Orthodox Rabbis Using Traditional Halakhic Idioms

In the early decades of the twentieth century, several Diaspora rabbis wrote significant works on Jewish public law. Among the most prominent was Rabbi Haim Hirschensohn, who was born in Palestine in the mid nineteenth century, and immigrated to the United States in 1903.Footnote ²⁷ Influenced by the democratic culture of the United States (which, he argued, was influenced by the Bible), Hirschensohn envisioned a future democratic Jewish state based on Jewish law. In works such as his multi-volume collection of responsa, Malki ba-Kodesh, published between 1919 and 1928, Hirschensohn argued that democracy was in complete accord with the commandments of Jewish law, demonstrating his argument by reference to the biblical idea of the covenant between God and his people, and the legislative role given to laymen in post-biblical Diaspora Jewish communities. Hirschensohn rejected claims that Jewish law required a monarchical regime. He also argued that the conventional view that Jewish law prevented women from voting or holding public office was incorrect.Footnote ²⁸ Hirschensohn’s works also included discussions of topics related to international law.Footnote ²⁹

Rabbis active in Mandatory Palestine produced similar works devoted to applying Jewish law to address the challenges and needs of a modern society and state. This literature, which was also mostly written in traditional halakhic idioms, dealt with many concrete practical problems, such as how to adjust the rules of Jewish law to the needs of modern agriculture. The rabbis also dealt with more abstract questions, including the possibility of reviving ancient Jewish political institutions such as the central Jewish judicial institution of the Second Temple period, the Sanhedrin. Prominent rabbinical figures such as Ben-Zion Meir Hai Uziel, the Sephardi Chief Rabbi of Palestine, and Isaac Herzog, the Ashkenazi Chief Rabbi, played key roles in shaping this body of literature. Neither Uziel nor Herzog had formal legal training. However, the rabbinic discourse on Jewish public law in Mandatory Palestine also included legally trained contributors, such as Rabbi Isaac Breuer, a Hungarian-German Jew, who studied law in Frankfurt and practiced there until immigrating to Palestine in 1936.Footnote ³⁰

As historian Alexander Kaye has argued, by the 1940s, some of these rabbis had gradually come to embrace a radical take on the role of Jewish law in a future Jewish state: the idea of a Jewish theocracy. Jewish law, they believed, would not merely constitute one historical source of institutions and norms of the future Jewish state, nor would the legal system of this state be a pluralist one, in which Jewish law and courts would coexist alongside courts using secular law. Instead, swayed by the profoundly modern and novel notion of Jewish theocracy – one with no real precedent in Jewish history – these rabbis were convinced that the future Jewish state would be governed by a single centralized legal system based on Jewish law, which would be declared in the future Israeli constitution as the fundamental law of the state.Footnote ³¹

Jewish Scholars in the Diaspora Writing in Western Languages

Jewish scholars in the Diaspora also wrote extensively on Jewish public law with the intention of addressing broader audiences, Jews but perhaps also Gentiles. One example of such works, from Germany, is a 1914 volume that was part of a series called Monumenta Talmudica. The volumes of this series contained digests of passages translated from the Talmud. The volume dealing with law, edited by a young historian, Salomon Gandz, dealt with Jewish public law and included passages on kings, courts, priests, and the rules pertaining to the administration of Jewish communities.Footnote ³²

Jewish-American authors writing in English also belonged to this group. Mayer Sulzberger, a Philadelphia judge, published two relevant books in the early 1910s, one on biblical parliamentarism and the other on “the polity of the ancient Hebrews.”Footnote ³³ Israel Friedlaender, a professor at the Jewish Theological Seminary of America in New York, wrote an essay on the political ideals of the prophets. Another essay of his sought to refute the notion, common among “Aryan” scholars, and also some Jewish ones, that Jews (specifically) and Semites (generally) were incapable of self-government and that the biblical Jewish states were characterized by “bad government, tyranny, and oppression,” just like every other “little oriental state.”Footnote ³⁴ Nathan Isaacs, a law professor at Harvard University, published a book chapter devoted to the “Legacy of Israel,” in which he analyzed the influence of Judaism on various aspects of public and private Western law. Here, Isaacs argued, for example, that Judaism was the source of the Christian idea of the separation of Church and State.Footnote ³⁵

A 1928 book by Abba Hillel Silver, an American Reform Rabbi and Zionist leader, provided a detailed discussion of Jewish democracy. In this book, Silver argued that ancient biblical Jews, as well as post-biblical ones, were animated by a democratic spirit: when the Jews wandered in the Sinai Desert, they were not governed by kings; nor were kings present during the initial period of Israelite settlement in Canaan. Later in biblical history, kings did appear, explained Silver, but, unlike kings in other ancient monarchies, they were not deified. Silver claimed that the Bible generally displayed a critical approach to the idea of monarchy, as is evident by the stories about the prophets and their critique of both kings and the priestly class. Once Jewish independence was lost, Silver said, kings and temples were replaced by democratic institutions: the synagogue, led by lay leaders, and the religious school, open to all Jews and based on the notion of popular rather than elite education. During later periods of Jewish history, an aristocracy of legal scholars emerged, but the Jewish masses rebelled time and again against this aristocracy, as is evident by the appearance of movements such as medieval Karaism or early-modern Hasidism.Footnote ³⁶ A later work by Silver contained an extensive discussion of Jewish attitudes to the notion of equality based on the Bible and on post-biblical sources such as the Talmud. In this work, Silver claimed that Judaism was characterized by its egalitarian nature, unlike religions such as Hinduism, with its caste system. More generally, Silver argued that the notion of social hierarchy was “an Aryan concept.”Footnote ³⁷

In the middle decades of the twentieth century, an American law professor, Helen Silving, wrote several articles on Jewish public law. Silving was born in the Galician part of the Austro-Hungarian Empire to an orthodox Jewish family. She studied law at the University of Vienna, becoming one of the first female students associated with the intellectual circle which formed around the leading Austrian legal theorist, Hans Kelsen. With the rise of Nazism, she fled to the United States, later earning a law degree from Columbia University. In 1956, she became a professor of law at the University of Puerto Rico and, thus, one of the first female law professors in the United States. An expert in criminal law, Silving also taught in South Korea, where her husband, Paul K. Ryu, who was a prominent legal scholar, served as President of Seoul National University.Footnote ³⁸

In her articles on Jewish law, Silving argued that the Old Testament was a political document containing various fundamental concepts that had shaped modern Western democracy. In particular, she pointed to the belief that legal rules should be based on the consent of the governed; the notion of the rule of law; the concept of the social contract; the idea of constitutional constraints on monarchical power; the principle of equality of all citizens before the law; the claim that laws should be accessible to all the members of the polity and should be studied by all its members; freedom of thought; due process; equal protection; and respect for popular will (but not respect for popular will embodied in the notion of majority rule).Footnote ³⁹

Cultural Zionists

The final group of authors that will be the focus of this chapter comprised Cultural Zionists working in both the Diaspora and Mandatory Palestine. Unlike the first group of authors, orthodox rabbis, this group of scholars analyzed Jewish public law using Western historical and legal concepts. Unlike the writers belonging to the second group of authors, the works of the Cultural Zionist authors were mainly written in Hebrew. In addition, Cultural Zionist authors sought to convince their readers not only that Jewish law was a source of modern political institutions and law but also that it could be used in the present.

