Rabbi Haim Hirschensohn: an Orthodox Rabbi responds to the Balfour declaration.
The renewed national sovereignty of the Jewish people in their ancestral homeland brought scores of moral and practical challenges to Jewish life and thought that remain unto the present day. For many contemporary religious and cultural Zionists, one of these challenges has been, in the words of historian Adam Ferziger, to discover "alternative and more liberal ways of approaching questions of Jewish law and modernity in general and of Judaism and nationalism in particular." (4)
In engaging in this quest, more and more religious-national and cultural Jews in Israel have turned with great interest to the writings of Orthodox Rabbi Haim Hirschensohn (1857-1935 [Figure 1]). A native of the Land of Israel who came to the United States in the first years of the Twentieth Century, he wrote on issues regarding the proposed Jewish state while living in Hoboken, New Jersey. Interest in Hirschensohn-- particularly in Israel--has become noteworthy in recent decades. The scholar Eliezer Schweid wrote an impressive 1992 monograph, Democracy and Halakbab, on Hirschensohn and his thought, while David Zohar, a religious-national Israeli, authored Jewish Commitment in a Modern World: Rabbi Haim Hirschensohn and His Attitude toward Modernity, in 2003, a book that scholar Marc Shapiro has described as the starting point from "where all future analysis of Hirschensohn's halakhic thought will begin." (5)
Besides these scholars, many others have turned to Hirschensohn. This scholarship has sparked a renewed contemporary interest in Hirschensohn and his writings precisely because his great halakhic erudition as well as his warm embrace of Zionism and the modern world allowed him to argue that Judaism and Jewish law possess the capacity to affirm democracy and other modern political and cultural currents and trends. (6) For religious and cultural Zionists who wish to reject the apocalyptic, messianic currents of religious Zionism as promoted by the ideological heirs of Gush Emunim, the responsa of Hirschensohn allow them to identify political-religious Zionism with the openness and rationality that they feel ought more appropriately to characterize religious Zionism. Because his writings display an unwavering commitment to religious Zionism and a profound knowledge of Jewish law, Hirschensohn provides a model of authentic halakhic sobriety, creativity, and integrity that they feel Israel needs today.
In this essay, my aim is to focus on two major issues he addresses in his halakhic work Malki Bakodesh: the end of Jewish political quiescence as a response to the Balfour Declaration of 1917, and the contention that Jewish law should not only accommodate democracy, but that it demands its full embrace as the form of government required by a Jewish polity. In analyzing his work, I will demonstrate the novel halakhic efforts of a scholarly rabbi residing in the United States to explain these matters from a Jewish legal standpoint.
Rabbi Haim Herschensohn and Malki Bakodesh: His Life and the Context for His Halakhic Work
The life of Haim Herschensohn cannot be understood without an appreciation of the mid-nineteenth century world into which he was born. The Land of Israel during the mid-1800s was under Ottoman rule. Three major groups succeeded in establishing autonomous Jewish settlements there at that time, religiously-traditional Sepharadim from the Ottoman Empire itself, Ultra-Orthodox Askenazim who fled Central Europe in order to escape what they regarded as the negative impacts of political emancipation, and religiously observant proto-Zionist followers of what would emerge in the 1880s as Hibbat Tsiyon and Hovevei Tsiyon. (7)
Hirschensohn was born in Safed in 1856 to parents who were part of this latter group. His parents had immigrated to Israel from Pinsk in 1847, and the young Hirschensohn grew up in an atmosphere infused with love for the Land of Israel, the Hebrew language, and classical Jewish religious learning. In 1864, the family moved to Jerusalem, where his father, Rabbi Yaakov Mordecai Hirschensohn, became a founder and served as head of Succat Shalom Yeshiva. At the age of 18, Haim Hirschensohn married Chava Sarah HaCohen, daughter of Rabbi Shaul Binyamin HaCohen, head of Etz Haim Yeshiva in Jerusalem. In 1885, he went abroad to visit relatives in Russia and Germany, and while in Frankfurt-am-Main, was introduced to the work of the Wissenschaft des Judentums ([Science of Judaism], a nineteenth century European movement centered on a critical, scholarly investigation of Jewish literature and culture). Impressed by this approach to Jewish study, Hirschensohn began to publish a journal, Hamisdarona, when he returned to Jerusalem. Dedicated to researching Judaism, this journal, which was published for four years, was unique, as Eliezer Schweid maintains, because of "its contemporary national outlook." Employing its pages "to deal with the problem of reviving a Torah scholarship which could lay the foundations for [a Jewish] national life," the journal garnered genuine prominence, and European Orthodox proponents of Wissenschaft such as Rabbis Esriel Hildesheimer and David Tzi Hoffmann published in its pages. (8)
