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Secular Law as the “King's Law”: Zionist Halakhah and Legal Theory

Published online by Cambridge University Press:  24 April 2019

Itzhak Brand
Itzhak Brand*
Affiliation:
Bar-Ilan University
*
Itzhak.Brand@biu.ac.il

Abstract

What is the possibility of secular law in the religious Jewish state? This article will focus this question on the attitude of Zionist halakhic decisors toward the secular law of the land when that land is the State of Israel. Are these decisors willing to recognize Israeli law as falling into the halakhic category of “the King's Law” (mishpat ha-melekh)? Halakhic literature offers various justifications for the king's authority. The first justification is philosophical and jurisprudential; the second is political; and the third is legal in nature. Various justifications for the King's Law yield different models of its force and authority, which contrast in the relationship they posit between the King's Law and Torah Law. This article examines this question from the perspective of the legal discussion of the relationship between competing systems of law (private international law and issues related to the conflict of laws).

Information

Type
Research Article
Information
AJS Review , Volume 43 , Issue 1 , April 2019 , pp. 47 - 66
Copyright
Copyright © Association for Jewish Studies 2019 

Halakhah's attitude to the law of the civil state has been frequently discussed in both rabbinic and academic literature. Over the last seventy-five years it has been addressed in great depth following the institution of Israeli law in the Jewish state. Most such discussions consider the halakhic status of the law of the secular state under the rubric of dinaʾ de-malkhutaʾ dinaʾ, “the law of the state is the law,” or, alternatively, as a species of takkanot ha-kahal, community ordinances.Footnote 1 The halakhic status of national legislation as mishpat ha-melekh, “the King's Law,” has received comparatively little attention.Footnote 2

The principle of dinaʾ de-malkhutaʾ dinaʾ emerged in Babylonia in the third century CE and reflects the halakhic view of the laws of the foreign state in which Jews live in the Diaspora.Footnote 3 This form of halakhic recognition means that national legislation remains a foreign imposition, but Halakhah respects it and grants it official status and validity. Seeing national legislation as the King's Law, on the other hand, connotes halakhic recognition of the king as legislator in a sense that goes beyond the halakhic recognition of the king's laws as dinaʾ de-malkhutaʾ. The idea of the King's Law eliminates the foreign element of national legislation and makes it an integral part of Halakhah. Thus, Halakhah recognizes the king as legislator and an internal halakhic authority, on a par with a rabbi or decisor. This is true even though Halakhah is intrinsically religious, whereas the monarchy and its laws are not.

In practice, with the notion of the King's Law, Halakhah grants a rival legislative authority to a foreign sovereign—the state. As such, the King's Law is an outrider both for Halakhah and for the law. Legal systems generally aim at buttressing their own authority and denying the legitimacy of prospective competitors. This is also the normal policy of Halakhah.

The anomalous status of an autonomous King's Law in the world of Halakhah can be traced to its origins in the Middle Ages. Rabbenu Nissim of Gerona, who conceived the notion, was himself aware of the difficulties it involved, so much so that it seems likely that he later disowned the idea and withdrew his recognition of the King's Law.Footnote 4 Because both decisors and academic scholars have concluded that an autonomous King's Law is merely an individual opinion and a transient theory, it has received little attention. Even when they mentioned it, scholars have failed to notice its significance and have not addressed its two-fold peculiarity, vis-à-vis both Halakhah and national law. As for Halakhah, there has been no attempt to present the rationales and tools that would allow it to accept an alien legal system and grant it autonomous validity. From the perspective of national law, the notion of the King's Law has never been studied as a problem of rendering a decision between two clashing legal systems (choice of law). But indeed, the concepts and theories of this fundamental issue of international private law can also be applied to resolve conflicts between Halakhah and the King's Law.

As stated, given the problematic nature of an autonomous King's Law, the prevalent view is that the concept was totally rejected by halakhic arbiters. As a result, insufficient attention has been paid to Zionist decisors of the last century, all of whom assigned a lofty religious status to the sovereign Jewish state and its institutions. We might expect, given their embrace of Zionism, that some of them would grant halakhic recognition to the laws of the state per se. The most appropriate halakhic channel to do so is the King's Law. What, then, has been the stance of Zionist decisors on this concept? It seems that this question, too, has not been addressed in the past.

The present article endeavors to fill in some of the blanks concerning the halakhic status of the law of the civil and secular state. We will consider the problem of integrating a secular legal system into religious law from three perspectives: (1) the halakhic rationales for the legitimacy of the King's Law; (2) the main legal theories about the choice between conflicting legal systems; and (3) the main halakhic positions taken by Zionist decisorsFootnote 5 regarding the halakhic legitimacy of the Israeli statute book as the King's Law.Footnote 6

The discussion will move from the theoretical (the first two perspectives) to the normative (the last perspective). There will be no attempt at a historical description of positions or attitudes, but only an examination of legal, theological, and political theories against a historical backdrop. The evolution over time is secondary here; nor will this article present a history of ideas. The focus is on the theories themselves, set into the historical context only insofar as it helps clarify the ideas involved. The core of the article is thus the attempt to examine the normative against the background of the theoretical; that is, how halakhic decision-making in a domain that is legal, political, and religious can coexist with the main theories in these three realms.

Justifications for the King's Law

The halakhic category known as the “King's Law” relates to a Jewish king and is derived from the scriptural tradition that sees him as both legislator and judge.Footnote 7 The king's authority in matters legislative and judicial has been the subject of lengthy and profound discussions in the halakhic literature, by both early and late decisors.Footnote 8 Since his authority is not self-evident, as it creates an autonomous legal authority alongside Torah Law, strong justifications are needed to establish it. Three main types of justification can be distinguished.

The first is philosophical and jurisprudential. Rabbenu Nissim of Gerona considered the king's legal powers in his discourses, written in Spain in the fourteenth century. He concludes that the king's authority stems from the goals of law and the objective sought by the punishment of malefactors. According to Rabbenu Nissim, law has a dual goal. The first and most basic is to safeguard the social order. This goal is universal and common to all legal systems. The second goal of law is religious and particular to the Jewish people: ensuring observance of the religious precepts, even those that have nothing to do with public order. Subsequently, Rabbenu Nissim associates this religious goal with what he terms “true justice” or “justice per se” and, in another manner, “instilling the divine affluence in our nation.”Footnote 9

These different goals mandate two separate systems of law. The first is a religious system that operates in accordance with laws that are fixed and unchanging, because they pursue truth and justice. This system is the province of the judicial branch. The second system of law is meant to safeguard public order in accordance with the society and its changing needs, and is therefore dynamic and left to the executive branch. This is the King's Law, which seems prima facie to be an autonomous legal system applied at the king's discretion in line with the needs of society and the state.

According to Rabbenu Nissim, the legitimacy of the King's Law stems from its goals. Protecting the public and social order requires a dynamic system that is guided primarily by practical considerations that take account of the needs of the hour, whatever they may be. This is the job of the executive branch, which is well suited to enforce such a system of laws. This role is not appropriate for the judicial branch, because it is charged with maintaining the stability and constancy of the law and ensuring that the principles of truth and justice are upheld.Footnote 10

The second justification for the authority of the King's Law is political. It assumes that Torah Law is incumbent on individuals only, hence it does not apply to the polity. The state operates in the natural and universal arena, in the international political sphere, and is therefore subject to the norms that apply to all peoples—“A king … like all the nations that are round about me” (Deuteronomy 17:14)—that is, the seven Noahide precepts. This is the position adopted by Rabbi Meir Dan Plotzki (1866–1928):Footnote 11

For it is known that there are two forms of authority in the world: natural authority—which is the Noahide form of authority—and the authority of the holy Torah, which was given to the Jewish people when they accepted the holy Torah. The authority of the Torah is above that of nature, while a king is a facet of natural authority, as the verse explains, “Then [you shall] say, ‘I will set a king over me, like all the nations that are round about me.’” (And see also what Rabbenu Nissim explained on this subject in his eleventh discourse.)Footnote 12

We can frame this justification in another light: because Torah Law does not apply to the public and political regime, the law that is applicable to it is the primeval law that preceded the Torah, which applies to all people. The various formulations of this political justification share a common premise: the law of the state is a sort of natural law that more or less coincides with the seven Noahide precepts.Footnote 13 As Plotzki noted, this justification rests on Rabbenu Nissim's legal theory, presented above. It would seem, however, that the attempt to attach this approach to Rabbenu Nissim is unsuccessful. For him, the foundations of the King's Law are not the Noahide precepts (which are in fact “religious” norms), but the “laws of kings,” that is, conventional (“secular”) legal norms that are incorporated in the law codes of other states, too.Footnote 14 Still, however we formulate the political justification, the King's Law is not subordinate to Torah Law but falls under the jurisdiction of the seven Noahide precepts.

The final and most common set of justifications for the king's authority is legal in nature. They view the King's Law as a legal system that coexists and dialogues with Torah Law and propose various legal rationales for the existence of an alternative system that is not based on Torah Law.