Several Polish-born Zionist scholars working in the Diaspora belonged to this group. They included Jacob Zuri who studied philosophy, linguistics, history, sociology, and law in France, Germany, and Switzerland, immigrated to Palestine in 1912 and taught at the Jerusalem Law Classes and the Hebrew University, but returned to Europe in the late 1920s, where he remained active until his death in 1943.Footnote ⁴⁰ Jacob Mikliszanski studied law in France and obtained a doctoral degree from the Sorbonne in 1935. During the Second World War, he fled to the United States, where he taught at Dropsie College in Philadelphia and at Hebrew College in Massachusetts.Footnote ⁴¹ Mikliszanski published several works on Jewish law and international criminal law and the law of war.Footnote ⁴² Simon Federbusch was ordained in Poland as a rabbi and later studied at the Universities of Krakow, Lwow, and Vienna, where he obtained a doctorate in law. Federbusch was a member of the Polish Parliament in the 1920s and served as the president of the Religious Zionist Party, Mizrahi, in Galicia. In 1931, he moved to Finland, serving as the Chief Rabbi there until 1940, when he immigrated to the United States.Footnote ⁴³ In 1952, inspired by the establishment of the State of Israel, Federbusch published a book in Hebrew containing a comprehensive discussion of Jewish public law.Footnote ⁴⁴

Moving to scholars based mainly in Palestine, three of the four founders of the Tel Aviv School of Law and Economics, Samuel Eisenstadt, Paltiel Dikshtein, and Max Laserson, wrote on Jewish public law.Footnote ⁴⁵ Another notable figure associated with this school was Shimshon Rosenbaum. A Russian Jew, Rosenbaum studied law in Vienna and Odessa during the 1880s before establishing a legal practice in Minsk. He played a significant political role in early twentieth-century Russia, serving as a member of the country’s first elected parliament, the State Duma, formed after the 1905 Revolution. After the First World War, he was an important figure in the political development of the newly independent Lithuanian state. His roles included Deputy Foreign Minister, member of the Lithuanian Constituent Assembly, Member of Parliament, and Minister for Jewish Affairs. In 1924, Rosenbaum moved to Palestine. There he led the Tel Aviv Branch of the Jewish Law Society, served as President of the Jewish Courts of Arbitration, and was involved in the early stages of the creation of the Tel Aviv School of Law and Economics.Footnote ⁴⁶ While mainly a lawyer and politician, Rosenbaum was also a legal scholar. He wrote about the impact of Jewish law on international law, and on the secular, non-theocratic nature of ancient Jewish states.Footnote ⁴⁷

Two other persons connected to the Jewish Law Society were Rabbi Arye L. Grajewsky and Rabbi Ya‘acov Berman. Grajewsky, born in Poland, immigrated to Palestine as a child. He pursued legal studies in Egypt, at the Cairo Law School, and later completed his legal education in the Sorbonne in Paris, where he also studied philosophy. In 1935, he returned to Palestine and worked as both a teacher and a lawyer.Footnote ⁴⁸ Berman studied law at Saint Petersburg University and later taught, like Eisenstadt, at the Odessa Rabbinical Seminary. In 1921, he moved to Palestine, where he served as a General Inspector in the school system affiliated with the Religious Zionist Mizrahi movement. In 1944, he published the book on Jewish political theory cited at the beginning of this chapter.Footnote ⁴⁹ Finally, interest in ancient Jewish political institutions and law was also evident in a 1946 collection of Jewish sources titled The Hebrew State, published in Mandatory Palestine.Footnote ⁵⁰ This book contained a long introduction by Eliezer Liebenstein (Livneh), a secular journalist associated with the Zionist Socialist MAPAI political party, whose historicist approach to constitutional law closely paralleled Berman’s.Footnote ⁵¹

Jewish Public Law: Developed, Secular, Innovative

A preliminary challenge that scholars of Jewish public law had to address before discussing specific topics was that most of the development of Jewish law had occurred after the Jews lost their political independence following the destruction of the Second Temple by the Romans in 70 AD. While Jewish communities in the Diaspora did have communal institutions, these never resembled those of a modern state. Therefore, it was perfectly feasible to claim that Jewish public law did not exist.Footnote ⁵²

In an article published in Moscow in the inaugural 1918 volume of the journal Ha-Mishpat ha-‘Ivri, Samuel Eisenstadt traced the development of Jewish public law from the biblical period onward. He argued that it had already existed, in embryonic form, in the periods of the biblical patriarchs and that it had continued to develop until the end of the Second Temple period. Even after the Jews lost their political independence, Eisenstadt added, Jewish public law did not disappear because Jewish communities in the Diaspora enjoyed a certain level of autonomy and, thus, rules were created by individual Jewish communities, as well as by supra-community organizations such as the Council of Four Lands (the central body representing Jewish communities in the early-modern Polish–Lithuanian Commonwealth).Footnote ⁵³

Jewish law was often compared to another ancient legal system, Roman law. The common view of Roman law was that the private law part of Roman law was far more developed than its public law dimension. In his article, Eisenstadt noted this common view of Roman law and referred to the work of Theodor Mommsen, the nineteenth-century German historian. Mommsen had rediscovered Roman public law, which had long remained obscured within the great sixth-century Roman law text, the Corpus Iuris Civilis, in the interstices of private law. Referring to Mommsen’s approach, Eisenstadt declared that the same task awaited scholars of Jewish law, who, like the German Romanists, should endeavor to rediscover the original rules of Jewish public law.Footnote ⁵⁴ The study of Jewish public law, he said, was important not only for scholarly reasons but also because it would serve a practical goal, assisting in the creation of a new Jewish political life that would not be reliant on foreign sources but based on Jewish ones.Footnote ⁵⁵

Eisenstadt’s article also addressed a second major objection to the existence of Jewish public law – namely, the claim that Jewish law, being inherently religious, could not serve as the basis for public legal norms. In the modern Western context, religion is typically confined to the private sphere, while law, especially public law, is seen as belonging to the public sphere and is expected to operate independently of religious influence. This separation is seen as essential to the functioning of the modern secular state.Footnote ⁵⁶ In response to this objection Eisenstadt argued that Jewish law was not really religious. Religion was merely a “mask” hiding its secular nature.Footnote ⁵⁷

A connected idea, whose origins date back to the works of the Roman-Jewish historian Josephus, was that ancient Jewish kingdoms were theocracies. Asher Gulak spent most of his career writing on private law. In his monumental book Principles of Jewish Law, published in the period immediately before and after the First World War, Gulak stated that, unlike other legal systems, Jewish law developed independently of the existence of a state. Moreover, he claimed that even when the Jews enjoyed political independence, the goal of Jewish law was not to enable governance but to further just relationships between individuals. Once Jewish independence was lost, constitutional, administrative, and criminal law became defunct, and only private law continued to develop.Footnote ⁵⁸ However, in 1917, Gulak published a four-part article in a Jewish-Russian newspaper on the history of ancient Jewish politics. In this article, he argued that the conventional view of ancient Jewish kingdoms as theocracies was wrong: the Israelite and Jewish kingdoms of the First and Second Temple periods were secular. One could find two forces contending within these kingdoms – kings implementing ordinary secular policies; and religious prophets, independent and critical of the kings, who were animated by a vision of ethical politics based on justice. This division also appeared in the realm of legislation, according to Gulak. Kings legislated, just as those in other ancient Near Eastern kingdoms did, but the prophets criticized royal legislation because they saw it as unjust and oppressive.Footnote ⁵⁹

Another scholar, Shimshon Rosenbaum, wrote in a 1930s article entitled “Common Errors” that the Christian tradition erroneously argued that Jewish polities were theocracies. Initially, Rosenbaum said, Jewish priests did have some influence on politics, as was the case with all other peoples in their early history, but this influence waned. Between the second century BC and the first century AD, the Hasmonean dynasty ruled Judea. While the Hasmoneans were a priestly family, they ruled the Jewish state not because of their priestly lineage but because they were associated with the fight for Jewish independence. The assumption that Jewish polities were theocracies, said Rosenbaum, was echoed in the belief that Jewish law was religious, but upon examining the content of Jewish law, it would become clear that it was secular.Footnote ⁶⁰

Another aspect of the debate over the religious nature of Jewish law can be found in discussions of legal dualism – the notion that secular and religious courts and secular and religious law should exist side by side. Simon Federbusch devoted a chapter of his 1952 book to a distinction between “the law of the Torah” and “the law of the kingdom” (mishpat ha-melukhah). Federbusch argued that Jewish law recognized the king’s power to create rules to deal with myriad public matters in the realms of administrative, civil, and criminal law as long as these rules were not in direct contravention of the rules of the Torah. He traced this idea to the era of Moses and the period of the biblical kings and argued that this distinction also legitimized communal enactments in Jewish communities in the Diaspora (takanot ha-kahal). One could also use this distinction, Federbusch said, to provide halakhic legitimacy to the norms created by the secular legislature and the secular courts of the new State of Israel.Footnote ⁶¹