Hirschensohn also joined together with Eliezer ben Yehudah, Rabbi Yehiel Pines, and Rabbi David Yellin, to found Safah Brurah, an organization devoted to fostering the revival of Hebrew as a spoken language. Indeed, Hebrew was the only language spoken in the Hirschensohn household. His resolve to adopt and promote spoken Hebrew both publicly and privately, as well as his decision to teach Talmud at the Lemel School in Jerusalem, a school that the ultra-Orthodox Ashkenazic community in Jerusalem placed under herem (excommunication) because secular subjects were taught there, led to his condemnation by the ultra-Orthodox. In response to this press, Hirschensohn left Israel for Constantinople in 1901. As an active member of the Religious Zionist Mizrachi Movement, Hirschensohn was selected as a delegate from Constantinople to the Sixth World Zionist Congress in Basel in 1903. There he met delegates from the United States, and this led to his decision to move along with his family to America. He ultimately settled in Hoboken, New Jersey where he served as the rabbi of an Orthodox congregation from 1904 until his death in 1935. (9)
Throughout these three decades, Hirschensohn produced a vast literary corpus in Hebrew on a host of topics, including a Haggadah sbel Pesach u've'ur mada-i (Passover Haggadah and Scientific Explanation), published in 1935. (10) However, it is to his great halakhic work, Malki Bakodesh, written one year after the Balfour Declaration in response to the 21st American Zionist Conference to which I now turn.
In Pittsburgh on June 25, 1918, the Zionist Organizations of America had "outlined a plan for the establishment of the State of Israel on the basis of justice and equality." (11) Chaired by Justice Louis Brandeis, this conference proposed that the future Jewish State, like the United States, be founded on the principles of democracy. One plank in the platform of the proposed state called specifically "for political and civil equality irrespective of race, sex, or faith of all the inhabitants of the land." This call, "coupled with the November 1917 Balfour Declaration pledging British support for a Jewish homeland in Palestine," made the "Declaration of Principles," in the words of Jonathan D. Sarna, "timely indeed." (12) The Balfour Declaration, as Jonathan Frankel has noted, "marked the opening of a totally new epoch [in Jewish history]," and expressed, in the words of David Ben Gurion, the "proud hope of a Jewish Palestine" where "a Jewish home" built on "national and democratic foundations" would be constructed. (13) The Declaration called for Jewish political activism, and Hirschensohn believed that the moment demanded an Orthodox response
Jeffrey Gurock has observed that Eastern European-born rabbis of Agudath Ha-Rabbonim (Union of Orthodox Rabbis of the United States and Canada), were, "notwithstanding ... [their] rejection of [many] modern American ways," at one with some of their more modern American counterparts in "active support of Zionism." (14) By 1918, however, these men had not yet articulated a precise halakhic argument indicating how a future Jewish state could affirm a democratic form of government as acceptable from the standpoint of Jewish law. Hirschensohn recognized that an explanation of the affinity between Jewish law and democracy was now required. As Yaakov Malomet has stated, "Questions of the compatibility of traditional Judaism with Zionism and democracy could no longer be avoided. If Rabbi Hirschensohn and other Religious Zionists were to remain part of the mainstream Zionist Movement, democracy had to be reconciled with Halakhah. Conversely, if mainstream Zionism was to remain connected with traditional Judaism and Orthodox Jews, there needed to be a halakhic argument for a democratic Jewish State." (15) Hirschensohn hoped that Malki Bakodesh would offer answers to these questions by providing a halakhic foundation for the creation of a modern democratic Jewish state. Having provided an explanation of the context that elicited the Hirschensohn writing on this matter, I now turn to Malki Bakodesh itself.
Malki Bakodesh: The Title Page
The title page of Malki Bakodesh explicitly makes clear the nationalistic and religious aims and aspirations of its author (Figure z). Immediately under the title, Hirschensohn writes "B'hanhagat hamamlakhah b'yisrael 'al pi darkhei ha-halachah--On the Conduct of Government in Israel according to the Paths of Jewish Law." He then cites Psalms 68:25, "They have seen your ways [halichotekha[, O God, the ways of my God, My King, in holiness [malki ba-kodesh]," from which Hirschensohn derives the title of his responsa collection. This is followed by a citation from the Jerusalem Talmud, Megillah 1:4, which states, "Jewish laws [halachot] are not to be annulled in the future, as it says, 'His ways [halichot] are everlasting' [Habakuk 3:6]. Do not read. "ways--halicbot, but laws [balacbot]." Finally, under the Hebrew year, 5679, Hirschensohn states, "Sh'nah sh'niyah 'l'bakarat mamlachut habrit et z'chuteinu l'eretz yisrael [The second year after recognition by the United Kingdom of our right to the Land of Israel]."
