Stone

Law in Light of Zionism: A Comparative View
Author(s): Suzanne Last Stone

Source: Israel Studies , Summer 2014, Vol. 19, No. 2, Special Issue: Zionism in the 21st
Century (Summer 2014), pp. 111-132
Published by: Indiana University Press
Stable URL: http://www.jstor.com/stable/10.2979/israelstudies.19.2.111
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Suzanne Last Stone
Law in Light of Zionism:

A Comparative View
ABSTR ACT
The article is a conceptual analysis of the challenges Zionism has faced in

forging a coherent relationship among nation, state, and law within both
secular and religious legal circles. According to classical theories about
the relationship of nation to law, the nation gives birth to the state and
the state’s task is to generate law reflecting the values of the nation. Yet,
precisely who is the nation and what its values are has proved an exceed-
ingly difficult question to answer, given Zionism’s ambivalent relationship
to the Jewish past. Thus, in contrast to American constitutional practice,
where one can identify a clear point of origin for that mythic body termed
“We the People”, no comparably clear point of origin exists in the Israeli
context. This dilemma partially explains the turn to Knesset legislation as
the transhistorical manifestation of the Jewish people. Forging a conceptu-
ally coherent account of the relationship among law (halakha), nation, and
state is also a challenge within religious Zionist circles. Indeed, a crux of
the debate between Haredi and Religious Zionist legal circles is precisely
whether there exists such a thing as an independent Jewish nation, entitled
to independent legal rights under the halakha, and whose continued unity
the halakha should foster, or whether the halakha, like the state in the liberal
model of law, supersedes the nation and is the exclusive national definition
of the people and the sole glue holding them together.
I srael’s “constitutional revolution” is now 21 years old. Of

course, Israel does not have a written Constitution, and periodically various
groups within Israeli society continue to draft proposed constitutions. But,
in 1992, on the heels of the enactment of the two Basic Laws of 1992 (Basic
111

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112 • isr ael studies, volume 19 number 2
Law: Human Dignity and Liberty and Basic Law: Freedom of Occupa-
tion),1 then Chief Justice Aharon Barak announced that Israel had gone
through a constitutional revolution. Barak held that these two Basic Laws
added a constitutional layer to all the Basic Laws that empowered the Court
to review the legislation of the Knesset and the decisions of the state’s public
administration.2
Neither the Knesset nor the Israeli public had an inkling that these
two Basic Laws were introducing a constitution into Israeli law, as Barak
more or less admitted when he remarked that “the public at large has not
yet internalized the normative reality that we already have now, at pres-
ent, a constitution.”3 And critics were quick to criticize that “this was the
only constitution in the world created by the mouth of the court.”4 Or, as
Gideon Sapir put it, “I am not familiar with any other state where there
is a controversy regarding the question whether a constitution exists.”5
Of course, the legal issue was not whether the Basic Laws are the “Israeli
Constitution”, writ with a capital “C”; but rather, whether the Basic Laws
are “hard law”, within the province of the judiciary to interpret, as well as
fundamental or regulative laws vis-à-vis ordinary laws and thus possessing
constitutive authority, to which governmental action must conform. Such
questions are, indeed, often matters of retrospective judicial interpretation.
Take the American Constitution. Its precise status as both higher law and
hard law, empowering judicial review, were very much in dispute and settled
through a judicial decision: Marbury v Madison.6
As a result of the “constitutional revolution”, Israel is now poised
between the English model of parliamentary supremacy and the American
model of constitutionalism. While the “new Constitution”—the Basic
Laws—can be amended by a supermajority of Parliament, absent such
constitutional amendment, the Supreme Court has the final say on the
meaning of the Basic Laws.7 Accordingly, it is worth elaborating the deeper
implications of this shift. The distinction between the two models, I wish to
emphasize, is not about who has the last say; it is about whether the Court
is an equal and autonomous competitor with Parliament when claiming
to represent the will of the people. In the United States, both the Court
and Congress compete in making such representative claims. This is a key
aspect of American legal phenomenology, of how American legal subjects
experience their legal system. Marbury v Madison occupies a central role in
the American legal imagination in no small part because it elucidated the
deep connection in American constitutionalism between the rule of law
and the rule of the sovereign people who laid down in the Constitution
the values and principles “as shall most conduce to their own happiness.”

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Law in Light of Zionism: A Comparative View • 113
From a purely sociological perspective, a turn closer to the American

model was almost inevitable. Today, the Israeli legal academy is a thor-
oughly Americanized institution. Yet, already in the 1980s, as Menahem
Mautner observes, the Israel Supreme Court began a paradigm shift from
a professional body devoted to formalism (technical deductive techniques
that place values outside the system or, if one is a legal realist, hides them
from view), in the style of the German systems where many older members
of the Israeli judiciary trained, to an open weighing of the competing values
relevant to each case more in the style of their American counterparts.8
(One might even argue that the Israel Supreme Court became increasingly
“rabbinic” in its legal style but via the medium of American constitutional
theory, particularly the theory espoused by the école de Yale.)9 And with
the turn to the American model, have come complaints familiar to any
American student of constitutional law.
In the United States, this competition over representation between
the legislature and the Court inevitably becomes entangled with debates
about democracy. Judicial determinations of unconstitutionality nullify
the actions of democratically elected branches of government. How can an
unelected judiciary that is not structurally responsible to the people, in any
way represent the people? “Who are these nine Justices,” one might ask, “to
instruct the nation about the ‘American fabric’?”10
This longstanding American debate, termed the counter-majoritarian
difficulty, now has been taken up in the Israeli public sphere. But the
debate in Israel is not solely a debate within democratic political theory;
it is also—indeed, primarily—a debate within Zionism. It is no accident
that the 1992 Basic Laws that were held to entrench a quasi-constitution
empowering judicial review also announced the identity of the state: Jewish
and Democratic. Both stipulate that their “purpose is to entrench in a Basic
Law the values of a Jewish and democratic state.” If the people now have a
constitution, they also have a constitutional identity. The Court, then, to
represent the people, must relate its decisions to that identity.
I will turn later to the interpretive difficulties this phrase has raised.
For now, I wish to focus on a larger ambiguity. If the state’s values are those
of the popular sovereign—i.e., the people—as democratic theory requires,
who are these people? The Jewish people? The Jewish people of the Hebrew
Bible? The Jewish people who deposited norms and values throughout exile
in an ongoing legal tradition, the halakha? The Jewish people who founded
the State of Israel? The Jewish People as presently constituted in Israel? The
global Jewish People? For, in contrast to American constitutional practice,
where one can identify a clear point of origin for that mythic body termed

