SYMPOSIUM
Religion and state: Models of separation
from within Jewish law
Suzanne Last Stone*
Introduction
Keeping religion and politics apart is an idea with a history. That history is a
Christian one, however, rooted in the experience of European Christendom
and made possible because Christians, virtually from the beginning, viewed
church and state as conceptually separate entities, with different jurisdictions
and powers and even a different logic.1 It may be, as Mark Lilla recently argued,
that the complex picture of the Christian triune God is inextricably caught up
in this story.2 Divided sovereignty is more compatible with the picture of a
divided God than a unified one.
Other religious traditions may have different resources, however, enabling
them to embrace or even stumble into the separation of religion and state. In
the case of religions framed around legal traditions, pictures of the divine law
are as important as pictures of God.3 Is the law imagined as a comprehensive
system uniting all aspects of life under a single sacred framework, thus leaving
no room for a separate political domain? Is the law imagined as primarily political, a blueprint for government; or as exquisitely ethical, taking into account
only the rights of individuals and not societal needs or a collective such as the
state? If so, what law regulates social need? Is there a universal law that has an
origin outside of itself on which it can draw even in an internal context?
These pictures of the divine law vary over time and among groups within
the tradition, just as do pictures of secular law. Certain pictures of law, however, may assume mythic proportions over time, especially in the popular
imagination, and this can be a potent obstacle to retrieving from within the
tradition alternative images of the law more congenial to a separation of religion and state. It is in this spirit that two intellectual retrieval projects, both
responding to the rise of modern nation-states in the Middle East, are taking
place today. Muslim and Jewish thinkers are looking back on a wide variety of
legal doctrines and theories, as well as historical experiences, in order to engage
the question whether there are authentic warrants from within their
* Professor of law and director, Center for Jewish Law and Contemporary Civilization, Benjamin N. Cardozo
School of Law, New York. Email: [email protected]
1
PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 21 (Harvard Univ. Press 2002).
2
MARK LILLA, THE STILLBORN GOD (Knopf 2007).
3
See RÉMI BRAGUE, THE LAW OF GOD: THE PHILOSOPHICAL HISTORY OF AN IDEA (Lydia G. Cochrane trans.,
Univ. Chicago Press 2007).
© The Author 2008. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
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respective traditions for separating religion and state. These two legal traditions begin with strong original visions of a unified religious polity in which the
political authority both is subject to and enforces the divine law. The original
model was not necessarily adhered to in practice4 and, in the medieval age of
Islamic and Jewish intellectual cross-fertilization, both Islam and Judaism
developed doctrines about the nature of divine law in society that explained
practices departing from scriptural norms and vesting extralegal powers in the
political authority.5 Yet the grip on the popular imagination of the original
vision of a unified Islamic polity is proving all too powerful. Older debates about
arranging Islam as a private faith and not as a political regime have been
eclipsed largely by those that take an Islamic polity as a given and argue,
instead, about the extent to which a liberal Islamic polity is possible.6
In contrast to Islam’s long and continuous history of statehood, postbiblical
Judaism developed as a decentralized, semisovereign entity in exile until its
modern reorganization as a private religion. Hence, the question whether there
are authentic models within the religious tradition for separating religion and
state arose primarily in relation to non-Jewish governmental authority, and
the original ideal of a unified religious polity was projected onto the distant past
or messianic future. With the establishment of the state of Israel, and, especially, with the introduction of a new utopian Jewish religious national element
into Israeli society in the 1970s, the question whether there are “authentic”
warrants for separating religion and state crystallized. A wide variety of issues
intersect with this debate including: land for peace, the conduct of war, personal status law, the law of return, religious legislation, the construction of an
egalitarian civil society,7 the treatment of non-Jewish populations under Jewish
governance, identification of religious groups with the state and its legal system, and the role of Jewish law in the legal culture of the state.
4
Historically, few rulers in the Muslim world actually possessed the qualifications for leadership
called for under either Sunni or Shi’i theory—even if they claimed the formal titles of caliph or imam.
Muslims accommodated the exercise of authority by dynasts so long as they exercised their responsibilities under Islamic law, foremost among them the administration and application of this law. See
Ann Elizabeth Mayer, Islam and the State, 12 CARDOZO L. REV. 1015 (1991); Ira M. Lapidus, The Separation of State and Religion in the Development of Early Islamic Society, 6 INT’L J. MIDDLE EAST STUD. 363
(1975); Ira M. Lapidus, The Golden Age: The Political Concepts of Islam, 524 ANNALS AMER. ACAD. POL. &
SOC. SCI. 13 (1992); Ira M. Lapidus, State and Religion in Islamic Societies, 151 PAST & PRESENT 3 (1996);
L. CARL BROWN, RELIGION AND STATE: THE MUSLIM APPROACH TO POLITICS (Columbia Univ. Press 2000).
5
The idea of a divine ideal law for an ideal society and real law for a real society explained a host of
practices for departing from divine law, especially in matters of criminal administration, where the
speedy and effective administration of justice was of particular concern to political authorities.
NOEL J. COULSON, CONFLICTS AND TENSIONS IN ISLAMIC JURISPRUDENCE 68 (Univ. Chicago Press 1969).
6
Meir Hatina, On the Margins of Consensus: The Call to Separate Religion and State in Modern Egypt,
36 MIDDLE EASTERN STUD. 35 (2000).
7
See Suzanne Last Stone, The Jewish Tradition and Civil Society, in ALTERNATIVE CONCEPTIONS OF CIVIL
SOCIETY 151 (Simone Chambers & Will Kymlicka eds., Princeton Univ. Press 2002).
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The question whether and to what extent religion and state may be separated according to the internal standards of halakha can be approached from
a variety of methodological perspectives.8 The conventional doctrinal
approach essentially treats the state—its institutions and policies—as new
conditions or circumstances to which the halakha is applied.9 Following this
approach, a variety of halakhic principles and doctrines are canvassed and
marshaled to assess whether discrete, particular acts of statecraft, from war to
secular legislation to a secular court system, are compatible with halakhic
strictures. A more far-reaching approach to the question of religion and state,
pursued in recent works by political theorists, is to ask whether the halakha,
in fact, has a concept of “the political” that has led to a distinction between
religious law and a secular political realm, or whether it has developed notions
of social contract and consent that could underlie different political arrangements outside the purview of the ordinary rules of religious halakha.10 This
approach is more radical because it challenges the original ideal vision of a
religious polity as well as the commonplace description of halakha today as
comprehensive (addressing all aspects of life, from the individual to the family
to the state) and as unified (consisting of one body of norms applicable to
everyone).
In this paper, I pursue the more far-reaching approach and discuss two models
for separating religion and state, one based on the doctrine of the “king’s law” and
the other on the more familiar doctrine of dina de-malkhuta dina (the law of the state
is the law). Both these doctrines have received sustained scholarly attention, and
this essay is not the place for a minute historical, textual, or dogmatic analysis of
these topics. Instead, I would like to add the disciplinary perspective of a legal theorist by focusing on the pictures of law that both anchor and emerge from these two
doctrines. Thus, I intend to paint with a very broad brush in order to make several,
related methodological interventions. First, I want to show how attitudes toward
“Jewish law and the Hebrew term halakha (adj. halakhic) are used here interchangeably. The
term halakha designates both the system of Jewish law and also the concept of a single rule of law.
The halakha comprises the entire subject matter of Jewish law, including public, private, and ritual law.” See Suzanne Last Stone, In Pursuit of the Countertext: the Turn to the Jewish Legal Model in
Contemporary American Theory, 106 HARV. L. REV. 813, 816 (1993).
8
9
For a theoretical overview of this method, see Suzanne Last Stone, Formulating Responses to
Egalitarianism, in JEWISH LAW & EGALITARIANISM (Marc D. Stern ed., Jason Aronson 2005).
10
See, e.g., Gerald Blidstein, On Political Structures—Four Medieval Comments, 22 JEWISH J. OF SOC.
47–58 (1980) [hereinafter On Political Structures]; Gerald Blidstein, “Ideal ” and “Real ” in Classical
Jewish Political Theory, 2 JEWISH POL. STUD. REV. 43–66 (1990) [hereinafter “Ideal ” and “Real ”]; MENACHEM LORBERBAUM, POLITICS AND THE LIMITS OF THE LAW (Stanford Univ. Press 2001); DAVID NOVAK, THE
JEWISH SOCIAL CONTRACT (Princeton Univ. Press 2005). I am especially indebted to THE JEWISH POLITICAL
TRADITION (Michael Walzer et al. eds., Yale Univ. Press 2000), the first volume of which I use as a
casebook for law students and which stimulated me to see the larger aspects of a subject I had addressed earlier in Suzanne Last Stone, Sinaitic and Noahide Law: Legal Pluralism in Jewish Law, 12
CARDOZO L. REV. 1157 (1991).
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separating halakha from the state—in the context of the classical halakhic sources
as well as within the different religious groups emerging within Israel today—are
intimately tied to numerous long-standing arguments over the nature and proper
description of halakha itself. Is the halakha best described as sacred religion, as
politics, or as autonomous law? Does halakha recognize individual or collective
rights? Is halakha universal or particular, or both? Which is the core and which is
the periphery? Is halakha comprehensive or does it have gaps—including large
areas of discretion corresponding to the political realm? Alternatively, is halakha a
unified, monist, hierarchically arranged system of law, or is it legally pluralistic—
allowing for multiple jurisdictions operating according to different yet equally
valid norms?
Second, I want to highlight the complex way in which original ideal visions
of a unified religious polity, or of a comprehensive legal system united under a
single sacred framework, are reinforced today by different disciplinary allegiances as well as by reactions to modernity. The modern historian is more apt
to see legal solutions and developments as pragmatic responses to contingent
circumstances, telling a story of rupture and accommodation—which fuels the
hold of an older, ideal vision on the popular imagination. In contrast, those
trained in law are more apt to see developments over time, including departures from any original vision, as the unfolding of ideas immanent within the
tradition and available for resuscitation. Yet, even jurists, who often see themselves as the guardians of national destiny as much as legal destiny, are capable of erasing from consideration whole centuries that, in reality, were lived in
a different way from the original ideal. Originalist forms of thought can be
found in any legal system and all the more in a religious legal tradition with a
utopian dimension. Modernity itself, and the reactions it tends to call forth,
contribute to the strength of the original ideal. If one problem of modernity is
fragmentation and the splintering of social life into multiple and separate
domains, the way to overcome it is unity, which is often depicted as a return to
origins. As we know, the reconstruction of a tradition far more traditional than
the original is one of the defining characteristics of modernity.11
Gerald Blidstein’s account of the later fate of the medieval Islamic theory of
ideal divine law illustrates how the different social roles may interact. While
modern academic studies of Islamic law describe the theory as rooted in Islamic
legal thought,12 the political historians wrote about the theory as a retrospective effort on the part of the jurists to legitimate the actual exercise of power in
the Islamic state.13 The popular imagination, because it was in the grips of an
11
See Haym Soloveitchik, Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy, 28 TRADITION 64–131 (1994); Eric Hobsbawm, Introduction: Inventing Tradition, in THE
INVENTION OF TRADITION 1 (Eric Hobsbawm & Terence Ranger eds., Cambridge Univ. Press 1983).