The argument that Jewish public law was irrelevant to a modern Jewish state was also based on the image of Jewish law as an inferior, and perhaps also barbaric, legal system. There were two facets associated with this image. One facet was the argument, found in the works of German non-Jewish biblical scholars in the nineteenth and twentieth centuries, that biblical laws (as well as biblical theological and moral concepts such as monotheism or social justice) were copied from the laws of more developed Near Eastern nations. Yerucham (Philip) Korngruen, a teacher at the Tel Aviv School of Law and Economics (who also served as a District Judge in Mandatory Palestine), wrote a book comparing Mosaic law with the laws of Babylonia, Assyria, and the Hittite Empire to refute this argument.Footnote ⁶²

The second facet of the image of Jewish law as inferior stemmed not from comparisons with other ancient legal systems, but with modern ones, based on the claim that Jewish law was antiquated and, thus, irrelevant to modern needs. In the works of the scholars discussed here, a common response to this claim was to show that Jewish law was not antiquated but dynamic and innovative and, therefore, on par with modern legal systems. Specifically, it was argued that two major legal fields often regarded as “modern” were already present in ancient Jewish law: social law, meant to protect the rights of the weakest groups in society; and international law.

Early Zionist political leaders, when discussing their vision of a future Jewish state in Palestine, sometimes mentioned biblical rules that had a socio-economic dimension. For example, the rules regarding land redemption, slave emancipation, and debt forgiveness during the Jubilee year, or the idea of the Sabbath as a model for the protection of workers’ rights. Zionist leaders pointed to these laws as models for legislation in the future Jewish state, a state that they envisioned as founded on the principles of social justice.Footnote ⁶³

Similarly, the Jewish legal scholars I analyze in this chapter also turned to the biblical prophets and their notions of social justice. For example, in his book on the prophets, Eisenstadt, whose political views were on the spectrum between socialism and communism, explained that they were actually secular social reformers. The prophets, he claimed, saw God as a source of “social truth and justice” and as the “defender of the poor and of the weak, the punisher of every brute and oppressor,” furthering a “humanist, universal worldview.”Footnote ⁶⁴ Jewish law was thus a revolutionary law, which contained, even in ancient times, ideas commonly believed to have appeared only in the modern era.

A detailed discussion of Jewish social and labor laws is found in Federbusch’s book. He argued that the social legislation that characterizes modern progressive states can be traced back to ancient Jewish law. Jewish law imposed various duties designed to assist the poorest and weakest members of society, such as the duty of universal education. It created the notion of progressive taxation, and developed various regulations designed to protect the health and safety of workers and all other persons. Jewish law sought to limit the right of private property, and ancient Jewish social movements (such as the Essenes) embraced notions of communal property. Furthermore, Federbusch noted that Jewish law prohibited usury, celebrated the dignity of manual labor and laborers, pioneered the concept of social insurance, and recognized the right of workers to strike and unionize.Footnote ⁶⁵

International law, often seen as a distinctly modern legal field, was also viewed by some early twentieth-century scholars as having roots in the principles of ancient Jewish law. This claim appeared in the works of both non-Jewish and Jewish scholars. One non-Jewish scholar who argued that Jewish law in antiquity (as well as other ancient legal systems) contained rules dealing with international law was the German comparative law scholar Josef Kohler. In 1918, Kohler published a book that included a discussion of the history of ancient international law. Kohler devoted several pages of his book to describing biblical international law. Much of this discussion dealt with the laws of war, which Kohler analyzed in all their rather gory detail (killing of male captives, distribution of captive women and children as the spoils of war, and so on). Kohler also mentioned the vision of universal peace found in the Book of Isaiah but argued that such a vision could not be seen as part of international law because it was a utopian messianic idea divorced from earthly politics.Footnote ⁶⁶

In contrast to Kohler’s relatively objective approach, Jewish authors often claimed that the Jews invented international law and that the international law norms they created were more humane and, therefore, more “modern” than those of other nations in antiquity.Footnote ⁶⁷ For example, in 1917, Gulak wrote an article tracing the notion of universally just law applicable to all nations to the biblical prophets. Gulak also noted that the biblical prophets created the ideal of perpetual peace and contrasted this ideal favorably with modern pacifism, which, he said, was based on the notion that peace would only result from legal coercion by an alliance of powerful nations.Footnote ⁶⁸ Eisenstadt, too, published an article in the 1920s discussing in detail the Jewish (and, more generally, ancient Near Eastern) roots of international law.Footnote ⁶⁹ The same volume in which Eisenstadt’s article appeared also contained a brief report on a lecture delivered in 1925 at the Tel Aviv branch of the Jewish Law Society by Shimshon Rosenbaum, in which Rosenbaum had argued that international law first appeared in the Bible.Footnote ⁷⁰

International law was taught at the Hebrew University in the 1930s by Norman Bentwich. In his 1932 inaugural lecture, Bentwich claimed that the ideas of universal peace and one universal law applicable to all nations – principles upon which modern international law and its institutions (the League of Nations) were based – had their roots in the prophecies of the biblical prophets.Footnote ⁷¹ In an article published during the same year, Bentwich discussed the Bible as the source of the international laws of war. The Bible, he said, was one of the major fonts of international law in the early modern period. Christian legal scholars such as the early-modern English jurist John Selden were inspired by the Bible (and also by medieval Jewish scholars such as Maimonides and Nachmanides) when distinguishing between just and unjust wars. According to Bentwich, Jewish law was also the source of inspiration for the Muslim laws of war – for example, the idea that Muslims should fight infidels but should protect the “people of the book” (Jews and Christians), provided they submit to Muslim rule.Footnote ⁷²

The Jewish-Polish-French-American scholar Jacob Mikliszanski published detailed discussions of two subfields of international law: international criminal law; and the laws of war. In a 1937 article, Mikliszanski claimed that, unlike all other ancient legal systems, Jewish law was able to create a just and moral system of international criminal law. This general claim was not original. It was based on an observation made in a 1922 book by the French international law professor Henri Donnedieu de Vabres, who had supervised Mikliszanski’s doctoral dissertation.Footnote ⁷³ However, the discussion that Mikliszanski offered in his article regarding Jewish rules dealing with international crimes was far more detailed than that presented in Donnedieu’s book.Footnote ⁷⁴

In articles published in the 1940s, Mikliszanski dealt with the Jewish laws of war. He claimed that, while the ancient Jews were a peace-loving people, the need to defend themselves, coupled with their love of legality and justice, led them to create the first international law rules governing war. These rules dealt with topics such as the declaration of war, siege, prisoners of war, conquest, treatment of enemy women, ceasefires, and the cession of war.Footnote ⁷⁵

Mikliszanski repeatedly stressed the humanitarian and progressive nature of the Jewish laws of war. One notable (and problematic) example that he offered to illustrate this claim was his discussion of the biblical rule dealing with the treatment of captured enemy women. The rule on the topic stated that:

Most modern readers would view this rule with horror. However, Mikliszanski claimed that this was actually a progressive rule. Captive women were not to be immediately raped and enslaved (as they would have been if caught by non-Jewish nations in antiquity). Instead, they were to be treated in what Mikliszanski apologetically argued was a (comparatively) humane manner: they would be given time for mourning and would be married to their captor.Footnote ⁷⁷

Ya‘acov Berman also argued that the roots of modern international law could be found in the Bible. These roots included the general biblical notion that justice and mercy constitute the basis of law, as well as specific biblical norms regarding foreigners, international alliances, and the laws of war. Some observers, said Berman, would argue that biblical rules were not “legal” because they were not backed by sanctions. However, Berman insisted that they should be seen as “law” because the mutual interests of nations necessitated them, despite the fact that they were more similar to the norms of morality than to law. In any event, there could be no doubt, claimed Berman, that early-modern Western international law scholars publicly acknowledged their debt to Judaism.Footnote ⁷⁸