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“We the People”, no comparably clear point of origin exists in the Israeli
context, given Zionism. Thus, in the key legal declarations of the Israeli
fabric—from the Israeli Declaration of Independence to the Foundations
of Law Act to the 1992 Basic Law: Human Dignity and Liberty—there
is always a pointing backward to an older mythic body, whether through
direct reference to the Jewish People “whose birthplace was the Land of
Israel”, to Israel’s heritage, or, far more elliptically, to the “values of a Jewish
and democratic state.”
In what follows, I shall be arguing, first, that this confusion over who
and where in time is the Jewish people whose values shape the Israeli nation
stems from the ambivalent relationship of Zionism to the Jewish past. This
ambivalence, in turn, makes it exceedingly difficult to forge a conceptually
coherent relationship among nation, state, and law. And the bootstrapping
of American structures and legal phenomenology onto Israeli legal culture
has, paradoxically, only served to highlight this problem. From a certain
perspective, the Jewish people of the state of Israel must be conceived as a
trans-historical entity, not a people who first appeared with the sovereign
state and implanted their values into an Israeli constitution—whether with
a large or small C—at its base. Hence, it is no surprise that large segments of
the Israeli population, and not just its religious segments, continue to look
to the Knesset as the only legitimate representative of the “trans-historical”
Jewish people.
Forging a conceptually coherent account of the relationship among law
(halakha), nation, and state is also a challenge within religious circles, the
subject of the second part of this article. And Zionism is deeply entwined
with this challenge, again. Indeed, a crux of the debate between haredi
and religious Zionist legal circles is precisely whether there exists such a
thing as an independent Jewish nation, entitled to independent legal rights
under the halakha, and whose continued unity the halakha should foster,
or whether the halakha, like the state in the liberal model of law, supersedes
the nation and is the exclusive national definition of the people and the
sole glue holding them together. Zionism, thus, has exposed a significant
conceptual fissure within the halakha itself. But, apart from its conceptual
interest, this debate has profound implications for the character of the
Israeli public sphere.
I am not an historian of Zionism, nor am I especially well-versed in
Israeli law, and so my argument is analytic and comparative, not historical.
In the first part of this article, I will be testing the relationship of law in
Israel to nation and state in light of nationalist and liberal legal models,
in turn. In the second part, I will turn to the debates within haredi and

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religious circles over the development of Jewish law in light of the estab-
lishment of a modern Jewish nation-state. I will then conclude with some
remarks about the role of halakhic discourse in Israeli civil society.
NATION, STATE, AND LAW
The Zionist idea, by now, has fractured into so many ideas and so many
variations of those ideas—political versus spiritual Zionism; utopian Zion-
ism versus pragmatic Zionism; confident Zionism versus traumatized
Zionism; Zionism as perpetual revolution versus Zionism as normalcy,
etc., etc.—that it is exceedingly treacherous to make any claims in its
name. Nonetheless, for purposes of this article, I will be adopting primar-
ily the definition(s) implicit in Eyal Chowers’ recent book on Zionism as
a radical modern Jewish political philosophy with a distinctive temporal
imagination.11
Zionism arose within the context of nineteenth century European
nationalist movements. In that context, nations were understood to refer
to a collection of people, or Volk, who are, in a sense, a mythic body. Thus,
nationhood is not coterminous with citizenship. It may exclude certain
citizens and include members of the nation who reside far beyond the bor-
ders of the polity. This was the case pursuant to either the ethnic definition
of a nation, such as that of Fichte (who defined nationhood in terms of
language and blood) or the spiritual definition, such as that of Renan (who
speaks of those who suffered, enjoyed, and hoped together), which Bene-
dict Anderson later felicitously redefined as an “imagined community—a
community whose members will never know most of their fellow members,
meet them, or even hear of them, yet in the minds of each lives the image
of their communion.”12
Anderson emphasizes horizontal ties based on fellow-feeling and col-
lective memory but no less, and perhaps far more, important is the sense
of an historical community stretching backwards into the past. And this
temporal aspect of nationalism also has an ethical component, no less than
the ethical component of Kantian notions of a moral community. David
Miller puts it succinctly:
The historical national community is a community of obligation. Because our

forebears have toiled and spilt their blood to build and defend the nation,
we who are born into it inherit an obligation to continue their work, which
we discharge partly towards our contemporaries and partly towards our

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descendants . . . This then means that when we speak of the nation as an
ethical community, we have in mind not merely the kind of community that
exists between a group of contemporaries who practice mutual aid among
themselves . . .13
The classic theories of the nation-state also imagined a particular

understanding of the relationship between nation, state, and law.14 The
state is a vehicle of the nation enabling the nation to pursue collective goals.
Nationhood also provides the social solidarity that Rousseau insisted that
the state needs. So, the nineteenth century nation-state is bound together
by pre-contractual forces of social solidarity: common language and heri-
tage and goals. Just as the nation gives rise to the state, the nation also gives
rise to the state’s laws. Law, in the nationalist vision, is meant to embody
and express “matters of tradition, affect, belief and ultimate values.”15
The nation-state aspires to national law: a legal system whose institutions,
norms, and procedures would express and reflect the particular genius,
values, and commitments of a particular Volk or people. In short, in classi-
cal normative theories of the relationship of nation to law, the nation gives
birth to the state and the state’s task is to generate law reflecting the values
of the nation.
The most prevalent metaphor used to describe the law of a people
is biologic. The biologic metaphor captures the idea of a “united, com-
plete social body whose parts developed synchronistically and according
to one distinctive internal principle that continuously evolves through
historical time.”16 Thus, for example, in the writings of Savigny, and in the
spirit of Herder’s view of nationalism, law is like a language: the law of a
people develops organically, gradually, and spontaneously in the course of
a people’s history and embodies its unique spirit. That law is the product
of historical processes and of the accumulation of customs and traditions
embedded in the people’s day-to-day interactions and social relationships.
Hence, the term “historical jurisprudence” (the term most associated with
the school of legal thought linking law to the people or nation) and con-
noting that law is the product of history and not the product of rational
planning or new law-creation.
This European political philosophy not only shaped Zionist thought,
it also made Zionism almost inevitable. Mendelssohn had envisioned Jews
as Germans or French of the Mosaic faith. European nationalism, how-
ever, essentially asserted that Jews might be citizens of Germany but they
were not Germans, members of the German nation. Zionism asserted, in
response, that Jews could not be full members of the modern nation-state