12
See COULSON, supra note 5, at 68–69.
13
See Blidstein, “Ideal ” and “Real,” supra note 10, at 44.
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original ideal of a unified Islamic system, resisted the medieval theory as inauthentic. And even later jurists came to agree with the political historians and
the populace because they saw the medieval experience and theory as part of
the problem of Islamic political demoralization in the present and, thus, not its
solution.14
It is with these sorts of interactions in mind that I am looking more closely
at the case of Judaism. I am not making a normative argument but, rather,
engaging in an exercise in legal genealogy in order to tell a story of continuity
rather than rupture, and to retrieve an often-obscured jurisprudential conception of halakha as gapped and pluralistic, which challenges the currently more
popular description of halakha as comprehensive and unified. In the next section, I provide background relevant to the argument, focusing on the reasons
for the persistence of a near-mythic conception of Jewish law as comprehensive and all-encompassing. Section 2 focuses on two medieval approaches that
alter this paradigmatic depiction of the law in ways that have great importance
for decoupling religion from state. Although each approach builds on the same
Talmudic material, each takes this material in different directions, one stripping sanctity from Jewish political structures and the other sanctifying even
non-Jewish political structures. And each has its modern successors that assign
new roles for Jewish law vis-à-vis the state.
1. Original visions, standard history, and reconstruction
projects
On the union of religion and state in the Hebrew Bible, and specifically for the
Jews, John Locke wrote in his Letter Concerning Toleration:
For the commonwealth of the Jews, different in that from all others, was
an absolute theocracy; nor was there, or could there be, any difference
between that commonwealth and the church. The laws established there
concerning the worship of one invisible Deity were the civil laws of that
people, and a part of their political government, in which God himself
was the legislator.15
We can quibble the use of the term theocracy, rather than “divine nomocracy” or even “sacred anarchy.”16 Still, the impression left from reading the
Hebrew Bible is that the religion is the political order. Thus, the biblical metaphors of intentional disobedience to that law revolve around treason and
betrayal no less than sin. In keeping with its story of origin, Judaism came into
being through an historical covenant at Sinai. The covenant was made with a
14
Id.
15
JOHN LOCKE, A LETTER CONCERNING TOLERATION 39 (FQ Classics 2007).
16
See MARTIN BUBER, ISRAEL AND THE WORLD: ESSAYS IN A TIME OF CRISIS (Shocken Books 1948).
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particular people, orienting Jewish collective life in a particularist direction.
Moreover, the story tells of the founding of a nation organized for political
action. Not only is biblical law concerned with issues pertaining to the land of
Israel and to the establishment of political structures—monarchy, judiciary,
and so forth—it also addresses the rights of citizens and resident strangers
within the nation-state. In short, the Hebrew Bible presents law suitable for a
national, political life. This national, political, and religious order came to an
end with the destruction of the Second Temple in 70 C.E.
The Bible became Judaism’s canonical national history and is only the
starting point of the Jewish legal system, which is composed of the written law
(the first five books of the Bible, or Torah, describing the law received by Moses)
and the oral law (recorded in the Mishna and Talmud). An alternative concept
of collective identity emerged—a collective dedicated to the observance of the
law. The national-collective orientation of the Bible also was transformed. The
biblical conception of national law portrays rewards and punishments for performing the law in national-collective terms: the nation as a whole performs
the law and reaps material blessings or punishment. In late antiquity, however, religious orientations arose that were more focused on the individual
and on individual salvation. Paul’s famous critique of the law as death transforms the biblical focus on collective performance into one of individual performance. The rabbis, too, transformed the national-collective orientation of
the law into a far more individualized conception. As Shlomo Fischer points
out, for the Jews in exile, “observance of Jewish law became incumbent on the
individual Jew, or in regard to a number of cases, on the local community,
which was conceived as being constituted by individual Jews.”17 While “the
obligations upon the individual Jew derive from his membership in the primordial community,” nonetheless “the legal-behavioral implications of this
membership are worked out in regard to the individual.”18 The rabbinic abolition of collective punishment as violating the letter of Torah law, despite its
biblical pedigree, is but one example of how deep was the new individualist
orientation.
Yet, the biblical picture of a unified religious polity was, to a large extent,
merely transferred over to the halakha even though this body of law was operating and developing in exile without a state, a supreme court, or a national
center. Thus, one of the central notions, of near-mythic proportion within
large segments of religious Judaism, is that the halakha seeks to form a total
society governed by Torah law as articulated by its expounders—the rabbinic
class. Indeed, almost all descriptions of Jewish law begin with the statement
17
Shlomo Fischer, Excursus: Concerning the Rulings of R. Ovadiah Yosef Pertaining to the Thanksgiving
Prayer, the Settlement of the Land of Israel, and Middle East Peace, 28 CARDOZO L. REV. 229, 236–237
(2006).
18
Id. at 236.
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that it is all-encompassing; that it covers all aspects of human life—whether
private or public, civil or criminal, ritual, social, or political—under a single,
unified sacred framework.19 In other words, it is not confined to any single
domain or jurisdiction, and it needs no supplementation from other institutions or sources. A society subject to a divine law that addresses both the private and public domains of life—the personal, the social, and the political, and
in characteristically minute detail—is a society that conceptually has no room
for a separate institution or jurisdiction shorn of religious norms.
It is easy to understand how this impression came to dominate the popular
imagination. Judaism, in fact, operated until the modern era as a religious polity of a peculiar kind because the law and the institutions based on it created a
decentralized, transnational “portable political entity,”20 and because the
imperial corporatist models in which it was situated cooperated. Contrary to
what Salo Baron labeled the “lachrymose” view of Jewish history, the legal and
political autonomy Judaism enjoyed under Roman rule, feudal Europe, and the
Ottoman Empire was considerable. Jews maintained their own court system
throughout this time and possessed sufficient legal autonomy to enforce traditional Jewish law. Enforcement was effected by means of a range of sanctions,
from corporeal punishments to excommunication and, while they were ordinarily deprived of the power to execute criminals, the state’s execution of
Jewish offenders was sometimes a joint affair, decided in consultation with the
rabbinic class. To be sure, foreign rule occasionally intruded on autonomy,
and the tradition developed early on, in the fourth century, a Jewish version of
“render unto Caesar the things which are Caesar’s.” The Babylonian amora.21
Samuel is credited with formulating the principle “the law of the kingdom is
the law.” In terms of duties owed to foreign rulers, the principle originally had
limited practical application. It is fair to speak during this long period of a total
halakhic society as a way of life.
Weekly readings of the Bible reinforced the notion of a unified, all-encompassing
law, and the Babylonian Talmud, the only actual reflection of the legal system
nonelite groups studied, did nothing to dispel it. While originally a scholastic
document, by the twelfth century the Talmud had become not only a source of
norms but a devotional object—a new site of divine space taking the place of the
19
For this classic description of Jewish law, see 1 MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES
111–122 (Bernard Auerbach & Melvin Sykes trans., Jewish Publication Society 1994). See also
Gidon Sapir, Can an Orthodox Jew Participate in the Public Life of the State of Israel?, 20 SHOFAR 85
(2002).
20
Eliezer Schweid, The Attitude Toward the State in Modern Jewish Thought Before Zionism, in KINSHIP
AND CONSENT: THE JEWISH POLITICAL TRADITION AND ITS CONTEMPORARY USES 134 (Daniel J. Elazar ed., Univ.
Press of America 1983).
21
The amoraim (plural of amora, interpreter) were Torah scholars who, over the course of three centuries (c. 300 C.E. to 500 C.E.), argued and reconciled the discussions of the tannnaim, or scholars
of the Mishnaic Era (c. 70 C.E. to 220 C.E.). These commentaries comprise the text of the Gmara.
See Stone, supra note 8, at 816–817.
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Temple or the arena of history22—and the world was seen through its prism. The
Talmud is replete with the utopian, theoretical development of the law not intended
for practice—itself a form of divine worship through legal overproduction—and it
also continues to develop the laws governing political institutions long gone, such
as the High Court and the monarchy. The law book—that is, the Talmud—became
the new embodiment of the nation. God, too, was described there as having nothing left after the destruction of the Temple but the “four ells of halakha.”23 According
to one strand of the tradition, God is an amorphous being, the only way left for
man to approach Him was though the practice of Jewish law.
This idealized picture of the halakhic system continued to dominate the
popular imagination even after the modern nation-state arose and large parts
of the halakha fell under the nation-state’s commitment to the unity of law and
its monopolization of legal subjects formerly left to subgroup elaboration and
enforcement. The standard history of the Jewish legal transition to the new
political formation of the modern nation-state served to perpetuate this image
of halakha because it tells a story of modern rupture and pragmatic accommodation. These accounts emphasize the post facto legitimization of the ideology
of the modern nation-state, made possible because the halakha, like any rich
legal tradition, had something available “to hang necessity and opportunity
on.”24 The accounts take it as axiomatic that a genuine conceptual differentiation between church and state, or long-standing arguments over religious
coercion and private conscience, cannot be found within the halakha; thus,
the redefinition of halakha as a voluntarist religion and the contraction of the
sphere of halakha primarily to ritual matters had no serious halakhic purchase.
The impression left by these accounts is that the rabbis dug into their legal
repertoire and came up with a few formulas and doctrines—mostly of limited
scope and developed earlier to solve other internal problems—and either
papered over the problem or creatively used them to meet the needs of the
hour, depending on one’s point of view. The impenetrability of the legal sources
also drove this methodology.25 Historical functionalism suited a generation of
academic Jewish historians untrained in Jewish law.
According to this standard history, at the dawn of the Jewish emancipation,
the old principle of “the law of the kingdom is the law” was seized on in order to
justify the trading of Jewish sovereignty over governmental, communal, civil,
and domestic matters for equal citizenship rights. The principle thus facilitated
22
See generally, MOSHE HALBERTAL, PEOPLE OF THE BOOK: CANON, MEANING, AND AUTHORITY 90–128
(Harvard Univ. Press 1997) (concerning the complex status of the Talmud as a canonical text).
23
24
Babylonian Talmud, Tractate Brachot 8a.
