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Chapter 2 recounts the failure of the Yishuv, the Jewish community in Palestine prior to the establishment of the state of Israel, to establish an autonomous system of arbitration, the Hebrew Peace Courts. The early and ringing failure of these courts indicates the inability to agree about what is Jewish and what is Jewish law. In the absence of such agreement, it is impossible to develop a binding system of “Jewish” norms, and in the absence of such a system, the Hebrew Peace Courts could not provide the people of the Yishuv with predictable, stable, and coherent rulings, thus sealing the courts’ fate. Even though the Hebrew Peace Courts were autonomous Zionist courts that promised quick and efficient adjudication by Jewish judges, the people of the Yishuv preferred the formalized British system, based on a clear system of substantive and procedural norms—despite their non-Jewish origin—along with binding precedents and an efficient system of enforcement and implementation.
Chapter 6 addresses Israeli legislative policy concerning Jewish law and identity. Like the Zionist movement did early on, Israel’s national governing and judicial institutions refused until the 1980s to allow questions of identity and culture to impinge on political and legal deliberations. The Knesset and the Ministry of Justice did not base Israel’s laws on Jewish law. It was not that they were alienated from Jewish heritage and its legal element; rather they realized that these could not really be translated into laws, simply because there was no consensus on what constituted Jewish culture, and what were the proper ways to constitute a Hebrew-Israeli legal system on its basis. Even those who sought with all their might to base Israeli law on Jewish heritage did not know how to do so in practical terms. Once again, it was a meta-cultural decision to circumvent such cultural conflict
Law is society’s supreme system of norms. As such, it seeks to express that society’s values, ways of life, and culture. It is intuitively obvious to us that the content and form of the law differs from place to place and from one era to another. But what is it that, for example, makes Israeli law Israeli and French law French? Is it the specific content of the law? Is it the particular form of legal norms and institutions? That is, is there an Israeli template of norms and cultural assumptions that necessarily molds the particular legal content of Israeli society? Or is it Israeli law simply because it is created and used by free and sovereign Israelis, who shape their laws in accordance with their culture and needs?
Chapter 3 tells of the rise and fall of the Hebrew Law Society, founded in 1917, which sought to base the law of the Jewish state on secularized and modern Jewish content. All the members of the Hebrew Law Society wanted a national Jewish-Hebrew legal system, but did not agree about what materials would be used in its construction, nor on the way to construct this new legal edifice, or about who would be the architects and builders. The Society’s problem was that it could not limit itself to an academic debate over these questions. On the contrary, it was founded with the purpose of shaping clear, detailed, and explicit legal norms, building legal institutions, and crafting the whole cloth of a legal system that would stand ready for the Jewish state when it was founded. But the practical need to translate Jewish values into clear legal rules paralyzed the Hebrew Law Society and brought an end to the attempts to make Hebrew law into the living law of a modern society. The Society collapsed before World War II, a decade before Israel was founded.
Chapter 4 analyzes abortive attempts to create a national Jewish system of law at the founding of the state. Under the circumstances of the 1948 Jewish-Arab War, the advocates of Hebrew law realized that it would not be possible to institute a comprehensive legal system based on Jewish-Hebrew foundations. Three options thus remained on the table. The first was to legislate as many laws based on Jewish-Hebrew law as possible, or at least to add Jewish-Hebrew chapters or sections to existing laws. The second was to insert into the new country’s declaration of independence or constitution, when they were drafted, a general declaration that Jewish-Hebrew law would be a principal source of legislation for the new country. The third was to have Hebrew law serve as the country’s residual law, meaning that it would apply in cases where there was a legal lacuna. Eventually the young state did not adopt any of these options choosing, at its founding, to circumvent the dispute that would be involved in grounding Jewish-Israeli identity in law.
Chapter 5 shows that the fear of cultural war was a central factor in the Knesset’s decision not to promulgate a written constitution during the first years of independence. The opponents of a formal written constitution, led by Prime Minister David Ben-Gurion, did not reject establishing the structure of government, citizenship, and human rights in a written law. What they repudiated was doing so in the form of a formal and fancy constitution. For this reason, the Knesset resolved to enact a constitution piece by piece, without a solemn preamble that would address questions of identity and culture in Israel. This compromise was in keeping with Zionist policy which scrupulously and consistently negated the discussion of Jewish culture and identity.
Chapter 8 provides the broader context of reinserting the identity discourse into Israeli law. It notes the rise of identity, religious, and cultural discourse throughout the world, Israel included, and then recounts the fiery polemic that broke out in Israel at the end of the twentieth century and the central role the law played in this debate. The chapter also briefly considers the dangers presented by the legalized polemic of identity and culture.