(1) The formal legal rationale has several variations. In one of them, the king's legal authority derives from an agreement or compact between him and the people.Footnote 15 The people empower the king to undertake various actions, whether they benefit the people or not. This agreement or compact grants the king the authority to deviate from Torah Law, at least in matters concerning the rights of his subjects. According to another formal rationale, the King's Law is not based on a grant of judicial or legislative powers. Rather, the king is the executive branch of government, and his judicial authority, too—which is, in effect, executive authority—exists in this framework.Footnote 16 The King's Law is an emergency measure, which permits deviations from statutory law out of considerations of the public welfare. Such deviations do not constitute a normative alternative to Torah Law, but only the use of the license granted him to take ad hoc actions that deviate from statutory law in pursuit of considerations of state.Footnote 17

(2) For the legal and institutional justification, certain practices are, by nature, the sole purview of the constituted authorities and cannot be implemented in any other way. The prime examples are criminal law and taxation. The power and authority to punish offenders or collect taxes are granted to the state or the ruler. In these domains, the Torah itself empowers the king to take action within the framework of the King's Law.Footnote 18

(3) The practical legal justification maintains that Torah law is general and unchanging and cannot provide a full response to every legal question. Aristotle believed that the solution to this problem lies in the judicial branch. He maintained that judges are above the law; by definition, their position requires them to deviate from statutory law if the challenges of the real word demand this.Footnote 19 The dominant rabbinic approach rejects this idea and makes the judge, too, subject to the law's authority.Footnote 20 But whereas judges must stick strictly to the law, the king may deviate from it as a corrective and supplement to Torah Law.Footnote 21 For example, the halakhic rules of evidence require two witnesses and do not accept an individual's confession. These rigid principles make it more difficult to convict a criminal. However, the rules of evidence under the King's Law can be more flexible and practical and make it possible to convict a defendant even on the basis of a single witness or his own admission of guilt.Footnote 22

The Autonomy and Scope of the King's Law

According to each of the above justifications, is the king free to impose an independent legal system that is not subordinate to Torah Law? According to the philosophical justification, the King's Law is intended to ensure the public and social order, because the executive branch of government is the best suited to deal with current and practical issues. In parallel, the judicial branch is left free to address the ideal and the metaphysical.Footnote 23 This approach results in a King's Law that is powerful and broad. Practically speaking, it grants legitimacy to an autonomous secular legal system that is not subordinate to Torah Law.Footnote 24 The king is free to exercise his discretion and act for the public good.Footnote 25 However, the King's Law may be subject to the principles that govern kings, that is, to the customary norms of other states.Footnote 26

The political justification, by contrast, results in a King's Law that is limited in scope and power. Here the King's Law is taken as an embodiment of universal natural law. The king's legal authority is not autonomous and must comply with universal law as represented by the seven Noahide precepts. Such a legal system is not secular in nature. Though it is an alternative to Jewish religious law, practically speaking it is the universal religious law.Footnote 27

The various forms of legal justifications undercut the first two models of the King's Law. All of them—each in its own way—assume that the King's Law does not replace Torah Law or deviate from it.Footnote 28 Moreover, the king may function as a judicial instance, in accordance with Torah Law.Footnote 29 The formal justification identifies the King's Law with a compact or sees it as an implementation of executive authority. Either way, the assumption is that it is not an alternative legal system but rather an agreement to deviate from statutory law to address various needs. Similarly, the institutional and practical justifications hold that the ruler has legal authority only in specific areas, such as taxes and criminal law, or to achieve defined goals in an emergency situation.

The legal justifications significantly limit the scope of the King's Law. According to the philosophical justification, the king is authorized to act in any matter in order to promote the social and public order. According to the political justification, too, the ruler may take any action, as long as it remains within the bounds of the seven Noahide precepts. By contrast, the legal justifications generally limit the king's authority to specific legal spheres or to defined and restricted goals and needs.

Models of the King's Law and the Principles of Choice of Law

The various justifications for the King's Law presented in the previous section are influenced primarily by the constitutional debate about the ruler's legal authority. However, we can also approach these different models from the perspective of the relationship between competing systems of law. Such a discussion takes place in private international law regarding the principles of choice of law and issues related to the conflict of laws. What underlies these issues is the dilemma about how a state's legal system should relate to a case that turns on legal rights recognized by a foreign jurisdiction. The dilemma is most intense when there is a frontal conflict between local and foreign law regarding these rights.

In one approach, the ideal relationship between local laws and foreign laws is one of harmony and integration. This approach developed in Europe after the twelfth century, when central governments grew weaker and the church gained strength; the power vacuum was filled by groups such as merchants, cities, and universities. Each of them asserted specific authority over its domain. To prevent friction and conflict, a harmonizing principle was required to integrate the various privileges.Footnote 30 Later on, this approach was transferred from the political and social realm to the legal arena and used to address conflict of law cases. The seventeenth-century Dutch jurist Ulrik Huber believed that the laws of different countries cannot be uniform. However, states display respect for one another and therefore tend to recognize rights acquired under foreign laws. Diplomatic politesse and the interest of maintaining normal relations between states are conducive to harmony between competing legal systems.Footnote 31 In modern times, the idea of collaboration between legal systems has been carried over from the political realm to the private realm. Such cooperation is valuable because it allows individuals who operate in multiple countries with different legal systems to act with legal certainty and safeguard their rights.Footnote 32

The second approach, which is widespread, assumes that substantive legal arrangements (as opposed to procedural arrangements) are similar, even if they originate in different countries. This was the opinion of the Statutists of the Middle Ages.Footnote 33 In the ethical and political thought of Hugo Grotius (Netherlands, 1583–1645) as well, statutory law is a product of natural law; just as natural laws are uniform, so too, essentially, are legal enactments.Footnote 34 Hence, one country's recognition of the laws of another is not the result of political or utilitarian concerns, but the natural consequence of the character and essence of the law.

The third approach rejects the first two on principle and assumes that every country tends to reject the intrusion of foreign laws in its territory. Countries are entitled to their sovereignty, one major expression of which is a preference for local law over foreign law.Footnote 35 A sovereign is not subject to any outside power and is free to choose whether or not to apply a foreign law in his jurisdiction.Footnote 36 This means that foreign laws can apply only when local laws explicitly state their local validity.Footnote 37

These three models of the relationship between local and foreign law can shed light on the different models of the King's Law. The harmonizing approach recognizes the authority of foreign law and may adopt it as is. This corresponds to the broad model of the King's Law, which recognizes the need for and value of the King's Law and is therefore willing to accept it as a legitimate partner of Torah Law. The monist approach looks for a primordial common denominator between different legal systems. If we project this approach onto the relationship between Torah Law and the King's Law, what they have in common is the seven Noahide precepts, the primordial basis of Torah Law before the Israelites stood at Sinai. The sovereignty-based approach leads ipso facto to the narrow model of the King's Law. Here the King's Law is valid only under Torah Law and has no legitimacy in other legal systems—not through the seven Noahide precepts and certainly not as an autonomous system.

The Halakhic Validity of the Law of the Secular State: The Religious Zionist ApproachFootnote 38

In light of our examination of the main models of the King's Law, we now turn to how Zionist decisors address the validity of the secular law of the state,Footnote 39 and specifically how they relate to Rabbenu Nissim's discourse.Footnote 40

Halakhic recognition of the law of the secular state would seem to require adoption of the philosophical justification for the King's Law. Only this approach permits a halakhic imprimatur for a secular law code that is broad and autonomous. Scrutiny of halakhic works by Zionist decisors reveals that few of them discuss this justification and the legal model it implies. As noted, the philosophical justification is rooted in Rabbenu Nissim's homily on the King's Law. There is no doubt that all the Zionist decisors are familiar with this treatise, but the vast majority have ignored it, while the few who do mention it empty it of significance and content.

This is exemplified by the position taken by Rabbi She'ar-Yashuv Cohen.Footnote 41 At the outset he avers that “social and political justice is the king's domain,” but he later states that “the king deals only with defense and the national welfare; he has no judicial authority, not even in laws governing social interaction.”Footnote 42 In another manner, Rabbi Israel Meir Lau quotes “the wondrous words of Rabbenu Nissim in his discourses, which explains why the Torah granted the people the authority to make new enactments.”Footnote 43 The king's authority is, therefore, on a par with the public's authority to make enactments (community statutes); in other words, it is subject to Torah Law, just like community statutes.