Bernard Susser & Eliezer Don Yihyeh, Prolegomena to Jewish Political Theory, in KINSHIP
CONSENT, supra note 20, at 91.
25
AND
Jacob Katz already has noted this problem. See JACOB KATZ, EXCLUSIVENESS AND TOLERANCE: STUDIES IN
JEWISH-GENTILE RELATIONS IN MEDIEVAL AND MODERN TIMES 183 (Oxford Univ. Press 1961).
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and legitimated the reorganization of Judaism from a semisovereign entity into
a voluntary organization. The principle figured prominently in the responses
of the Assembly of Notables to Napoleon I’s questions about the suitability of
Jews to fulfill the obligations incumbent on them as French citizens. From then
on, Judaism took its shape as a private religious faith, concentrating mainly on
the performance of private rituals, with the retention of overlapping sovereignty with the state only with regard to issues relating to marriage and
divorce. Thus, the principle became Judaism’s corollary for the division of the
secular and religious realms of life.
From Moses Mendelssohn on until the rise of Zionism, modern Jewish
thought engaged in a rich dialogue about the changes needed in the traditional
Jewish vision of halakha to adjust to the new reality of the modern nation-state
and, with it, the new phenomenon of a secular Jewish identity. Save for
Mendelssohn26 and a few others, these debates also took it as axiomatic that
the biblical vision of a religious polity had been “preserved in the diaspora until
then in its halakhic patterns.”27 The debates revived the ancient questions of
the relationship between the universal and particular elements of Judaism and
of a national-collective Jewish identity apart from the halakha. The participants in this debate differed primarily over whether the Jewish community
should give up its collective national identity, retaining only its sacral aspects
or, conversely, only its universal aspects; or whether it should seek to retain a
national identity by trying to “find a way to achieve a compromise with the
state.”28 The more traditionally minded Jews asserted that, after exile from the
land, the exclusive organizing principle of continued Jewish collective identity
was continued obedience to the halakha. Reformers took the position that
what is primary for Judaism is ethical monotheism.
But looking backward after the passage of a century, even some nonorthodox thinkers, such as Mordechai Kaplan, located one of the major ills of contemporary Judaism in its capitulation to the modern political order. In Judaism
as a Civilization, Kaplan begins his list of the factors of Jewish disintegration
with the political factor. For Judaism, the idea of citizenship in the nation-state
is more pernicious, according to Kaplan, than for other religious groups,
because Judaism was intended as a total society. Whereas before, Judaism was
conceived as a nation and as politically and culturally autonomous, and the
halakha as a comprehensive Jewish national law, Judaism is now reduced to a
private religion. He indicts neo-orthodoxy, in particular, for its abandonment
of much of the former subject matter of the halakha. Quoting from the Vilna
preface to an edition of the sixteenth-century Code of Jewish Law, the Shulkhan
26
Mendelssohn, like Spinoza, held that the biblical vision had no institutional obligatory force in
exile; thereafter, they were moral obligations, not political ones.
27
See Schweid, supra note 20, at 135.
28
Id. at 134.
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Aruch, which states that much of the laws contained therein are no longer
operable because of the principle “the law of the land is the law,” Kaplan states:
“We are amazed to find that the most important elements of Jewish law are as
obsolete in neo-orthodoxy as they are in Reformism.”29
This quick adaptation to the notion of Judaism as a private religion, accompanied by the vague anxiety of a few religious leaders, was replicated at the
dawn of the establishment of the state of Israel in the East. As a Jewish and
secular state, its authority raised a new legal question from the internal religious viewpoint. In truth, there were legal precedents for applying the ancient
doctrine about foreign rulers to the Jewish state.30 But the question turned not
only on legal niceties but on the meaning of Jewish history and collective identity. In an essay written in July 1948, Isaac Halevi Herzog, a lawyer by training
and a leading rabbinic figure who later became chief rabbi, tells of an inquiry
he made in 1937, after the Peel Report recommending partition was released,
to Hayyim Ozer Grodzinsky, the rabbinic leader of Lithuania.31 Herzog solicited
his views on how to bring Torah law into dialogue with the soon-to-be-born
democratic state. Grodzinski wrote a reply, consisting of less than a paragraph,
sketching a dual system of courts reminiscent of late antique and medieval
jurisdictional accommodations in civil suits.32 As for criminal and public law,
Grodzinsky wrote, “it appears to follow from a responsum [sic] of Ran (Rabbi
Nissim Gerondi) that there was a separate royal law alongside the bet din
administering Torah law … for it would truly impair the order of the polity,”33
if Torah law was followed.
Herzog, like Mordechai Kaplan before him, expresses shock at this “amazing
surrender” of Torah law by an orthodox luminary and even expresses doubt
whether the author of what is, in point of fact, a sermon and not technically a
legal source (responsum), is the renowned Talmudic commentator.34 He tells
of writing back and receiving no further response. And he also writes about the
loss of a national law in favor of an alien law, a loss all the more poignant in the
Jewish state. “Even if non-Jewish law were wonderful,” he writes, it would still
be unacceptable from a national and religious point of view that “the people of
29
MORDECHAI KAPLAN, JUDAISM AS A CIVILIZATION 157 (Jewish Publication Society of America, 1994).
30
See Ovadiah Hedaya, 9 HaTorah ve-HaMedina 36–44 (1958) (citing earlier precedents), reprinted in THE JEWISH POLITICAL TRADITION, supra note 10, at 476–479.
31
See RABBI ISAAC HERZOG, The Rights of Minorities in Jewish Law, in CONSTITUTION AND LAW IN A JEWISH
STATE ACCORDING TO THE HALAKHA (Itamar Warhaftig ed., Mossad Harav Kook 1989), reprinted in THE
JEWISH POLITICAL TRADITION, supra note 10, at 471–476.
32
Jewish courts adjudicated internal Jewish civil disputes while disputes between foreigners and
Jews were at the choice of the parties and could take place in the Jewish courts or could be remitted
to the general courts to be decided in accordance with general, non-Jewish law.
33
See Herzog, supra note 31, at 475.
34
See Herzog, supra note 31. For stature of author, see infra, text at p. 31.
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Israel in their own land rule only in accordance with foreign law.”35 Herzog did
not expect Jewish law to be instantiated as the law of the state, but he expected
it to have “a small corner,” as he put it, until it could be brought up to date.
It does not require much guesswork to discern the motivations behind
Grodzinski’s response. Grodzinski was opposed to the state’s creation altogether. For him, Zionism was blasphemy, the human forcing of a messianic
ideal and, potentially, idolatry—the setting up of an alternative sovereign. He
wished to protect the garden of religious halakha from any state but especially
a Jewish state, by separating the two at the outset. Herzog, by contrast, dreamt
of reviving Jewish law as a religio-national law by developing the nascent democratic strains within it. All sorts of questions relating to affairs of state had
barely been addressed by the tradition, from war to governing disparate populations, and what precedents existed arose within a beleaguered culture lacking actual power that had trained its eye solely inward.36 Nonetheless, Herzog
thought it would be possible to develop the sources from within. Indeed, in
preparation for the imminent state, Herzog authored one of the more innovative statements grounding equal rights in the polity on a joint covenant among
all its citizens. In it, he acknowledges Israel as a new political formation and
not a return to any prior model: a joint Jewish and non-Jewish entity, brought
forth by the United Nations as much as by Zionist efforts.
Neither Herzog nor Grodzinski had their ambitions fully realized when the
state came into existence. In many ways, as Eliezer Schweid observes, Israel
was structured as the “compromise” with the modern nation-state formation
that some of the earlier Jewish thinkers had sought.37 Religion–state arrangements and the different forms of religious establishment in Israel were the
result of a hard-fought political compromise between a variety of secular and
religious factions (now the subject of a painful renegotiation) but whose interests then occasionally coalesced over matters that touched on collective
national identity such as marriage and divorce law.38 Ben Gurion’s strategy
35
Id. at 473.
36
Arye Edrei, Law, Interpretation, and Ideology: The Renewal of the Jewish Laws of War in the State of
Israel, 28 CARDOZO L. REV. 187 (2006).
37
Schweid, supra note 20, at 137. For example, the Basic Law protects religious rights as group
rights, and rights to religion rather than rights to be free of religion are explicitly formulated. Freedom of conscience is protected under the rubric of protection of human dignity.
38
According to the millet system of the Ottoman Empire, personal status matters were remitted to
the local courts of the various religious groups that comprised the polity. This model was continued
during the British mandate and left intact with the establishment of the state. That decision reflects
not only secular nationalist and religious interests; it is also the pattern typical in postcolonial
countries. See generally Suzanne Last Stone, Jewish Marriage and Secular Law, in THE ISLAMIC MARRIAGE
CONTRACT (Asifa Quraishi & Frank L. Vogel eds., forthcoming Harvard Univ. Press 2009). Secular
national movements sought to adapt Jewish law as state law long before it became a project of the
religious. See ASSAF LIKHOVSKI, LAW AND IDENTITY IN MANDATE PALESTINE (Univ. N.C. Press 2006).
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was to place religion within the heart of government in order to tame it and in
the belief that religion would wither away, in any event, under the inevitable
process of modern secularization.39 Instead, religion has only intensified as a
potent political force over the last three decades.
Most of the Jewish religious movements current in Israel are modern utopian movements. They differ markedly in how they interpret the meaning of
history, however. The ultrareligious do not relate to the state as a religious
vehicle or as a means for perpetuating Jewish collective national identity. For
them, “Jewish collective identity has become bracketed—relegated to the distant biblical past or messianic future” and perpetuated in the present only
through the community of the faithful.40 The religious Zionist movement,
however, understands the establishment of the state of Israel both as religiously
significant and as a vehicle for reviving halakha as national law. Some wings
of this movement see it in vivid messianic terms, as the beginning of the fulfillment of the covenantal promise. For them, the state provides the opportunity
to resuscitate the original ideal of a halakhic polity and to resacralize the secular. Halakha, in this vision, is decidedly a politics—a means to achieve the spiritual and political perfection of the nation. The more sober, nonmessianic
wings also see it as an opportunity to revive halakha as a religio-national law
by cultivating the latent democratic elements within it.41 Both wings of this
movement have produced a remarkably large body of distinctive law that deals
with subjects unaddressed for nearly two millennia, including affairs of state
such as war, creatively fashioned out of sparse indigenous sources and developed exclusively from within.