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while adhering to their religion in private. Rather, Jews were a nation of

their own with a public character. And it succeeded, against all odds, in
uniting a scattered community defined mainly by text and tradition into
a political entity and reviving a modernized Hebrew language out of the
sacred language of the Jewish tradition as its national language.
Virtually from the beginning, however, Zionism had a far more ambiv-
alent relationship to the idea of a national law. The Jewish people histori-
cally expressed their values through the medium of Jewish law (halakha)
and its revival, like that of Hebrew language, was initially a Zionist project.
From the early 1920s to the end of the ’40s, this secular movement sought to
revive a modern Hebrew Law out of the traditional religious halakha as an
expression of Jewish national culture and values, more suited to the spirit of
the people than the English law of the Mandate. The movement foundered
for reasons amply detailed by Assaf Likhovski and Ron Harris.17 Both the
religious establishment and Zionists committed solely to a political, in
contrast to a cultural-spiritual, Zionism opposed it. There were internal
divisions within the movement, too. Thus, some of its religious members
fought the secularization and updating of halakha and sought to apply it as
is. Professionalization also impeded the movement as most of the bar was
trained in English law and had ample reason to defend their professional
preserve. Perhaps the largest impediment was that historical jurisprudence
was deeply entangled with organic notions of nationalism and national law,
which Zionism, in fact, rejected. As Likhovski points out, the Hebrew Law
Movement was not a revival of a modernized and updated halakha so much
as an attempt to completely transform it.
In order to truly appreciate the disconnect between Zionism, on the
one hand, and historical jurisprudence, on the other, it is important to
focus on the way Zionism conceived itself as a solution to the problem of
the Jew in modernity. The traditional Jew who accepted the authority of
the tradition and, with it, the negation of human action in favor of mes-
sianic deliverance at an unspecified future date, was precisely one of the ills
Zionism sought to cure. The Zionist revolution, with its commitment to
develop the “New Jew”, also implied the rejection of all norms and values
forged in Diasporic conditions. And the main repository of the norms and
values of the Jewish people—the Jewish legal tradition—was most definitely
a product of exile, and replete with “exilic values”. Moreover, if, pursuant to
Zionism, authority is in the hands neither of God nor tradition but of the
Jewish people acting in the present, there are no clear boundaries as to what
are the values of the Jewish people and what are not.18 The people, instead,
are constantly authorizing in the present their own transformation. This, of

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course, couldn’t be further from the temporal imagination underlying the

organic model of nationalism and historical jurisprudence.
Attitudes to time—to laws’ past, present, and future—are an underex-
plored and crucial aspect of a legal culture.19 American constitutionalism,
for example, rests on temporal imagination very different from the common
law’s time immemorial, in which law precedes any particular act of the sov-
ereign. Thus Paul Kahn claims, with some merit, that its overarching struc-
ture is most similar to the biblical account of Sinai. Revolution, as much as
revelation, is the occasion for the appearance of the sovereign. From then
on, all later legal events somehow relate back to the original appearance of
the sovereign. In terms of actual interpretive practices, American consti-
tutionalism has generally veered between originalism and an evolutionary
model. Originalism is at odds with the narrative of the nation as an organic
continuously growing body, which underlies such metaphors as “the living
or evolving law”, the “going Constitution”. Instead, originalism, as Paul
Kahn imaginatively describes it, is central to the American liberal legal
imagination that continues to echo the structures of Protestant Christian-
ity. Originalism, with its focus on a will informed by grace, harks back to a
certain imagination of the trans-temporal community united in the body
of Christ.20
Eyal Chowers, in turn, has recently offered us a rich and evocative
account of the temporal imagination of Zionism that, he argues, has pro-
found implications for understanding contemporary Israeli politics. His
analysis is no less relevant for understanding Israeli legal culture. Chow-
ers identifies three conceptions of time at play in the nineteenth century:
present-centeredness, teleological-progressive, and semi-cyclical. Zionism,
he argues, embraced the first and third and rejected the second. A main
intellectual source of Zionism was the temporal imagination of Freud,
Proust, and Benjamin who each, in diverse ways, advanced a semi-cyclical
and fragmented conception of time, in which the individual or the commu-
nity can retrieve lost, forgotten, and distinct exclusive memories of the par-
ticular community for use in the present. From Proust, Zionism absorbed
the idea that reliving the past is a source of energy, and from Freud, the
sensibility that returning to the childhood of the nation, at the moment
and place where trauma commenced, will heal a national trauma. From
Walter Benjamin, Zionism inherited the notion that the current time and
the ancient past can have a moment of simultaneity, become profoundly
attached to one another, and transform one another.
The semi-cyclical temporal imagination, common to all three, “allows
the community to skip over the psychologically dead time in-between and

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retrieve more fertile memories.”21 As Chowers observes: “When there are

no people among whom to inaugurate a legal body (as in the French and
American cases) through a spectacularly revolutionary event, and when
the teleology of a national body progressing through time can hardly be
invoked, it is the semi-cyclical temporal imagination that can become the
main anchor of the project of national revival.”22 That moment and time
with which the Zionist present aligned was the biblical past. The psycho-
logically dead time in-between was precisely that of exile and the halakhic
legal tradition.
If this rejection of the traditional Jewish past and the extreme valoriza-
tion of the present—of “Nowtime” and of the constant possibility of self-
creation that lies at the heart of Zionism as a revolutionary politics—make
Zionism and conventional nationalist understandings of the relationship of
law, nation, and state ill-suited for one another, does the liberal legal model,
in which the state creates the nation, fare better?
It is useful to flesh out the ways in which the liberal model contrasts
with the national one. First, the liberal model, in its purest form, puts
consent and reason at its center and not the collective will of the people.
As Austin Sarat put it:
The hallmarks of liberal legality—the commitment to tolerance, the harm

principle, and the discourse of rights—are . . . designed to maximize indi-
vidual liberty from interference, not to rally the Volk toward any collective
enterprise or goal. Indeed, from the liberal perspective, the idea of using the
law as the tool to sublimate individual freedom toward collective goals is
precisely what liberal legality is designed to protect against.23
Liberalism harks back to the Enlightenment imagination of society as a

contract. This idea implies both that social membership is a free choice—
a community of choice and not of fate—and that, more importantly for
our purposes, all members of society are currently living. Liberalism focuses
on values but these values are not inherited, drawn from historical experi-
ence and cultural reservoirs, nor do they point to ultimate ends and goals;
rather, they are arrived at through reason and exhibit a “breathtaking
abstractness”.24
Moreover, liberal legality does not presuppose any preexisting social
solidarity. To the contrary, law itself creates the social solidarity that keeps
the system of liberal legality in operation. From the perspective of norma-
tive theories of nationhood, this is a very thin version of social solidarity.
The nation is at best a vestige, the entity that originally called the state into