Zionism and the question of identity are fundamentally in tension. On the one hand, the Zionist movement came into being as a response to the anxiety felt by European Jews regarding their identity and culture in the face of secularization and modernization. If Judaism was merely a religion, then non-believing and non-observant Jews ostensibly had no cause to think of themselves as Jews anymore. If it was simply an ethnic culture, it seemed to many poor and backward compared with the cultures around them. Zionism told the Jews that they were a nation, on a par with all the other awakening nations of Europe, and thus supplied them with a new, common, and inclusive identity shared by all Jews no matter what their religious beliefs and practices and despite their cultural diversity. Furthermore, Zionism’s fundamental claim, that the Jews are a nation with a common history, common fate, a shared connection to an ancestral land, and other collective cultural traits, was the source of Zionism’s strength as an idea and as a practical program, as it offered a national narrative that was accepted, almost intuitively, by the Jewish masses in Europe and around the world.
Chapter 1 considers the accounts of law offered by early Zionist utopian works and clarifies the distinction between the cultural and the meta-cultural debate in Zionism; that is, between the disputes over culture and identity, and the debate whether a cultural dispute over modern Jewish identity would be worthwhile and wise. In light of the emotional Jewish and Zionist cultural debates, the question inevitably arose as to whether such culture wars were advantageous or detrimental to the realization of Zionism’s goal, the establishment of a Jewish national home. To avoid a Kulturkampf, Zionist leaders decided to stress the common and consensual elements of national culture, while stifling the religious, cultural and identity differences over the definition of Judaism, Jewish state and Jewish law, and block their entry into the Zionist movement’s official documents and projects.
Chapter 10 discusses the complex interaction between Israeli law and Jewish heritage. I address the Zionist-Israeli resolve to ensure its political and legal independence—that is, an independent Israeli legal system that is not subordinate to foreign law and which legislates for itself in accordance with Israeli society’s needs, interests, and values. I also consider the attention the Israeli legal system gives to symbols of national independence. This includes both what might be called general symbols, such as the Hebrew language, and also specifically legal symbols, such as the effort to promulgate a constitution and civil code. Finally, I show that the Zionist movement and Israel have adopted “a moderate cultural option” centered on muting cultural debates while adopting common cultural symbols that arouse no dissension—the Hebrew language, devotion to the Land of Israel, evocation of Jewish history, and a long list of consensual symbols, values, and concepts with roots in Jewish law and heritage. I show that Israeli law cannot not be Jewish and Israeli, and that Israeli law and culture are today lieux de mémoire of primary importance in the preservation of Jewish law and heritage and an important guarantee of the future of Jewish culture.
Chapter 7 addresses a period beginning in the 1980s. At this time the Israeli political and legal elite drew back from its policy of avoiding issues of religion, culture and identity and once more sought to base Israeli law on Jewish content. In light of previous failures, the Knesset no longer sought to insert norms from Jewish law in its legislation. Rather, it proclaimed that Jewish values should guide legislation, court rulings, and the operation of Israeli law. The Knesset passed legislation stating that the values of “Israel’s heritage” and Hebrew law should be the residual law, that is, the general law to which judges should turn when they find no answer to the question before them in law or precedent. The actions of all state institutions were required to be consistent with the values of Israel as a “Jewish and democratic state.” Eventually, the Knesset passed a Basic Law declaring Israel as the Nation State of the Jewish People, itemizing the Jewish symbols of the state and expressing its Jewish character. The chapter describes the legislative process and the courts’ disregard for these new expressions of identity inserted into the law.
Chapter 9 examines Zionism’s complex relationship with Jewish religion, culture and identity. Zionism was born out of the drive to find a response to the problems Jews faced as a distinct collective, and its solution was based on defining the Jewish people as a nation with distinctive cultural characteristics entitled to self-determination realized in a Jewish state in the Land of Israel. While Zionism was fundamentally a modernist, dynamic, revolutionary, and secular movement, it recognized the Jewish faith and Jewish history as the source of its formative stories and national cultural symbols. Zionism never entirely suppressed the cultural issue; it rather adopted a moderate stance that manifested itself in several ways. First, the Zionist movement kept the cultural Zionists on a low burner. Second, Zionism spoke in a collective national language and saw itself as speaking for and representing the entire Jewish people, and voicing all its problems and needs. Third, Zionism translated its ethos of unity into democratic procedure. Fourth, the Zionist movement took upon itself to operate in a way that would facilitate civil cooperation and good neighborliness. Fifth, the Zionist movement made a point of stressing the cultural symbols common to and accepted by most Jews.