This is not the place to linger over the fascinating question whether the halakha could, indeed, be brought up to date through creative reinterpretation to
address the needs of a fully functioning, modern democratic state. Instead, I
would like to touch briefly on one element over which these contemporary religious groups unite: the need to preserve a transcendent element in the law in
both the domestic and international arena. By fashioning rules touching on
matters of statecraft from the particularist halakha, either through analogy to
preexisting doctrines or from whatever Jewish sources exist, including noncanonical ones, as well as from an overall sense of Jewish ethics, the law retains
39
The societal split in Israel between Jewish elites (European Ashkenazi, high status, left liberal,
secular) and Jewish nonelites (North African and Middle Eastern in origin, right-wing religiously
and politically) shows a process of secularization that is a variation on those characteristic of Catholic societies. It is rooted in earlier processes of secularization in Eastern Europe.
40
See Fischer, supra note 17, at 236. Fischer identifies their utopian orientation in terms of the wish
to recapture the transhistorical, objectively true divine law “as it exists in the mind of God.” For
this reason, they base their rulings on the most stringent interpretation, lest actual practice fail to
conform to divine halakhic truth. This is a departure from the more modest and skeptical epistemology of the Talmud, which emphasizes procedural validity rather than metaphysical truth.
41
See Edrei, supra note 36.
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its transcendent dimension and continues to reflect a particularist Jewish
viewpoint.42
The academic assessment of internal models of separation of religion and
state is taking place against this ideologically saturated landscape. It is one
aspect of a larger intellectual project to retrieve a tradition of Jewish political
thought to accompany the rise of a new Jewish political identity.43 The project
has ambitions beyond the cultural or purely academic, and these ambitions
shape its methodology in two ways. First, contra the historical functionalists, it
attempts to trace a genuine and persistent line of argument within the rabbinic
legal tradition from the Bible to contemporary times about dividing the religious and political realms.44 Second, this project has been dominated until
recently by political theorists. The political theory orientation is evident from
the very definition of the realm the theorists are trying to locate within the rabbinic tradition—a political realm and, thus, a realm of discretion rather than
legal rules.
2. Paradigm shifting
As a legal theorist, I want to shift the target. Rather than try to locate a realm
of politics and discretion shorn of law, as the political theorists attempt, I would
like to offer alternative picture of halakha as composed of universal and particular law. According to this picture, the state—even the Jewish state—is not
a realm of politics shorn of all law; it is a jurisdiction that operates in accordance with a universal law within the particularist halakha.
I focus here on two internal models for separating religion from law, both
developed in the medieval period—the first around the image of the Jewish king,
and the second around the image of the non-Jewish kingdom. These are fascinating precisely because they reject the vastly oversimplified notion of a total
halakhic society; they change, radically, the paradigmatic picture of the halakha from one that is comprehensive and unified to one that is interstitial, pluralist, and composed of different jurisdictions generating law in accordance
with fundamentally different principles. Each model, for different reasons, radically limits the ambit of the halakha: the first, because it views political structures, which enforce law for the sake of society, as necessary and divinely
commanded yet ultimately profane; and the second, because it views political
42
Id.
43
The project has offshoots such as reviving interest in reading the Hebrew Bible as a source of political thought, as did Selden, Grotius, Spinoza, Hobbes, and the Puritans. See Fania Oz-Salzberger,
The Jewish Roots of Western Freedom, 13 AZURE 88 (2002).
44
Michael Walzer has devoted the last twenty years to bringing out four volumes of primary sources
in translation, (THE JEWISH POLITICAL TRADITION, supra note 10), juxtaposing legal and nonlegal
sources, in order to construct a line of argument from the Bible to contemporary times over seminal issues such as dividing religion and state.
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structures as necessary and divinely commanded and, as such, ultimately sanctified. The first identifies the essence of halakha with sacred ritual, and the second views large parts of halakha as replaceable by the law of other societies.
Although these two models have different doctrinal trajectories and emphases,
they can be seen as two facets of a single concept: that of conventional political
institutions or a government “like [those of] other nations.”45 Both these
approaches can be traced back, ultimately, to the tense coexistence within Judaism
of the universal and the particular—of two normative systems, the one consisting
of universal obligations binding all humanity and the other of commandments
particular to Jews. The Bible first launched this complex internal structure by
describing the pre-Sinai world as one filled with law given to humanity, including
Israel’s forefathers. This account is transformed in the Talmud into a more fully
fledged description of two normative orders. The Talmud primarily focused on the
universal law as an explanatory model for the law that existed before “the law”—the law given at Sinai—and used the model as a contrasting image of a conventional society,46 unlike the covenantal one forged at Sinai, in order to explore the
differences between the two and construct identity.47 Although it left open the
relationship between the two legal orders, it largely presented that relationship as
a historic progression, with the universal law superseded for Jews by the particular obligations revealed at Sinai. It was left to the medieval period to construct a far
more complex relationship between the two, with the universal law serving in the
eyes of some jurists, as I have claimed elsewhere,48 essentially as an alternative
source of norms even in a national Jewish context. This is not a realm of politics in
the sense of a realm of practical wisdom or prudence and not law. Rather, it is the
importation of law from outside into an internal context. Discretion can only exist
so long as law does not exist to fill the space. And according to this interactive
model, gaps in halakha disappear once law appears, whether the law is generated
by the non-Jewish state, the Jewish state, or even the community of nations.49
This subject provides a fascinating illustration for descriptive theories
about a plurality of law that actually exists within a supposedly unified legal
45
“When you have come into the land that the Lord your God is giving you, and have taken possession of it and settled in it, and you say, “I will set a king over me, like all the nations that are
around me,” Deuteronomy 17:4; “and said to him, ‘You are old and your sons do not follow in your
ways; appoint for us, then, a king to govern us, like other nations. ’ ”1 Samuel 8:5.
46
The association of the universal with the conventional, in contra distinction to the particular
and the transcendent, is an interesting feature of rabbinic thought that deserves more scholarly
attention.
47
I explore this at length in Stone, supra note 10.
48
See discussion in Stone, supra note 10. See recent Rabbinic opinion by the High Rabbinic Court
of Jerusalem (Case No. 4276, Nov. 11, 2003) (on file with the author) (Heb.).
49
See infra, text accompanying note 105 (Shaul Yisraeli); Jeremy Weider International Law and Halakhah, in WAR AND PEACE IN THE JEWISH TRADITION (Lawrence Shiffman & Joel Wolowelsky eds.,Yeshiva
Univ. Press 2007) (discussing whether the halakhic polity is bound by international law).
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domain.50 But it also has far-reaching implications for contemporary debates
in Israel about the role of halakha in the Jewish state. Following the first model,
the mundane aspects of statehood and nationalist law occasionally and
obliquely addressed by the halakha are not particular to halakha nor its
essence; they reflect its universal, conventional, and, therefore, peripheral and
profane aspect. In this view, the halakha is first and foremost a sacred religion,
defining the essence of divine worship, or an ethics guarding the status of the
individual as against society, the state, or other collective ideologies. The role
of halakha vis-à-vis the modern nation-state is thus limited to an ethical critique. According to the second model, the Jewish state is merely one member of
the global community of nations. Universal law such as international codes of
war governs the state of Israel—from the halakhic perspective—and not indigenous, national-collective norms nor particularist aspirational norms developed to govern relations of members within the covenantal community. The
Jewish nation-state is not modeled on a concept of exceptionalism; instead, it is
a member of international society whose norms should converge with international society’s conventions.
2.1. The image of the Jewish ruler
Royal law was developed within the concrete context of the power to punish
and is inextricably entangled with that subject.51 Classically, criminal law was
viewed as a matter of prohibition, the rabbinic term for quintessentially religious or ritual duties, and was entrusted to the rabbinic judges. After all, crimes
were also religious offenses. Whether religious penal law was ever enforced is
unclear. The rabbis portray its exercise but also debate its abolition.52 And
although the Mishna describes ritual modes of execution for a variety of
offenses, the biblically ordained substantive and procedural rules make it difficult to convict and punish anyone. Grodzinski proposes to solve the problem by
analogizing the modern, secular Jewish state to the ancient Jewish monarchy,
which, according to several medieval jurists looking backward at the institution, had authority to legislate for the commonweal and to administer a criminal law system concurrent with that of the judiciary but operating without the
50
See Masaji Chiba, Other Phases of Legal Pluralism in the Contemporary World, 11 RATIO JURIS 228
(1998); Carol Weisbrod, Family, Church and State: An Essay on Constitutionalism and Religious
Authority, 26 J. FAM. L. 741 (1987–1988); Marc Galanter, Justice in Many Rooms: Courts, Private
Ordering, and Indigenous Law, 19 J. LEGAL PLURALISM 1 (1981).
Jewish law had long held—in the Talmud itself—that parties had the freedom to contract out of
fiscal matters, including the regime of civil laws stipulated in the Bible, and to substitute in their
place custom or private-party arrangements. The question at issue was the authority of the civil
state to legislate for the commonweal and to administer a rational criminal law system.
51
52
Mishna Makkot 7; Babylonian Talmud, Tractate Makkot 7a. They also lost jurisdiction to impose
capital punishment as a matter of internal doctrine by the fourth century as a result of the end of
biblical ordination.
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substantive and, especially, the procedural restrictions imposed by biblical
law.
The idea of the monarchy was the subject of an ongoing and often dramatic
debate from the biblical through the modern period conducted in a wide variety of genres from the commentarial to the philosophic to the legal. Yet,
Grodzinski cites neither Maimonides nor any other normative text but, rather,
a sermon, albeit by a Talmudic commentator of great stature. Although technically not a normative source, it has since entered the normative canon.
To appreciate its subtleties, the sermon requires considerable foregrounding, beginning with the constitutional structure of the Jewish polity first
addressed in the Hebrew Bible. The legal corpus of Deuteronomy deserves special attention in a genealogy of Western political thought because it seems to
anticipate the idea of constitutional government in two ways, with two distinct
ideas: the separation of powers among branches of government and the rule of
law over all political actors.53 Deuteronomy 16:18 through 18:22 lists the officials of the polity—judge, king, priest, prophet—and assigns each a role,
although there is considerable overlap of functions and certainly no separation
of matters of religion and state. The text raises questions familiar to any student of constitutional law: What precise powers were assigned to each branch?
Can these powers be reassigned from one branch to another? Are they delegable to successor institutions? Are all the branches mandatory or merely permissive? How are the branches to be coordinated? Is there a power of judicial
review? How is the supremacy of the law safeguarded? Whom do these agents
represent—God, the law, or the people?
Different combinations of agents ruled the actual and the “portable” polity
at different times.54 It may be best to think of these agents as ideal types or as
sites for the exercise of certain forms of authority. Indeed, at various points, the
rabbis claimed to be the successors of all these agencies. These and similar
texts, coupled with historical experiences, inaugurated a nearly threethousand-year discussion about which form of government best suits the
Jewish polity and what is the proper relationship between the branches and
between ruler and subjects. The arguments are both legal and conceptual,
although the conceptual is often clothed in the language of theology.