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creation. Liberal legality contemplates the triumph of the state over the
nation. Law itself comes to constitute the glue that holds the state together.
Classical liberalism adhered to a strict separation of law, on the one
hand, and politics and morality, on the other. Law may express the content
of morality but it need not do so. More contemporary versions, especially
those placing values, including moral values, at the center of the legal
system, are perfectionist. Moral values, after all, are, strictly speaking,
universal.
Arguably, political Zionism sought to overcome or supersede the his-
torical nation, and to build a model liberal state. But political Zionism
also rejected the privatization of Jewishness, and a Jewish homeland would
seem logically to imply a public Jewish dimension. Certainly, the liberal
legal model, in its pure form, is an uneasy fit with other Zionist versions
because it ignores the expression of Jewish values and culture through
law—an ostensible object of cultural-spiritual Zionism. And most versions
of Zionism sought a far more robust conception of social solidarity than
liberalism offers. Yet, it is the central place of reason over will that makes
this model, I suspect, seem deeply incompatible with Zionism as a revo-
lutionary movement of modern Jewish history. True, Zionism places few
limits on what Jews may become in their process of self-transformation. But
that very process is a matter of the will, and not of reason. Jews reasoned
themselves into a universal identity once before—in the eighteenth century
Jewish Enlightenment—and Zionism was a reaction to that project, not
its continuation. Certainly, perfectionist liberalism is based on a tempo-
ral imagination that even political Zionism, Chowers claims, decisively
rejected: the teleological-progressive one associated with Kant, the Jewish
Enlightenment, and global human rights, which presuppose increasing
universalization and the constant expansion of a moral community.
Obviously, the two conceptual models I have explored are precisely
that: conceptual models. They are intended to make more explicit the dis-
tinctive challenges Israel’s legal culture faces. Virtually all concrete democ-
racies are inextricable mixtures of the two types. Liberal nationalism is not
an oxymoron.25 Rather, the liberal and national character of democracies
are matters of degree and, as with most human goods in tense coexistence
with one another, success hinges on how these tensions are managed and
administered.
The Israel Supreme Court, as Menahem Mautner details at length in
Law and The Culture of Israel, has, by and large, taken up the liberal model
and largely its perfectionist version.26 The Court’s jurisprudence, especially
in the decades of the 1980s and 1990s, shifted dramatically according to

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Mautner. Formalism was abandoned, political questions formerly deemed

nonjusticiable were now viewed as legal questions, and the Court pursued
a discussion of values, weighing abstract rights against one another, and in
a fashion, Mautner asserts, that was largely “abstracted from the life of the
nation”.27 This was a Court trying to talk Israel’s citizens into a rights-based,
universal identity.
Until the enactment of the 1992 Basic Laws, these two poles of Israeli
legal culture and of Jewish identity itself—the national and liberal, the
universal and the particular—were managed primarily through a division
of labor. The Jewish character of the state was in the hands of the Knesset;
the Court was the guardian of democratic values and an inclusive Israeli
identity. But, as I noted above, for a judiciary in modern democratic politics
to achieve legitimacy when nullifying legislation of democratically elected
bodies, it must make a coherent competing claim to represent the people.
“Only then can the rule of law and rule by the people appear to intersect
in the judicial voice.”28 To represent the people, the Court must somehow
convey, through its opinions, that the values it is upholding are, in fact, the
values of the people.
We can now see the logic of Mautner’s astute observation that there
were, in fact, two constitutional revolutions that took place in Israel at one
and the same time and they were deeply interrelated. The Basic Law of
1992: Human Liberty and Dignity, which Justice Barak held entrenched a
quasi-Constitution, also announced the identity of the state: Jewish and
Democratic. If the Court sets itself up, as it did in the Mizrahi decision, as
a competing representative to the Knesset in modern democratic politics,
then in declaring the law, it needs to somehow represent this new mythic
body: a “Jewish and democratic” people. Indeed, Barak himself noted that
prior to the 1992 Basic Laws, the Court had not extensively discussed the
values of the state of Israel as a Jewish state and that now the Court also
would have to play a role in articulating these values.
According to Mautner, 1992 marked a decisive turning point in Aharon
Barak’s approach to Jewish sources. Before 1992, he equated “the principles
of Israel’s heritage” with Zionist thinkers; after 1992, he held that the refer-
ence in the Basic Laws to a Jewish state required the Court to take into
account the values, worldviews, and principles of the halakha. This is a
dramatic shift in the identity of “the people”. Before 1992 the origin of
the people was with the birth of the nation-state in 1948. After 1992, the
“people” also encompassed the historic community, including its exilic
output. This perspectival switch cannot be attributed solely to the difference
in language between the 1950 Basic Law, instructing the judiciary to take

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into account the principles of “Israel’s heritage”, as opposed to the language

in the 1992 Basic Laws referencing a Jewish state. It evidences, instead, a
keen awareness of the new role of the Court as a competing representative
of that mythic body called the “Jewish people”.
But what precisely is this mythic body? Is it a new mythic body, “a
Jewish and democratic people” called into being by the state? And what
sources, traditions, values, etc. supply the “Jewish” element? Debate among
the members of the Court, chief among them Aharon Barak and the late
Menahem Elon, takes a characteristically textual form.29 Both Barak and
Elon agreed on one crucial aspect: The ampersand is key. This is not a
schizophrenic but rather a harmonious people whose values are both Jewish
and democratic. They also seemingly agree that the exilic halakha, along
with Zionist thought, may supply the Jewish element within Israeli legal
culture. For Barak, halakha is a source of values, and for Elon it is an alterna-
tive normative corpus with which the members of the Court must engage.
Of course, for Barak, “Jewish” values have no genuine independent content.
In his first debate with Elon, he confined those Jewish values to the very
ones that gave birth to and were taken up by Western democratic ideals—in
other words, values that have been exhausted. He also made clear that the
phrase “Jewish state” should be understood at a high level of abstraction so
that it will coincide with the democratic nature of the state. In this sense,
as Joseph Raz pointed out, France, too, can be a Jewish state.30 Arguably,
universal values can be implemented in culturally specific ways such as in
the form they took in Jewish history. Universal values inevitably take local
forms. Indeed, in the United States, constitutional values often refer back
to values inherited from English common law. Yet, Barak seems to imply
that “Jewish” values must be raised to a level of abstraction common to all
members of Israeli society. Elon’s vision, by contrast, emerges as the more
radical: the Court will engage in a modern project of retrieval in which
secular—and even non-Jewish—members of the Court grapple with the
actual contents of the Jewish legal tradition. For both, the community of
discourse charged with constructing a constitutional identity is the Court.
Constitutional identity construction by a judiciary is a very deli-
cate operation, however. For, a constitutional identity is, by definition, a
nationalist and particularist project even if it entrenches only democratic
values; one, moreover, that is usually intended to have longevity. Ameri-
can constitutionalism is a repudiation of the Jeffersonian commitment to
continual revolutionary politics. The drama of American constitutional-
ism is the ongoing revelation, interpretation, and reinterpretation of the
American people’s values. What then is needed to ensure that the people

