Ancient Indian Political Theory: Practical, Secular, Innovative

Western Indologists in the late nineteenth and early twentieth centuries often portrayed Indians as inherently spiritual and religious, suggesting they lacked aptitude for practical and secular pursuits. For example, the nineteenth-century German-English Indologist Max Müller argued that the Indians were “a nation of philosophers” and that “India has no place in the political history of the world.”Footnote ⁶¹ Arthur Berriedale Keith, who taught Sanskrit and constitutional law at the University of Edinburgh in the first decades of the twentieth century, condescendingly acknowledged that one could find in India a “pedantic” and “intensive study of the practical aspect of government.” Still, he also disparagingly noted that “the subtle and profound spirit of India … is alien to the conception of man as a political organism, whose true end can be found only in and through membership of a social community. Hence, India offers nothing that can be regarded as a serious theory of politics in the wider sense of that term.”Footnote ⁶² A related argument was that Indians, unlike Westerners, lacked a sense of nationalism and patriotism. Both arguments, said the Indian historian Sharma, were used to justify Western imperialism.Footnote ⁶³

The Hindu polity writers sought to show that India had its own pragmatic political tradition.Footnote ⁶⁴ Narendra Nath Law, for instance, began his 1914 book with the statement that the Arthashastra proved the “secular and practical achievements of the ancient Hindus, as distinguished from the[ir] spiritual and intellectual [achievements].”Footnote ⁶⁵ Ghoshal noted that the study of statecraft separated from the general Vedic culture at an early stage and became, in some sense, “an independent branch of knowledge which might be called a secular science.” He, therefore, rejected Western images of the ancient Indians as uninterested in politics, arguing that they reflected a hollow “half-truth.”Footnote ⁶⁶ Banerjea turned the Western argument about the impractical nature of Indian thought on its head by comparing Kautilya to Machiavelli, noting that Kautilya “far surpassed his Italian rival” because, unlike Machiavelli, he was an active statesman and because his works were not merely abstract discussions of politics but were actually followed in practice.Footnote ⁶⁷

A related argument advanced by Western scholars was that the pervasive influence of religion in ancient India led to the uncritical acceptance of political ideas as dogma. This perception, argued Ghoshal, needed to be corrected because Buddhist political thought and the political theories found in the Arthashastra appealed to human reason rather than religious dogma. Ancient Indian political thinkers, said Ghoshal, were “earthy” and concerned with concrete problems of administration. They were not interested in speculative discussions of ideal polities.Footnote ⁶⁸ Sarkar, too, argued that ancient Indian states were “thoroughly secular.”Footnote ⁶⁹

Nationalist movements often claim that the national past was glorious. Jayaswal argued that “the constitutional progress made by the Hindu has probably not been equaled, much less surpassed, by any polity of antiquity.” Jayaswal could not ignore the fact that, when he was writing these words, the British ruled India. The Golden Age of the Hindus, he therefore comforted his readers, “lies in the future” because “the [Hindu] race which evolved the greatest constitutional principles in antiquity” had now come into contact with “the greatest constitutional polity of modern times [i.e. Britain],” and this contact could “rejuvenate the race.”Footnote ⁷⁰

The argument about the glorious nature of ancient Indian political theory was not only made abstractly. The Hindu polity authors also argued that certain major modern political concepts had an ancient Indian pedigree.Footnote ⁷¹ One such concept was the social contract theory. Thus, Bhandarkar noted that while Europeans believed that the social contract theory originated with Hobbes, one could already find it in the Arthashastra. Indeed, according to Bhandarkar, the Hindu version of the theory was superior to the European one. Hobbes’ social contract transferred absolute power irrevocably from the people to the king, while, in the Indian version, the king did not enjoy unlimited power and was deemed a servant of the people. This was evident from the fact that taxes paid by the people to the king were seen as a wage that he received in return for providing security.Footnote ⁷²

Another claim about the originality of ancient Indian statecraft texts had to do with international law. Historians of international law are aware of the fact that international law’s pedigree does not begin with Grotius in Europe in the early modern era but has non-European antecedents, including Indian ones.Footnote ⁷³ However, when discussing the first scholars in the twentieth century who attempted to undermine the Eurocentric narrative about the history of international law, the existing scholarship ignores the works of early twentieth-century Indian scholars.Footnote ⁷⁴

The main argument of Bandyopadhyay’s 1920 book International Law and Custom in Ancient India was that contrary to Western claims that international law was a modern European invention, it had in fact existed in the ancient world. Specifically, Bandyopadhyay argued that ancient Indians created rules for the governance of interstate relations 2,000 years before Europe.Footnote ⁷⁵ Based on sources such as the Arthashastra and the Code of Manu, Bandyopadhyay claimed that the religious norms governing interstate relations in ancient India could be defined as “laws” and were not just theoretical but were followed in practice. He admitted that certain topics (such as maritime warfare and blockades or rules about extradition and naturalization) were not dealt with by ancient Indian international law, but he insisted that the field itself did exist.Footnote ⁷⁶ Bandyopadhyay’s book went on to discuss the sources of international law, sovereignty, rules regarding ambassadors, rights, and duties of states, treaties, and alliances, the laws of war, norms regarding enemy persons and property, and the notion of neutrality.

