Once, when I was helping to draft a constitutional proposal for the state of Israel, a prominent rabbi urged me to include a provision that would require judges on rabbinical courts to be God-fearing. When I suggested that this kind of language was likely to prove ineffective in a constitutional context—and that it might be better if judges on rabbinical courts weren’t appointed by the government in the first place—he gave me an odd look and asked, in all sincerity: who, then, would pay for them if not the government? The possibility had never occurred to him that Jewish communities and not the state should support Jewish institutions.

Nor does the possibility seem to have occurred to the state itself. A case in point is a recent ruling by Israel’s Supreme Court involving a controversial loophole in Jewish religious law (halakhah). The loophole, in force since the establishment of the state, permits the growth and sale of agricultural produce during biblically-mandated sabbatical years. In anticipation of the latest such year, the state-sponsored chief rabbinate decided that local religious courts could allow or disallow the loophole at their discretion. Whereupon an organization of Orthodox rabbis encouraged farmers to petition the Court to strike down the decision of the chief rabbinate and instruct it instead to re-impose a statewide, across-the-board acceptance of the loophole. The Court ruled in favor of the petitioners.

Now, why would Orthodox rabbis approach a secular Supreme Court to intervene in a matter on which a century of rabbinic legists had written hundreds of learned opinions? Why wouldn’t such rabbis simply issue their own certification of disputed produce? And as for the Court, what made it think it had any competence to rule on an arcane question of religious law?

In brief, what sorts of ideas lead reasonable people to outlandish expectations concerning the relation of a Jewish state to the practice of Judaism?

I raise these questions because I want to make an argument for drastically limiting the role of the Israeli state in developing and maintaining Jewish institutions. I do so, however, as one who very much wishes to see an expansion of the influence of traditional Judaism in the Israeli public square. In my view, this expansion is possible only if the state ceases to usurp power better held by Jewish communities, which have successfully transmitted and evolved Jewish moral traditions for millennia. Strengthening these moral communities is my main objective. Although my specific concern is Israel, the issues at stake, as I hope to make clear, are applicable to every democratic society grappling with the crossroads between religion and state.

 1. Romancing the State

Early supporters of the founding of a Jewish state envisioned it as replacing Diaspora communities that had grown weak and desiccated. The writer Micha Yosef Berdichevsky (1865-1921), turning a biblical encomium—“How goodly are your tents, O Jacob”—into a slur, railed: “How narrow are your tents, O Jacob.” In particular, the founders hoped the state would become an arbiter and enforcer of new values, using its authority to promote ideas and virtues central to the secular ethos of the time. The most glaring example of this policy was the forced re-education of young religious immigrants by placing them in secular kibbutzim with the intention of transforming “human dust,” in David Ben-Gurion’s pungent words, “into a cultured nation.”

As Ben-Gurion’s formula suggests, the values the new state was intended to enforce were in most cases the opposite of those inculcated in traditional Jewish communities. Preeminently, the statist awakening aimed to overcome old habits of quietism and forbearance while replacing the authority of elders and sages with the authority of the young and vital in a redeemed land. While the young Zionists carried with them many elements of a classic Jewish narrative—they recalled a glorious Jewish past, roughly coterminous with the period of the Bible, and viewed their return to the land in millennial terms—those past glortraies were defined not in moral but in political terms, and the millennialism derived more from Comte and Marx than from Isaiah. As a result, both past glories and anticipated future ones were unmediated by a continuous traditional narrative.

True, not all early Zionists were secularists. What, then, of early religious Zionists? They had to contend not only with their secular Zionist counterparts but with the strong arguments against Zionism leveled by many Jewish religious authorities. To the latter, the modern state, any modern state, posed a threat to the traditional Jewish ethos.

In Diaspora Judaism, the life of the spirit had been paramount. Jews had redefined power as, essentially, the ability to live their lives according to their own traditions and to pass on their cultural and intellectual legacy to their children. The capacity to move armies was not among their aspirations. Indeed, as a matter both of principle and of bitter historical experience, the Diaspora version of Judaism was suspicious of, if not downright antagonistic to, political authority. For its part, Jewish religious law had adapted itself to these circumstances and, when it came to managing the internal affairs of Diaspora Jewry, functioned reasonably well at the level of individuals or communities. It had not yet been tested at the level of the state—and assuredly not at the level of a modern state conceived along anti-traditionalist lines.

In the face of the arguments of their anti-Zionist counterparts, some early religious Zionists—like Rabbi Yitzhak Yaakov Reines (1839-1915), the founder of the Mizrahi movement—took a pragmatic approach to the Zionist project: pondering both the opportunities and the dangers, they decided that, given the Jews’ precarious political situation in the Diaspora, the risk posed to Judaism by a potential Jewish state was a risk worth taking. For many others, though, the prospective return to Jewish sovereignty in the land of Israel inspired a more exalted and momentous response, one that could be formulated in terms of a divine plan.

From this there flowed a new definition of national power that, going the secularists one better, saw the various aspects of state-building—agricultural, military, industrial—not simply as necessary burdens but as sacred endeavors worthy of a veneration earlier reserved for affairs of the spirit. For followers of Rabbi Abraham Isaac Kook (1865-1935), the first chief rabbi of Mandatory Palestine, the state and its institutions, however beset by flaws, were products of the redemptive process.

Fatefully, most religious Zionists were also ready to designate the state itself as the appropriate authority for regulating religiousmatters. The state would appoint rabbis, enforce religious legislation, and fund religious services. The management of these affairs would be entrusted to secular officials: bearers (in this view) of profound religious longings of which they might be unaware.

On some points, secular anti-traditionalists and religious traditionalists differed: while the former looked to the state to replace Jewish tradition, the latter looked to the state to upgrade and subsume it.¹ But on the main point they were perfectly agreed: the state would take over the role of communities in enforcing morality and in funding and regulating religious institutions. In so reasoning, both were guilty of the same fundamental error, conflating peoplehood with statehood and community with state, and ignoring the fact that membership in each is determined in completely different ways.

How so? To put the matter at its simplest, a community (in the sense that I use the term here) is by definition composed of members who choose to submit to its authority because they identify themselves with its ethos. A state, on the other hand, imposes obligations (approximately) equally on all within its geographic scope. Thus, communities tend to be small, homogeneous, and voluntary associations, while states tend to be large, heterogeneous, and coercive.

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