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see themselves as part of a trans-temporal collective subject existing over

generations and tied to “We the People”? What attitudes must members of
the public—and judges—have toward the constitutional project in order
for it to be legitimate?
These are phenomenological questions, not normative, but it is useful
again to briefly compare the American experience. In the United States, as
Jack Balkin has persuasively argued, the People, the popular sovereign, first
appear in the Declaration of Independence.31 This is where the people’s
future vision is laid out and it is the principles and values expressed in this
document that inform later constitutional interpretation, even if the Dec-
laration is not deemed “hard law”. Or, as Lincoln put it, quoting Proverbs,
the Declaration is the “apple of gold framed in a picture of silver.” So, there
is an origin, and a narrative that provides a telos, which is fixed by a text in
the shadow of which there is a commitment to interpret over time.
Put bluntly, the Basic Laws have no such narrative thrust. They pro-
vide too slender a reed for a robust practice of constitutionalism of the sort
contemplated by Barak in asserting that the “people have a constitution”.
Of course, narratives and promises appear in the Israeli Declaration of
Independence, which was taken up as part of the Israeli constitutional tra-
dition even before the Basic Laws posited democratic principles. But even
that document pales by comparison to the narrative thrust of the Hebrew
Bible to which the Declaration refers. And a deep ambiguity exists at the
heart of the Declaration precisely because it refers back to an even earlier
point in time: to the biblical Jewish people with which the founders of
Israel synchronized the modern Jew. According to the Declaration, the
point of origin of the popular sovereign of the Israeli state is equally the
Jewish people who stood at Sinai. Yet, returning to Sinai and certainly to
the Jewish exilic past is the psychological dead time Zionism repudiated.
In short, the point of origin of the constitutional subject—the “We
the People” in the Israeli context—is neither the Basic Laws nor even the
Declaration of Independence. The Jewish people, given the antinomies of
Zionism, are, rather, a trans-historical construct unmoored both from the
ordinary time of the nation-state and conventional Jewish history. Or, to
put in the helpful language of Chowers, “We the People” of the Zionist
temporal imagination is located in Now-time.32 The notion of self-creation
means one cannot have a fixed identity and one cannot know in advance
where self-transformation will lead. And whatever internal limits exist here
in the language and history of community members have no special author-
ity. The sense that the ever-changing Knesset is a better representation of
that people, and not the Court, which in exercising judicial review speaks

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with ultimate authority, is not a crude resort to democratic arguments about

the will of majority; rather, for all its flaws, it is faithful to the complexity of
Zionism as, indeed, a revolutionary politics, perhaps continually so, and a
genuinely revolutionary movement in modern Jewish history. It may well be
the fate of such a movement, however, that it cannot write a Constitution.
LAW WITHOUT NATION?
Religious Zionists, working within the halakhic tradition, have faced no

fewer problems in forging a coherent relationship among nation, state, and
law. I have written on this topic extensively elsewhere and will summarize
here only those aspects relevant for the final part of this article.33
As is well known, the Hebrew Bible presents divine law as a national
law and that law deals not only with matters of the cult, etc., but with
practical, political life such as war, affairs of state, and rights and duties
of resident strangers vis-à-vis members of the polity. With the destruc-
tion of this national-religious order, social and rabbinic elites formulated
an alternative concept of collective identity: observance of the law on a
transnational basis. The halakha was thought to create all the political
institutions necessary for continued self-governance across the globe. As
Eliezer Schweid aptly put it, the halakha functioned as “a portable political
entity”.34 Although traces of the biblical image of a people receiving a law
uniquely suited to its temperament appear in the rabbinic midrash, the
more prevalent midrashic-talmudic conception of Sinai is a reversal of the
biblical image: The law creates the nation and without the law there would
be no nation. This conception solidified with the gradual transformation
of the Talmud from a scholastic document into a devotional object—a new
site of divine space taking the place of the Temple. The law book became
the new embodiment of the nation.
The national-collective orientation of the Bible also was transformed
as religious orientations more focused on the individual and on individual
salvation arose in late antiquity. (Thus, Paul’s famous critique of the law
as death transforms the biblical focus on collective performance into one
of individual performance.) As Shlomo Fisher comments, “Observance of
Jewish law in exile became incumbent on the individual Jew, or in regard to
a number of cases, on the local community, which was conceived as being
constituted by individual Jews.” While “the obligations upon the individual
Jew derive from his membership in the primordial community”, nonethe-
less, “the legal-behavioral implications of this membership are worked out