In practice, almost every Zionist decisor has rejected the model of an autonomous and secular King's Law.Footnote 44 At the head of this camp of decisors stood Rabbi Yitzhak Isaac Herzog, as demonstrated in his correspondence with Rabbi Ḥayim Ozer Grodzinski, in which Herzog criticized Grodzinski for his ostensible backing for the laws of the secular state.Footnote 45 But a close reading of Grodzinski's letter to Herzog makes it clear that he limited the King's Law to the domain of criminal law.Footnote 46 Pace Herzog, Grodzinski does not seem to have recognized the King's Law as a comprehensive and autonomous legal system.Footnote 47

As mentioned previously, it is difficult to find rabbinic support for the King's Law in its expansive and autonomous form as the appropriate model for the Israeli legal system. But there are two main exceptions. The first is Rabbi Reuven Margolies,Footnote 48 who was one of the earliest thinkers to write about the laws that would be enacted by the future Jewish state, a generation before it became a reality:Footnote 49

Indeed the commentators [on Maimonides's Code, Laws of Kings 3:10] do not cite his source [for the king's power to contravene Torah Law in judicial matters], but he primarily relies on the biblical Statute of the King, “then [you will] say, ‘I will set a king over me, like all the nations that are round about me.’ You may indeed set a king over you” [Deuteronomy 17:14–15]. We are aware that in all the other nations, the king is the legislator … and therefore, when the Torah commands appointing a king who has the power to rule like the kings of other nations, it also gave him the unlimited power to enact laws.Footnote 50

But Margolies's position won little supportFootnote 51 and in fact drew harsh criticism.Footnote 52

The second outlier was Rabbi Ḥayim David Halevi,Footnote 53 who addressed the laws of the state as a species of the King's Law a generation after Israel came into being. In an essay on how Halakhah sees national legislation, he holds that the community or society is entitled to enact its own mandatory set of legal and social norms. This authority rests on Rabbenu Nissim's discourse: “A king, or a secular authority that derives from the power of the monarchy, is entitled to enact ordinances ‘not derived from the Torah’ in order to regulate orderly social life.”Footnote 54 Hence one can talk about a “state of law in accordance with Halakhah.” Halevi emphasized that this is not “religious legislation,” but “secular legislation that is based on Halakhah.”Footnote 55 On the one hand, the scope of the state's halakhic authority to legislate is broad and applies to both public and private law.Footnote 56 On the other hand, the state is not allowed unchecked legislation but must legislate laws that are compatible with Halakhah; just as the King's Law, according to Rabbenu Nissim, must make the least possible infringement on the “law of the judges.”Footnote 57

As noted, Halevi's stance is unique, especially when compared to the position taken by Rabbi Ben-Ẓion Meir Ḥai Uziel,Footnote 58 who was Halevi's teacher and spiritual father.Footnote 59 Uziel vehemently opposed the secular laws of the state. For him, legal and judicial power is vested solely in halakhic authorities.Footnote 60 But his disciple, Halevi, saw matters differently, for three reasons. The first was political realism: the perfect union of priest and king is utopian; in the real world they must be separate individuals.Footnote 61 The second is a matter of existential dialectics: the world is not singular and harmonious, so one must accept and maintain the natural separation of the religious and the political.Footnote 62 The third reason relates to the dynamics of Halakhah. Halakhah is flexible and can be adapted to changing circumstances. To adjust it to the law of the state, there is no need for a dramatic event like the convening of the Sanhedrin. The compatibility can be achieved though conventional halakhic means as well.Footnote 63 These three elements require a two-way process: Halakhah must recognize the autonomy of the law of the secular state. But the legislator and the halakhic decisor must also find ways to maximize the correspondence between secular legislation and Halakhah.

We now move to the middle-ground position that sees secular law as an embodiment of universal law. On the one hand, this model recognizes a Law of the King that does not comply with Torah Law; on the other hand, it does not sanction autonomous secular law. Rather, the king draws on a legal system other than the Torah—the law of the nations, that is, the seven Noahide precepts. This stance was advocated by Rabbi Yehudah Gershuni, a student of Rabbi Abraham Isaac Kook.Footnote 64 He, too, accepts the model presented by Rabbenu Nissim in his discourse and releases the king from his subordination to Torah Law.Footnote 65 However, for Gershuni the king is subject to a normative system that is parallel to Torah Law and which he must obey—the Noahide precepts.Footnote 66 The fact that the king is not subject to Torah Law does not free him of all legal obligations. He is released from one system of laws only to be bound by another legal code.Footnote 67

Another position is that Halakhah is the only possible basis for law, even in the secular state. In contrast to the first two positions, which view the King's Law as an alternative to Torah Law, this stance holds that Torah Law is an exclusive system with no rivals. Somewhat unexpectedly, this position, too—which is the most widespread among modern Zionist decisors—draws on Rabbenu Nissim's discourses. Those who take this line allow the sovereign to deviate from the codified law, but only if he employs the halakhic tools and principles intended for this purpose. For example, Halakhah authorizes the judicial branch, as well as the executive branch, to deviate from the law as an emergency measure or in pursuit of the public welfare.Footnote 68 Halakhah also recognizes the authority of a public entity to institute regulations for the public good. Under this rubric, Knesset legislation can receive a halakhic imprimatur. According to Rabbi Moshe Ẓvi Neria and Rabbi Shaul Yisraeli—both of them students of Rabbi A. I. KookFootnote 69—this power is what is meant by the King's Law.Footnote 70

The conservative approach of Kook's disciples is not surprising and seems to have been Kook's view as well. Although he never stated it explicitly, it is evident from one of his responsa: “Your honor differs and suggests that the King's Law applies only to matters that involve the king's dignity. That is not the case. Rather, any general matter that relates to the nation and any emergency enactment to erect a fence against evildoers are included in the King's Laws, as matters in which the king is empowered to act as he sees fit, even if it has nothing to do with his benefit and dignity but rather with the benefit and dignity of the Jewish people.”Footnote 71 Kook expands the King's Law beyond the limits proposed by the questioner.Footnote 72 This broadening of the King's Law may derive from his overall conception in which the “political” is abstracted and expanded from the real to the ideal. That is, the Jewish people, in addition to being a real entity, is also an abstract entity, keneset Yisraʾel. Footnote 73 Consequently, the King's Law is not limited to the statutes of a monarchical region. However, this broader King's Law is limited to “any general matter that relates to the nation” and “any emergency enactment.” Kook cites Maimonides to support his position, but does not mention Rabbenu Nissim.Footnote 74

It seems, then, that Kook was unwilling to accept a King's Law that is not grounded in Halakhah. He says as much elsewhere, this time explicitly: “The government of the state must conduct itself according to the Torah, which is why the king must have two Torah scrolls—one Torah scroll like every other Jew, and the second in order to learn how to govern.”Footnote 75 Kook notes further, “He writes two Torah scrolls; one of them, which he is enjoined to write like every Jew, he deposits in his treasury; the second must never leave his presence [Maimonides, Laws of Kings 3:1].” This obligation reflects “the king's two bodies”: on the one hand he is a private individual; but he is also a public figure. In both aspects he is subject to Torah Law, and thus so is the Law of the King.

Uziel's position is similar, but fundamentally rational rather than metaphysical.Footnote 76 His rationalism detaches secular nationalism from the religious idea, a move that draws in part on Rabbenu Nissim's distinction between the monarchy and the Torah legal system.Footnote 77 Unlike Rabbenu Nissim, however, Uziel limits the function of the king to political and social direction, while depriving him of judicial authority. For him, legislative and judicial powers inhere exclusively in the religious court system.Footnote 78 Law and justice are fully subject to Halakhah; hence any recognition of secular laws and statutes is out of the question.Footnote 79 Uziel's rejection of secular law leads him to express halakhic reservations about the acceptance of the laws of the state, whether by virtue of dinaʾ de-malkhutaʾ dinaʾ or as the King's Law.Footnote 80 All the same, he muses, it might be possible to legitimize national legislation under the rubric of community ordinances,Footnote 81 because the people are sovereign in both government and law.Footnote 82

Epilogue

Many Zionist decisors have tried to find a way to ground the law of the secular Israeli state in the King's Law, in the spirit of the discourses of Rabbenu Nissim. We would therefore reasonably expect that many of them would recognize the validity of a secular and autonomous King's Law. First, the King's Law, both in its biblical roots and Rabbenu Nissim's exposition thereof, is distinctly secular and autonomous. Second, Zionist decisors are inclined to enhance the Jewish state's prestige, power, and authority. Finally, Zionist decisors tend to be tolerant of secularism in diverse contexts.

But the actual situation is quite different. As we have seen, very few decisors adopted the “strong” version of the King's Law. The majority prefer the softer and more moderate version that demands that the laws of the state accept the authority of Halakhah, even if through the side door. Zionist ideology is fine for declarations and theory—and even for practical matters—as long as the status of Halakhah itself is not questioned. When this issue appears, the decisor's commitment to the status of Halakhah outweighs his commitment to the vision of the Zionist state. A similar phenomenon can be seen in how Zionist decisors have related to the Israeli courts. The vast majority consider them to be “gentile courts” and do not permit taking disputes before them.Footnote 83

In both contexts—the attitude towards the laws of the state and the attitude towards its courts—Zionist decisors speak with two voices. As a matter of ideology, they accord iconic status to the state and its institutions, which they praise and define in terms of “redemption” and the “footsteps of the messiah.” But when it comes to halakhic practice, they are much more reserved about state institutions.Footnote 84 This duality exacts a price from both Halakhah and the evaluation of the state and the fundamentals of Zionism; the religious Zionist community finds it difficult to deal with this ambiguity. Many hear the voice that champions the state and choose to scant Halakhah. Others opt for absolute fidelity to Halakhah and take a more qualified stance vis-à-vis the state and its institutions. If Zionist halakhists want to close the gulf between their Zionist ideology and their commitment to Halakhah when it comes to the status of Israeli law, recognizing it as the King's Law could be a useful avenue.