Max Laserson, too, argued that international law had Jewish roots. In an article published in 1948, he stated that the two founding figures of modern international law, Hugo Grotius and John Selden, both acknowledged “the importance of Jewish religio-juridical teachings.” Grotius was influenced by the natural law ideas found in the Old Testament. Selden was also influenced by the Bible but he was also inspired by the Talmud. Both Grotius and Selden referred to the Jewish notion of a universal law applicable to all human beings as embodied in the concept of the seven Noahide laws.Footnote ⁷⁹

Finally, Federbusch argued that Judaism was unique among ancient religions in its pursuit of the idea of universal peace and that the original idea of the need for rules constraining war was a Jewish one. He justified his stance by alluding to the fact that the Jewish God was not seen as a national God but as a universal one, giving birth, in turn, to the concept of the fraternity of all God’s creatures. Federbusch then discussed various Jewish rules dealing with the declaration of war and its pursuit (prohibition on total war, protection of and compassion toward enemy civilians, siege, prisoners of war, the annexation of enemy territory, treaties, and neutrality).Footnote ⁸⁰ Like Mikliszanski, Federbusch, too, discussed the biblical rule regarding the treatment of captured enemy women, and he too argued that the fact that women captives were not killed and that their captors were instructed to deal with them in a (relatively) honorable manner was an indication of the moral superiority of Jewish law. Like Mikliszanski, then, Federbusch positioned Jewish law favorably compared to the laws of war of other ancient nations, which sanctioned the outright “murder, without compunction, of all prisoners of war.”Footnote ⁸¹

Democracy, Constitutional Limits on the Power of Monarchs, and Republics

Indian authors devoted considerable effort to challenging the Western portrayal of ancient Indian states as ruled by Oriental despots, seeking instead to highlight parallels between Indian political structures and modern democratic institutions. In the Jewish case, the “Oriental despotism” trope was not overly problematic because, for most of their history, Jews had not had a state of their own and, thus, by definition, were not governed by despotic rulers. However, the question did arise in relation to the biblical period during which independent Jewish states did exist. Many Jewish scholars working during the first decades of the twentieth century were keen to emphasize that Judaism and democracy were compatible or, indeed, that Judaism was, in fact, one of the very sources of the modern concept of democracy. This topic figured prominently in the works of American rabbis Hirschensohn and Silver, but it also appeared in works published in Mandatory Palestine and Israel. Eliezer Livneh argued in 1946 that a permanent attribute of Jewish political thought was its resistance to autocracy, whether by a dictator or by a monarch.Footnote ⁸² While Western democracy was considered a major achievement of European nations, Livneh observed, the historical sources of European democracies were found in the Protestant Reformation; and the essence of Protestantism was an attempt to return to the Bible. Without the Bible, he reasoned, democracy would not have been established in countries such as England or Switzerland.Footnote ⁸³

In his 1950s book, Federbusch argued that the democratic nature of the Jewish state was, somewhat paradoxically, related to its theocratic nature. The Jewish state was not a theocracy, Federbusch said, if that term was used to designate a state where the priests ruled and their followers enjoyed special privileges. Indeed, the Jewish state was one in which all people, no matter their religion or ethnicity, were perceived as equal and in which rulers and priests, Church and State, had always been kept separate from the earliest days of Moses and Aaron until the days of the last King of Judea. The Jewish state was a theocracy, argued Federbusch, only in the sense that it was based on the notion that God ruled all the people in the world; in practice, however, it was a democracy in which all people were equal. The despotic idea was foreign to Jews because it implied a human ruler and, thus, a rejection of the power of God.Footnote ⁸⁴ A concrete manifestation of this principle was found in the fact that no halakhic punishments even existed for the crimes of lèse majesté and treason. Jewish law sought to punish persons for rejecting God or the Torah but not for opposing a human ruler.Footnote ⁸⁵

Jewish democracy, argued Federbusch, was the result of the fact that Israelite society began as a non-hierarchical democratic tribal society. The biblical idea of a covenant between God and his people – which, according to Federbusch, was the source of the modern social contract concept – was an additional source of the democratic idea because it was based on the consent of the people. Similar democratic notions, Federbusch continued, could be found in the Talmud and in Maimonides, for example, in the Talmudic rule that “we make no decree upon the community unless the majority are able to abide by it.” In addition, the assent of the community was required for the appointment of Israelite kings and, later, for the appointment of leaders of Jewish communities in the post-biblical period.Footnote ⁸⁶

Discussions of democracy were often accompanied by discussions of the limitations placed on the power of rulers through the mechanisms of the rule of law, separation of powers, and constitutional monarchy. One author, located in Russia and using what seems to have been a pseudonym, Y. Yehoshafat, published an article in the late 1920s in the journal of the Jewish Law Society in Palestine, Ha-Mishpat ha-‘Ivri, on the rule of law in non-Jewish and Jewish law. Yehoshafat noted that unlike other ancient Oriental nations, the Jews did not see their kings as divine and did not believe that God spoke to his people through their kings. Monarchs were limited and bound by law. This idea was preserved in the period after the return from the Babylonian exile. In the post-exilic Jewish state, the priests, together with the members of the Supreme Court (Great Sanhederin), limited the power of rulers in the name of the law, thus strengthening the democratic inclination of the Jews, based on their respect for the humanity of each individual.Footnote ⁸⁷

Grajewsky depicted Jewish kings as devoid of any legislative power. Although the king was regarded as responsible for applying the law, the legislative power per se was in the hands of the guardians of the Torah, which could, therefore, be understood as a “constitution.” The king himself was subject to the rules of the Torah, and if he “betrayed” these rules, the prophet would dethrone him and pass the monarchical power to another person. It was time, Grajewsky urged, that humanity freed itself from the rules of Roman law – a system that only imposed order using overwhelming force – and adopted instead Jewish law, the law of justice and equity, imbued with superior moral and social concepts.Footnote ⁸⁸

Ya‘acov Berman’s 1944 book used the biblical story of Naboth’s vineyard to argue that the notions of the rule of law, generally, and of laws constraining the power of kings, specifically, were prevalent in biblical times. Unlike other Near Eastern kings and even modern ones, King Ahab was powerless to confiscate Naboth’s vineyard, which was protected by the concept of private property. The only way that King Ahab could obtain the vineyard he so desired was by hiring two witnesses to falsely accuse Naboth of being a blasphemer. Furthermore, Berman argued, in the ancient world, including Greece and Rome, the monarch was usually a military leader and, therefore, often a tyrant with unlimited legislative power. Modern European nations inherited Roman law and thus followed the same tradition, the only exception being England, where the king’s power was limited by law. Biblical kings, like English ones, were not free to legislate, their role being to implement the law rather than create it. The biblical priests, prophets, elders, and people had the power to remove kings, Berman explained. Indeed, he argued that the terms “the people” and “priests and elders” might actually have been used to designate various types of assemblies whose decisions the kings had to follow. In addition, monarchical power was limited by prophets exercising the right of free speech to criticize kings when they deviated from the laws of the Torah, thus inspiring the modern English notion of free speech and, indeed, other modern English and American constitutional notions.Footnote ⁸⁹

Eliezer Livneh, too, discussed in detail how Jewish political traditions constrained the power of kings and argued that the notion of the separation of powers was not an early-modern idea that originated with Montesquieu or the American Founding Fathers (or even ancient Greece and Rome) but, rather, had its origins in the Bible. Livneh found evidence supporting this claim in the biblical story of Judge Abimelech’s despotic rule and Jotham’s fable. He also cited provisions taken from the Book of Deuteronomy that commanded that the future King of the Israelites should not “consider himself better than his fellow Israelites and turn from the law to the right or to the left.” In addition, said Livneh, according to the Bible, priests and prophets were supposed to constrain kings – kings were not seen as divine and were expected to further the causes of justice and law.Footnote ⁹⁰