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in regard to the individual.”35 Allegiance to the halakha and to a common

set of laws and texts thus came to be seen as a central definition of the
nation. What then happens to a body of law operating transnationally—
and which imagines itself as the sole expression of “national” identity—
when it is transplanted to a newly created nation-state?
Zionism, even before the establishment of the State of Israel, posed
a major crisis to the traditional mindset. One issue was its identification
as a secular, modern movement and, as such, inimical to religion. The
second was the reclamation in the historical present, and not the messianic
future, of the biblical national-collective worldview, including territorial
sovereignty and national-collective institutions such as state and military
ones. Most of the Jewish religious movements current in Israel are modern
utopian movements. They differ markedly in how they interpret the mean-
ing of history, however, and this ideological division brings with it radically
different approaches to the legal process.
The traditional, haredi, model does not relate to the state as a religious
vehicle or as any means for perpetuating Jewish collective national identity.
The halakha remains the sole national expression of Jews; a Jewish national
identity does not exist apart from the transnational halakha. The nation-
state and its institutions and policies, whether a host-state or the State of
Israel, are treated as external conditions. Thus, at best, the Jewish State is
simply a new political formation in which the objective, autonomous legal
categories of the transnational halakha apply. Thus, a variety of halakhic
principles and doctrines are canvassed and marshaled to assess whether
discrete and particular acts of statecraft, from war to secular legislation
to a secular court system, are compatible with pre-existing halakhic rules.
These rules continue to be approached in terms of the duties and rights of
individuals. For example, war is analogized to ordinary rules of individual
aggression and self-defense. From a strictly jurisprudential and formal
perspective, the haredi approach echoes several key assumptions of liberal
legality: social solidarity is supplied by common allegiance to the law, and
rights and duties are formulated from the perspective of the individual and
not the collective.
In contrast, the religious Zionists are dedicated to reviving the bibli-
cal conception of law. Some wings of this movement see the state in vivid
messianic terms as providing the opportunity to resacralize the secular:
to achieve the spiritual and political perfection of the nation. The non-
messianically oriented wings see it as an opportunity to revive halakha as a
religio-national, collectively oriented law and a national-cultural-spiritual
expression. Thus, Zionist halakha is committed to the elaboration of norms,

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such as the norms of war and affairs of state, from a collective point of view.
The nation again emerges as a collective entity with rights and duties and
not merely a bundle of individuals bound by individual halakhic obliga-
tions. As a key representative of the collectivist school, R. Goren, put it:
There are “two planes to Jewish law”: that of individual conduct, which is
governed by classic halakhic norms such as saving lives unless the right of
self-defense is activated, and that of national existence and institutions,
bound by national-collective obligations as well as rights, including the
right to conduct war and peace in the national interest without regard to
the lives of its individual citizens.36 Thus, the chief jurisprudential division
between the religious Zionists and the traditionalists, as Shlomo Fisher has
astutely observed, is the question whether the law recognizes only the rights
and duties of individuals or also recognizes the Jewish state as a separate
corporate embodiment of the nation, with collective rights. Thus, battles
over conversion and “Who is a Jew?” turn dramatically on these differing
attitudes toward the existence of a national identity, apart from that created
by the law itself.
Zionist halakha has been an immensely creative endeavor, generating
a new genre of responsa literature written in modern Hebrew and resusci-
tating non-canonical sources to fill the gap between the last direct address
of affairs of state in the Hebrew Bible and contemporary Jewish political
sovereignty.37 Moreover, seminal figures such as Herzog and HaLevi were
imbued with the early Zionist focus on democratic institution-building.
They essentially saw the establishment of the state as an opportunity to
update the halakha and bring out its nascent democratic themes, stressing
the necessity of constructing a thicker conception of social solidarity within
a mixed civil society and not only equal citizenship rights.
Much of this vitality has been sapped by two ideological develop-
ments, both of which de-center the Jewish state and its institutions from
its former privileged status. On the right, the ideological focus and energy
has shifted, with the rise of Gush Emunim, from sovereignty and demo-
cratic institution-building to the holiness of the land of Israel. On the left,
disillusionment with statism and nationalist ideologies set in. This branch
of religious Zionism identifies with political Zionism and liberal legality.
From a formal, analytic perspective, this branch has reverted to the juris-
prudential model of the traditionalists. Perhaps the best-known exemplar
is the late Yeshayahu Leibowitz, who initially thought the revival of the
halakha in areas of public, national life was of deep religious significance
and then changed his mind and became the foremost proponent for the
radical separation of halakha from state.38

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It is worth elaborating the commonalities. Because the state as an entity

has no religious significance, from a certain perspective, ultra-traditionalists
are hospitable, in theory, to a separation of religion and state, commensurate
with exilic patterns, arrangements, and doctrinal justifications.39 Indeed,
as with Puritan ideology, separation becomes the only way to protect the
garden of religion from the state. Both ultra-traditionalists and the left-wing
branch of religious Zionists share a view of the nation-state as essentially
profane, either because nationalism demands that religious conceptions of
holiness be extended to mundane acts of statecraft, such as war and inter-
national confrontation, or because nationalism fails to give precedence to
the individual as an autonomous human being, subordinating the human
being to society. This is but an intensification of the individualist orienta-
tion of the transnational halakha as a collective of individuals with society
as secondary. The halakha is thus conceived, as in Leibowitz’s and haredi
systems, as sacred religion, defining the essence of divine worship, or, as in
that of Tamares, an ethics guarding the status of the individual as against
society, the state, or other collective ideologies. Doctrinally, laws pertaining
to the status and rights of government (whether Jewish or non-Jewish) are
viewed as neither particular to halakha nor its essence; rather, they reflect
halakha’s universal, conventional, and, therefore, peripheral aspect.
I have elaborated on these disparate approaches to halakha not only
because they illustrate the profound difficulty of forging a conceptually
coherent account of the relationship of nation, state, and law in the wake
of Zionism and the establishment of the state but also—indeed, primar-
ily—because these disparate approaches bear on a key question raised in the
first part of this article and that I wish to take up briefly in the final part.
That question is as follows: What is the appropriate location within Israeli
society for open engagement with values?
CONCLUSION
Recall that Elon (and even Barak on Mautner’s read) gives the role of engag-
ing with halakhic sources squarely to the Court. If constitutional identity
is provided by the 1992 Basic Laws’ instruction to instantiate the values of
a Jewish and democratic state, it is incumbent on the Court to consider
halakhic sources, whether at a high level of abstraction or concretely. This
viewpoint is also consonant with the claim that Zionism implies a public
expression of Jewishness. In contrast, Leibowitz and others40 essentially see
the role of halakha vis-à-vis the state as an ethics embedded in civil society