References

1. For an extensive survey, see Eliav Shochetman, “Halakhah's Recognition of the Laws of the State of Israel” [in Hebrew], Annual of the Institute for Research in Jewish Law 16–17 (1989/90–1990/91): 434–59 (“the law of the land is the law”); 460–95 (community statutes).

2. The “King's Law” can serve as a solid foundation for the status of Israeli legislation. See at length Shochetman, “Halakhah's Recognition,” 421–34; German, Gershon, The King of Israel: Sovereignty throughout the Generations in the Eyes of Halakhah and the Status of Laws Passed by the Knesset in the World of Halakhah [in Hebrew] (Bene Berak: Moreshet, 2003), 779–99Google Scholar. See also Landman, Michael Arye, “Between the King's Law and ‘The Law of the Land Is Law,’” Biẓaron 36 (1974/75): 29–33Google Scholar.

3. Shilo, Shmuel, Dinaʾ de-malkhutaʾ dinaʾ [in Hebrew] (Jerusalem: Hebrew University Institute for Research in Jewish Law, 1974), 4–5Google Scholar, 42–43. It is doubtful whether it is applicable to the State of Israel. Formally speaking, some of the rationales for the talmudic rule do not fit the case of a Jewish state and Jewish sovereignty in the Land of Israel. See ibid., 99–108. From an ideological perspective, the fact that the principle originated in the Diaspora makes its application to the reborn Zionist state inappropriate. See German, King of Israel, 780.

4. Brand, Itzhak, “Religious Recognition of Autonomous Secular Law: The Life Situation of RaN's Homily,” Harvard Theological Review 105 (2012): 167–68CrossRefGoogle Scholar, 186–87.

5. On the limits and principles of the rulings by Zionist decisors, see below, in the footnote at the beginning of the section on “The Autonomy and Scope of the King's Law.” In the present article we will not address decisors who are not Zionists, because they reject the state ab initio and, a fortiori, its laws. Zionist decisors posit that the state has a religious value; hence we can and should examine whether they recognize the halakhic validity of its secular legislation—in whole or in part—on the basis of the King's Law.

6. On the gulf between the King's Law as found in a monarchical regime and the Israeli parliamentary democracy, see Shochetman, “Halakhah's Recognition,” 421–23.

7. On the biblical and historical context, see Liver, Jacob, “King, Kingship” [in Hebrew], in Encycopaedia Biblica, vol. 4 (Jerusalem: Mosad Bialik, 1961/62), 1090–91Google Scholar; Talmon, Shmaryahu, “The Law of the King (1 Sam 8)” [in Hebrew], in The Israelite Kingdom at Its Outset, ed. Malamat, Abraham (Jerusalem: Merkaz Zalman Shazar, 1975), 16–27Google Scholar, esp. 19–20; Raviv, Hanoch, “The Traditions Concerning the Inception of the Legal System in Israel: Significance and Dating” [in Hebrew], ʾEreẓ-Yisraʾel 14 (1978): 20Google Scholar; Ben-Barak, Zafrira, “The Appeal to the King as the Highest Authority for Justice,” in Wünschet Jerusalem Frieden, ed. Augustin, Matthias and Schunck, Klaus-Dietrich (Frankfurt: P. Lang, 1988), 169–77Google Scholar.

8. On the king's legislative authority, see Shochetman, “Halakhah's Recognition,” 425–34, 434–59. See also German, King of Israel, 777–78 (on the king's judicial authority in general), 223–96 (on the king's judicial authority in the case of rebels).

9. Discourses of Rabbenu Nissim [in Hebrew], ed. Feldman, Arye Leib, rev. ed. (Jerusalem: Mosad Harav Kook, 2002/3), 412–13Google Scholar.

10. See Brand, Itzhak, “The Law of the King in the Sermon of Rabbi Nissim of Gerona: Philosophy, Halakhah, and Polemics” [in Hebrew], Zion 75 (2010): 401–2Google Scholar.

11. Rabbi Meir Dan Plotzki was a prominent Polish rabbi, one of the founders of Agudas Yisroel in Poland and a member of its council of Torah sages.

12. Meir Dan Plotzki, “Ner miẓvah” [in Hebrew], in Ḥemdat Yisraʾel (Piotrków: n.p., 1926/27), §72; he had discussed the matter previously, in brief, in Kli ḥemdah on Deuteronomy 17:14, §6 (Piotrków: n.p., 1926/27), 119b; see also ibid., weekly portion of Shemot, 146. Plotzki may have taken the sharp distinction between the two forms of government from his own teacher, Rabbi Abraham Bornsztajn, author of the responsa ʾAvne nezer (Yoreh deʿah, chap. 312, §50): “The main guide for the judge is the Torah, to make God's laws manifest in the world. But the king is the opposite, for he has nothing to do with laws. … His entire task is to make the land stable, as Scripture says, ‘by justice a king gives stability to the land’ [Proverbs 29:4], and the law is the implement with which he renders judgment and ensures that the country functions properly. His sole intent is that the country function properly.” For more on Plotzki's relationship with his teacher, see Itzhak Trunk, “On the Spiritual Character of the Late Rabbi of Ostrow,” ʾOr ha-Meʾir 1–2 (Sivan/Tammuz 5696 [1936]): 12; Jacob Z. Yoskowitz, “Where Is One Who Could Weigh? Where Is One Who Could Count?,” ʾOr ha-Meʾir 1–2 (Sivan/Tammuz 5696 [1936]): 14; M. Z. Neistampower, “The Rabbi with a Popular Touch,” ʾOr ha-Meʾir 1–2 (Sivan/Tammuz 5696 [1936]): 16, at http://www.hebrewbooks.org/22823.

Rabbi Simḥa ha-Kohen of Dvinsk makes a similar proposal in his commentary ʾOr sameaḥ, on Maimonides's Laws of Kings 3:10: “And it appears to me that our rabbi [i.e., Maimonides] believes that because a Noahide may be put to death [on the basis of testimony] by a single witness … and an Israelite king is authorized to condemn to death [on the basis of the testimony of a single witness—I. B.], because it is specifically in deliberations of the Sanhedrin and Torah laws where deliberation is mandatory that the Torah required two witnesses. But regarding the blood avenger and the Israelite king who have been given permission [to carry out a death sentence], and their act is meant to ensure the normal functioning of the state, the procedure is like the laws that the Torah ordained for the Noahides, and this is a sensible matter.”

13. Some view the seven Noahide precepts as primordial law that coincides with natural law. See Melamed, Avraham, “Natural Law in Medieval and Renaissance Jewish Political Thought” [in Hebrew], Daʿat 17 (1986): 49–66Google Scholar; Novak, David, Natural Law in Judaism (Cambridge: Cambridge University Press, 1998), 73–76CrossRefGoogle Scholar, 149–54. Maimonides differs and believes that the seven Noahide precepts are divine commandments and not natural law. See Faur, José, “The Basis for the Authority of the Divine Commandments According to Maimonides” [in Hebrew], Tarbiz 38 (1968): 43–53Google Scholar. See also, in another vein, Haddad, Eliezer, Torah and Nature in Maimonides' Writings [in Hebrew] (Jerusalem: Magnes, 2011), 351–52Google Scholar.

14. See Brand, “Law of the King,” 402–3 nn. 42–43 and nearby. See also below. With this in mind, it is interesting to compare Rabbenu Nissim's approach to the harmony and integration view of the choice of law; see below.

Plotzki's reference may be to a later section of the discourse, in which Rabbenu Nissim explains the nature of the Israelites’ sin in Samuel's time: “They sinned when they said, ‘Now appoint for us a king to govern us like all the nations’ [1 Samuel 8:5], meaning that they wanted their laws to derive from the king and not from those who judge by the Torah. … In other words, they were choosing to repair their natural aspect rather have the divine aspect apply to them.” MS Escorial III G 15/1; Discourses of Rabbenu Nissim, 419–20.

15. In the biblical context, see Liver, “King, Kingship,” 1090–91; Zafrira Ben-Barak, “The ‘Rule of the King’ and the ‘Rule of the Kingship’: Guidelines for Establishing the Kingship in Israel in Light of Canaanite Kingship” [in Hebrew] (PhD diss., The Hebrew University of Jerusalem, 1971/72), 57–60; Ben-Barak, , “The Mizpah Covenant as the Source of the Israelite Monarchic Covenant (1 Sam 10:25),” Bet mikraʾ 21 (1976): 406–10Google Scholar.