In 1946, the same year Livneh published his work, Zeev Falk, a young law student at the Jerusalem Law Classes, published an article comparing the rule of law in English and Jewish law. Falk began his article by noting that one of the marks of a nation’s development was the appearance of the notion of the rule of law. In primitive nations (and modern dictatorships), autocratic rulers have absolute power. In contrast, in developed countries, political leaders are subject to the law. English law, observed Falk, was an example of a legal system in which the notion of the rule of law was most fully developed; but, even in English law, there was a rule according to which “the king can do no wrong” because kings were seen – following the positivist approach to law – as the source of the law. Judges were merely the servants of kings. In Jewish law, an equivalent rule, discussed in the Babylonian Talmud in Tractate Sanhedrin, was that “a king can neither act as a judge nor can he be judged.” According to the Talmud, this rule originated in the Hasmonean period, when King Yannai refused to be judged by the Supreme Court (Great Sanhedrin). However, kings of the Davidic line, traditionally perceived as the only true and lawful kings of Israel, were subject to the law. Jewish law, Falk added, was based on the natural law notion according to which the king does not create law. Instead, the law embodies eternal godly justice, to which the king, like any other person, was subject.Footnote ⁹¹

Finally, Federbusch, summarizing the ideas mentioned above, argued that, in the Jewish state, kings were not perceived as divine, did not enjoy special privileges, and were viewed as equal to all other citizens. They were subject to law, enjoyed no legal immunity, and could not confiscate the property of ordinary citizens.Footnote ⁹² State and religion were separated in the history of the Israelite states, beginning with the time of Moses who, according to Federbusch, appointed Joshua as the head of a civil court system, and Aaron as the head of a religious court system. This separation continued later. The Talmud and Maimonides recognized the legislative power invested in the Israelite kings – and, later, in the democratic bodies of the Jewish communities in the Diaspora – to create norms in all areas of law. However, the norms they enacted could not violate what Federbusch saw as the basic norm of Jewish law: equality between all citizens.Footnote ⁹³

Indian scholars devoted much effort to proving that some ancient Indian states were republics rather than monarchies. There were fewer references to republican forms of government in the works of Jewish scholars, but such references could sometimes be found. In 1927, discussing the origins of the notion of the separation of powers, Grajewsky referred to it as “the basis of the modern republic.” The fact that the biblical kings were subject to the laws of the Torah and that they could be removed if they transgressed these laws meant that the biblical kingdom was “a quasi-republic, subject to divine guidance, not based on power and servitude [to the king] but on justice and equity.”Footnote ⁹⁴

Livneh’s 1946 work also connected the notion of the separation of powers with the republican mode of government. According to him, “out of a general disdain for the monarchy,” some Jewish political thinkers embraced republican notions. In this context, he referred to two examples: first, the fact that the Hasmonean leader (nasi) was not an absolute ruler but merely the head of a body called “the Jewish assembly” (hever ha-yehudim); and, second, the argument by the fifteenth-century Jewish leader and scholar Don Isaac Abarbanel that “if leaders are good, we better have many rather than one, and if they are bad, the one is more dangerous than the many.”Footnote ⁹⁵

A more developed discussion of the attitude of Jewish law to republics is found in Federbusch’s 1952 book. Federbusch argued, based on the biblical story about the reluctance of the prophet Samuel to anoint Saul as the King of Israel, that monarchy was incompatible with Judaism, because it contradicted one of its core tenets, the inherent equality of all individuals. The Torah, Federbusch said, taught believers to hate despotism and condemn monarchical rule because of its potential to hinder personal freedom. Drawing on the pro-republican sayings of Don Isaac Abarbanel, Federbusch argued that monarchy was not a necessary attribute of Judaism and that Judaism also envisioned other types of government: by judges and prophets.Footnote ⁹⁶ Federbusch also claimed that Jewish law prevented the appointment of a king as the head of the recently established State of Israel. According to Maimonides, a king could only be appointed by a court of seventy ordained elders and a prophet. As rabbinical ordination and prophets no longer existed, the State of Israel could not become a monarchy according to Jewish law.Footnote ⁹⁷

Equality

Works of scholars in the Diaspora and Mandatory Palestine often argued that equality was a basic characteristic of Jewish law.Footnote ⁹⁸ For example, in 1946, Livneh argued that the notions of equality and dignity were to be found in the Bible and that these were the source of various social laws protecting slaves, salaried workers, and the poor. Livneh also argued that the Bible was the source of the notion of liberty, which emerged out of the story of the liberation of the Jews from Egyptian bondage, as well as out of the words of the prophets.Footnote ⁹⁹

Similarly, Federbusch claimed in his 1952 book that the ancient Jewish state was unique because it was based on the idea that the goal of the state was not conquest and power but the furtherance of morality. One consequence was that the Jewish state was founded on the concept of social justice: it was the first to treat all its inhabitants – poor and rich, master and slave, citizen and foreigner – equally, and this idea inspired both the eighteenth-century French revolutionaries and the American Founding Fathers.Footnote ¹⁰⁰

In a 1950s article that compared Mosaic laws and those of the Babylonian King Hammurabi, Paltiel Dikshtein argued that the laws of Moses were morally advanced compared to those of other ancient Near Eastern nations. Absolute equality, he said, did not exist even in the contemporary world, but if one compared the Jews to other nations of the ancient Near East, one would find that the Jews treated slaves and foreigners better than other nations. Israelite society was not class-based like ancient Indian or Egyptian society; and while the laws of Hammurabi were based on distinctions between various categories of persons, Mosaic law emphasized the notion of equality.Footnote ¹⁰¹

Moving from general principles to specific topics, discussions of the attitude of Jewish law toward slaves, women, and foreigners echoed the arguments made about equality generally. Let me turn first to the topic of slaves in Jewish law. One type of argument about slavery found in the works of Jewish scholars was the claim that, since early Israelite society was an undeveloped, un-hierarchical, nomadic, shepherd society, slaves were treated less harshly by their masters than slaves in the developed urban societies of the ancient world. The slaves of the early Israelites shared the living quarters and the food of their masters. They were unshackled because their work required freedom of movement, and they were treated no more harshly by the head of the family than by his own sons. This argument was made in 1917 by Eisenstadt. It was repeated in a book on the comparative laws of the nations of the ancient Near East, written by another Tel Aviv School teacher, Yerucham Korngruen, which was published in 1944.Footnote ¹⁰²

In 1944, Ya‘acov Berman argued that the most important innovations of biblical law were the twin notions of liberty and equality. Many biblical commandments, he said, were based on the “memory of Egypt” – that is, on the fact that the Israelites were slaves in Egypt. The Egyptian experience led the Israelites to reject the idea of a hierarchical society. Jews, he claimed, were the only nation in antiquity that did not recognize the special privileges of classes or tribes, and even the Israelite kings were urged not to see themselves as more privileged than “ordinary” people since the only master of the Israelites was God. Slavery, Berman said, was actually abolished by biblical law since Jewish slaves were indentured servants who had to be freed after six years, and non-Jewish slaves were protected from abuse by their masters. This led Berman to assert that, in fact, “the Torah seeks to abolish slavery completely.”Footnote ¹⁰³

Federbusch also discussed slavery in his book. He took an apologetic stance, conceding that Jewish law did recognize slavery but arguing that this was because total abolition was impossible, given that slavery had existed in the ancient world (and also, until recently, even in modern states like the United States). He then listed the various rules meant to protect slaves from abuse in Jewish law and also claimed that the Talmud envisioned the abolition of slavery as a desirable goal.Footnote ¹⁰⁴

Moving to women, Jacob Teplicki, a lawyer based in Saint Petersburg, claimed in an article published in 1918 that there were almost no differences in the legal capacities of men versus women in post-biblical Jewish law.Footnote ¹⁰⁵ In a 1920s article about the right of women to serve as guardians of minors or invalids, Simha Assaf argued – against the conventional view of the majority of Jewish law scholars – that, according to Jewish law, a court could appoint women as guardians.Footnote ¹⁰⁶