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that can serve as a locus of ethical critique. Indeed, even the collectivists
such as Goren shared this view. Elaboration of an indigenous halakha for
all areas of life including statecraft and war—rather than resort to such
useful halakhic principles as dina de-malkhuta dina that might fill gaps by
incorporating into halakha foreign or even international law standards—
was necessary, according to Goren, precisely in order to maintain what he
called a “Jewish ethical worldview”.41 Goren surely did not expect the state
to adopt as hard law these halakhic elaborations; rather, their elaboration
was within civil society.
It is often claimed that the ideology of statism precluded Israel from
truly developing a civil society—an intermediary space of deliberation and
association that exists between the state and society that is both capable of
restraining state power and also stabilizing democracy as the general public
comes to agree over time on a certain principle of justice.42 The thinness of
Israeli culture and civil society is a subtext of both Mautner’s and Chowers’
recent books. Chowers locates the thinness of Israeli political culture in the
history of ideas that formed and shaped Zionism from the beginning. First,
the semi-cyclical temporal imagination of Zionism—the synchronization
of the biblical and modern periods and the consignment of exile to psy-
chological dead-time—resulted in the cultural absence of Jewish sources
beyond the biblical. Second, the transformation of the Hebrew language,
to which much Zionist energy was directed, resulted in the absence of a
language of democratic deliberation. Instead, Israel is caught between the
sacredness of Jewish sources and the workaday practical utility of Hebrew
as new profane language. True, poetry succeeded in bridging between the
two but poetry is primarily emotional and interior. A model of reasoned
deliberation is available in Jewish culture. That is the model of the Talmud.
But it has been ejected from Jewish culture both because it is emblematic
of psychological dead time and because it is not in Hebrew.
Mautner contends, in contrast, that Israel had a robust civil society
until the 1980s, but civil society discourse was transferred to the Court after
the demise of the press. The Court then occupied the basic functions of
civil society, deliberating over values, and became, in a sense, the location
of the public sphere (much as the bet midrash was the public sphere within
rabbinic culture). Thus, the Court went from a partner in norm creation
to an overseer of norm creation. Indeed, Mautner claims, this value-laden
discussion has contributed, if not caused, the absence of a robust discussion
of values in society. By stretching the canopy of law over so many previously
non-justiciable issues and vesting their resolution on a balancing of values,
the Court eliminated the space between law and morality. Every problem

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has become a legal-moral one that obviates ethical discussion within society.
In short, one of the hallmarks of classical liberalism—positivism’s sharp
separation between morality and law—was abandoned, thinning civil soci-
ety and eliminating a standpoint for critique, whether drawn from ethics
or religion. The virtual demise of that wing of religious Zionism devoted
to elaborating halakha as a form of ethical critique has contributed to this
state of affairs.
There is some indication that Jewish civilizational resources, includ-
ing Talmudic and other exilic cultural outputs, are in the process of being
resuscitated within secular Israeli civil society as relevant for life in a modern
democratic state. If this project genuinely takes hold, the story of Zionism
in the twenty-first century may contain a chapter on the self-transformation
of the New Jew into the Old Jew.
Notes
1. S.H. 1994, No. 1545, 90; S.H. 1992, No.1391, 150.

2. See United Mizrahi Bank Ltd. v Migdal. In fact, the Court had struck down
legislation before, invoking the Declaration of Independence in 1953 in the Kol
HaAm case and, in the Bergman case, citing Basic Law: The Knesset (1958).
3. Quoted in Menahem Mautner, Law and the Culture of Israel (Oxford, 2011),
178.
4. Ibid., 179.
5. See Gidon Sapir, “Book Review—Between Liberalism and Multiculturalism,”
Bar-Ilan Law Studies 26.1 (2010): 322 [Hebrew].
6. Marbury v Madison, 5 U.S. 137 (1803).
7. In discussing the status of the Basic Laws, Aharon Barak writes, “Is the
formal constitution of Israel entrenched? A constitution is entrenched if it con-
tains the supreme norms in the same legal system, and if it is superior to ordinary
legislation in such a way that an ordinary statute of the legislator (i.e., the Knesset)
is unable to amend or repeal its provisions. A formal constitution is mutable if an
ordinary statute put forth by the legislative branch is able to amend or repeal its
provisions. Is the formal constitution of Israel entrenched, or mutable? The cur-
rent answer is clear and known to every jurist. Our formal constitution, which is
comprised of our basic laws, is entrenched. An ordinary statute from our legislative
body cannot amend our formal constitution. An ordinary statute may repeal a
constitutional provision only if such power is expressly provided in the constitution
itself. Thus, the Basic Laws are the supreme legal norms in Israel. Beneath them are
the ordinary statutes. A Basic Law and an ordinary law do not stand on the same

193.0.118.39 on Sat, 22 Apr 2023 09:15:26 UTC
normative level. They stand on two different normative plains—the Basic Law
being the superior norm and the ordinary law inferior to it.” See Aharon Barak,
“The Role of the Supreme Court in a Democracy,” Israel Studies 3.2 (1998): 12.
8. Mautner, Law and the Culture of Israel, 75–98. This shift was in no small part
enabled by Agranat’s earlier introduction of American sociological jurisprudence.
Agranat was the one American-born and -trained justice on the Israel Supreme
Court until the recent appointment of Neal Hendels. See Pnina Lahav, Judgment in
Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley, CA, 1997).
9. American legal literature is studded with conceptual comparisons between
the practice of American constitutionalism and religious practice. And more often
than not, the comparison is with rabbinic Judaism. The comparison, a chapter
in the saga of acculturation of Jewish lawyers in America (once dubbed “From
Torah to Constitution” by the sociologist Jerrold Auerbach) was nowhere more
developed than at the Yale Law School where Justice Barak is a frequent visitor.
See generally, Suzanne Last Stone, “In Pursuit of the Countertext: The Turn to the
Jewish Legal Model in American Constitutional Theory,” Harvard Law Review
106.4 (1993): 813–94. Mautner and others have pointed out the startling affinity,
in turn, of the Barak Court’s jurisprudential style with certain features of Jewish
jurisprudence, particularly those most Dworkinesque: the blurring of boundaries
between law, politics, and morality, so that political and ethical questions become
legal questions, the interpretive turn coupled with the central role of values and
principles, in opposition to positivism’s focus on rules and on the separation of
law from politics and morality. These are observations about jurisprudential bent
and intellectual grammar, not content. The Israel Supreme Court probably cites
fewer Jewish sources than do American courts. On the remarkable rise in citations
to Jewish sources in the American legal system, see Suzanne Last Stone, “Influence
of Jewish Law on the US Legal System,” Jewish People Policy Planning Institute,
Annual Assessment: Major Shifts—Threats and Opportunities 3 (2006): 54–9.
10. See Robert Post, “Theories of Constitutional Interpretation,” Representations
30 (1990): 15.
11. Eyal Chowers, The Political Philosophy of Zionism: Trading Jewish Words for
a Hebraic Land (New York, 2012).
12. Benedict Anderson, Imagined Communities (London, 1991), 6.
13. Quoted in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey,
eds., Law Without Nations (Palo Alto, CA, 2011), 191.
14. See generally, Ibid., 1–21.
15. Roger Cotterrell, “Law and Culture—Inside and Beyond the Nation State,”
Retfoerd: Nordisk Juridisk Tidsskrift 31.4 (2008): 27.
16. Chowers, The Political Philosophy of Zionism, 87. See also Kahn, Legitimacy
and History: Self-Government in American Constitutional Theory (New Haven, 1992),
87; See William Ewald, “Comparative Jurisprudence 1: What was it Like to Try a
Rat?” University of Pennsylvania Law Review 14.3.6 (1995): 1943–2095.
17. See Assaf Likhovski, “The Invention of Hebrew Law in Mandatory