Bandyopadhyay not only sought to show that the ancient Indians had created a body of international law rules. He also argued that “the rules of interstate relationships followed in ancient India were much more humane and much more elaborate than the rules followed by all nations of antiquity, and even by nations of modern Europe down perhaps to the time of the French Revolution.”Footnote ⁷⁷ Thus, while the ancient Greeks and Chinese (as well as modern Europeans) used the idea of “the family of civilized nations” to justify their mistreatment of the “barbarians,” the ancient Indians saw even “wild tribes” and non-Aryans as deserving of the respect and protection of the law.Footnote ⁷⁸

A related theme found in the Hindu polity literature was the claim that ancient Indian states were, in some ways, similar to modern states in the scope of their intervention in the life of their subjects. Narendra Nath Law noted that the state described in the Arthashastra “anticipated” some of the functions of modern states by protecting “the disabled, the helpless and the infirm” and also “lower animals.”Footnote ⁷⁹ Radhakumud Mookerji argued that “socialism and communism (representing advanced democratic ideals of the modern age)” were to be found in ancient Indian self-governing organizations.Footnote ⁸⁰ Hemchandra Raychaudhuri wrote an article claiming that “the ideal state depicted by Kautilya is far from one of laissez-faire, and the functions of such a state do not consist simply in protecting the personal freedom and property of the individual.”Footnote ⁸¹

An article by Dikshitar, published in 1939, argued that the goals of ancient Indian states were to “ensure the liberty of the citizens and to secure the general moral welfare.” The Indian kings sought to protect the whole world, including all creatures, and their states were not despotic. Unlike modern totalitarian states, whether communist or fascist, ancient Indian states were tolerant and did not crush the individual.Footnote ⁸² Another theme that Dikshitar emphasized – perhaps because it was significant in works on the nature of Hinduism, because of the growing political rift between Hindus and Muslims, or in response to the rise of racist states in Europe at the time – was that: “… tolerance was the corner-stone of the Hindu national state. It was a commonwealth composed of different groups, each allowed to develop its ideas and ideals and to follow its religious faith. Political rights were not denied to these groups, enabling their members to rise to their full stature in the discharge of their duties and the enjoyment of their rights.”Footnote ⁸³

Altekar also argued (in 1947) that “the ancient Indian state was not merely a tax-gathering corporation, interested only in preserving law and order.” The state in ancient India, he said, “interested itself in a number of ministrant activities of the nation-building type, which are being undertaken by the modern governments only in relatively recent times.” The example he provided was in the realm of public education: state funding for “non-official colleges and universities.”Footnote ⁸⁴ Similarly, and at about the same time, the South Indian historian K. A. Nilakanta Sastri claimed that the administrative innovations discussed in Kautilya’s Arthashastra proved that “under Kautilya’s guidance the Mauryan Empire was attempting to evolve into a new type of state, more ubiquitous and far-reaching in its concern for the welfare of the people than anything known in India before, a state which we should now call the ‘social-welfare State.’”Footnote ⁸⁵

While many Hindu polity authors uncritically sought to create an Indian pedigree to modern Western political ideas, others were more tentative in their claims. Like other Hindu polity writers, Upendranath Ghoshal argued that ancient Indian works introduced, for the first time, the idea of a social contract as the foundation of the political order.Footnote ⁸⁶ However, generally speaking, Ghoshal was less infatuated with the ancient Indian texts; in the appendix to his book, in which he compared Indian and Western theories, he noted that Indian thinkers were less sophisticated than Western philosophers such as Hobbes, Grotius, Locke, or Rousseau. According to Ghoshal, the Indian works were unsystematic and were less rational than Western ones; and, while concepts such as the social contract were, indeed, found in ancient Indian works before they emerged in the West, the Indian writers fell “below the level attained by the [early modern] European exponents of these theories.”Footnote ⁸⁷

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

The attempt to refute the Western notion of Oriental despotism was another central theme in the Hindu polity literature. The image that dominated modern European thought about politics in ancient India was that of states ruled by absolute kings, who were considered divine.Footnote ⁸⁸ Western texts describing ancient Indian political theories often repeated Manu’s statement that kings were “God[s] in human form.”Footnote ⁸⁹ As for Kautilya’s Arthashastra, S. G. Vesey-FitzGerald, who taught Oriental law at Oxford and London, observed in 1923 that:

Already in the nineteenth century, liberal Indian thinkers sought to show that precolonial Indian governments had democratic aspects, such as the separation of powers.Footnote ⁹¹ Many Hindu polity works were animated by the same desire to refute the notion that Indian states were governed by despots and to prove the democratic credentials of these states.Footnote ⁹² Here, one can distinguish between two subthemes: the existence of republics in ancient India and the fact that Indian monarchs did not enjoy absolute power because institutional checks constrained them, or because they were constrained by law.

Some Hindu polity authors sought to show that non-monarchical states were not a Western invention. This argument was already present in Jayaswal’s 1913 article, in which he asserted that monarchies were not the only form of government known in ancient India. Republics also existed.Footnote ⁹³ Jayaswal was not the first to note the existence of such republics. The English Indologist T. W. Rhys Davids mentioned them in a 1903 book. However, Jayaswal certainly created a widespread interest in studying these republics.Footnote ⁹⁴

Jayaswal associated republics with the term gana (previously translated by European scholars as “corporation” or “tribe”).Footnote ⁹⁵ His book discussed the appearance of republics in Buddhist sources, in the Arthashastra, and in the works of ancient Greek writers on India. Indian republics, Jayaswal argued, took various forms, some of them being democracies in which there were “parliaments,” where every man could cast his vote to elect the state’s leaders and where decisions were made by majority rule, based on procedures similar to those of modern parliamentary systems.Footnote ⁹⁶ Jayaswal also claimed that at least some Hindu republics were based on the notion of political equality.Footnote ⁹⁷ His book argued that Hindu republics were characterized by their morality, justice, discipline, efficient administration, and equality. They represented, he believed, a successful and long-standing governmental form.Footnote ⁹⁸

The same arguments can be found in Banerjea’s 1916 book. Banerjea mentioned examples of republics that had existed during the Vedic era and noted that, as late as Alexander’s invasion of India, some Indian states lived under democratic institutions, and the government of others was aristocratic rather than monarchical.Footnote ⁹⁹ Through a detailed analysis of the sources, Bhandarkar, too, sought to provide a more granular discussion of the nature of ancient Indian republics, marshaling philological evidence to distinguish between different republican forms (oligarchy, aristocracy, and democracy).Footnote ¹⁰⁰