For example, the biblical books of Judges through Kings tell of the tense
transition from the episodic, dispersed, and charismatic rule of the judges to
that of dynastic kings. This tension between decentralized versus centralized
order repeats itself in different guises throughout the Jewish tradition, with
respect to both the political order—monarchy and statehood versus federated
structures, such as the academies and communal organizations—and the legal
53
Bernard M. Levinson, The First Constitution: Rethinking the Origins of Rule of Law and Separation of
Powers in Light of Deuteronomy, 27 CARDOZO L. REV. 1853 (2006).
54
On Jewish political structures, see STUART A. COHEN, THE THREE CROWNS: STRUCTURES
POLITICS IN EARLY RABBINIC JEWRY (Cambridge Univ. Press 1990).
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order—majority decision versus according normative status to dissents, and
unified codes versus commentarial pluralism. But the deeper issue raised by
this transition is the relationship of monotheistic religion to political structures.55 If monotheistic religion is conceptualized in political terms, with God as
the exclusive sovereign to whom loyalty is owed, setting up a rival human king
is potentially idolatrous. The rule of the judges did not pose this challenge
because it was, as Martin Buber termed it, a sacred anarchy.56 But when the
people request a king to lead them into war and rule over them “like all
the nations,” God tells the judge Samuel: “It is not you that they have rejected;
it is Me that they have rejected as their king.”57
On the other hand, the Book of Judges portrays idolatry and lawlessness as,
in fact, the consequence of the gaps in leadership occasioned by the rule of the
judges. “In those days, there was no king in Israel; everyone did as he pleased.”58
The problem, here, is the invisibility of God’s rule. A permanent leader has a
form which both God and the rule of the judges lack. The intertext to Judges 18
is the sin of the Golden Calf. Idolatry arises the moment Moses disappears from
view. Thus, to counter idolatry, the nation must have a stable and visible form
of rulership.59 This problem was not resolved either, and we can chart the
debates over a host of issues around these two poles. Thus, the argument over
where God’s embodiment in the nation best lay reappears in the early rabbinic
narratives (the Midrash), with one voice elevating kingship to a utopian ideal,
to be realized in messianic days, and the other insisting that kingship, indeed,
all master-servant relationships, will lead to idolatry. This school of thought
solves the problem of where God is embodied in the nation by returning to the
earlier biblical metaphor that each human is the image of God, a notion that
underlay much of the legal oeuvre of this school, including its radical opposition to the death penalty.60 In contrast, the medieval resuscitation of the
monarchical idea was primarily to enable a Hobbesian social order and punishment. These same arguments reappear in contemporary guise in terms of
the separation of state and religion in the state of Israel.
One way to mitigate the paradox of kingship is to set strict limits on the
king’s powers and prerogatives. In Deuteronomy 17, the king has only one
55
See MOSHE HALBERTAL & AVISHAI MARGALIT, IDOLATRY (Naomi Goldblum trans., Harvard Univ. Press
1990).
56
BUBER, supra note 16.
57
1 Samuel 8:5.
58
Judges 17:6, 21:25.
59
See generally Alan Silver, Kingship and Political Agency, in THE JEWISH POLITICAL TRADITION, supra note
10, at 122–126.
60
Tosefta Yevamot 8:4; Babylonian Talmud, Tractate Sanhedrin 46b. See Yair LORBERBAUM, IMAGE
GOD, HALAKHAH AND AGGADAH (Schocken 2004). See also Yair Lorberbaum, The Destitute King
(unpublished manuscript, on file with author) (Heb.).
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positive duty: to write out a scroll of the law, read it every day of his life, and
obey its commands. Yet, elsewhere in the Hebrew Bible, kings are portrayed in
far more absolutist terms,61 unfettered by the law or, at least, exercising a variety of powers, especially that of dispensing royal justice—and royal adjudication, even by good kings, is unhedged by the due process the Bible demands.
Deuteronomy 17 instructs that no defendant may be convicted except on the
testimony of two conforming witnesses. This is biblical/constitutional law.62
The historico-critical scholar will see Deuteronomy, a text biblical scholars
assign to the seventh century BCE during the kingship of Josiah and well after
the transition described in Samuel, as a radical attempt to solve the paradox of
human kingship. It seeks to do this by breaking from the divine kingship models prevalent in the ancient Near Eastern world at that the time, and by suppressing the monarchy’s earlier judicial and legislative role attested to in the
pre-Deuteronomic writings. The jurist, for whom Deuteronomy is part of the
original Mosaic legislation, will see, instead, the constitutional law of the
Pentateuch and a series of seemingly conflicting precedents or “cases”
recorded in the post-Mosaic writings comprising the rest of the biblical canon,
which assign a judicial role to the king and free him from subservience to the
law.63
In theory, reconciliation could take a variety of forms—that lawless kings
reigned in Israel for much of the monarchy but that this did not sever the relationship of ruler to subjects or give rise to a right of resistance; that kings held
legally defined emergency powers to administer royal courts; or that they had
political discretion to depart from Torah law in times of need, to name a few solutions that later emerged. Note, however, that the only textual warrant in the
statutory material for ascribing any positive power at all to the Jewish king is
the permission to appoint a king “like all the nations.” In the ancient Near East,
the Hellenistic world, and feudal Europe, kings not only judged but legislated.
61
See generally Chronicles; Samuel.
62
Later jurists imported further requirements, such as forewarning the defendant that he is about
to transgress.
63
By then, the polity had collapsed and both kingship and the High Court had ended. Legal speculation continued in this period not only because the polity could be resurrected any day or in the
distant and even messianic future but also because the jurists viewed their contemporary structure, rabbinic schools, and courts operating together with the patriarchy or exilarchy, as successor
institutions to the Sanhedrin and king. From a practical standpoint, the major issues preoccupying
the Mishnaic-Talmudic corpus is whether the head of state sits in judgment as a member of the
official judiciary and whether the king is accountable to the court, with the latter ceded by some in
order to secure an independent judiciary—an issue of central concern to the rabbi/judges. See
Lorberbaum, The Destitute King, supra note 60; David Flatto, It’s Good to Be King: The Monarch’s
Role in the Mishna’s Political and Legal System, 2 HEBRAIC POL. STUD. 255–283 (2007); David Flatto,
The King and I: The Separation of Powers in Early Hebraic Political Theory, 20 YALE J. L. & HUMAN. 61
(2008). See also SAMUEL ATLAS, PATHWAYS IN HEBREW LAW (American Academy for Jewish Research
1978) (Heb.).
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Accordingly, a far more radical reading, which views this textual phrase as a
species of incorporation of law by reference, could wind up standing the historical Deuteronomic revolution, which rejected the models in surrounding
cultures of kings as legislators and judges, on its head. In short, the powers of
the Jewish king and, hence, the successor state, could be interpreted in light of
a universal and not a particular concept of kingship.
The groundwork for this paradoxical trajectory of legal doctrine, which is a
crucial element of Gerondi’s later thesis, was laid by Maimonides, although he
adhered strictly to a view of Jewish kingship as firmly integrated with religious
law. Indeed, his views on religion and state cannot be separated from his philosophy of law. The philosophical frame is the view that the Torah, in its
entirety, is a divine political structure because all its laws have a purpose: the
perfection of the body or the soul. The Torah’s commandments addressed to
governmental structures are part of the perfection of the body because they
aim at securing the social order, which is a necessary condition for achieving
perfection of the soul.64 All governmental structures—not only the king but
also the court—are obligated to secure social order.
From a technical legal perspective, Maimonides solves the question of the
judicial powers of the Jewish king by codifying emergency powers held by the
king (and the court) to depart from Torah law in order to maintain social
order.65 These emergency powers are only theoretically temporary, and they
entail the power to punish free of the biblical procedural restrictions of two witnesses and a forewarning. Maimonides purports to be codifying Talmudic law,
and there are scattered statements in the Talmud reporting a tradition that the
court meted out punishments not according to law but “in order to safeguard
the law.”66 The two cases attached to the statement tell of impositions of the
death penalty by the court for highly public violations of the law. These cases
emerge as rare exercises of judicial discretion to depart from biblical rules,
although they also attest to a Talmudic distinction between law as an aspect of
individual justice, entitling the individual to full due process of the law, and
law as an aspect of political or social governance, which may require relaxation of the rigors of the law in times of extreme breakdown of social order.67
The Talmud also depicts the court as authorized to “correct” the law, by relaxing or tightening it, through rabbinic legislation addressing social needs,
64
See Maimonides, The Guide of the Perplexed 3:31; 26–27.
65
See Maimonides, Mishne Torah, Laws of Kings 3:8–10; Laws of Killing 2:4.
66
Babylonian Talmud, Tractate Sanhedrin 46a and parallels. The report of the tradition is formulated
so as to indicate it is somehow legally deficient; either novel, hearsay, or only privately passed down.
67
See the discussion in Blidstein, “Ideal” and “Real,”supra note 10, at 50. But see HANINA BEN-MENAHEM,
JUDICIAL DEVIATION FROM TALMUDIC LAW: GOVERNED BY MEN, NOT BY RULES (Harwood 1991) (arguing that
Talmudic judges had the power to disregard norms and exercised broad judicial discretion).
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applicable to everyone.68 Maimonides conflates the two and reinterprets the
Talmudic tradition regarding a few judges exercising discretion, in the sphere
of punishment, as a report of the passing of positive law: a power-conferring
rule authorizing judges to exercise discretion when sitting in formally temporary but actually permanent emergency jurisdiction.
This radical transformation of the Talmudic materials can be explained by
Maimonides’ near-Hobbesian predilection for centralized order and for severity
toward murderers (above any other category of sinner) and by his rationalist
assessment that the biblical procedural protections were not some form of
truth-guarding mechanism necessary to protect the innocent. Talmudic law is
known for its skepticism about definitively ascertaining the truth, whether of
facts or law. Yet, the Talmud does not evince a particularly skeptical attitude
toward the two witness rule. One gets the sense that the Talmudic jurists
viewed it as no better, nor worse, than any other mode of truth acquisition.
Indeed, for those who abhorred the death penalty, it was a highly convenient
way to circumvent the law. Maimonides seems to be the first among rabbinic
jurists to view the biblically ordained two-witness rule as essentially formal
and, thus, an obstacle to pursuing a rational system of procedure.