In the halakhic context, see the responsa of Ḥatam Sofer, §44: “Even an Israelite king, who does not own the land, which was divided up among the tribes, nonetheless, they [the Israelites] accept all his laws and statutes of their own free will, and their waiver is absolute.” According to Rabbi Zvi Hirsch Chajes, “All the laws of the monarchy are only a compact between the king and the people. … The people agreed to give up their wealth and property to benefit the public, … The law of the king is [valid] only because the people agreed to give up their property for the good of the state.” “Torat ha-neviʾim,” in The Complete Works of Maharatz Chajes, vol. 1 (Jerusalem: Divre Ḥakhamim, 1958), 46–47Google Scholar. Rabbi Shaul Yisraeli writes in a similar vein that “all the authority found in a king … depends primarily on the people's consent,” ʿAmud ha-yemini (Jerusalem: ʾEreẓ Ḥemdah, 1999/2000), 86; Shochetman, “Halakhah's Recognition,” 421–23, 429–32; German, King of Israel, 231.

16. See the extensive discussion in German, King of Israel, 275–96. According to many opinions, the law that applies to rebels derives from an “executive decision” rather than a “judicial decision.”

17. This is what Rabbenu Nissim proposes in the third part of his discourse. See Brand, “Law of the King,” 411–12. This is how Abraham Bornsztajn understood Rabbenu Nissim (Responsa ʾAvne nezer, Yoreh deʿah 312, §48): “According to him [Rabbenu Nissim], the laws of the king do not derive from the wisdom of the Torah, but are an ad hoc measure to make the state function, and are not like the laws of the Torah.”

18. This may be Maimonides's approach to penal law. See ʾOr sameaḥ to Laws of Kings 3:10; Enker, Arnold, “Does the Rambam Restrict the King's Punitive Authority to Murder Only?” [in Hebrew], in Judges and Judging in Jewish Law, ed. Habba, Yaʿakov and Radzyner, Amihai (Ramat Gan: Bar-Ilan University Press, 2007), 41–45Google Scholar.

Penal law and tax law are treated as “sovereign” areas of law, both in Halakhah and private international law. This is why Halakhah makes an exception and recognizes the competence of gentile courts to adjudicate in these fields. Such was the practice of various communities in the Middle Ages. See Elon, Menahem, Jewish Law: History, Sources, Principles [in Hebrew], vol. 1 (Jerusalem: Magnes, 1973), 25–27Google Scholar; Assis, Yom-Tov, “Spanish Jews in Gentile Courts in the Thirteenth and Fourteenth Centuries” [in Hebrew], in Culture and Society in Medieval Jewry, ed. Bonfil, Robert, Ben-Sasson, Menahem, and Hacker, Joseph (Jerusalem: Merkaz Zalman Shazar, 1988/89), 425–27Google Scholar. Contemporary decisors also permit going to Israeli courts on these matters. See Shlomo Gorenchik [Goren], “How Is a Torah-Based Constitution Possible? Part 1,” Ha-ẓofeh, January 30, 1948, 4.

Similarly, in private international law, a local court cannot enforce a foreign ruling related to tax or penal law because these fields fall under the sovereignty and authority of their home country, where the foreign verdict was rendered. See Fassberg, Celia Wasserstein, Private International Law (Jerusalem: Hebrew University Faculty of Law, 2013)Google Scholar, 1:113 n. 86 and her references to Dicey, Albert V., A Digest of the Law of England with Reference to Conflict of Laws (London: Stevens and Sons, 1932)Google Scholar, and Beale, Joseph H., A Treatise on the Conflict of Laws (New York: Baker, Voorhis, 1935)Google Scholar.

19. Kirshenbaum, Aaron, “Concurrent Jurisdictions in Jewish Law” [in Hebrew], Jewish Political Studies Review 10 (1998): 14Google Scholar.

20. Rosenthal, Eliezer Shimson, “For the Most Part” [in Hebrew], in Perakim: Yearbook of the Schocken Institute for Jewish Research of the Jewish Theological Seminary of America, vol. 1, ed. Rosenthal, Eliezer Shimson (Jerusalem: Schocken, 1967), 183–224Google Scholar; Englard, Itzhak, “On ‘For the Most Part’ and the Problem of Honesty in Maimonides’ Thought” [in Hebrew], Annual of the Institute for Research in Jewish Law 14 (1987/88–1988/89): 32–37Google Scholar.

21. This is based on the second section of Rabbenu Nissim's Discourses. See Brand, “Law of the King,” 410. See also Rosenberg, Shalom, “More on ‘For the Most Part’” [in Hebrew], in Jewish Spiritual Leadership in Our Time, ed. Belfer, Ella (Ramat Gan: Dvir, 1981/82), 91Google Scholar; Warhaftig, Itamar, “The Authority of the Court versus the Authority of the King” [in Hebrew], Jewish Political Studies Review 10 (1998): 49–51Google Scholar.

22. Maimonides, Laws of Murderers 5:14, and Laws of the Sanhedrin 18:6; Discourses of Rabbenu Nissim, 414–15.

23. Blidstein, Gerald J., “‘Ideal’ and ‘Real’ in Classical Jewish Political Theory,” in The Quest for Utopia, ed. Gitelman, Zvi (Armonk, NY: M. E. Sharpe, 1992), 55–56, 59Google Scholar.

24. Ibid., 59; Lorberbaum, Menahem, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought (Stanford, CA: Stanford University Press, 2001)Google Scholar; Ravitzky, Aviezer, “Religion and State: Rival Models in Jewish Thought” [in Hebrew], in Freedom Inscribed: Diverse Voices of Jewish Religious Thought (Tel Aviv: ʿAm ʿOved, 1999), 57–61Google Scholar.

25. See Discourses of Rabbenu Nissim, 443, “It is not fitting for a king to view himself as a governor and ruler of the people, but rather [he should view himself] as their servant to improve them.”

26. Rabbenu Nissim does not mention this limitation in his discourses, but he does note it in his Talmud commentary. See Ḥiddushe ha-Ran on B. Bava Batra 55a, s.v. d'arisa d'parsaei (pp. 211–12 in the Sofer ed. [Jerusalem: n.p., 1962/63]). Rabbenu Nissim follows in the footsteps of the Spanish rabbis who preceded him, Naḥmanides and Solomon b. Adret (Rashba). See Shilo, Dinaʾ de-malkhutaʾ dinaʾ, 191, 194. This Spanish tradition was continued by Rabbenu Nissim's students Isaac bar Sheshet (Ribash) and Joseph Ḥaviva. See Responsa of the Ribash, chaps. 228 (quoted in Shilo, Dinaʾ de-malkhutaʾ dinaʾ, 185–86), 271, 495; Nimmuke Yosef on B. Bava Kamma 113b (40b in the standard Alfasi pagination).

27. See similar comments by Rabbi Solomon Fischer, Bet Ishai: Insights and Commentary on Talmudic Passages [in Hebrew] (Jerusalem: n.p., 2003/04), chap. 107, p. 414: “The Jewish people have two systems of laws. One is unique to their sanctity and was revealed to the Israelites at Sinai. The other is human laws, which He gave to the Israelites particularly at Sinai a second time, but as the Noahide precepts and the laws of mankind.”

28. See Rabbi Joseph Shaul Nathanson, introduction to Responsa Sho'el u-meshiv [in Hebrew] (Lemberg: n.p., 1864/65); Shochetman, “Halakhah's Recognition,” 433; Warhaftig, “Authority of the Court,” 49–51.

29. Shochetman, “Halakhah's Recognition,” and German, King of Israel.

30. von Gierke, Otto Friedrich, Political Theories of the Middle Age, trans. Maitland, F. W. (Cambridge: Cambridge University Press, 1922), 7–10Google Scholar; Celia Wasserstein Fassberg, “The Choice-of-Law Problem: Continuity and Change” (SJD thesis, Harvard University, 1982), 105–8.

31. Lorenzen, Ernest G., “Huber's De Conflictu Legum,” Illinois Law Review 13 (1919): 376–77Google Scholar, 399–401, 403–4, available at http://digitalcommons.law.yale.edu/fss_papers/4563/. Lorenzen appends to his article Huber's 1707 treatise De Conflictu Legum Diversarum in Diversis Imperlis in the original Latin and in English translation.

32. von Savigny, Friedrich Carl, Private International Law and the Retrospective Operation of Statutes: A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of Place and Time (Edinburgh: T. Clark, 1880)Google Scholar, §348–49, §360–61. On the level of states, the principle of comity is that one state respects and gives due weight to the laws of another state. On the private level, preference is given to individual's vested rights. Hence a state will tend to protect the rights of an individual living on its territory, even if this violates the laws of another country. See Restatement of the Law of Conflict of Laws (1934), §6. See also Beale, Treatise, §5.4, p. 53.

33. See Lipstein, Kurt, Principles of the Conflict of Laws National and International (Boston: M. Nijhoff, 1981), 7–11CrossRefGoogle Scholar; Hay, Peter, Borchers, Patrick, and Symeonides, Symeon, Conflict of Laws, 5th ed. (St. Paul, MN: West, 2010), 11–14Google Scholar. One of the leaders of this school was Bartolus de Saxoferrato (Italy, fourteenth century). For more on him and his approach, see Hatzimihail, Nikitas, “Bartolus and the Conflict of Laws,” Revue hellenique de droit international 60 (2007): 23–31Google Scholar, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1600774.

