The Volokh Conspiracy
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The Irony of the Battle Over Legal Reform in Israel
The Jewish world was once ruled by a religious lawyerocracy; the Zionist left wants a secular version.
After the fall of the Second Temple in the first century, Judaism gradually became a lawyerocracy, a society ruled by lawyers. Jews call these lawyers "rabbis," but think about the training rabbis traditionally receive–it's primarily many years of law school, learning the Talmud and other sources of Jewish law until one becomes sufficiently expert to be a legal advisor and judge.
Jewish lawyerocracy helped keep the Jewish people united during their dispersion. One could travel from one Jewish community to a far-flung one hundreds of miles away, and be assured that others would accept you as a fellow Jew, and that the laws and prayers would be quite similar.
But lawyerocracy also caused problems. For one thing, lawyers are trained to see every problem as a legal problem, and to therefore to address problems with more and more law. Thus, from relatively modest beginnings, halacha [Jewish law] gradually took over every aspect of daily life.
To be sure, the rabbis developed doctrines to mitigate over-legalization, such as the precept that laws that a community has longed ceased to follow are no longer laws. But such precepts were rarely followed in practice. Instead, law was law, custom became law, and new laws were created to help ensure that the existing laws weren't violated. For many Jews, law became an onerous burden rather than a path to connecting with G-d.
Another problem was that rabbis, i.e., lawyers, often became the community's leaders and rulers. From Sa'adia Gaon serving as Exilarch in the Eastern Holy Roman Empire to the Council of the Four Lands in eighteenth century Eastern Europe, rabbis frequently held secular power as well as religious authority. And as Lord Acton noted, power corrupts, and absolute power corrupts absolutely.
Over the centuries, the power accrued by the rabbis was subject to explicit and implicit criticism by various dissenting movements and individuals. The Karaites believed the rabbis had strayed too far from the written Torah. Kabbalists implicitly found Jewish legalism inadequate to explain the precarious state of the Jewish people, and the chaotic state of the world. Various messianic movements sought immediate redemption, with overthrowing the yoke of the law often high on their agendas. Early Hasidism revolted against the notion that being learned in the Talmud, something unattainable for many poor, rural Jews, was a higher value than a spiritual connection to G-d. The Reform movement sought to reorient Judaism around ethical monotheism and prophetic values, correctly predicting that the lawyerocracy would largely fail to win Jews' allegiance once they integrated into Christian societies. Socialist Jews held public Yom Kippur feasts to mock pious adherence to the law at the expense of material concerns.
And of course, Zionism was itself a dramatic revolt against the authority of the rabbis, insisting that Jews take responsibility for their own fates and restore Jewish sovereignty in Eretz Yisrael. Zionists utterly rejected the accepted view of the lawyerocracy that Jews needed to wait for the Messiah to be redeemed, and should obediently obey the law in the meantime.
Thus, the irony. Zionism, especially in its dominant secular variety, was the culmination of centuries of percolating distrust of the notion that the law is Jews' salvation. And yet the notion that law matters above all, and lawyers can be entrusted with the fate of the Jewish people, obviously has persisted in the cultural DNA of Israeli Jews.
The Israeli Supreme Court has accrued to itself more power than any other Supreme Court in the world. Even more striking, the attorney general has power to by herself undermine almost any Israeli law or policy, a power that is shocking to those of us used to the American concept of separation of powers. And both the Supreme Court and the Attorney General have seized these powers based on only the flimsiest of rationales.
Hence, the irony referred to in the title of this blog post. Secular, left-leaning Zionists have seen their power erode for decades. The peace process is on life support. State-run industries have been replaced by economic liberalization. Rabbinical authority governs family and conversion law with ever-increasing stringency. Religious Zionists have gradually replaced secular kibbutzniks in the military elite. Shockingly illiberal parties are now routinely serving in government.
None of those developments managed to galvanize the Zionist left. Instead, relatively minor proposed limits to the authority of the attorney general and the supreme court, which would still have powers unheard of in most of the democratic world, has led to months of mass demonstrations and general social turmoil.
Don't get me wrong. I think some of the proposed reforms are sensible, but many are unwise. Israel could have developed a system of checks and balances that did not rely so heavily on the judiciary, but it did not. Therefore, significant legal reform needs to be accompanied by other reforms that create new checks on the Knesset and incumbent governments.
That said, though, the irony is palpable. The faith that the Zionist left has in the judiciary and the attorney general is faith in a modern form of lawyerocracy. Veneration of the law and the lawyers who interpret and enforce it have more than a bit in common with traditional Jewish veneration of halacha and leading rabbis. It's ultimately unsurprising that Israelis, the descendants of people who lived under lawyerocarcy for centuries, would naturally look to lawyers to guide society.
So as an American Jewish law professor, and a fellow secularish Zionist, allow me to point out the obvious. The rule of law is important. Fetishization of the law, and faith in lawyers, be they learned graduates of yeshivas or secularists with degree from Hebrew University and Oxford, is problematic.
Despite being a young, successful "Startup Nation," Israel faces many challenges, including its own internal demons and divisions. Law and lawyers have an important role to play. But Jewish history teaches us that there is such a thing as giving lawyers too much power, and faith in the wisdom of lawyers is often misplaced. In short, whatever problems you think Israel faces, don't expect lawyers, even those serving on the Israeli Supreme Court, to ultimately save the day.
[cross-posted at the Times of Israel]