A century later, Ibn Adret, invoked similar ideas to legitimate medieval
practice.69 Indeed, the system of documented medieval punishments overseen
and approved by the rabbinic estate is startling to those only familiar with
Talmudic discussions.70 Thus, royal law played a major role both in the medieval Jewish political imagination and in justifying actual practices of punishment. Contemporaneous political thinking in the medieval Islamic world
contributed, no doubt, to the discussion, as Blidstein observes: “Islamic jurisprudence, confronted by similarly rigorous norms (in the laws of evidence, for
example) also declared that its mazalim courts must act for the benefit of society
and apply a more realistic standard of justice.”71 According to Blidstein, these
medieval writers shared with Islam what amounts to a two-tiered system of
law: “Ideal law is our familiar revealed law . . . which is appropriate for an ideal
Much of the early rabbinic reform of the legal system is through such legislation. The “court”
acts as both a judicial and legislative body in Jewish law.
68
69
Thus, Adret, in a series of responses dealing with handing over informers to the Spanish government for capital punishment, draws on a variety of precedents for departing from the criminal law
strictures: citing the powers of the community (acting in lieu of king) and of the rabbinic courts
exercising emergency jurisdiction. Adret remarks that the Torah’s procedural laws are not aimed at
discerning the truth of guilt or innocence, unlike that of the king, which is aimed at discerning the
truth and punishing. He adds: “if you issue decisions based exclusively on the law as given in the
Torah, why then society would be destroyed.” Cited in Joseph Karo, Commentary to Tur Hoshen
Mishpat, Rules of Judges, § 2.
70
See generally SIMHA ASSAF, PUNISHMENT IN POST-TALMUDIC TIMES (Sifriyah Mishpatit 1922).
71
Blidstein, “Ideal ” and “Real,” supra note 10, at 50.
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society. Real law, on the other hand, derives its authority from the initial
revealed law, but its actual content will be devised so as to guarantee social
order in times of disorder.”72 Thus, Maimonides, who viewed the biblical law as
formal and ineffective and held that the halakha was a this-worldly political
program, concluded that it required extensive correction by the jurists.
Yet, when it comes to the question of the discretionary, emergency powers
of the Jewish king, as distinct from the court’s (and the Talmudic sources that
Maimonides is codifying overtly speak only of judicial powers), there is another
aspect to the legal story that takes the transformative potential of doctrinal
progression to increasing heights of circularity. In the Maimonidean system,
the only actor who truly can be entrusted to exercise discretion is the juristsage. Maimonides’ king has very little actual discretion. This is not a realm of
politics or wisdom but of law. Rather, as Blidstein describes it, Maimonides has
transferred to the Jewish king a separate body of Talmudic law about the universal laws that bind non-Jewish societies73. With the so-called “Noahide” law,
the Talmud begins a sustained reflection on the legal and political model
ordained for other civilizations. In addition to six substantive commands,
Noahide law includes a command of justice, dinin.74 Maimonides codifies the
Talmudic commandment of dinin in terms of the requirement to preserve social
order by establishing a judiciary that will enforce the other substantive commands. The Talmud had already noted that Noahides punish in accordance
with the testimony of one witness and without forewarning.75 In Maimonides’
code, the Jewish king, like non-Jewish government, is authorized to punish on
the basis of the testimony of one witness and with no forewarning. “Maimonides’
entire edifice of monarchic powers identified Jewish and gentile governance as
a single structure possessing similar goals and utilizing similar instruments.”76
The biblical language calling for a king “like other nations” 77now becomes a
warrant for resorting to universal norms of governance to define the powers of
the Jewish king. Of course, these “non-Jewish” norms of governance are themselves offshoots of Talmudic jurisprudence.78 Nevertheless, they are universal
and not particular norms (from the Jewish point of view).
72
Blidstein, “Ideal” and “Real,” supra note 10, at 44.
73
Blidstein, “Ideal” and “Real,” supra note 10, at 53.
74
See Stone, supra note 10 .
75
Babylonian Talmud, Tractate Sanhedrin 56a–58b.
76
See Blidstein, “Ideal” and “Real,” supra note 10, at 53. Traditional jurists commenting on Maimonides note this connection. See Meir Simhah Cohen, Ohr Sameah, Laws of Kings 3:10.
77
Deuteronomy 17:14.
78
Indeed, as a historical matter, their real origin may well lie in Talmudic observation of Roman
practice just as much as in legal dissection of the Genesis narratives “attesting” to the universal
law God commanded. See Stone, supra note 10.
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This legal archaeology is not an exercise in scholasticism. It sets the Jewish
experience of a two-tier system of law fundamentally apart from the Islamic one.
This difference stems from a crucial structural difference between Judaism and
Islam existing at the core of the two faiths, namely, regarding the relationship
between universal and particular religion and, therefore, universal and particular law. To the extent that a universal concept of kingship is derived from Noahide
law, it is operating, not as the “real” law into which the real society has fallen
because of its spiritual shortcomings—as Islam must come to grips with—but as
a kind of indigenously “Jewish” universalist fallback or residual law, which can
be drawn on when the particular law requires supplementation or adjustment.
Legal pluralism, therefore, is one of the defining characteristics of the Jewish
legal system. Usually, legal pluralism takes the form of normative dissents and
decentralized codes; however, here, legal pluralism, at the deepest level, involves
the existence of two legal systems interacting within a larger legal order.
Still, the existence of this universal legal system within a particular legal system opens a deep fissure in Jewish thought. From an internal perspective, the
Noahide system is the law humanity was commanded to follow, including
Israel’s forebears, and which is binding on everyone. The giving of the Torah at
Sinai imposed additional obligations only on Jews. But if the universal Noahide
law is God-sanctioned—developed in detail by Jewish jurists—and a reflection
of the moral and political law, what precisely is the point of Sinai? The question
“why Sinai?” haunted the rabbis. As noted, in the Talmudic period, Noahide law
and its juristic development served as a site for bolstering self-identity and for
laying the groundwork for a theory about the duties of members of covenantal
as opposed to conventional political societies. Indeed, the two-witness rule itself
was thought to symbolize the covenantal community. Maimonides sought to
solve the issue by integrating the political structures with religious norms and
stitched the Jewish king into the religious fabric, portraying him as a sage or
King Messiah. Hermann Cohen and various nineteenth-century Reform movements sought to solve it by reconstituting Judaism into the Noahide, moral and
universal religion, in which ritual is secondary, at best. Conversely, one could
view the particularist obligations added by Sinai as the essence, and the universal, political law as necessary but insignificant. In short, this is the halakhic
underpinning for the debate in the eighteenth and nineteenth century, after the
emancipation, about which is the core and which the periphery of halakha.
And this takes us directly to a famous sermon by Rabbi Nissim Gerondi, a
renowned Talmudic commentator and physician in the royal court of Spain in
the fourteenth century. Whether Gerondi’s decision to carve out separate
domains for religion and government was motivated by practical concerns—
“to provide a defense for allowing deviations from biblical-talmudic law in the
workings of the contemporary Jewish polity”79—or theoretical ones—to
79
Blidstein, On Political Structures, supra note 10, at 52.
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provide an answer to the question why Sinai?—is open to debate. Gerondi
begins by interpreting Maimonides. He posits a central gap in the halakha—
the lack of conventional modes of governance able to preserve social order.
Torah law, with its requirements of judging in accordance with the testimony
of two witnesses and forewarning, cannot accomplish this end. Thus, it is deficient by comparison with other political systems. Yet, the Torah itself provides
the means for correcting this deficiency. The king, who is concerned only with
guilt or innocence, may punish without resort to the Torah methods of criminal adjudication. Like Maimonides, Gerondi links the king’s authority to a general religious command to preserve social order: tikkun olam. This term cannot
be found in the Pentateuch, and is cited by the early rabbis not as a rule but as
an explanation for enacting various forms of social legislation. Both Maimonides
and Gerondi, on the other hand, are using the Talmudic term as a generative
legal principle.
Moreover, Gerondi goes far beyond Maimonides. First, as Blidstein points
out, power, not institution, is key for him.80 Thus, the religious command is not
to appoint a monarch per se but, rather, always to embed monarchical power
somewhere in the Jewish polity. Indeed, the monarch is merely the site of social
order historically chosen by the people, who may choose another institutional
form if they so desire. Second, the language about the need for public order and
social welfare is so broad that it is virtually impossible to confine the power
Gerondi is describing simply to punishment. His language seems to envision
legislative powers as well, as several contemporary jurists hold.81 Third,
Gerondi does not place the king’s powers within the more conventional emergency jurisdiction model, although he cites the phrase once or twice. This is a
separate, actually and theoretically permanent jurisdiction legitimately operating under its own rules. Although he is largely silent on what these rules are
and whether there are any inherent limits to them, I believe we must read him
against the background of the prior discussion as implicitly incorporating any
rules conventionally binding any non-Jewish government. Finally, the political domain is stripped of any aura of the sacred.
Thus far, we can understand Gerondi as extending the Maimonidean
thrust in new directions shaped by his halakhic predecessors living in Christian
Spain and by the surrounding culture. Medieval developments in canon
law—the emergence of criminal law as public law, arguments about social
deterrence, and the relaxation in standards of proof—also date from this
period. Where formerly, criminal conviction could be secured solely on the
basis of two conforming eyewitnesses (or else by torture), there slowly developed in the twelfth and thirteenth century a sense of the need to convict on
80
Blidstein, On Political Structures, supra note 10.
81
See Gerald Blidstein, On Lay Legislation in Halakha: The King as Instance, in RABBINIC AND LAY COMAUTHORITY 1 (Suzanne Last Stone ed., Yeshiva Univ. Press 2006).
MUNAL
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the basis of circumstantial evidence.82 Thus, across traditions, a new perception of an individual who could be deterred and a “public sphere,” having both
powers and need for new forms of social regulation, came into being.
Yet, midway in the sermon, Gerondi parts company with Maimonides. He
does not share Maimonides’ basic framework, which assigns a rational and
comprehensible purpose to each commandment.83 Instead, the sphere of Sinai
law is the sacred and the numinous. Thus, in the course of elaborating the
purpose of the king’s law, he reconceives the very purpose of the halakha altogether. Judging in accordance with biblical law was never intended as a practical means to govern society. Rather, it was intended to bring on the divine
effluence.
Here, Gerondi can be interpreted in two ways, but, as I shall argue shortly,
these two readings are deeply interconnected in terms of their contemporary
political implications. According to the less radical reading, judging in accordance with biblical, procedural, and substantive law is true justice because the
law is exceedingly sensitive to the rights of the individual accused. True justice
cannot take into account the needs of society and remain faithful to the rights
of the individual. The Sanhedrin judged the people “according to that which is
truly just in itself … according to the laws of the Torah alone, which are just in
themselves.”84 Thus, Gerondi rejects out of hand Maimonides’ entire project of
embedding divine law in society and integrating the two. True, Gerondi concedes, the Talmud reports that the judges also punished not in accordance with
biblical law. But this was merely the exercise of monarchic power, which
devolved on the court of necessity in the absence of other political structures.