The religious commitments of Hirschensohn and how he integrated them into his Zionist affirmations could not be made more explicit. The title page reflects his view that the Jewish nation-state pledged by the Balfour Declaration ought to be directed in accord with Jewish law--halachot--when established. After all, these laws, as the Jerusalem Talmud states, are "everlasting."
Equally significant is what these passages from the Bible and Talmud say about the attitude Hirschensohn had towards history. They signal that Hirschensohn regarded the Balfour Declaration as more than an act of political expediency or accomplishment. In fact, Hirschensohn did not see the Declaration in secular terms at all, as either national or political. Rather, he regarded the creation of a modern Jewish nation-state in Eretz Yisrael, as indicated by the Balfour Declaration, as a manifestation of the divine "ways" announced by the Psalmist in Psalms 68:z. History is an arena where God is present. The title of his work indicates that Hirschensohn believed that the "King" had revealed Himself in "holiness" through the pronouncement of Lord Balfour. The title page leaves no doubt that Hirschensohn adopted an activist religious-political stance that assigned the Balfour Declaration religious meaning. How he was to justify that reading is the subject of the next section of this paper.
The Problem of Jewish Political Activism in Rabbinic Thought
Hirschensohn was well aware that many Orthodox rabbis of his era viewed the Balfour Declaration as ushering in the possibility of the spiritual destruction of the Jewish people. Indeed, these rabbis regarded pro-Zionist rabbis like Hirschensohn as undermining Jewish faith. This was particularly true of the ultra-Orthodox rabbis who were among his most active critics and opponents. The rabid anti-Zionist attitudes expressed by the Rebbe of Munkacs, Rabbi Hayim Eliezer Shapira (1868-1937) were typical. In the words of Aviezer Ravitzky, Shapira condemned any "attempt to bring the Jews collectively to the Land of Israel as a usurpation of the Messiah's role and an attempt to force the End of Days ... He completely dismissed the Zionist hope to achieve diplomatic and political progress through the help of other nations, and vehemently dismissed the Balfour Declaration and its implications for the life of Israel." As Shapira wrote in the early 1920s, "For even if the whole people of Israel is prepared to go to Jerusalem, and even if all the nations consent, it is absolutely forbidden to go there. Because the end is unknown and perhaps this is the wrong time." (16)
As Ravitzky demonstrates in Messianism, Zionism, and Jewish Religious Radicalism countless other rabbis had expressed identical views to Rabbi Shapira in response to Zionism even in the years prior to the Balfour Declaration. For example, Rabbi Yitzhak Ya'akov Rabinowitz, the Bialer Rebbe, declared, around 1890:
[Zionism represents] the struggle of the Evil Urge and its assistants, who wish to bring us down, heaven forbid, by false and harmful opinions, claiming that, if Israel will not perform some concrete action to settle in the Holy Land and to actually work the land, they will be unable to leave this bitter Exile, heaven forbid ... This falsified view has strengthened in our time, due to our great sins ... The Zionists likewise wish to join together and to unite against God and His Messiah. In fact, Israel have no greater foe and enemy, who wish to deprive them of their pure faith; our salvation and redemption transcends the way of nature and human intelligence; He, may He be blessed, watches over us with a sharp eye in our Exile, and 'in all our troubles, he is troubled' (Isaiah 63:9), so to speak. (17)
Or, to cite one last representative figure of this position, Scholem Dov Schneerson, the Lubavitcher Rebbe, said, around 1900:
In order to implement their idea, the Zionists must distort the essence [of Jewishness] in order to get [the Jews] to assume a different identity ... Our God-fearing brethren know that they are under the yoke of the Exile and that they need to be submissive in every situation ... Their [the Zionists'] presumptuous goal of gathering [the Exiles] together on their own will never come to pass, and all their stratagems and efforts will be of no avail against the will of the Lord. They will try one idea after another, like garments, but it is the counsel of the Lord that will prevail. He alone, may He be blessed, will gather us up and assemble us from the four corners of the earth ... In the present exile we must expect redemption and salvation only at the hands of the Holy One, blessed be He, Himself, not by flesh and blood, and thus will our redemption be complete." (18)
All of these anti-Zionistic rabbis viewed the Zionist Movement as heretical and its supporters as rebels against God. Zionism, in their view, embodied an intolerable secularization of traditional Jewish messianism. They condemned it as an insufferable violation of "The Three Oaths" found in Ketubot 110b-111a. (19) This famous Talmudic passage had long been interpreted as forbidding Jewish political activity on a national scale until God Himself would choose to bring the Messiah. It was seen as enjoining an ethos of national political quiescence. The passage reads:
Rabbi Zera was evading Rav Judah because he desired to go up to the Land of Israel while Rav Judah had stated, 'Whoever goes up from Babylon to the Land of Israel transgresses a positive commandment, for it is said in Scripture, 'They shall be carried to Babylon, and there they shall be, until the day that I remember them, says the Lord' (Jeremiah 27) ... And Rav Judah? Another text is also available, 'I adjure you, O daughters of Jerusalem, by the gazelles, and by the hinds of the field, that you neither awaken nor stir up love, until it please' (Song of Songs 2) ... What was the purpose of these three adjurations? One, that Israel shall not go up [all together as if surrounded] by a wall [italics mine]; the second, that whereby the Holy One, blessed be He, adjured Israel that they shall not rebel against the nations of the world; and the third is that whereby the Holy One, blessed be He, adjured the idolaters that they should not oppress Israel too much.