In 1950, Paltiel Dikshtein published a pamphlet on behalf of the main feminist organization in Israel at the time, the Jewish Women’s Equal Rights Association. This was a practical work meant to inform lay readers about women’s legal rights. However, in the introduction, Dikshtein argued that, while “in some details,” women were undeniably considered inferior to men in Jewish law, these details were “secondary.” In principle, he contended, Jewish law viewed men and women as equals, citing passages in which women were described as equal to men – for example, in their respective relationships with their children.Footnote ¹⁰⁷

Federbusch discussed women’s rights in a chapter of his book dealing with the appointment of public officers such as kings and judges. The conventional halakhic rule was that women could not be appointed to public office, but Federbusch questioned this rule, noting that there were biblical counter-examples (the prophetess and judge Deborah, for instance). In addition, some rabbinical commentators argued that women could be appointed to public office and could also (again, contrary to conventional halakhic opinion) serve as witnesses. Federbusch also stated that, according to Jewish law, women were obliged to serve in the army during defensive wars.Footnote ¹⁰⁸

Jewish law scholars invested much effort in showing that Jewish law treated “foreigners” – that is, non-Jews – equitably. The legal status of foreigners was not a major concern of the Indian scholars discussed in Chapter 5, but it played a major role in Jewish apologetics.Footnote ¹⁰⁹ Mikliszanski, whose works focused on Jewish international law, naturally devoted attention to the question of how foreigners were treated by Jewish law, an issue that touched on both international criminal law and also private international law. He listed various terms used to designate foreigners in Hebrew. He then noted that the laws of other ancient nations did not treat foreigners as equal to natives: legal duties were imposed more strictly on foreigners, and they did not enjoy the same rights granted to persons belonging to the nation. Unlike the laws of other ancient Near Eastern nations, however, biblical Jewish law declared that “the same laws and regulations will apply both to you and to the foreigner residing among you.”Footnote ¹¹⁰

Mikliszanski also rejected a claim made by his doctoral supervisor, Henri Donnedieu de Vabres, that in contrast to biblical law, Talmudic law diverged from the principle of equality between Jews and non-Jews. The Talmud, said Mikliszanski, also followed the spirit of biblical law. As an example, he cited the Jewish notion of universal law enshrined in the seven Noahide laws. In addition, Mikliszanski noted that, according to the Talmud, foreigners were protected by Jewish criminal law almost like Jews. In Jewish civil law of the Talmudic period, there were certain contractual and tort rules that only applied to Jews. However, Mikliszanski justified this difference, citing Maimonides, by saying that these rules did not apply in inter-Gentile transactions and, therefore, Jewish law was justified in not using them in civil cases involving Jewish–Gentile transactions.Footnote ¹¹¹

Pan-Asianism and Islam

Some of the Indian authors that I discussed in the previous chapter, such as Benoy Kumar Sarkar, sought to place the study of ancient Indian history within a wider comparative context that would lead to the creation of a non-Western, pan-Asian (Hindu, Chinese, and Muslim) history of democratic institutions. Another broader comparative framework used by Indian authors was the “Aryan legal family” notion employed to contrast democratic Aryan political institutions with what was claimed to be the Semitic approach to government, characterized as top-down and despotic.

As we saw in the Introduction, pan-Asian notions appeared in the early works of Samuel Eisenstadt. Generally speaking, however, pan-Asian ideas played only a very minor role in Zionist thought and, consequently, also in the works of the authors that I analyze in this chapter. As for the Aryan–Semitic contrast, it was mentioned in the works of two Jewish-American scholars that I examined in this chapter, but in the opposite sense to that of the Indian works. Israel Friedlaender argued that absolutism and tyranny were neither Jewish nor general Semitic traits, and Abba Hillel Silver argued that the notion of social hierarchy was an Aryan rather than a Jewish notion.Footnote ¹¹²

In the case of Jewish public law, the broader comparative context was provided not by pan-Asianism or the linguistic/racial Aryan-Semitic binary contrast but by Christianity. Christianity grew out of Judaism, and Jewish authors, therefore, claimed that legal doctrines – and, indeed, entire legal fields – identified with the modern Christian West (the notion of the separation of Church and State, the idea of limits on monarchical power, or the field of international law) originated in Jewish sources, first and foremost in the Bible. In this sense, the Jewish scholars were more ambitious than their Indian contemporaries. Indian scholars only sought to underscore the similarity of their ancient political institutions to those of the West (and perhaps also prove their greater antiquity compared to the West). The Jewish scholars, on the other hand, made a bolder claim, arguing that Judaism influenced the very creation of modern Western political institutions and law.

As for Islam, while it sometimes figured (negatively) in the Hindu polity literature as the force arresting the development of Indian political thought, there was almost no mention of it in the Jewish works, and when it did appear, it was depicted in a way similar to the way Christianity was portrayed, that is, as an inheritor of ideas that first appeared in Judaism. This is what was claimed by Norman Bentwich when he discussed Judaism as the source of inspiration for the Muslim laws of war.Footnote ¹¹³

Finally, one can ask whether the Arabs of Mandatory Palestine produced works on Islamic public law comparable to the works on Jewish public law that were analyzed here. As I noted in Chapter 2, the Arabs of Mandatory Palestine did not create a formal system of academic legal education similar to the one that the Jews of Palestine did, and the scholarly output of works on law written by Arab lawyers and intellectuals in Palestine was far smaller than that of the Jews. However, some of the ideas I discussed here also appeared in works in Arabic. First, there were several articles published in the Arabic periodical al-Huquq devoted to constitutional law, focusing specifically on civil rights such as freedom of expression and freedom of the press in modern law.Footnote ¹¹⁴ One could also find articles arguing against applying the rules of international law only to the supposedly “civilized” European nations since, for example, Chinese civilization was older than European civilization.Footnote ¹¹⁵

Al-Huquq also published articles discussing the relationship between religion (in this case, Islam) and modern institutions and values. One article published in the journal was a translation from Turkish to Arabic of an excerpt from a 1913 book by the Ottoman politician and constitutional law scholar Babanzade İsmail Hakkı. This excerpt discussed the concept of the Islamic Caliphate. It rejected the European view that the Caliphate was a despotic state, noting (just like Salahuddin Khuda Bukhsh did in India) that, at first, the office of the caliph was not hereditary and that the first caliphs were elected.Footnote ¹¹⁶ One could also find in al-Huquq articles in which it was argued that Islam espoused liberal values, for example, religious freedom, or articles that apologetically defended Islam from the accusation that it saw women as inferior.Footnote ¹¹⁷ Such arguments also appeared in non-legal works. A primary school textbook written by Palestinian educator ‘Izzat Darwaza and used in the an-Najah school in Nablus, where Darwaza served as a principal, noted that, unlike medieval Christianity, Islam promoted religious freedom. An Egyptian textbook used for religious instruction in the secondary school classes at an-Najah discussed the Islamic notion of consultation (shura) as a proof that early Islamic societies were not autocratic.Footnote ¹¹⁸

Causes Leading to the Appearance of the Jewish Public Law Scholarship

Works on Jewish public law were far more varied than the Indian works. For example, they were dispersed geographically between Europe, North America, and Mandatory Palestine; there was greater ideological diversity among the authors writing them; and they were written in more than one language. Nevertheless, it is still possible to inquire into the causes leading to the appearance of these writings.