In 1919, Radhakumud Mookerji sought to challenge the image of Oriental despotism by highlighting the history of local organizations in ancient India. He argued that village communities and other local organizations, such as guilds, were “little republics,” independent from state intervention, and thus able to preserve and develop Hindu culture even during the period of “alien” Islamic rule. Muslim rulers, Mookerji said, were unable to impose on the Hindus the “Semitic” model of a society governed by a single absolute ruler.Footnote ¹⁰¹ Conventional accounts of early Indian society depicted it as based on “respect for tradition and authority,” but in fact, it was characterized by “the democratic principle,” a principle which was manifested in the way village communities governed themselves and also in the existence of many “self-governing, ‘kingless’ states.”Footnote ¹⁰² Shamasastry observed in his 1919 lectures (published in 1920) that the earliest Aryan societies in the West and the East had been democratic and that republics had existed in Vedic India.Footnote ¹⁰³ Narendra Nath Law also argued in 1921 that some ancient Indian states were republics, and some of these republics were based on a democratic form of government.Footnote ¹⁰⁴

Unlike all these authors, Ghoshal cautioned in his 1923 book against the anachronism of “crediting the Hindus with notions of popular sovereignty and the like.” However, he, too, was interested in countering the “Oriental despotism” notion. He stressed that “Indian states were not, contrary to the usual view, modeled after a uniform pattern, that of despotic monarchy.” Instead, republics had existed in ancient India from the earliest periods until at least the fifth century AD. One could also find rival political theories in ancient India. The Brahmanical theory about the divine nature of kings existed side by side with the contractual Buddhist theory of society. Ghoshal did admit, though, that while republics existed, it was monarchies that “dominated the scene.”Footnote ¹⁰⁵

According to Jayaswal, republics disappeared at a certain point in Hindu history, partly because they could only function well when states were small. As the territory of Indian states grew, republics were replaced by monarchies. However, Jayaswal assured his readers that Hindu monarchies also reflected laudable modern democratic notions. During Vedic times (and even later), monarchies were contractual, and kings, who were not considered divine, were elected by popular assemblies.Footnote ¹⁰⁶ Such assemblies, said Jayaswal, were “national assembl[ies] of the whole people.” They were tasked with electing kings (or re-electing them in the case of banishment), and everyone could participate in their work (unlike, for example, the folk assemblies of Western Europe).Footnote ¹⁰⁷ Public opinion and the opinions of councils of ministers checked the power of kings – the king was seen as a servant or slave of the state, shackled by strictly enforced limitations on his power.Footnote ¹⁰⁸

Banerjea, too, noted that, gradually, monarchies replaced other forms of government, mainly due to the growing size of Indian states, which made it difficult for popular assemblies to govern. He also argued that the king’s power in these monarchies was limited. During Vedic times, kings were elected and deposed according to the will of the people. Later, kingship became hereditary. However, even then, the power of kings was constrained by the authority of their ministers and priests. Indian kings were, therefore, constitutional monarchs, and there were very few instances of Indian kings who could be described as despots. Another facet of absolute monarchy, the idea of the divinity of kings, was indeed present in India. However, unlike medieval European kings, who could do no wrong, in India, kings were considered divine only if they were righteous. Furthermore, kings were not owners of the territories of their state; the state existed for the well-being of the people, and the king was supposed to be the servant of his subjects and to further that well-being. Kingly power was never absolute (at least in theory).Footnote ¹⁰⁹ Banerjea also discussed the history of popular assemblies and noted their gradual decline over time, again due to the growing size of states (as well as the increasing rigidity of caste structures).Footnote ¹¹⁰

Shamasastry argued that, while there were already kings in Vedic India, sovereign power was not hereditary. Kings were elected and could be expelled.Footnote ¹¹¹ Early Indian kingdoms were characterized by a unique institution – non-hereditary bachelor kings, who were required to consult with a “people’s assembly” composed of representatives of all classes of society. The power of the early kings was kept in check by this assembly, which could banish or demote kings by majority vote. These constitutional checks were, he argued, employed against tyrannical kings in “a calm and peaceful” way, in contrast to the bloody revolutions against despotic kings “in other nations.”Footnote ¹¹² The king had a duty to consult frequently with the assembly and also with the members of the priestly aristocracy.Footnote ¹¹³

According to Shamasastry, Dravidian kingdoms were first established in the Middle Ages in reaction to Jainism and Buddhism. Their rise was accompanied by a new model of kingship: theocratic monarchies. The deification of kings freed them from popular checks. However, while these types of kings have usually been viewed as despotic, Shamasastry argued that they, too, were restrained: their power was reined in by religion and priestly power. The Islamic conquest, Shamasastry said, had stopped the further evolution of Indian polities. Had the Indians been able to continue their political evolution, Shamasastry assured his readers, they would have developed “a limited monarchy subject to popular will,” just as Britain had done.Footnote ¹¹⁴ Despotism was, thus, according to Shamasastry, only a mark of one (late) period in the history of Indian political institutions; and, even during this period, it was checked by religion and by priestly power.

Narendra Nath Law repeated the theme of the elective rather than hereditary nature of ancient kings and noted the fact that the people could sometimes expel kings. He also said that the king’s power was curbed by an assembly or state council, which, at least during the Vedic era, was “more or less of a democratic character.” Monarchies rather than republics were the standard form of government in India. However, this resulted from the fact that the Aryans in India were surrounded by hostile races.Footnote ¹¹⁵

Bhandarkar noted that while kings were considered divine, they were also seen as servants of the people, and their power was not absolute. There were many checks on the king’s power – for example, the fact that society was made up of various self-governing communities whose rules and regulations the king did not have the luxury of ignoring.Footnote ¹¹⁶

Again, a more critical approach was found in Ghoshal’s 1923 book. Ghoshal did note that, during the Vedic period, tribal assemblies checked the king’s power.Footnote ¹¹⁷ He also observed that Hindu thinkers developed principles and maxims limiting the king’s arbitrary exercise of power and regarding his role as being that of servant of the people. However, while some scholars have viewed this idea of the king as the people’s servant as an indication of the development of notions of popular sovereignty in India, Ghoshal was not willing to go so far. He believed that while there were “germs of the idea of the sovereignty of the people in Hindu [political] theory, these were never worked out into an independent and logically complete system.”Footnote ¹¹⁸