According to the more radical reading, religious law or, more precisely, that
part of the halakha that is particular is a mysterious ritual. Thus, he writes,
even the “mishpatim” (the social laws of the Torah whose purpose is evident),
including evidentiary and procedural rules, are primarily designed to bring
down the divine effluence. Indeed, Gerondi suggests, perhaps some of the social
laws are, in reality, hukim (ritual laws whose purpose is not immediately
82
See Richard M. Fraher, Conviction According to Conscience: The Medieval Jurists’ Debate Concerning
Judicial Discretion and the Law of Proof, 7 L. & HIST. REV. 23 (1989); Richard M. Fraher, ‘Ut nullus
describatur reus prius quam convincatur’: Presumption of Innocence in Medieval Canon Law?, in
Proceedings of the 6th International Congress of Medieval Canon Law, Berkeley 1980, at 493 (S. Kuttner & K. Pennington eds., Biblioteca Apostilica Vaticana 1985); Richard M. Fraher, The Theoretical Justification for the New Criminal Law of the High Middle Ages: “Rei Publicae Interest, ne Crimina
Remaneant Impunita,” 1984 UNIV. ILL. L. REV. 557; Richard M. Fraher, Preventing Crime in the High
Middle Ages: The Medieval Lawyers’ Search for Deterrence, in POPES, TEACHERS, AND CANON LAW IN THE
MIDDLE AGES (James R. Sweeney & Stanley Chodrow eds., Cornell Univ. Press 1989). See also Nomi
Stolzenberg, The Profanity of Law, in LAW AND THE SACRED 29 (Austin Sarat, Lawrence Douglas, &
Martha Merrill Umphrey eds., Stanford Univ. Press 2007).
83
On his antirationalism, see MENACHEM LORBERBAUM, POLITICS AND THE LIMITS OF LAW: SECULARIZING THE
POLITICAL IN MEDIEVAL JEWISH THOUGHT (Stanford Univ. Press 2001).
84
HERZOG, supra note 31, n. 19.
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evident to reason and may or may not be discoverable), and he goes on to
include in this category the entire system of biblical procedure. Perhaps Gerondi
intended to limit this notion to biblical penal law, but the logic of his argument
and its intellectual roots is not confined to this subject.
If we speak of Christian influences, by far the most important, here, is the
Gelasian doctrine of the two powers—pope and king. Yet, Gerondi is certainly
working off earlier rabbinic sources as well as extending the doctrine of Noahide
law to one logical conclusion. He is following, as Blidstein points out, Yehuda
Halevi, who wrote about “the social-ethical law given to humanity (Noahide
law) to which the spiritual-ceremonial law is added at Sinai,” and decisively
splitting the two into the realms of the sacred and particular, on the one hand,
where true justice is possible, as opposed to the realm of the profane and universal, on the other, where the needs of society are irreconcilable with the
rights of individuals.85 The intellectual line I want to draw, however, extends
back to a certain conception of priestly religion and of criminal adjudication as
a ritual service and then forward to the twentieth-century social criticism of
Yeshayahu Leibowitz, who was the most influential orthodox Zionist proponent in Israel of radical separation of religion and state.
According to one biblical conception of the priesthood, the ritualized worship of God has no practical, this-worldly, political or social function. Instead,
“the focus is solely on the encounter between a numinous God and a serving
priest,”86 who is confined to the sacral realm—the temple—and isolated from
the social and political order. The reason to mark off the sacred from all other
realms is connected to the idea of a wholly other God who transcends morality
and politics and is uninvolved in human affairs. “Uncovering the hidden
dimensions of divinity, bringing on the divine effluence, requires a set of rituals
unrelated to human concerns.”87 Temple service, in this view, is divine worship “out of love” and not for instrumental purposes. Thus, secular space may
emerge out of a certain conception of the deity rather than from external critique and opposition to religion.88
Gerondi’s picture of halakha as mysterious ritual and of criminal adjudication in accordance with divine laws that have no social purpose except to bring
on the divine effluence reflects this conception. Gerondi extends the priestly
85
Halevi also speculated whether certain social laws were actually religious commands with no
social function except to bring on the divine overflow.
86
Yair Lorberbaum, The Place of the Priest, in 1 THE JEWISH POLITICAL TRADITION, supra note 10, at 178;
See also ISRAEL KNOHL, THE SANCTUARY OF SILENCE: THE PRIESTLY TORAH AND THE HOLINESS SCHOOL (Fortress
1995).
87
Loberbaum, supra note 86, at 179.
88
For a fascinating discussion of the link between transcendent conceptions of the divine and the
rise of secularism on the world historical stage, see MARCEL GAUCHET, THE DISENCHANTMENT OF THE
WORLD: A POLITICAL HISTORY OF RELIGION (Princeton Univ. Press 1997).
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role to the judiciary, especially to the High Court, which was located in the
temple, and he writes elsewhere that its judges ideally should be priests.89 But,
in retrospect, we can see how the judiciary and this priestly role were collapsed
already in the Mishna, the formative text of Jewish law, which describes the
polity as ruled by two agencies: judge and king.90 One may speculate whether
the two are separated not only to secure the court’s independence but also in
order to relocate in the judiciary and their rabbinic successors the sacral power
formerly found in the temple.91 Already in this early layer, judging is depicted
as a sacral site, a site of the divine overflow,92 and judicial execution, which is
also depicted as a form of atoning sacrifice or ritual killing, is possible only
while the court sat in the temple.93
These theological conceptions have profound contemporary political implications. Gerondi’s intellectual successor is Yeshayahu Leibowitz and others,
who perceive certain totalizing characteristics of political nationalism, which
they call idolatry, as potential threats to the rights of the individual.94 For
Liebowitz, too, Jewish religion is worship of God through the observance of
commandments that are divorced from human concerns and thus transcend
the social and political. This is the realm of the sacred and to preserve it, the
state must be desacralized and stripped of any religious component, because
vesting sanctity outside its proper place is idolatry. At the same time, however,
the state is necessary from the perspective of the political and social, as Gerondi
held. The role of halakha and religion vis-à-vis the state in Liebowitz’s system
is to provide for an ethical critique. Halakha becomes a source of criticism of
nationalist-political ideology when the latter tramples the status of the individual. Thus, this position is distinguishable both from that of the ultratraditionalists, who view the state as idolatry but who recoil from viewing political
participation in the secular realm as itself a religious requirement, and from
the more nationalistic segments of the religious Zionist camp, who seek precisely to resacralize the body politic and for whom the concept of Jewish kingship should be culturally specific, not universal.
89
Sifre Deuteronomy, cited in RABENU DAVID BAR RE’UVEN, Hiddushe haRan le Sanhedrin. The judicial function and priestly role are already coupled in Deuteronomy 17 and continued in Philo.
90
See Mishna Sanhedrin. See also Flatto, It’s Good to Be King, supra note 63.
91
I pursue this theme in a different context in Suzanne Last Stone, Rabbinic Legal Magic: A New Look
at Honi’s Circle as the Construction of Legal Space, 17 YALE J. L. & HUMAN. (2005).
92
See Haim Shapira, “For the Judgment is God’s”—On the Metaphysics of Judging in Jewish Law,
BAR-ILAN L. REV. (forthcoming 2009).
93
Thus, in order to strip itself of authority to execute, the Mishna reports, the Court relocated itself
to the marketplace. Babylonian Talmud, Tractate Avodah Zara 8b. See also BETH A. BERKOWITZ, EXECUTION AND INVENTION: DEATH PENALTY DISCOURSE IN EARLY RABBINIC AND CHRISTIAN CULTURES (Oxford Univ.
Press 2006).
94
See generally Ellie Holzer, Attitudes Toward the Use of Military Force in Ideological Currents in
Religious Zionism, in WAR AND PEACE IN THE JEWISH TRADITION (Yeshiva Univ. Press 2007).
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2.2. The image of the non-Jewish kingdom
The principle dina de-malkhuta dina (“the law of the land is law,” henceforward
DDM) is first articulated in the context of the power of foreign rulers to tax and
expropriate land. On the face of it, then, no principle would seem to symbolize
more visibly the loss of Jewish sovereignty than this one, which appears four times
in the Babylonian Talmud. Several scholars have already noted how far this
appearance is from reality,95 once one focuses closely on how the principle is actually deployed in the Talmudic discussion. In none of these cases is it operating as
a concession to foreign rule or an expression of powerlessness. On the contrary, in
its original uses the principle serves to make the halakha fully functional in exile.
The locus classicus is a Talmudic text96 posing the question whether the kingdom is robbing Jews or Jews are robbing the kingdom. The legal question is whether
Jews may utter a false vow in order to evade the king’s taxes. Samuel’s maxim is
not questioned; rather, it is raised as an objection. If the king’s laws are valid, then
evading the king’s collectors through the artifice of uttering a false vow is robbery
under Jewish law.97 The second example poses the legal question more starkly:
Jews cross bridges built from palm trees expropriated from their Jewish owner by
the king. The king’s act must be classified as legal or illegal in order to serve as a
premise for further halakhic reasoning regarding the duties owed between Jew and
Jew. If the king’s act is illegal, the property expropriated cannot be classified as
abandoned. In such cases, Jews will be evading their own religio-legal obligations
vis–à-vis the Jewish tree owners, who should be compensated for use of their property each time a Jew crosses the bridge. The Talmud does not define the prerogatives of kingship, other than citing examples of taxation and expropriation, but it
does define what monarchical actions are “law” as opposed to tyranny. Taxes that
have no limit and the unequal imposition of obligations—for example, precluding
the tree owners from arranging equal distribution of their obligations—are robbery and not law of the kingdom. These two limits—lack of arbitrariness and
equality in framing the law—are definitional of the word “law,” whether Jewish or
non-Jewish, and function as internal conditions of legality.98
95
See SHMUEL SHILOH, DINA DE-MALKHUTA DINA [The Law of the State is Law] (Jewish Academic Press,
1974)(Heb.).
96
Babylonian Talmud, Tractate Baba Kamma 113a–b.
97
Side by side with the ethical impulse, one might also see a self-serving aim here. With respect to
vows, passive civil disobedience is being advocated, with the locution of Gentile legitimacy almost
a kind of subterfuge. This is hardly surprising, as the social reality is almost certainly confiscatory
taxes aimed at Jews—the fiscus Judaicus—which may explain why the Mishna and Talmud begin
with a presumption that tax collection is robbery. Later sources tend to mute this presumption,
reflecting a different social reality.
