into halakhic decision-making. As I’ve heard Kaye say on several occasions – Herzog thought mainly in terms of the Executive. If so, Maimon is thinking in terms of the legislature.

But back to Rav Herzog. He was, Kaye tells us, both triumphalist and apologist: Jewish law is superior, as measured by the yardsticks of western law. This position in turn reflects his fundamental ambivalence about European civilization. He believed generally in legal evolution, but said that that didn’t apply to Jewish law, which was divine in origin, and, in its ethics, a cornerstone of Western law itself. 

I think this ambivalence is in some ways baked into much modern nationalism – by which the Western nation-state is taken as a model, even as for non-Westerns it is an object of resentment; and within Western nation-states themselves, the subjective, blood and soil passion of nationalism is by definition at odds with the instrumental rationality of the bureaucratic state and its law – inasmuch as law, as Lon Fuller wrote, assumes subjects who are rational actors capable of moral judgment, self-criticism, and thinking for themselves. 

I think this contradiction between nationalism and law might help us explain the position of a different key figure of this period who goes unmentioned in Kaye’s book, namely Isaac Breuer. For Breuer, there is no nation outside of the law and the ethical demands of the law, and thinking that there is such a thing as a nation constituted by something other than law is not only a temptation to chauvinist violence but the very essence of idolatry. Hence, for Breuer, communal solidarity is not a given but itself a command of the law, hence ethical at the root – and so granting Torah-legitimacy to nationalism, which sees itself as distinct from, indeed prior to, the law (which is how Zionism is many ways sees itself), is heresy. 

Thus looking at Breuer can help us try to answer the question, was Rav Herzog a nationalist? The answer seems to be no, and yes. No, in that he was unwilling to cut religious law to fit the fashion du jour of whichever 120 worthies happened to be the duly elected members of Knesset on any given Wednesday. But yes, in that he was willing to rethink and reshape institutions of Jewish law in terms of a national project, in which Jewish law and its authority would sit alongside that of the moral authority of the nation, as well as alongside what the American Founders called “a decent respect to the opinions of mankind.” 

He thus occupies something of a middle position – as did, his younger colleague, Ovadia Yosef, the towering figure of Mizrahi politics, for whom the State of Israel was not endowed with theological meaning and significance. Indeed, Kaye notes the relative hesitancy of Mizrahi rabbis to embrace Rav Herzog’s plans, perhaps because they were closer in time to the pre-modern Jewish communities of the Ottoman Empire, which long outlived their Ashkenazi counterparts, and seemed more appealing than the instrumental rationality of Ashkenazi state-building, Religious Division. 

Interestingly, though Kaye doesn’t mention it – it was Rav Herzog who wrote the now widely-used prayer for the State of Israel, referring to it as “the beginning of the flowering of our redemption,” something that neither Isaac Breuer nor Rav Ovadia Yosef would have written, each for reasons of his own. 

Another point of comparison here, and one that Kaye’s work makes more possible than before, would be with Muslim legal thought on sovereignty and the state. Indeed, to take one example, one would never know from most journalism and policy chitchat just how historically unprecedented is the role of a cleric as Supreme Leader, put in place after the Iranian Revolution. 

By the early 1950s, Kaye tells us, the project of a halakhic state had finally run aground. The religious Zionists tended to adopt two strategies – one, saw Knesset legislation (lesser law, mere regulations) as distinct from halakha (the true law); the other, limiting Knesset law’s authority to only those spheres of life that pertain to the state. So they turned to religious legislation, hakikah datit. And they had a dual rhetoric, pluralist in practice and centralist in principle. And legal rhetoric became a form of resistance to the secular state, a counter-hegemonic discourse. Thus religious-secular tensions were built into the Zionist enterprise well before 1967. 

The image of pre-67 religious Zionists as humanists is overstated; much of their humanism came from their powerlessness. Their theocratic orientation lay dormant until it had the opportunity to arise.

But that opportunity was not merely Israeli sovereignty over the biblical heartlands of Judea and Samaria, but instead that they had a theory of history in hand, and that came from Rav Kook, as interpreted by his son Zvi Yehudah. Rav Kook’s historiosophy enabled them to see themselves as the new spearhead of the Zionist enterprise, and to see secular Zionism as a necessary dialectical phase of God’s historical plan. 

For Rav Kook, the Messiah would redeem the Jews, the world, and also the halakha. In his very first written response to the Zionist movement, Rav Kook thinks, as usual, not of politics or statecraft but of religious change – and sees here the possibility of eventually making changes in halakha, not in the direction of leniency but to make itself alive and fit for a new world. Interestingly he critiques Reform Judaism, not for wanting halakhic change but for willing to countenance exile as a permanent condition, and so make its changes now. Halakha must and will change – and he outlines ideas of a new Sanhedrin and more – but in freedom and organic national renewal not in the endless twilight of exile. 

Which brings us to Kaye’s current project – the idea of exile. At the close of this very brilliant book, he writes: “That halakha be utterly banished from Israel’s public sphere is unrealistic in practical terms, and to ask people to bracket out their ‘comprehensive doctrines’ from their political lives.” What’s more, religious traditions can serve as grounds of critique of the state: “there is no simple, universal solution to the ordering of religion, law and politics in Israel or anywhere else.”

Whether or not religion today in Israel and elsewhere, including some quarters of the US, has been absorbed by nationalism is one of the key political, moral, and theological questions of our time. With this book Kaye has shown us just how subtle, complicated and enduring the relations between nation and religion have been since the emergence of Jewish statehood. Hopefully his next book will deepen our understanding of just what the seeming end of exile has changed, and what abides, or whether indeed, exile in its deepest senses, has ever ended at all.

Yehudah Mirsky is Professor of Near Eastern and Judaic Studies at Brandeis and on the faculty of the Schusterman Center for Israel Studies. He served in the Clinton Administration as special advisor in the US State Department’s human rights bureau, was a Red Cross chaplain after 9-11, and is the author of the widely-acclaimed volume, Rav Kook: Mystic in a Time of Revolution (Yale University Press), which he recently translated and revised in Hebrew as Rav Kook: Mabat Hadash (Devir). His Towards the Mystical Experience of Modernity: The Making of Rav Kook, 1865-1904 is forthcoming (Academic Studies Press) and he is currently working on the political theologies of liberalism, nationalism and human rights. His essays and articles have appeared in The New York Times, The Washington Post, The Economist, The Guardian, Foreign Policy, and many other publications. He tweets @YehudahMirsky