Law as a constraint on the power of monarchs was also a major theme in the Hindu polity works. According to Jayaswal, kings were seen as protectors of the law. The rituals undertaken during their coronation ceremony portrayed them as being not above the law but under the law. The law was thus “the king of kings,” and it, rather than the king, reigned supreme.Footnote ¹¹⁹

Ghoshal quoted the Brihadaranyaka Upanishad, which said that “the Brahman created law which is the Kshattra of the Kshattra. Therefore, there is nothing higher than the Law. Thenceforth, even a weak man rules stronger with the help of the Law …”Footnote ¹²⁰ Ghoshal also commented that, while the king in ancient India was entrusted with “the highest executive function,” the concept of sacred law, interpreted by the Brahmans, was wholly separate from the power of the king. The king was tasked with duties such as protecting the traditional rights of individuals and groups – rights that were enshrined in sacred law. Thus, kingship, even when the doctrine of the divine nature of kings was dominant, was perceived as “an office and not a lordship,” and the king was viewed as subject to law, like any other person.Footnote ¹²¹

Not all scholars accepted this natural law version of ancient Hindu jurisprudence. In the works of Banerjea, we find an argument about the gradual growth in the power of kings to legislate. According to him, the law was first viewed as being higher than society and of divine origin. Kings had to abide by the laws and the customs of the country and were not seen as above the law but as its servants.Footnote ¹²² However, bodies of priests, as well as the king, subsequently began to create new norms indirectly, in a way somewhat similar to modern legislation.Footnote ¹²³ Similarly, Nilakanta Sastri argued in 1947 that, at least in Kautilya’s Arthashastra, monarchical legislation was placed above all other sources of law: royal decrees were seen as superior to the three other sources of norms: Dharma, contract, and custom.Footnote ¹²⁴

Equality

When discussing legal procedures, Banerjea noted that one feature of the legal system of ancient Indian states that was “not … very pleasing to note” was that “the idea of equality before the law was not fully developed in Ancient India … The law was not the same for all but depended upon the status of the person concerned.” Thus, people belonging to one of the higher castes were immune from some of the punishments imposed on lower-caste criminals.Footnote ¹²⁵

How did Indian authors deal with the problem of caste? Sometimes, the tactic regarding castes was to argue that Western observers misunderstood the ideals of Hindu society. S. S. Setlur, a judge and Professor of Law at the Government Law College in Bombay, explained in 1907 that because “the oriental and the occidental are as poles asunder in their mental outfit,” Westerners misunderstand Hindu society. In this society, duty instead of right governs social life, and the higher one is on the social scale, the more restrictions and duties one has.Footnote ¹²⁶

Other authors argued that ancient Indian political theory actually contained egalitarian notions. For example, Shamasastry argued that the modern Western principles of “equality, fraternity, and liberty” had counterparts in ancient India’s Jain and Buddhist states.Footnote ¹²⁷ The rise of Jainism and Buddhism, calling for the equality and fraternity of men (and also “charity to man and beast alike”), was accomplished with neither violence nor destruction. Jainism and Buddhism sought to reform India’s religious and social order, creating an order without distinctions between persons and classes and with no priestly oligarchy. Unlike similar social revolutions in the West, which were accompanied by much loss of life, the social revolutions of Jainism and Buddhism occurred “with no trace of bloodshed” – due, perhaps, to the uniquely peaceful temperament of the ancient Indians.Footnote ¹²⁸

A chapter of Aiyer’s 1935 book on Hindu moral ideas discussed slavery. Aiyer began the chapter by pointing out that slavery was a common phenomenon in most countries including civilized ones, and then went on to discuss in detail various rules which mitigated the lot of slaves in ancient Hindu law. For example, masters had a duty to treat their slaves kindly, and slaves could inherit and acquire property and also redeem themselves. During Buddhist times, the position of slaves further improved, and in any event, the slaves of “oriental countries” were “generally free from the cruelty and inhumanity which attended the treatment of negro slaves by the Christian nations of Europe.” Indeed, specifically speaking of the British, “the system of slavery which prevailed in the British colonies and in the slave states of North America surpassed in cruelty the slavery of any pagan country, ancient or modern.”Footnote ¹²⁹

Another problematic issue was the way ancient Hindu law treated women. Sarkar devoted a part of his book, The Political Institutions and Theories of the Hindus, to “the Hindu Constitution.” In this part, he discussed, among other topics, women’s rights, arguing that ancient Hindu law reflected views on women comparable to those in modern legal systems. In ancient Hindu law, Sarkar said, one could discern two important attributes associated with modern law: that individuals were treated as independent of collective entities such as the family; and that women were seen as self-standing individuals whose rights were not dependent on their husbands’ will. Sarkar compared the rules regarding marital property in modern European states with the Hindu rules and concluded that modern European rules would have fallen short of the rules protecting women’s rights in ancient India. For example, in ancient Hindu law, the husband had no right to his wife’s property. Similarly, discussing ancient Hindu criminal law, Sarkar argued that, in contrast to the criminal legislation of the Maurya Empire (which was extremely severe), that of the Gupta and Vardhana Empires was extremely mild. Indeed, the fact that there was no use of judicial torture and that capital punishment was extremely rare meant that “the modern world is still behind the conscience of the Hindu world of the fifth century.” Sarkar also claimed that one of the most significant Western institutions fostering liberty, the jury, was not a uniquely European concept because juries were also found in ancient Hindu law.Footnote ¹³⁰