98
This point is driven home by Isaac Or Zarua, Bava Kamma 447. A law may be wrongful under
Jewish law—cutting down the palm trees which belong to the owner—and still deserve the name
law. Such a Gentile law is still a perfectly valid law because, unlike the Jewish king, the Gentile king
owns the land.
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In the medieval period, as Shmuel Shiloh elucidates in his magisterial study,
further rationales for this principle (DDM) were explored. The Talmud already
hints at a close association between the principle and the custom of the people,99
and many of the medieval theories revolve around one or another form of popular consent or social contract theory. As Shiloh notes, the theories also attest to
the rich interpenetration of the medieval discussions of the rights of kings then
taking place in the European Middle Ages.100 Unlike the sermon of Gerondi, the
very definition of halakha does not change. However, portions of halakha become
theoretically optional as the principle is extended through a series of logical progressions and in tandem with the extension of the rights of kings in Europe far
beyond the concrete context from which it sprang—taxes and land—and far
beyond what is necessary to resolve actual, rather than theoretical, cases.
The eleventh-century Talmudic commentator Rashi potentially shifts the
paradigm, however, by building a bridge between the principle and the by-now
familiar idea of a universal divinely ordained law, which played so critical a
role in the discussion of the Jewish monarchy in the preceding section. Rashi
focuses on the one instance in the Babylonian Talmud where DDM functions
not as a duty-imposing rule but as a power-conferring rule to Jewish litigants
in an intra-Jewish dispute to take advantage of non-Jewish validation of deeds
even though the signatories are non-Jews and the method contrary to Jewish
law.101 Here, DDM allows non-Jewish law to penetrate Jewish law as an alternative norm.102 Rashi draws on the familiar Jewish legal principle that only
one who is himself under a divine obligation to perform an action can be an
effective legal agent for others. He explains the Talmudic provision as resting
99
The Talmud notes that Jews are consistently using the bridges without paying the owners. This
practice is taken as evidence of a preexisting halakhic norm known to the populace, later given
legal expression by the Talmudic jurists as DDM. One of the more radical extensions of this mode of
reasoning is in a contemporary responsum on the authority of the state of Israel. It begins with the
observation that Jews are granting legitimacy to the legislation of the state and then seeks a rationale for this practice in DDM. See Hedaya, supra note 30. Compare to the contemporary responsum
of Rabbi Moses Feinstein on the permissibility of using secular wills. He cites the familiar expression: “If the children of Israel are not prophets, they are the sons of prophets.” The instinct of the
people must be given weight, and it is the task of the rabbinic decisor to comb the sources to ascertain the legal basis that underlies Jewish customary practice. See Jeffrey Roth, Crossing the Bridge:
A Reply to Professor Shmuel Shiloh, 12 CARDOZO L. REV. 753 (1991).
100
Thus, one sees DDM as a subspecies of personal contract law in that Jews are assumed to have
implicitly contracted to obey the kingdom’s customary, established laws and to have waived their
rights under Jewish law. From the thirteenth century onward, the distinction between custom and
new legislation begins to disappear, probably under the influence of the rise of positive law in Latin
Europe. See AMOS FUNKENSTEIN, PERCEPTIONS OF JEWISH HISTORY 158 (Univ. Calif. Press 1993). The
subject is fully explored in SHILOH, supra note 95.
101
Babylonian Talmud, Tractate Gittin 9b.
102
This usage of DDM may reflect the general predisposition of the Babylonian Talmud toward
legal pluralism and decentralized law, which Rashi’s localized comments illuminate. See BENMENAHEM, supra note 67, at 93.
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on the notion that non-Jews are commanded to “institute justice”—citing the
Noahide norm of dinin. Accordingly, they can be effective agents for all matters
subsumed under that command. Recall that, from the internal perspective of
rabbinic Judaism, this command obligates humanity to preserve social order
by enacting systems of law.103 The kingdom’s law is rooted, ultimately, in
divine command and, therefore, has legal and moral legitimacy equal to that of
Jewish law. As the product of divine command, it is, in that sense, sanctified.
Accordingly, non-Jewish legal activity can serve here as an alternative norm
even for Jews and even when it is at variance with Jewish law. Conversely, he
notes, with respect to matters not subsumed under the command of dinim—
Jewish marriage and divorce bills—DDM cannot be invoked as a powerconferring rule to utilize alternative norms. The implication of Rashi’s rationale
is that large portions of the halakha are, in fact, replaceable by the law of other
civilizations, thus shrinking the scope of halakha to matters of ritual and religious prohibition.104
I want to pause for a moment on this picture of halakha, which can be
extrapolated from Rashi’s comment here and in several other places. In my
view, Rashi consistently understands halakha as composed of overlapping
jurisdictions that legitimately generate law pursuant to divine command.
Rashi’s position on Jewish lay legislation is consistent. He equates lay legislation with Torah law, and the transgression of lay legislation as the abrogation
of a commandment.105 The lay communal body has direct legal agency to bind
others. This is a pluralistic, bottom-up picture of law, in which law emanates
from a variety of potentially authoritative jurisdictions. Non-Jewish legal
orders are one jurisdiction and, as such, are comparable to law-generating
institutions such as that of the Jewish king, the lay communal bodies, and the
rabbinic courts. This pluralist picture of halakha comes into clearer focus when
it is contrasted to his son-in-law’s monist formulation, which is an implicit critique of Rashi and the consent school. Rabbenu Tam states: “Only ancient laws
of the kingdom are within the purview of DDM for our sages have nullified
property rights to accord with the practice of the kingship.” In this view, the
103
Exactly what is included in this command—whether to institute criminal enforcement jurisdiction alone or to develop a legal system—is, as one would expect, a subject of juristic debate. See
Stone, supra note 10 .
104
Jewish law maintains that with respect to financial matters, as opposed to religious matters, it
is possible for parties to contract out of the law in any event, despite the fact that these norms
originate in divine law. But the rationale which links the validity of Gentile law to the Noahide
command of dinin, would suggest that it could extend to all laws subsumed under the Noahide
command, including criminal law and punishment, traditionally categorized as “religious.” Rashi,
elsewhere, assumes that it is permissible to hand Jews over to the criminal processes of the nonJewish government, despite bypassing of Jewish evidentiary and penal law. Babylonian Talmud,
Tractate Niddah 61a. Rashi’s theory has very few internal limits, except that subjects unique to
Jewish law cannot be displaced.
105
Rashi, Responsa 247.
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authority of the kingdom’s law emanates only from a delegation of rights topdown from the rabbis to the kingdom through the sages’ prior act of nullifying
Jewish property rights. The sages have the authority to cancel such legal rights
and can delegate that authority to the kingdom, allowing the king to expropriate Jewish property.106
According to the pluralist conception, however, the function of DDM is to
arbitrate which norms, generated by diffuse jurisdictions, are relevant in different circumstances. While the principle initially addressed only individuals, it
has been extended to whole societies and, eventually, to a Jewish national context to apply to relations between a Jewish state and other nations. Moreover,
from the legitimation of the laws of a sovereign ruler, such as king or state, it
has been extended to international law on the theory that the kingdom could
be defined in global terms, so long as the collective will of the world’s citizens
ratified the global kingdom’s law. In this light, Rabbi Yisraeli ruled that the
Jewish state was obligated by international standards of war.107
There is an internal logic to the progression of this doctrine, one that parallels that of the king’s law, as Gerondi conceptualized it. Gerondi viewed the
power of the Jewish king to depart from the religious law as necessary and,
hence, commanded by the Torah itself. This conclusion necessitated, in turn, a
reconception of halakha, which eventually and radically reduced its scope.
Similarly, the principle “the law of the kingdom is the law” was first articulated
because it was necessary in order to enable Jews to comply fully with their halakhic obligations in exile. This postulate took on a life of its own as the jurists in
the Middle Ages began to theorize about the conceptual basis for the principle.
In a chain of logical progression, then, these conceptual bases begin to undermine the conception of halakha as an all-encompassing system. Instead, the
sphere of halakha becomes more and more contracted. The end result is precisely the opposite of the reason the principle was introduced into the system in
the first place—to make the halakhic system fully applicable in exile.
But this progression in legal doctrine also has profound political motivations and consequences. It is now part of a larger juristic project to identify the
Jewish state as a member of the global community of nations. In this view, all
questions of national existence and statecraft involving the obligations of Jews
vis-à-vis the international community, in contradistinction to domestic
matters between Jews inter se, should be resolved by resorting to international
law. International codes of war, treaties, and the like govern the state of
Israel—from the halakhic perspective—and not indigenous, national-collective norms nor particularist, aspirational, and transcendental or ethical norms
developed to govern relations of members within a covenantal community.
106
The debate over the source of the Jewish lay community’s power to legislate follows the same
pattern.
107
Rabbi Shaul Yisraeli, Military Action in Defense of the State, in AMUD HA-YEMINI, discussed extensively in Edrei, supra note 36.
Stone
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The actual impetus for this viewpoint is precisely the opposite of those who
view the role of halakha as an ethical critique of excessive nationalism. As
Arye Edrei has pointed out, Yisraeli makes clear that halakhic norms per se
could not countenance the manner of conducting warfare acceptable within
the international community. However, rather than view halakha as a ground
for ethical critique, Yisraeli sees halakha as allowing the incorporation of looser
standards of behavior when the nation acts beyond its border. Should international society adopt more stringent norms than halakha, these, too, would be
binding on the nation acting in the international arena. The Jewish nationstate is no longer modeled on a concept of exceptionalism; instead, it is merely
one member of an international society whose norms should converge—for
better or worse.
3. Conclusion
Two biblical metaphors capture the tensions inherent in the system I have
been describing. One is the Israelite request for a king “like all the nations.” The
other is the charge to be “a holy nation of priests.” The one conjures up a political system like any other; the other conjures up sacred ritual and worship or
exceptionalism. These two images symbolize the deeply divided nature of halakha as both a structure of law and of religion, which presents a major challenge to those who labor in the field and wish to offer a description of it. In this
paper, I had a far more limited goal in mind: to deconstruct a certain picture of
halakha, which dominates the field. Nearly every book, treatise, and article on
Jewish law begins with one or another version of the following sentence:
“Jewish law is a comprehensive legal system that covers all aspects of life.” It is
easy to develop a story of modern rupture and pragmatic accommodation to
the modern nation-state if one starts with that idealized picture. An alternative
strategy, pursued by some analysts of models for legitimating the state halakhically, is to insist on retaining this vision and to reject theories such as that
proposed by Gerondi and by Rashi on the very grounds that they “change the
paradigmatic picture of halakha.”108 The task of the legal theorist, however, is
to question this paradigmatic picture of halakha itself and explore alternative
descriptions, as I have attempted here.
108
See, e.g., Sapir, supra note 19.