34. Chroust, Anton-Hermann, “Hugo Grotius and the Scholastic Natural Law Tradition,” New Scholasticism 17 (1943): 101–33CrossRefGoogle Scholar; Haakonssen, Knud, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 26–30CrossRefGoogle Scholar. van Eikema Hommes, Hendrik, “Grotius on Natural and International Law,” Netherlands International Law Review 30 (1983): 61–71CrossRefGoogle Scholar; Jeffery, Renée, Hugo Grotius in International Thought (New York: Palgrave Macmillan, 2006), 85–112CrossRefGoogle Scholar.

35. Huber, De Conflictu Legum, quoted in Lorenzen, “Huber's De Conflictu Legum,” 403–4, 2nd paragraph; Ehrenzweig, Albert A., “The Lex Fori—Basic Rule in the Conflict of Laws,” Michigan Law Review 58, no. 5 (1960): 643–44CrossRefGoogle Scholar; Ehrenzweig, “A Proper Law in a Proper Forum: A ‘Restatement’ of the ‘Lex Fori Approach,’” Oklahoma Law Review (1965): 340.

36. Story, Joseph, Commentaries on the Conflict of Laws Foreign and Domestic, 3rd ed. (Boston: Little, Brown, 1846)Google Scholar, §8, pp. 12–13; §23, pp. 33–34.

37. Walter Wheeler Cook suggests as much in his local law theory; see The Logical and Legal Bases of the Conflict of Laws (Cambridge, MA: Harvard University Press, 1942), e.g., 42–45Google Scholar.

38. Religious Zionist halakhic rulings take account of the basic premises of religious Zionism, namely:

  1. (1)

    (1) The religious significance of the Jewish community in the Land of Israel and of a Jewish state there. See Zohar, Zvi, “Universal Political Values and Religious Zionism: A Guide to the Thought of Rabbi Ḥayim David Halevi” [in Hebrew], in Judaism: A Dialogue between Cultures, ed. Sagi, A. et al. (Jerusalem: Magnes, 1999), 111Google Scholar; Edrei, Arye, “The Roots of Religious Zionist Halakhic Decision-Making: Rabbi Kook and the Sabbatical-Year Controversy” [in Hebrew], in Religion and Politics in Jewish Thought, Essays in Honor of Aviezer Ravitzky, ed. Brown, Benjamin and Stern, Yedidia et al. , vol. 2 (Jerusalem: The Israel Democracy Institute Press, 2012), 858–59Google Scholar. See also Avi Sagi, “Religious Zionism: Closure and Openness” [in Hebrew], in Sagi et al., Judaism: A Dialogue between Cultures, 124 (partnership in the Zionist enterprise based on a religious mindset, as opposed to the ultra-Orthodox world and culture).

  2. (2)

    (2) An emphasis on the national element in the Jewish religious identity. See Roness, Yitzhak, “The Religious-Zionist Conception of Conversion: A Look at the Thought of Rabbi Shaul Yisraeli,” Zohar 39 (2016): 269–73Google Scholar.

  3. (3)

    (3) The intended audience encompasses all Jews (and not just the observant). See Edrei, “Roots of Religious-Zionist Halakhic Decision-Making,” 881, 894–95.

39. As used here, “secular law” means a legal system whose origin, mode of development, or source of validity lies outside the religious system. The philosophical, cultural, or social senses of “secular” that dominate studies of secularization and secularism are irrelevant. See Taylor, Charles, A Secular Age (Cambridge, MA: Harvard University Press, 2007)Google Scholar; Berger, Peter, The Sacred Canopy (Garden City, NY: Doubleday, 1967)Google Scholar.

40. Though the decisors’ position do not always agree—and are sometimes in outright contradiction—they tend to be based on Rabbenu Nissim's discourse. The discourse is not uniform, and its dynamic structure allows different positions to be inferred from it. For more on the dynamic structure of the discourse, see Brand, “Law of the King,” 407–13.

41. She'ar-Yashuv Cohen was the chief rabbi of Haifa from 1975 to 2011. His father was the “Nazir,” Rabbi David ha-Cohen, the disciple and colleague of Rabbi A. I. Kook. Cohen attended the Merkaz Harav Yeshiva and was a student of Rabbi Z. Y. Kook and Rabbi Y. I. Herzog. His religious Zionist perspective and thought are based for the most part on the ideas of the elder Rabbi Kook. See, e.g., his “The Status of the State of Israel in Halakhah” [in Hebrew], in Torah, Labor, and What Links Them, ed. Y. N. Rimon (ʾOr ʿEẓion, 2014), 15–25.

42. Cohen, She'ar-Yashuv, “The State of Israel or the Kingdom of Israel” [in Hebrew], Torah she-beʿal peh 39 (1997/98): 45–46Google Scholar.

43. Lau, Israel Meir, “A State of Law and a Halakhic State, and Details of Laws Relating to ‘The Law of the Land Is the Law’” [in Hebrew], Torah she-beʿal peh 39 (1997/98): 17–18Google Scholar. Lau (chief rabbi of Israel, 1993–2003) expressed his religious Zionist outlook in a series of interviews and articles. See, e.g., http://www.inn.co.il/Besheva/Article.aspx/2600.

44. For an extensive treatment of Herzog's position, see Zoldan, Yehuda, “Rule and Law in the State of Israel According to Rabbi I. I. Herzog” [in Hebrew], in Masuʾah le-’Iẓḥak, vol. 1 (Jerusalem: Rabbi Herzog Institute, 2008/09), 397–408Google Scholar. The main reason for this rejection is ideological. The Zionist decisors generally assume that the state has some religious significance. This assumption rejects the idea of a separation between religion and state; according to this line of reasoning, the Jewish state can and should be a halakhic state. The adoption of the secular law of the state means a waiver of Halakhah as the law of the state. See, e.g., Rabbi I. I. Herzog, “Law in the Jewish State” [in Hebrew], The Torah and the State 7–8 (1955/56–1956/57): 13. See on this Aviezer Ravitzky, “Religion and State: Competing Models in Jewish Thought” [in Hebrew], in Freedom Inscribed, 51 (also printed as “Theology and Politics in Medieval Jewish Thought,” in Zionism and the Return to History: A Reevaluation, ed. Shmuel Eisenstadt and Moshe Lissak [Jerusalem: Yad Ben-Zvi, 1998/99], 100). See also Yaakov Ariel, “Justice in Israel and the Prohibition against Secular Courts” [in Hebrew], Teḥumin 1 (1979/80): 319: “The State of Israel, as the state of the Jewish people, should be ruled by the original Jewish law as it has existed through the generations. Just as we should not imagine the possibility of a Hebrew state without the Hebrew language as its official language, … so we cannot imagine a Jewish state without Jewish law.”

Besides the ideological difficulty, a dual legal system also poses practical difficulties. It could lead to parallel litigation, conflicts between the systems about the limits of their respective jurisdictions, transfer of cases between systems in the middle of proceedings, and the like. See I. I. Herzog, Legislation for Israel [in Hebrew], vol. 2 (Jerusalem: Mosad Harav Kook, 1989), 76; idem, Law of the Tent [in Hebrew] (Jerusalem: Mosad Harav Kook, 1993), 85–86.

45. On this correspondence, see Herzog, Legislation for Israel, 75; Ravitzky, “Religion and State,” 51; Enker, “Does the Rambam?,” 40–41; Zoldan, “Rule of Law,” 400 n. 35; Alex Kaye, “The Legal Philosophies of Religious Zionism 1937–1967” (PhD diss., Columbia University, 2013), 64–68.

46. The full text reads: “Regarding theft, robbery, and other criminal matters, it appears from Rabbenu Nissim's responsum that the King's Law was unique and different from the courts that judged according to Torah Law, because it would impair the sound functioning of the country if a thief could exempt himself by double remuneration and that one who admits to wrongdoing is exempt from penalties. And it appears to me that in this case one needs to enact national statutes along the lines of the permission a court is granted to impose flagellation and pronounce [capital] sentences (even where not [warranted] by the Torah). See Herzog, Legislation for Israel, 75 n. 10. Grodzinski emphasizes that the King's Law can apply only to “theft, robbery, and other criminal matters.” He reiterates that the state should enact laws in these matters, based on the rule that “the court may impose flagellation and pronounce [capital] sentences even where not [warranted] by the Torah.”

47. This reading of Rabbenu Nissim's discourse relies on the fact that it focuses on the authority to mete out punishment as well as on the associated rules of punishment and evidence. For other approaches that limit the King's Law presented in the discourse to punishment, see Kirshenbaum, “Concurrent Jurisdictions,” 10; Enker, “Does the Rambam?,” 40–41.

48. Rabbi Reuven Margolies (1889–1971) was a prolific author of works on rabbinic literature and was awarded the Israel Prize in 1957. He held many positions in the Mizrahi movement, including president of its section in eastern Galicia after the First World War. For his religious Zionist approach, see the next note.