Dikshitar argued in a 1939 article that the Western critique of the ancient Indian society as unequal was wrong. A conventional image of Hindu society was that Hindu women were treated as slaves – but, in fact, they were honored and could possess wealth and own property. As for the role of castes in Hindu society, Dikshitar contended that the modern argument that all were equal was purely theoretical. In ancient Indian society, “there was nothing too high, nothing too low, in that social organisation. Each individual rose to his full mental vigour in his own sphere and made his mark.” Indeed, “the cry of equal rights for all men would confuse the social relationship. We can speak only in theory of the equal worth of persons.” In practice, argued Dikshitar, “persons are not equally worthy.” Furthermore, he observed that Hindu society was similar to the ideal Platonic society, which was divided into three classes according to their respective social functions.Footnote ¹³¹

Pan-Asianism and Islam

The discovery of Kautilya’s Arthashastra in 1905 coincided with Japan’s victory in the Russo-Japanese War. Some Indian intellectuals linked the two events, seeing the discovery as yet more proof of the fact that Asia could compete with the West.Footnote ¹³² One manifestation of this idea is evident in Sarkar’s works.Footnote ¹³³ In his article “Democratic Ideals and Republican Institutions in India,” published in 1918 in American Political Science Review, Sarkar offered a comparative study of political institutions in Asia. He argued that the democratic conception of the equality of all men, which in the West was rooted in the Bible, had its equivalent in Hindu, Chinese, and Muslim works.Footnote ¹³⁴ Another aspect of democracy that Sarkar found in both the West and Asia was the non-absolutist concept of kingship. According to Chinese political theory, a king was subject to deposition if he misbehaved. In India, too, kings were not regarded as divine and were subject to fines or expulsion if they violated the law.Footnote ¹³⁵ While these two aspects of the ideal of democracy surfaced, according to Sarkar, in both China and India, other features (the existence of republics, popular assemblies, councils of ministers, village assemblies, and decentralization) were only to be found, it seems, in ancient India. Therefore, most of Sarkar’s article focused on these institutions in India during the Vedic and later periods, relying on earlier works by Jayaswal and Law.Footnote ¹³⁶

Like Sarkar, Ghoshal argued that the one reason for the study of the ancient Indian literature was that it could serve as a contribution to the creation of a truly global study of politics by furnishing “the data, from an Eastern point of view, of a true science of Comparative Politics, a science taking cognisance of distinct types of institutions and theories conceived to be rooted in different conditions of existence and forms of race-consciousness, and involving the fullest recognition of the multilinear evolution of human social organisations.”Footnote ¹³⁷

However, pan-Asian notions of solidarity were not shared by all the scholars I mentioned. As I noted before, Radhakumud Mookerji identified “alien” Islamic rule with the “Semitic” model of a society governed by a single absolute ruler, and Shamasastry argued that the Islamic conquest of India stopped the evolution of Indian political institutions toward constitutional monarchy and popular government.

The relationship between Islamic law and political theory and notions such as popular sovereignty, republicanism, liberal values, and other topics that I explored in this chapter was, of course, also of concern across the Muslim world in the nineteenth and twentieth centuries, and Islamic religious scholars, intellectuals, and politicians devoted much attention to them.Footnote ¹³⁸ It is not surprising, therefore, that simultaneously with the appearance of the Hindu polity literature, one could find Indian Muslim legal scholars exploring the nexus between Islam and Western political ideas, and that these scholars, like the Hindu compatriots, argued that the notion of the rule of law, constitutional constraints on executive power, popular sovereignty, and republicanism were compatible with Islamic law.Footnote ¹³⁹

For example, the Madras judge, Abdur Rahim, devoted a chapter of his 1911 book on Islamic jurisprudence to a discussion of Islamic constitutional, administrative, and international law. He noted that the supreme executive head of the Islamic state, the Caliph, Imam, or Sultan, was bound by the law and by the decisions of the courts like any other citizen. The “true Islamic idea” (though, unfortunately, not the practice) was of a “vast Muslim republic”: the Caliph was supposed to be elected by the notables of the community, and he could be deposed if he did not follow the law. Abdur Rahim did not claim that Islamic societies were based on egalitarian notions, but he did mention examples of egalitarian norms regarding women – for example, the fact that according to Islamic law, women could be appointed as judges (although they could not adjudicate criminal law matters). As for international law, the Islamic law of war allowed Muslims to kill or enslave prisoners of war, but women, children, the aged, and the diseased were not to be killed or maltreated. International treaties between Muslim and non-Muslim states were respected (in most circumstances).Footnote ¹⁴⁰

Salahuddin Khuda Bukhsh, an Oxford-educated barrister and lecturer on the history of Islam at the University of Calcutta, translated several German works on the political history of Islam. Khuda Bukhsh described Islamic law as “second only to Roman law in breadth of view, in refinement, in humanity, and wisdom” and argued that Arab political discourse was more impressive than that of “Hobbes or Locke or the revolutionary scribes of France and Germany.”Footnote ¹⁴¹ In an essay on the notion of sovereignty in Islam, Khuda Bukhsh discussed at length the idea of elected rather than hereditary rule in Islam, attempting to prove the dominance of this notion based on early Islamic history but also based on the writing of medieval Muslim philosophers such as al-Mawardi, who, he claimed, espoused an early version of the social contract theory.Footnote ¹⁴²

There were also works dealing specifically with Islam and international law. For example, in 1912, Syed H. R. Abdul Majid, an English-trained barrister, published an article on Islamic international law. In it, he claimed that the Muslim laws of war were humane and “compared favourably” with those of other nations of antiquity, and with those of the medieval West. Muslim warriors were forbidden from destroying enemy property or killing prisoners of war, and the Christian and Jewish residents of towns conquered by the Muslims were granted religious freedom.Footnote ¹⁴³

The Rise and Decline of the Hindu Polity Literature

As we have seen, among the factors that led to the appearance of the Hindu polity literature was the discovery of Kautilya’s Arthashastra by Shamasastry. However, interest in the topic was not merely the result of the scholarly opportunities afforded by the discovery of a new historical source. The emergence of the Hindu polity literature was also spurred by personal and political factors at work in early twentieth-century Bengal.