As in the Indian case, one factor leading to the publication of the Jewish works may have been the personal biography of the authors involved. For example, it would seem natural to expect Jewish lawyer-politicians, possessing both traditional halakhic knowledge and also experience serving in interwar European parliaments, to engage with and write about Jewish public law. Such was the case of Shimshon Rosenbaum (who was a Member of the Lithuanian Parliament and a Minister of the Lithuanian Government during the interwar period), Max Laserson (who was a Member of the Latvian Parliament), and Simon Federbusch (who was a Member of the Polish Parliament). Other authors had less formal political credentials but were nevertheless highly involved in politics, as was the case with rabbi Isaac Breuer, one of the leaders of the ultra-Orthodox political party Agudath Yisrael. Unlike Breuer, Rabbi Isaac Herzog was not a member of any political party. However, he was exposed to constitutional politics when, before immigrating to Palestine, he served as Chief Rabbi of the Irish Free Republic. In that role, he befriended Ireland’s Prime Minister, Éamon de Valera, and was involved in drafting the Irish Constitution of 1937.Footnote ¹¹⁹ Finally, more prosaic personal factors may also have played a role. For example, Jacob Mikliszanski wrote a doctoral dissertation on international law as a student in France. It is, therefore, unsurprising that he would follow this dissertation with articles discussing international law and Jewish law.

Apart from personal factors, political events also played a role in the appearance of the works on Jewish public law. It seems that there were minor peaks in interest in the topic of Jewish public law, peaks that were associated with changing political prospects for the establishment of a Jewish state in Palestine. One event that may have prompted a heightened interest was the Balfour Declaration of 1917, in which the British declared their support for the creation of a Jewish “national home” in Palestine. The Balfour Declaration, a major milestone in the process leading to the establishment of the State of Israel in 1948, was mentioned in the lectures delivered at the founding conference of the Jewish Law Society in Moscow. In the introduction to the first issue of the journal of that society, published in Moscow in September 1918, the editors explained that the study of Jewish law was of academic but also practical importance because:

A second peak of interest in the topic was associated with the decade preceding the establishment of a Jewish state in Palestine in 1948. One early manifestation of this interest was a memorandum on the constitution of a future Jewish state written by Isaac Breuer, following the recommendations of Britain’s Peel Commission in 1937 to partition Palestine into two states, Jewish and Arab.Footnote ¹²¹ Later that decade, increased interest in such questions was evident in the writings of observant Orthodox rabbis and scholars such as Herzog.Footnote ¹²² The late 1940s also saw secular authors such as Eliezer Livneh writing on Jewish public law. A 1949 newspaper article reviewing recently published works in Hebrew on political science noted the surge in publications on the subject.Footnote ¹²³ Arguably, works by American authors such as Federbusch and Silving in the early 1950s, immediately after Israeli independence, were also part of the same trend.

Apologetics

Most of the works I have discussed in this chapter sought to demonstrate that Jewish political institutions and norms were compatible with modern Western democratic and liberal values, thus defending Jewish law from its detractors and also bolstering Jewish self-pride.Footnote ¹²⁴ In the Indian case, the critique of this literature took the form of arguments questioning its historical accuracy. In the Jewish case, it seems the critique was mainly ideological. One can identify three different types of critique associated with three different ideologies: secular liberalism, secular right-wing anti-liberalism, and religious anti-liberalism.

An example of the first type of critique can be found in an article written by Haim Cohn, a German-Jewish lawyer in Palestine. Cohn, who would later become Israel’s Attorney General and a leading Supreme Court Justice, came from an orthodox Jewish family. However, in the 1940s, he gradually renounced his religious convictions in favor of liberal secularism. In 1946, as a young lawyer, Cohn wrote an article attacking the idea of using Jewish law (both private and public) as the law of the future Jewish state. In this article, he rhetorically asked whether it would be right to adopt the rules of Jewish law, which had been created in the medieval Jewish ghettos of Europe by oppressed communities separated from their neighbors by “dark and tall walls.” The supposed “judicial independence” of Jewish communities in the Diaspora was not genuine sovereign independence, he said, but more reminiscent of the “wretched” independence of a prisoner sitting in his prison cell, with no present or future, just a past.Footnote ¹²⁵

The second type of critique was tied to secular right-wing non-liberal ideology. Here are three examples of such sentiments. The first example of such a non-liberal critique of Jewish apologetics can be found in a report by an anonymous author on a 1925 lecture delivered by Shimshon Rosenbaum to the Tel Aviv Branch of the Jewish Law Society. According to this report, Rosenbaum claimed that, unlike all other ancient nations, the ancient Israelites recognized the rights of other nations and those of foreigners, thus creating, in effect, international law. The report then noted that some of the audience at Rosenbaum’s lecture objected to his apologetic approach and argued that it was easy to find biblical passages attesting to feelings of hatred and revenge that the ancient Israelites harbored toward their enemies – feelings that these anonymous commentators praised because they saw them as natural and common in any “healthy nation.” Our Torah, said these commentators, did not create laws based on “abstract morality that can only exist in a utopia.”Footnote ¹²⁶

A far more radical critique of Jewish apologetics was evident in the reactions of right-wing fascist Jewish students to Norman Bentwich’s 1932 inaugural lecture at the Hebrew University, entitled “Jerusalem: City of Peace.” In this lecture, it will be recalled, Bentwich claimed that the vision of peace and the idea of one universal law applicable to all nations, upon which modern international law and its institutions (the League of Nations) were based, had their roots in the words of the biblical prophets.Footnote ¹²⁷

During the lecture, young radical right-wing Zionist activists, some of them students at the university, rioted. Catcalls were shouted, stink bombs were thrown, physical violence ensued, and twelve rioters were arrested.Footnote ¹²⁸ The leader of the rioters was Abba Ahimeir, a member of the Jewish clandestine fascist organization Brit ha-Biryonim (the Alliance of Hoodlums).Footnote ¹²⁹ In a viciously worded article published after the event in the newspaper with which the rioters were affiliated, Ahimeir attacked Bentwich for espousing universalist messages and for his praise of Islam and Christianity, calling him a radical assimilationist and Christian propagandist. An anonymous editorial published in the same newspaper called the new Chair “a work of the devil himself” and argued that, instead of a Chair devoted to world peace, the Hebrew University should have established a military academy.Footnote ¹³⁰ In the trial of the twelve rioters, one of their lawyers, in reaction to the argument of the prosecutor that the deeds of his clients reminded one of the behavior of the Nazis in Germany, retorted that, had the Nazis abandoned the anti-Jewish plank of their program, he would have supported them, since “Hitler saved Germany.”Footnote ¹³¹

The third example of critiques tied to non-liberal ideology is found in an article on Jewish public law published by Paltiel Dikshtein.Footnote ¹³² Dikshtein began this piece with a jurisprudential discussion of the relationship between law and the state. Law, he said, was Janus-faced. It strives for order, government, discipline, stability, security, and public needs, but it also seeks peace, justice, equity, morality, and virtue, based on respect for the needs of individuals. The former goals rely, Dikshtein said, on the existence of a strong state that could utilize its means of coercion to achieve them. Dikshtein then used this observation to distinguish between Roman and Jewish law. The Roman state, he explained, was the strongest in the world. Its conquests were due to the discipline of the Roman Army, and this discipline was transferred to the civic realm, generating obedience among Roman citizens to a legal system that ensured a stable and secure order of life. Jewish law, on the other hand, was the exact opposite of Roman law because it preferred justice, equity, and morality over stability and security.Footnote ¹³³

These attributes of Jewish law, Dikshtein reasoned, were not something that should be praised. They represented a major weakness of Jewish law as a system divorced from the needs of the state. Unlike the Romans, the Jews never managed to create a strong state. Their states were not only weak militarily but also structurally. Truly independent and successful Jewish states, such as David’s and Solomon’s kingdom or the Hasmonean kingdom, were short-lived. These states could not create a strong internal order that unified all members of the nation around a common discipline, which led to internal quarrels. One reason for these quarrels, Dikshtein said, was institutional. Thousands of years before Montesquieu had discussed the notion of separation of powers, it existed in the Hasmonean kingdom, where the two institutions at the head of the state, the king and the Supreme Court (the Great Sanhedrin), fought each other, but this separation did not lead to a better functioning state, quite the opposite.Footnote ¹³⁴