49. Reuven Margolies, “Courts in Israel” [in Hebrew], in Kave ʾor (Lwów: Praca, 1921/2), 41–51. The article was originally published in Ha-mizraḥi, July 15, 1920 (29 Tammuz 5680), 6–7. See also idem, Tal teḥiyah [in Hebrew] (Lemberg: n.p., 1921/22), 41–51. For additional discussion. See Kaye, “Legal Philosophies of Religious Zionism,” 74–80.

Margolies wrote about the future Jewish state a full generation before its establishment, in the wake of the Balfour Declaration (issued November 2, 1917) and the appointment of Herbert Samuel as British High Commissioner in Palestine (January 30, 1920). Also in the background were the geopolitical shifts that resulted from the First World War: the fall of the Ottoman and Austro-Hungarian Empires and inauguration of British rule over Palestine. As he states in his introduction, “We are standing today on the threshold of a new era in the life of the Jewish people in its land. … Even when Jewish possession of the land increases, … we assume that we have already received control of the land.” But also see Herzog, Legislation for Israel, 75–76, quoted below. Margolies's article may be based on one by Rabbi David Zvi Hoffmann, “Der oberste Gerichtshof in der Stadt des Heiligtums,” Jahresbericht des Rabbinerseminars für das orthodoxe Judenthum (1877–1878): 22.

50. Margolies believes that the concept of the king as legislator is rooted in the Bible but is also repeated in the rabbinic literature. See, for example, Y. Rosh Ha-shanah 1:3 (57b): “R. Eliezer said, ‘for a king, the law is not written’ (πρὸ βασιλέως ὁ νόμος ἄγραφος)”; in other words, the king is a legislator but is not subject to his own laws. See Margolies, Tal teḥiyah, 44–45. See also Alexander Kohut, Arukh Completum (Vienna: n.p., 1878–1892), s.v. agraphos (p. 30r): “The meaning of the words in Greek is, “for the kings, the law is not written”; Moshe Zilberg, Thus Is the Way of the Talmud [in Hebrew] (Jerusalem: Hebrew University, 1964), 5 and n. 16. See also Margolies, Tal teḥiyah, 46–47 and n. 13 in the addenda. Margolies does not mention Rabbenu Nissim's discourse as a source, but does refer to it in the addenda.

51. Federbush, Shimon, The Law of the King in Israel [in Hebrew] (Jerusalem: Mosad Harav Kook, 1951/52), 43–46Google Scholar. There are several parallels between Margolies and Federbush, but it is not clear whether this is due to influence, inspiration, or mere coincidence.

52. See Tuviah Yehudah Guttentag (the rebbe of Sochoczin), “A Matter of Law and Justice” [in Hebrew], Diglenu 2 (Shevat 5681 [Jan.–Feb. 1921]: 27: “This article appears on the surface to be spiced and armed with talmudic evidence, but its content is incredible subversion of the Holy Torah and its completeness. … For the Jewish courts in ancient days rendered judgment solely on the basis of Torah Law.” See also Gutentag, “A Matter of Law and Justice” [in Hebrew], Diglenu 5–6 (Sivan 5681 [June–July 1921]): 83: “Everything the author has written in Ha-mizraḥi regarding the law of the state has no basis or support. The Jewish people have never known anything of such courts, nor have they been acquainted with judges who issue rulings based on their own intellect. Rather, the sages who follow the Divine Torah have been their teachers and guides, and they have also been their judges.” The author avers that courts have always ruled on the basis of Torah Law, both in biblical and Second Temple times, and that this was accepted by both the Pharisees and the Sadducees; see Gutentag, “A Matter of Law and Justice” [in Hebrew], Diglenu 3–4 (Nisan 5681 [April–May 1921]): 51. According to him, the only possibility of deviating from Torah Law is an emergency measure, and never through an enduring statute (ibid., 51–53).

For additional criticism, see Herzog, Legislation for Israel, 75–76. He views Margolies's proposal as “the fruit of the excitement that resulted from the Balfour Declaration and the appointment of Herbert Samuel as governor of Judea.” In his mind, Margolies's proposal has no basis: “We have no business with historical research; nor will it help us. From the point of view of Halakhah, we take account only of authoritative sources of Torah Law, and they offer no support for this assumption of dual law or two complementary authorities.”

53. Rabbi Ḥayim David Halevi was chief rabbi of Tel Aviv from 1973–1998. On his religious Zionist outlook, see Zohar, “Universal Political Values and Religious Zionism,” 123; Hellinger, Moshe, “Judaism and Democracy in the Thought of Rabbi Ḥayim David Halevi” [in Hebrew], in Living Judaism: Essays on the Halakhic Thought of R. Ḥayim David Halevi, ed. Zohar, Z. and Sagi, A. (Jerusalem: Shalom Hartman Institute and Keter, 2007), 89, 91–92Google Scholar; Hellinger, , “Religion and State in Sephardi Religious Zionist Thought: A Unitary Relationship or Compartmentalization: Rabbi M. H. Uziel and Rabbi H. D. Halevi” [in Hebrew], in Religion and State in Twentieth-Century Jewish Thought, ed. Ravitzky, Aviezer (Jerusalem: Israel Democracy Institute Press, 2005), 243–45Google Scholar.

54. Ḥayim David Halevi, “A State of Law and a State of Halakhah” [in Hebrew], in Religion and State (Tel Aviv: s.n., 1969), 50–52. For a discussion of Halevi's ideas about this issue, see Hellinger, “Judaism and Democracy,” 110–12; Hellinger, “Religion and State,” 256–57; Yedidia Stern, “Fixed Halakhah in a Changing World: Policy and Society in the Works of Rabbi Halevi” [in Hebrew], in Zohar and Sagi, Living Judaism, 361–66.

55. Halevi, “A State of Law,” 57; Hellinger, “Religion and State,” 220.

56. Halevi, “A State of Law,” 53. This statement qualifies the link between the King's Law and dinaʾ de-malkhutaʾ, which according to some applies only to public law. See also Shilo, Dinaʾ de-malkhutaʾ dinaʾ, 131–42.

57. Halevi, “A State of Law,” 54–55.

58. Rabbi Uziel was the first Sephardic chief rabbi of Palestine/Israel (1939–53). On his religious Zionist outlook, see Ratzabi, Shalom, “Religious Thinkers on the Secular State,” Israel Studies 13 (2008): 129–30CrossRefGoogle Scholar; Ratzabi, , “Zionism, Judaism, and the Land of Israel in the Thought of Chief Rabbi Ben-Ẓion Meir Ḥai Uziel” [in Hebrew], Peʿamim 73 (1998): 68, 78–79Google Scholar; Hellinger, “Religion and State,” 228–31.

59. On Halevi's relationship with Uziel, see Gila Amitai, “My Father, Master, and Teacher Rabbi Ḥayim David Halevi, of blessed memory” [in Hebrew], in Zohar and Sagi, Living Judaism, 387–89.

60. See below at the end of this section.

61. Hellinger, “Religion and State,” 247–49.

62. Ibid., 252, 259.

63. Ibid., 250.

64. Rabbi Yehudah Gershuni (1912–2000) made aliyah in his twenties. He studied and later taught at the Merkaz Harav Yeshiva. See Warhaftig, Itamar, ed., “Personality and Biography,” in ʾAfike Yehudah (Jerusalem: Ariel, 2004/05), 9–40Google Scholar; Warhaftig, “Bibliography” [in Hebrew], ʾAfike Yehudah, 41–55. Gershuni wrote extensively about his religious Zionist ideas; see, e.g., The Voice of Your Prophets [in Hebrew] (Jerusalem: Moriyah, 1980), 153–60Google Scholar, 221–25.

65. Yehudah Gershuni, “Laws of the Sanhedrin and Laws of the King” [in Hebrew], Torah she-beʿal peh 16 (1973/74): 96: “The result, according to Rabbenu Nissim, is that the law of the appointment of a king in Israel is [for him] to enact laws and ensure that society functions among its members; this is the source of the king's power. These laws are the Noahide precepts that ensure the proper functioning of the state and society.” Rabbenu Nissim does not so much hint that the king might be subject to the seven Noahide precepts. In his view, the king is autonomous in wielding his legislative authority, with the exception that he is subject to parallel laws that bind kings.

66. The complementary nature of Torah Law and the Noahide precepts is evident in the punishment meted out to the residents of the Idolatrous City. Individual idolaters are judged according to Torah Law—there must be witnesses and advance warning; they are executed by stoning; and their heirs retain possession of their estate. On the other hand, the people of the Idolatrous City are judged as a community; they are beheaded; there is no need for witnesses and advance warning; and their property is confiscated. In other words, as a result of their idolatry, they are no longer considered Jews and are judged according to the rules that apply to Noahides. See Gershuni, “Laws of the Sanhedrin,” 97 (based on the Gaon of Vilna, ʾAderet ʾEliyahu on Deuteronomy 13:13: “If many people commit idolatry, they are considered to be heathens and are consequently executed by the sword. But individuals are executed by stoning, for they are considered to be Israelites.”).