The first factor was the personal influence of Asutosh Mookerjee, who, in many respects, was the instigator of the academic interest in studying ancient Indian history and society, including ancient Hindu constitutional history and law, at the University of Calcutta. Jayaswal, it should be recalled, moved to Calcutta from the United Kingdom in 1910, and it was there that he wrote his pioneering 1913 article. He did so while in close contact with Asutosh Mookerjee, who asked him to join the University of Calcutta Department of Postgraduate Studies. The manuscript of the book that Jayaswal published on the topic was deposited with Mookerjee and was supposed to be published by Calcutta University Press. Due to an attempt to plagiarize the book, Jayaswal ultimately published it in Patna. Nevertheless, he retained his links with the University of Calcutta and Mookerjee, even after leaving the city in 1914.Footnote ¹⁴⁴ The books written by Bhandarkar, Shamasastry, Majumdar, and Ghoshal contained dedications to Mookerjee or lavish praise of Mookerjee’s support and contributions to the study of the history of ancient India.Footnote ¹⁴⁵

Mookerjee himself, in his 1922 convocation address, mentioned the attempts of “narrow-minded and unsympathetic” Western scholars to disparage Indian cultural achievements. Specifically, he mentioned the claim by the Oxford historian Vincent Smith that India was unfit for self-government because representative institutions did not exist in ancient India and then mentioned the works of Bhandarkar, Jayaswal, Radhakumud Mookerji, Majumdar, and Law, who he said “demolished” this argument.Footnote ¹⁴⁶

A second factor leading to the appearance of the Hindu polity literature was related to political trends in Bengal and in India, more generally, during the first decade of the twentieth century. As Aiyangar noted in an article published in the late 1920s, the study of ancient Indian political forms has blossomed “mainly as the result of national feeling, and the natural desire to seek in our past history the justification for current political reforms and ideals.”Footnote ¹⁴⁷

In Chapter 1, I discussed several factors that led to changes in the nature of education at the University of Calcutta in the first decade of the twentieth century: the 1904 Indian Universities Act, which sought to strengthen government control of Indian universities and thus undermine their independence and was vehemently opposed by Indian nationalists; the British decision in 1905 to partition Bengal, resulting in the Swadeshi Movement leading to the creation of the National Council of Education in Bengal; and the appointment in 1907 of Asutosh Mookerjee as the Vice Chancellor of the University of Calcutta.

The emergence of the Hindu polity literature, associated chiefly with scholars affiliated with the University of Calcutta, can be viewed as one specific manifestation of the more general idea that animated the Swadeshi Movement, the concept of Indian self-building.Footnote ¹⁴⁸ This link between politics and the Hindu polity literature did not go unnoticed. A review of Jayaswal’s book by Arthur Berriedale Keith, published in 1925, noted the “large number” of works recently published on the history of Indian political thought and organization and stated that the appearance of this literature was a result of “the growth of interest in India in political reform.”Footnote ¹⁴⁹ Keith’s words here may have referred to Indian demands for self-government, of which the Swadeshi Movement was just one manifestation, or he may have been thinking of the various constitutional changes that the British embarked on in response to these demands in the first decades of the twentieth century. Specifically, two such major changes were the 1909 Morley–Minto Reforms (the Indian Councils Act of 1909), which increased the participation of Indians in the executive and legislative branches of the government of India, and the Montagu–Chelmsford Reforms (the Government of India Act of 1919), which sought to promote “self-governing” institutions and introduced a system of dyarchy in India, with some areas of government at the provincial level transferred from British control to the control of Indians elected through an expanded system of voting.Footnote ¹⁵⁰ Indeed, as historian Milinda Banerjee has noted, in the debates regarding the Government of India Act of 1919, the Hindu polity literature was cited by the only Indian member of the Viceroy’s Executive Council, C. Sankaran Nair.Footnote ¹⁵¹

The peak of interest in the topic of Hindu polity came in the second half of the 1920s and was followed by a sharp decline. This can be observed in Figure 5.1, which shows a Google Ngram Viewer chart of the frequency of the appearance of the term “Hindu Polity” in books written in English between 1800 and 2020.Footnote ¹⁵²

Figure 5.1

The frequency of the appearance of the term “Hindu Polity” in books in English.

Source: Google Ngram Viewer, https://books.google.com/ngrams.

What can explain this decline? One reason may have been the death of Asutosh Mookerjee in 1924. Other, broader, reasons were mentioned by historians Ram Sharan Sharma and Maria Misra. Sharma noted the restricted social appeal of the Hindu polity literature. These works mainly attracted the educated middle classes and members of the upper castes; they could not appeal to members of the lower castes or Muslims.Footnote ¹⁵³ According to Misra, the social values associated with a major source of the Hindu polity tradition, Kautilya’s Arthashastra, did not accord with the ideas of two important groups of Indian nationalists: Hindu revivalists such as Bal Gangadhar Tilak disliked the secular and amoral nature of the Arthashastra, its lax attitude toward the Hindu caste-based social hierarchy and Brahmin dominance, and its relatively pro-female values. Nationalist politicians such as Gandhi and Nehru disliked its cynical and unethical tone.Footnote ¹⁵⁴ Interest in ancient Indian political theory, Misra concludes, thus reflected one specific phase in the history of pre-independence Indian nationalism, the phase associated with the Swadeshi Movement and Hindu activists in Bengal.