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Palestine,” American Journal of Comparative Law 46.2 (1998): 339–73; Ron Harris,
“Absent Minded Misses and Historical Opportunities: Jewish Law, Israeli Law and
the Establishment of the State of Israel,” in On Both Sides of the Bridge: Religion and
State in the Early Years of Israel, ed. Mordechai Bar-On and Zvi Zameret ( Jerusalem,
2002), 21–55 [Hebrew].
18. Leora Batnitzky, How Judaism Became a Religion: an Introduction to Modern
Jewish Thought (Princeton, NJ, 2013), 161ff.
19. See Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship
(Chicago, 1999); The Reign of Law (New Haven, 1997); Legitimacy and History:
Self-Government in American Constitutional Theory (New Haven, 1992).
20. See Paul Kahn, “Political Time: Sovereignty and the Transtemporal
Community,” Cardozo Law Review 28.1 (2006): 259–76.
21. Chowers, The Political Philosophy of Zionism, 58.
22. Ibid., 59.
23. Sarat, Douglas, and Umphrey, Law Without Nations, 11.
24. Idem.
25. See Yael Tamir, Liberal Nationalism (Princeton, NJ, 1993).
26. Mautner’s thesis is that a hegemonic group whose values were liberal, secular,
democratic, and Western ruled Israel through the Labor Party until the late 1970s.
With the fall from power, and the increasing particularization of the legislative
and executive branch, this group turned to the judiciary as an alternative power
base. The Court cooperated but was able to do so only through vast changes in its
jurisprudence. Mautner describes this process as a kulterkampf of secular liberals
versus the religious and rightwing parties. Whether this is the case is very debatable.
Much of the opposition to the Court’s new jurisprudence crosses party lines and
is hardly from the religious camp alone.
27. Mautner, Law and the Culture of Israel, 198.
28. Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship
(Chicago, 1999), 78.
29. See Aharon Barak, “The Constitutional Revolution: Protected Basic Right,”
in The Jewish Political Tradition Vol 1: Authority (New Haven, 2000) 502–03; and
Menachem Elon, “Constitution by Legislation: The Values of a Jewish and Demo-
cratic state in Light of the basic Law: Human Dignity and Personal Freedom,”
ibid., 503–05.
30. Joseph Raz, “Commentary: Against the idea of a Jewish State,” in The Jewish
Political Tradition Vol 1: Authority (New Haven, CT, 2000), 509.
31. Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World
(Cambridge, MA, 2011), 19.
32. Chowers, The Political Philosophy of Zionism, 23.
33. Suzanne Last Stone, “Law without Nation or Law without State: The Case
of Halakha,” in Law without Nations, ed. Austin Sarat, Laurence Douglas, and
Martha Humphrey (Palo Alto, CA, 2010), 101–37.
34. Eliezer Schweid, “Attitudes to the State in Eighteenth and Nineteenth

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Century Jewish Thought,” in Kinship and Consent, ed. Daniel Elazar (Washington,
DC, 1983), 134–47.
35. Shlomo Fischer, “Excursus: Concerning the Rulings of R. Ovadiah Yosef
Pertaining to the Thanksgiving Prayer, the Settlement of the Land of Israel, and
Middle East Peace,” Cardozo Law Review 28 (2006): 229, 236.
36. See generally, Arye Edrei, “Law, Interpretation, and Ideology: the Renewal
of Jewish Laws of War in the State of Israel,” Cardozo Law Review 28.1 (2006):
187–227.
37. Idem.
38. For an example of Leibowitz’s change in thought, compare Yeshayahu Lei-
bowitz, “The Crises of Religion in the State of Israel,” in Judaism, Human Values,
and the Jewish State, ed. Eliezer Goldman (Cambridge, MA, 1992), 158–73 and “A
call for Separation of Religion and State,” ibid., 174–84.
39. See Suzanne Last Stone, “Religion and the State: Models of Separation
from Within Jewish Law,” International Journal of Constitutional Law 6.3–4 (2008)
631–61.
40. Ehud Luz, Wrestling with an Angel: Power, Morality, and Jewish Identity
(New Haven, CT, 2003), 209–12. See also David Hartman, Israelis and the Jewish
Tradition (New Haven, 2000).
41. See the insightful comments of Edrei, “Law, Interpretation, and Ideology”.
42. This is the Rawlsian conception.

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Law in Light of Zionism: A Comparative View

Author(s): Suzanne Last Stone

Stable URL: http://www.jstor.com/stable/10.2979/israelstudies.19.2.111

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Law in Light of Zionism:

The article is a conceptual analysis of the challenges Zionism has faced in

I srael’s “constitutional revolution” is now 21 years old. Of

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From a purely sociological perspective, a turn closer to the American

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NATION, STATE, AND LAW

The historical national community is a community of obligation. Because our

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The classic theories of the nation-state also imagined a particular

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while adhering to their religion in private. Rather, Jews were a nation of

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course, couldn’t be further from the temporal imagination underlying the

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retrieve more fertile memories.”21 As Chowers observes: “When there are

The hallmarks of liberal legality—the commitment to tolerance, the harm

Liberalism harks back to the Enlightenment imagination of society as a

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Mautner. Formalism was abandoned, political questions formerly deemed

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into account the principles of “Israel’s heritage”, as opposed to the language

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see themselves as part of a trans-temporal collective subject existing over

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with ultimate authority, is not a crude resort to democratic arguments about

LAW WITHOUT NATION?

Religious Zionists, working within the halakhic tradition, have faced no

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in regard to the individual.”35 Allegiance to the halakha and to a common

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It is worth elaborating the commonalities. Because the state as an entity

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1. S.H. 1994, No. 1545, 90; S.H. 1992, No.1391, 150.

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