67. In his earlier work, The Law of the King, Gershuni proposed a different approach: Maimonides believes that the King's Law involves ad hoc regulation of the affairs of state. See Yehudah Gershuni, The Law of the King [in Hebrew] (New York: n.p., 1949/50), 88–93. Perhaps Gershuni's two proposals regarding the King's Law reflect the debate between Maimonides (in this note) and Rabbenu Nissim (above). However, it seems more likely that both ideas reflect Gershuni's own opinion, which had changed over time.

68. Eliezer Yehudah Waldenberg, Laws of the State [in Hebrew] (Jerusalem: Mosad Harav Kook, 1951/52–1954/55), 1:138–39 (limiting the King's Law, as per Rabbenu Nissim's discourse, to ensuring the sound functioning of society and the enactment of emergency measures); 3:18 (subjecting the King's Law to Torah Law based on Rabbenu Nissim's discourse).

Indeed, in his discussion of the King's Law (ibid., 1:159–61), Waldenberg adopts Maimonides's position that limits it to emergency measures, and rejects Rabbenu Nissim's position. This is also the position taken by Herzog, which is brought as a counterpoint to Rabbenu Nissim's position. See Zoldan, “Rule and Law,” 406–8.

See also Werner, Samuel Baruch, “Laws as Emergency Measures” [in Hebrew], Ha-Torah ve-ha-medinah 3 (1950/51): 50Google Scholar. See also Kaplan, Zvi, Be-halakhah ve-ʾaggadah (Jerusalem: Weiss, 1959/60), 10–11Google Scholar, which is based on work by his father, Kaplan, Avraham Eliyahu, in Divre Talmud, vol. 1 (Jerusalem: Mosad Harav Kook, 1957/58), 171–74Google Scholar.

69. For more on these individuals, see Mordecai Saar Marmorstein, The Father of the “Knitted Kippah” Generation: Rabbi Moshe Zvi Neria [in Hebrew] (Kiryat Bialik: Duvdevan, 2014); Abraham Israel Sharir, ed., A Giant in Torah and Mannerisms: Selections on the Path and Character of Rabbi Shaul Yisraeli [in Hebrew] (Jerusalem: ʾErez, 1998/99). Their religious Zionist thought found expression in their many writings, and especially those listed in the next note.

70. Moshe Ẓvi Neria, The Law of the King [in Hebrew] (Kfar Haroʿeh: n.p., 1991/92), 33–38; Yisraeli, ʿAmud ha-yemini, chap. 8, pp. 72–74. She'ar-Yashuv Cohen and Israel Meir Lau are of the same opinion; see discussion above.

71. A. I. Kook, Mishpat kohen (Jerusalem: Association for Publication of Rabbi A. I. Kook's Works, 1936/37), chap. 144, §13, p. 335. Kook later expands the application of the King's Law from a monarch to any national leadership: “For when there is no king, because the Laws of the King relate also to the general state of the nation, the right to [enact] such laws reverts to the nation as a whole” (ibid., 337).

72. The questioner was Rabbi Shlomo Zalman Pines (1874–1955), a scholar and prolific author on Torah subjects. For the letters to which Kook responded here and in subsequent chapters (Mishpat kohen, chaps. 142–44, 148), see Pines, “On the Laws of Sacrificing Life: Sacrificing an Individual to Save Many” [in Hebrew], Moriah 20, no. 111 (1994/5): 66–69Google Scholar and no. 112:58–64. See also Rakover, Naḥum, Sacrificing Life: Sacrificing an Individual to Benefit Many [in Hebrew] (Jerusalem: Jewish Legal Heritage Society, 2000), 201–69Google Scholar. For the specific question addressed here, see ibid., 235.

73. See Ish-Shalom, Benjamin, Rav Avraham Itzhak Hacohen Kook: Between Rationalism and Mysticism, trans. Wiskind-Elper, Ora (Albany: State University of New York Press, 1993), 90–91Google Scholar. This concept has political and theological implications. See Berholz, Amichai, “Halakhah and Monarchy: Morality, Politics, and Halakhic Renewal in the Thought of Rabbi A. I. Kook” [in Hebrew], ʾAkdamut 3 (1997): 35–39Google Scholar. The blurring of the distinction between the real political entity and its idealized version expands the boundaries of monarchy and thus also of the King's Law.

74. The fact that Kook does not mention the concept of an autonomous King's Law mentioned in Rabbenu Nissim's discourse is all the more striking given the presence of the discourse in the annotations that Kook's son, Rabbi Z. Y. Kook, added to his father's collections of responsa, Daʿat kohen and Mishpat kohen. He mentions the discourse twice, and on both occasions, asserts, drawing on it, that in the absence of a king, the constituted leadership plays the combined role of judge and king. Hence the prophet Samuel was referred to as a king (Daʿat kohen, Yoreh deʿah, notes of chap. 69 [Jerusalem: Mosad Harav Kook, 1993], 441) and “appointed judges and secular presidents take the place of a king” (Mishpat kohen [Jerusalem: Mosad Harav Kook, 1993], addenda to the annotations, chap. 144, p. 378). Here the discourse is not read to support granting the king legal powers, but to recognize a prophet or judge as having sovereign power! See similar comments in Yisraeli, ʿAmud ha-yemini, 61–62.

75. Kook, Mishpat kohen, chap. 124, p. 274. Cf. the Discourses of Rabbenu Nissim, 440–42; Brand, “Law of the King,” 410–12; Neria Gutel, Innovation in Tradition [in Hebrew] (Jerusalem: Magnes, 2004), 145.

76. See Ratzabi, Shalom, “Chief Rabbi Ben-Ẓion Meir Ḥai Uziel: Halakhah and Zionism” [in Hebrew], Zionism 21 (1998): 80–84Google Scholar, 88–89. By contrast, see the reservations expressed by Moshe Hellinger, “Judaism, Zionism, Modernity, and Democracy in the Thought of Rabbi Ben-Ẓion Meir Ḥai Uziel” [in Hebrew], in Rabbi Uziel and His Peers: Studies in the Religious Thought of Oriental Rabbis in 20th-Century Israel, ed. Zvi Zohar (Jerusalem: Rav Uziel's Committee Publishers, 2009), 998, 103. Hellinger finds metaphysical or kabbalistic threads in some of Uziel's ideas.

77. See Ratzabi, “Rabbi Uziel: Halakhah and Zionism.” Hellinger presents Uziel's similar stance with regard to the law of the state, but bases it on just the opposite approach, one that is harmonizing and unifying. In this view, nationalism and religion are interwoven. See Hellinger, “Religion and State,” 224–26, 235. In contrast to Roman nationalism, which is based on the exercise of force, Israeli nationalism is spiritual (see Hellinger, “Judaism and Democracy,” 101). The unifying approach does not allow any separation between religion and state, or between Halakhah and national legislation. Consequently, Halakhah must be the law of the land. This reversal can be effected by means of significant changes in Halakhah introduced by the Sanhedrin. See Hellinger, “Religion and State,” 229–32.

78. Ben-Ẓion Meir Ḥai Uziel, Mikhmane Uziel (Tel Aviv, 1939), 319 (his inaugural address on the occasion of his investiture as chief rabbi of Jaffa, 1911).

79. Ibid., 323. Hence the rabbis in the Land of Israel are obligated to reestablish the religious judicial system (keynote address at the Assembly of Rabbis in the Land of Israel, 1919; ibid., 329). It was in this framework that Uziel called for the reestablishment of the Sanhedrin (bet din ha-gadol). See ibid., 390–91; Ratzabi, Shalom, “Halakhah and Orthodox: The Halakhic Paths of Rabbi Ben-Ẓion Meir Ḥai Uziel and Rabbi Ḥayim David Halevi” [in Hebrew], in Orthodox Judaism: New Perspectives, ed. Salmon, Yosef, Ravitzky, Aviezer, and Ferziger, Adam (Jerusalem: Magnes, 2006), 490–91Google Scholar.

80. Ben-Ẓion Meir Ḥai Uziel, “Fundamentals of State Law in Israel and the Nations,” Torah and State 5–6 (1953–54): 16; Shochetman, “Halakhah's Recognition,” 450–51, 466–67; Hellinger, “Religion and State,” 237–39.

81. Shochetman, “Halakhah's Recognition”; Hellinger, “Religion and State.” See also Zohar, Zvi, “The Knesset's Responsibility to Mold Halakhah: A Study of Rabbi Uziel's ‘On the Definition of Those Ineligible to Testify’” [in Hebrew], in Multiculturalism in a Democratic and Jewish State, ed. Mautner, M., Sagi, Avi, and Shamir, Ronen (Tel Aviv: Ramot, 1998), 308, 333–36Google Scholar (accepting the testimony of transgressors by the force of community ordinances, represented by Knesset legislation).

82. Hellinger, “Judaism and Democracy,” 105–6.

83. See Brand, Non-Jewish Courts in the Jewish State [in Hebrew] (Jerusalem: Israel Democracy Institute Press, 2010), 10–13Google Scholar, 60–65.

84. Ibid., 71–72.