Apologetics

Within the Hindu polity literature, one can identify two opposite trends. Many works were driven by an anachronistic and apologetic desire to counter Western images of ancient India and to instill pride in the Hindu past by highlighting the similarities between ancient India and the modern West. However, some scholars looked askance at this apologetic motivation. The critique came from Western scholars but also from Indian ones. One example of the former can be found in Keith’s review of Jayaswal’s book, in which he argued that Jayaswal’s desire to find indications of democracy in ancient India was unsupported by the evidence. Keith said that the claim that republics existed during the Vedic period was based on a mistranslation. Republics did exist during later periods but they were aristocratic rather than democratic. The description of kings as elected, subject to law, and bound by the advice of their ministers was not the actual reality, Keith added, but merely “Brahmanical speculation.”Footnote ¹⁵⁵

However, critique was not limited to Western scholars. In his 1921 book, Sarkar expressed the view that much of the existing literature did not clearly distinguish between actual institutions and “pious wishes or ideals of [political] theorizers.”Footnote ¹⁵⁶ Echoing this skepticism, Bhandarkar remarked that Jayaswal’s work was “unfortunately vitiated by the patriotic bias” and by the fact that he was known “not only for misquotations but also experiments at translation.”Footnote ¹⁵⁷ Ghoshal’s work, too, was far less celebratory than other Hindu polity works. Rejecting the anachronism embedded in the attempt to trace the origins of modern Western institutions back to ancient India, Ghoshal was willing to compare ancient Indian political notions unfavorably with early modern Western ones and also keen to reject apologetic theories such as the elected rather than divine nature of Vedic kings, the popular and democratic nature of Vedic assemblies, the existence of republics in the Vedic era, or the contractual nature of the state described in ancient Indian texts.Footnote ¹⁵⁸

Nevertheless, Ghoshal did emphasize the originality of certain aspects of Hindu statecraft literature, such as the fact that Buddhist texts contained perhaps the earliest version of the social contract theory (albeit in a less systematic and developed form than in early modern European political theories). In an article entitled “The Genius of Indian Polity,” Ghoshal first identified two contradictory approaches to the history of Indian political thought. He associated one of these approaches with Western scholars (such as Vincent Smith, the author of The Oxford History of India, or Henry Herbert Dowell, the editor of The Cambridge History of India). These scholars regarded Indian political thought as uninteresting because, they claimed, it did not evolve and because autocracy was the dominant form of government. In contrast, scholars like Jayaswal, Radhakumud Mookerji, Altekar, and Majumdar advanced the opposing view that the Indian king was “virtually a constitutional slave” and ancient India a “vast rural democracy.” Ghoshal adopted an intermediate position, rejecting the argument that the ultimate disappearance of republics in ancient India meant that democratic institutions were somehow alien to its culture (Ghoshal reminded his readers that, in Europe, too, republican forms of government were not universal and that, for most of European history, monarchical forms had dominated the continent). While self-governing institutions existed during Vedic times, said Ghoshal, they tended to be replaced by centralized bureaucracies. Therefore, the picture of India as a “vast rural democracy” was inaccurate. It would also be wrong to conceptualize Dharma rules regarding the duties of kings as equivalent to modern constitutional law since these rules were not based on popular consent, and there was no human mechanism to enforce them. More generally, Ghoshal argued, it would be wrong to claim that ancient Indian states had a system of checks and balances to limit monarchical power.Footnote ¹⁵⁹

The Role of Law

The Hindu polity literature was the product of lawyers, historians (and archaeologists), and social scientists. However, several of the historians and social scientists also possessed legal training. For example, Pramatha Nath Banerjea was a professor of Economics but was also called to the English Bar. Several chapters of his 1916 book Public Administration in Ancient India were devoted to legal matters, such as the structure, procedure, and rules of evidence of ancient Indian courts.Footnote ¹⁶⁰ He also discussed various sources of law in ancient India, including custom and legislation.Footnote ¹⁶¹

Nevertheless, naturally, each professional group approached the topic of Hindu polity with its own emphasis. Historians such as Bhandarkar invested much intellectual effort in philological questions about the exact meaning of specific Sanskrit terms.Footnote ¹⁶² Social scientists like Sarkar were drawn to the ancient Hindu polity texts as sources for creating a non-Eurocentric (or, as Sarkar put it, non-“Eur-American” [sic]) science of comparative politics.Footnote ¹⁶³ Lawyers were keen to examine specific rules governing ancient Indian institutions, and one can sometimes find in their works arguments that the topic was important because of its relevance to the constitutional law of modern India.

Jayaswal’s 1921 book can be seen as an example of an effort to extract norms relevant to modern constitutional law from ancient sources, even when this was problematic because of the lack of sources and the anachronism involved. The book included a chapter dealing with what might be called parliamentary procedures in the assemblies of ancient Hindu republics. Jayaswal could locate only one historical reference to this topic, a story about members of the sixth century BC Shakya republic deciding by majority vote whether to surrender to the Kingdom of Kosala. Jayaswal, therefore, suggested an “indirect” way of reconstructing parliamentary procedures in ancient Indian republics. The rules for making decisions in Buddhist monastic assemblies (samgha or sangha), he argued, were copied from the rules of decision-making in political communities. Hence, by studying the rules of these monastic assemblies, one could arrive at an idea of the rules of political ones. Jayaswal then embarked on a highly detailed discussion of the procedural rules dealing with decision-making in Buddhist monasteries, which he took from works such as the collection of Buddhist texts edited in the late nineteenth century by T. W. Rhys-Davids and Hermann Oldenberg.Footnote ¹⁶⁴ Topics analyzed by Jayaswal included the exact language of the motions that started deliberations in the assembly, requirements regarding quorum, the existence of an assembly “whip,” rules regarding votes of members present in the assembly and absentee members, the use of ballots, delegations of decisions to ad-hoc committees, res judicata, censuring members of the assembly, the role of clerks and recorders of the House, and the use of referenda.Footnote ¹⁶⁵

A similar interest in reconstructing the detailed rules of ancient Hindu law is found in Narendra Nath Law’s 1914 book. This book was divided into two halves. The first half was devoted to non-legal topics discussed in Kautilya’s Arthashastra (mining, irrigation, livestock, communications, and public utilities). The second half dealt directly with legal matters, beginning with courts and their procedure (including rules related to evidence). Law then turned to a long and detailed examination of various aspects of ancient Indian contract law based on the Arthashastra and many other sources. Contract law, a private law topic, was not discussed by other Hindu polity authors, and it is not clear what prompted Law to devote a sizeable portion of the book to it. The discussion included topics such as the requisites of a valid contract (dealing with norms regarding the parties, the role and use of witnesses, the time, the place, and the identity of the contracting parties, rules regarding undue influences, and consideration). Additional issues discussed were contracts for the sale of immovable property, the antiquity of the right of pre-emption, the sale of moveable property, loans, deposits, pledges, mortgages, bills of exchange, contracts of service, and partnerships.Footnote ¹⁶⁶