Dikshtein asserted that because of the weakness of the Jewish states and, later, the complete loss of Jewish independence, Jewish law could not rely on state coercion and, therefore, had to resort to other means of pressure, such as moral and religious persuasion, social ostracism, and the coercive power of the non-Jewish states in which the Jews of the Diaspora lived. As a result of the political weakness of the Jews, major parts of Jewish public law (constitutional law, international law, administrative law, and tax law) remained in a rudimentary and underdeveloped state. Other areas of public law (criminal law and civil and criminal procedure) that are on the borderline between public and private law did develop, although they, too, were affected by the lack of Jewish political independence.Footnote ¹³⁵

Finally, the third type of critique appeared in the works of ultra-Orthodox thinkers. This critique was based on the rejection of democracy and the liberal notion of equality. Following the Peel Commission’s 1937 partition plan for Palestine, Rabbi Isaac Breuer wrote a memorandum on the constitutional arrangements of a future Jewish state, which envisioned a state governed by Jewish law and categorically stated that “the applicability of Jewish law, as the law of the Israeli nation, is not dependent upon its acceptance or non-acceptance by the Israeli people.”Footnote ¹³⁶

Breuer also rejected the assumption that Jewish law shared modern law’s commitment to the idea of equality. In one of his early articles, written while he was still living in Germany in 1910, Breuer argued that the very structure of Jewish law was based on a distinction between various categories of persons (Jews and non-Jews, men and women, masters and slaves) with unequal duties and, therefore, also unequal rights. Being an ultra-Orthodox Jew, Breuer did not criticize this fact but saw it as justified because the animating principle of Jewish law was not humanism but the duty to serve God.Footnote ¹³⁷ It is, therefore, no wonder that, in his final work, Nahali’el, published posthumously in 1951, Breuer envisioned a utopian state based on the Torah, in which slavery was permitted and non-Jews were discriminated against.Footnote ¹³⁸

A similar endorsement of slavery could be found in a 1947 newspaper article by another leader of the ultra-Orthodox community in Palestine, Kalman Kahana. In this article, Kahana claimed that the institution of (Jewish) slavery was actually a required aspect of the law of the ideal Torah state. Slavery was not merely a matter of a “chance agreement” between master and slave. Its existence was required since enslavement was one of the punishments used by ancient Jewish criminal law. Kahana explained that it was also needed, relying here on Maimonides – to set in motion the redemption clauses of the Jubilee year. When there were no slaves to emancipate during a Jubilee year, land could not be restored to its original owner. Kahana, therefore, concluded that since the commandment of the Jubilee year was an important feature of the economic legislation of the Torah, the existence of Jewish slavery was required in the ideal halakhic state.Footnote ¹³⁹

The Role of Law

The authors of the works discussed in this chapter had different educational backgrounds. Some, such as Rabbis Hirschensohn or Herzog, had no formal legal training (other rabbis, including Berman, Breuer, and Grajewsky, did). Another group of authors – among them Gulak, Zuri, Federbusch, and Mikliszanski – had some legal training or even formal law degrees but were not active lawyers or law professors. Some, such as Rosenbaum, were trained lawyers and practiced law but were also politicians. Others were law professors: Bentwich, Eisenstadt, Dikshtein, and Silving.

Whether the Jewish law authors had legal training or not, the discussions in the works examined in this chapter were often legal because the Jewish law sources were rule-oriented. The ancient Indian sources that served the Hindu polity literature discussed in the previous chapter were often government manuals, meaning that detailed legal rules could only be extracted from them indirectly and with some difficulty (as was the case, for example, with Jayaswal’s discussion of ancient Indian “parliamentary procedures”). In contrast, although the Bible includes a mix of different genres (law codes, but also historical narratives, poetry, prophecy, and so on), later Jewish texts were mostly legal, and these later texts easily lent themselves to discussions that focused not only on describing Jewish political ideas and institutions but also on describing the rules governing them.

Outcome

Just as in the Indian case discussed in the previous chapter, in the Jewish case, too, references to the works on Jewish constitutional history appeared in the writing of Israel’s would-be constitution-makers in the period leading to Israeli independence in 1948. Major examples of such references are found in the writing of the official drafter of the Israeli constitution, Leo Kohn. At the beginning of this chapter, I mentioned the 1949 commentary that Kohn wrote on his draft constitution, in which he stated that “if a Constitution is to command the enduring loyalty of a people, it must be rooted in its moral and political traditions.” What were these traditions? As Kohn explained:

In the Hebrew version of his commentary, Kohn added a quote from an essay entitled Moses by the nineteenth-century American political economist Henry George, which argued that human rights were a Jewish invention: “from between the paws of the rock-hewn Sphinx [the Egyptian despotic state] rises the genius of human liberty, and the trumpets of the Exodus throb with the defiant proclamation of the rights of humanity.”Footnote ¹⁴¹

In February 1950, Prime Minister David Ben-Gurion delivered a speech before the Israeli Parliament in which he opposed the creation of a rigid, comprehensive constitution for Israel. In an attempt to rescue his constitutional project, Kohn wrote a letter to Ben-Gurion in which he sought to connect the future Israeli constitution with Jewish constitutional history. Knowing that Ben-Gurion admired the Bible, Kohn attempted to convince him to continue with the constitution-drafting project by stating that the source of modern Western constitutionalism was the biblical notion of a covenant between God and his people. The authors of modern constitutions in America and Europe, Kohn wrote, sought to prevent arbitrary government. They were “greatly inspired by the limits placed on the power of the king in the ancient Israelite kingdom, and by the bold attitude of the prophets of Israel which declared the sovereignty of moral law, standing above kings and ministers.” Citing Mayer Sulzberger’s 1910 book on ancient Jewish parliamentarism, Kohn argued that a body similar to a parliament existed in the Bible side by side with the authority of the king.Footnote ¹⁴²

In 1952, the Jerusalem Post reported on the establishment of a collaborative comparative law project jointly undertaken by the Israeli Ministry of Justice and Harvard Law School. This project was meant to provide Israeli legislators with comparative information about legal arrangements in different countries that could be used in drafting future Israeli enactments.Footnote ¹⁴³ When Kohn read about this project, he was furious. He wrote a long letter to the Israeli Minister of Justice, Bernard (Dov) Joseph. The newspaper article, he said, had caused him “real pain.” Jews were not “some backward tribe in Central Africa” that had “suddenly emerged from a primitive existence into the full glare of twentieth-century statehood.” Jews had an ancient, highly developed, and unparalleled legal tradition, one that:

This unique heritage was preserved after the loss of Jewish independence, continued Kohn, because the Jews had maintained a “state in exile” in their communities in the Diaspora, upholding but also developing their law, and their legal traditions immensely influenced Western law (quoting here Nathan Isaacs’ work). Now that “we have again a state of our own,” Kohn argued, we (the Jewish people) should go “back to our own sources, trying to evolve the law of the State in accordance with our own moral and legal traditions,” and not abandon “our own vineyards” by ignoring Jewish legal history and blindly mimicking foreign law.Footnote ¹⁴⁵

Despite the lip service paid to Jewish constitutional traditions, the main sources of inspiration for Kohn’s drafts were modern constitutions. As legal historian Amihai Radzyner has noted, regarding Kohn’s ongoing work on a proposed constitution, the actual impact of Jewish traditions on the drafting process was relatively limited and mostly symbolic. Indeed, although Kohn responded to criticisms from rabbis and politicians by amending his later drafts to link his proposed constitution more closely to Jewish traditions, his various modifications were mainly symbolic.Footnote ¹⁴⁶

In any event, Kohn’s work had little lasting impact. Israel never promulgated a comprehensive single-document constitution, not least because politicians were unable to reach a consensus on its content. Their disagreements partly derived from religious–secular tensions in Israel’s first Parliament (which was also its constituent assembly). In June 1950, after two years of work on the drafts prepared by Kohn, the Israeli Parliament decided to abandon the project and instead declared that a series of “basic laws” would be gradually enacted, each dealing with a different part of the future Israeli constitution.Footnote ¹⁴⁷