While this passage was generally interpreted by the rabbis as permitting aliyab for an individual Jew, political activity designed to bring the Jews as a collective to Eretz Yisrael was condemned as a heresy that reflected a lack of faith in the redemptive power of God. Any human attempt to "hasten the end" violated the explicit injunction against such activity as expressed in the Ketubot text. (20)
The understanding that Ravitzky provides of rabbinic attitudes towards political activism in relationship to Zionism and messianism is only reinforced by the reading of rabbinic attitudes towards history that Yosef Hayim Yerushalmi offers in Zakhor. Yerushalmi maintains that rabbinic Judaism eschewed political activism after the crushing defeat of Bar Kochba in the Second Century. He wrote, "The tendency to discourage and combat messianic [political] activism in any form ... became a dominant characteristic of responsible rabbinic leadership [throughout the ages]. The faith of rabbinic Judaism in the coming of the Messiah remained unshaken; [however], the time of his coming was left to heaven alone." (21)
Of course, not all rabbis dwelling in the Diaspora held these politically passive views; the rise of the Mizrachi Movement at the turn of the century meant that there were leading Orthodox rabbis who were proponents of Jewish collective settlement in the Land of Israel. These men and their views were frequently the targets of ire on the part of their opponents. Nevertheless, even an early opponent of political Zionism like the outstanding Jewish moralist, the Hafetz Hayim (Rabbi Israel Meir Kagan, 1839-1933), contended that Balfour was "a form of divine intervention." (22)
Furthermore, as we have seen, most European-born and educated Orthodox rabbis in America who joined the Agudat Harabanim in the early years of the Twentieth Century "largely supported Zionism". While Hirschensohn was thus not an isolated Orthodox rabbinic figure in calling for support of the Zionist enterprise when he wrote Malki Bakodesh, his halakhic interpretations of Ketubot 110B-111a and his Jewish legal support for democracy--as will be seen--were certainly original, if not revolutionary. (23)
Hirschensohn's Response to the Challenge of Ketubot 110B-111a in Malki Bakodesh
More than anyone else in his camp, Hirschensohn seems to have grasped the scope and enormity of the halakhic challenge presented by rabbinic opponents of Zionism to the religious Zionist camp's reading of history. He understood and therefore felt compelled to respond to these critics, and in particular their charge that Zionism was heretical. Hirschensohn therefore discussed the Ketubot text at length. He offered a legal interpretation at odds with those who insisted that the text admitted of one legal interpretation alone, an interpretation that both averred that Jewish law demanded Jewish political docility and that critiqued the Zionist enterprise as religiously illegitimate. The lawfulness of the religious Zionism Hirschensohn embraced was contingent on his providing an analysis of Ketubot 110a-111b that provided an alternative viewpoint distinct from that offered by his ultra-Orthodox peers.