Outcome

In discussing the impact of the Hindu polity literature, one can distinguish between, on the one hand, its academic impact in the West (that is, how Western Indologists and other Western scholars viewed it) and, on the other, its practical impact in India. Reactions to the Hindu polity literature in the West were mixed. Jayaswal’s pioneering 1913 article – which was based on a historical approach to Hindu law characterized by viewing this legal system as dynamic and comprehensive, not confined to personal law only – was praised by the German comparative lawyer Josef Kohler, who was perhaps the most important comparative law scholar in the first decades of the twentieth century.Footnote ¹⁶⁷

However, many Western scholars in the early twentieth century continued to view ancient Indian states through the conventional nineteenth-century Western lens, associating them with despotism.Footnote ¹⁶⁸ Accordingly, the nationalist tone of the Hindu polity literature was received with suspicion.Footnote ¹⁶⁹ In a 1925 review of the Hindu polity literature, the Indologist Julius Jolly argued that it was not scientific enough. The nationalist tendencies and desire for Indian independence had led Indian scholars to mix history and politics, and, therefore, their conclusions were to be received with caution, he claimed.Footnote ¹⁷⁰ Similarly, Arthur Berriedale Keith stated in 1927 that “the interest and value of the theme [of Hindu polity] have suffered unhappily from the unwise enthusiasm of some writers who have attempted to prove that India made notable contributions to the theory of politics, and that constitutional monarchy was early recognised.”Footnote ¹⁷¹

The same attitude can be found in Western discussions of Indian works that dealt with ancient Hindu international law. In a 1922 article, a British lawyer, W. S. Armour, criticized those Indian authors who argued that “there was a complete system of international law in ancient India.” The use of a term such as “international law,” said Armour, “with a history wholly modern” was inappropriate because:

Western scholars adopted a critical attitude toward the Hindu polity literature. Within India, one could distinguish between those scholars who were focused only on the historical significance of the ancient Indian texts and those who were keen to explore their practical application to modern constitutional debates. Some Hindu polity works were based on a “scientific” or antiquarian approach, with no explicit call to apply their lessons to the present. However, other works, such as those by Radhakumud Mookerji, called for applying Indian constitutional history to modern constitutional debates. In his 1919 book, Mookerji stated that studying the history of ancient Indian institutions would be useful not just for teaching the people “national self-respect” but also for more practical reasons. Such study would enable the government to “shape” new governmental institutions “upon the lines of the old.”Footnote ¹⁷³

Non-academic writers echoed this approach. In 1934, an Indian lawyer, Achintya Mukherjee, published an article that urged the makers of the future constitution of India to study ancient Indian constitutional history. “Every nation,” Mukherjee explained, “builds up a polity of its own, which reflects its own distinctive type of culture.” Constitutional changes, if introduced, “should be congenial to the nature of the political evolution of the nation.” He then went on to briefly discuss some significant themes found in the Hindu polity literature: kings were elected; the Danda Neeti – that is, “the Constitutional Law of the land” – was placed above the kings, who had a duty to protect their subjects; there was an “Aryan Constitution,” according to which kings did not have absolute power but had to fulfill the instructions of their assemblies and councils, in which all segments of society were represented; and, generally speaking, the ancient Indian monarchy was a constitutional rather than an absolute monarchy.Footnote ¹⁷⁴

The 1940s saw additional calls to use the Hindu polity literature as a source of inspiration for the Indian Constitution. At the beginning of this chapter, I mentioned Agarwal’s and Rau’s works, but there were other examples. An article by Anant Sadashiv Altekar of Benares Hindu University published in 1947 stated that: “India is at present engaged in framing a new constitution. It will, therefore be not uninteresting to survey ancient Indian polity and its achievements. If we take an impartial survey of it we may learn some important lessons for the present and the future.”Footnote ¹⁷⁵

What lessons were offered by Altekar? First, he noted the existence of republics in ancient India and argued that they disappeared because they were only appropriate in smaller states united by tribal loyalty. However, he argued, modern India could become a democratic republic despite its massive size because “distances have been annihilated now,” and the idea of representative government could replace the need for tribal loyalty. A further reason for the decline of republics was internal strife within their assemblies. This should be a lesson to the future Indian Parliament, Altekar contended.Footnote ¹⁷⁶

Moving on to Indian kings, Altekar noted that ancient Indian monarchs were seen as trustees and were celebrated only if they promoted the well-being of their subjects. Modern Indian monarchs could continue to rule Indian (princely) states, but only if they were virtuous, he reasoned. One of the problems with ancient Indian kings was that the mechanisms designed to restrict tyrannical tendencies were weak. Popular assemblies were one such mechanism, but they disappeared after the Vedic era, leaving mainly the fear of divine punishment as a constraint on tyranny. Modern India, he said, should, therefore, develop secular, practical remedies to control the actions of tyrannical rulers.Footnote ¹⁷⁷ Another mechanism to constrain tyranny in ancient India was decentralization, as evident in the need to obtain the consent of town and village councils for many governmental actions. The complexity of modern life, Altekar observed, made the reliance on village councils more problematic. Nevertheless, he did recommend using them in some instances.Footnote ¹⁷⁸

Altekar discussed the fact that ancient Indian states accepted and promoted the caste system and that, therefore, the idea of the equality of all citizens before the law did not exist in ancient India. However, he assured his readers that “inequalities existed in all civilisations, eastern and western, and have not completely disappeared even in modern times.” In this sense, India was not unique.Footnote ¹⁷⁹ Finally, Altekar noted that ancient Indian empires were based on a model of a central government that also permitted the existence of local governments enjoying relative autonomy. This idea of a strong and united India that also granted full autonomy to its provinces should be followed now, he urged.Footnote ¹⁸⁰

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