In so doing, Hirschensohn displayed a determination to pursue "truth"--even if his was a minority opinion--that Avi Sagi has described as characterizing his approach to Jewish law. Sagi cites the following passage from Hirschensohn to support this characterization. Hirschensohn, he notes, wrote that God explicitly told Moses that He did not want Jewish law to be "closed." Rather, "The Holy One ... granted every Jew the ability and permission to interpret [Jewish law] in different ways--forty-nine ways [to declare an object] pure, forty-nine ways [to declare an object] impure. Yet, both these and these are the ways of the Living God as long as their aim is the search for truth. In this way, the commandment of Torah study is fulfilled." (24)
Hirschensohn concluded from this that while Judaism and Jewish law insisted on complete communal conformity and could not brook dissent in matters such as the times established by the rabbis for the celebration of Jewish holidays, this was not so in other arenas. On these matters, the minority viewpoint must be countenanced as being completely halakhically legitimate. Indeed, in these areas, "the viewpoint of the minority cannot be obviated [lo nitbatlab da'at ha-mi'ut] ... The opinion of the individual remains a [legitimate] expression of Torah [da'at ha-yabid nisharah da'at Torah]." (25)
Hirschensohn therefore felt justified in offering novel interpretations of Jewish legal texts in Malki Bakodesh, and seized on the question of whether religiously-observant Jews were permitted to join the military units of the Jewish Legion that were designed to defend the Jews and "aid in the conquest of our Land." (26) After all, the Ketubot text was traditionally understood as declaring that God alone would decide when the moment had come for the redemption of the Land. It was God through his messiah who would liberate the Land of Israel and reestablish a Jewish kingdom, not human beings of flesh and blood through military might. To endanger one's life as a soldier when genuine Jewish faith promised the future divine restoration of the Jewish people to Zion was tantamount to a lack of faith in God. So viewed, modern Zionism was a sin.
In this responsum, Hirschensohn demonstrated that the commandment to conquer the Land of Israel (mitzvat kibush eretz-yisrael) was operative at the present time. He then further presented a lengthy halakhic discussion that argued that participation in a war that achieved such conquest constituted an "obligatory war [milhement hovah]." Service in the Jewish Legion fulfilled the obligation each Jewish man had to serve in such a war. In so doing, the Jewish soldier fulfilled the commandment of "conquest of the Land." (27)
Hirschensohn was now finally ready to turn to the Ketubot text itself. He would now address the three oaths that forbade the people of Israel "from hastening the end [she'lo yidbaku et ha-keitz]" The edicts also admonished the people of Israel "not to go up as a wall [she'lo ya'a'lu ka-homah]," and prohibited them from "rebelling against the nations of the world [she'lo yim'r'du b'umot ba-olam]." (28) If Hirschensohn could not provide a legitimate halakhic interpretation of the text that would allow for political and military activism on the part of the Jewish people, then his whole argument for an "obligatory war" that would lead to "the conquest of the Land" could not be sustained.
Hirschensohn claimed at the outset that "any number of great sages (gadolim) had erred [in interpreting] it [Ketubot 110a-111b] on account of the impatience and harsh servitude of the Exile (Golah) which accustomed them to read statements like this superficially." (29) He focused on two claims I) that the Jews not rebel against the nations of the world and 2) that the Jews not "go up like a wall," meaning that Jews not engage as a national-political collective and go up to form a nation in Eretz Yisrael. (30) After all, the Talmudic passage adjured the Jewish people to heed the passage in Song of Songs, "you neither awaken nor stir up love, until it please," which was traditionally interpreted to mean that it was God alone, not humans, who would decide when "the propitious moment" for the restoration of Jewish sovereignty in Israel would arrive.
Hirschensohn quickly dismissed the first claim--that the Jewish people not rebel, i.e., engage in military activity or employ violence, against the nations of the world--as inapplicable in the current situation. He maintained that this ban against the use of force applied only to the Jewish people in the Diaspora and only to cases of rebellion (mered). (31) The edict did not constitute a total ban against the use of military force. Despite the political quiescence that marked Judaism for almost two millennia of diaspora existence, Judaism was not a pacifistic tradition.
Hirschensohn argued the "Jew is warned not to rebel against the government in every nation in which he lives. Indeed, [the Jew is required] to pray for the welfare of the state (Avot 3:2). And the Jew alone is not warned about this. Rather, this is a duty every person owes to his land." (32)
This edict was constricted to the Diaspora. It did not apply to military action in the Land of Israel. "Not to rebel against the nations of the world" by engaging in armed power did not apply to any nation "which despoiled our Land [a'sber shalal et artzeinu]." Indeed, "We are obligated in every generation not to allow the Land to remain in the hands of other peoples nor to leave it a wasteland. Rather, we are commanded to engage in the commandment of conquest [m'tzuvin anu b'mitzvat ki'bushah]." (33)
Hirschensohn did observe that some might believe that the oath "not to rebel against the nations of the world" applied to those Jews currently dwelling in the Land of Israel. This would mean that the law demanded that Jews who lived in the Land not "engage in rebellion against the [foreign] government that rules there." Such rabbis felt that Halakhah required Jews living in the Land of Israel to behave towards a foreign power just as they would if they lived in the Diaspora. The strictures that forbade Jews from rebelling against their gentile rulers were actionable both within and beyond the borders of Eretz Yisrael.
Hirschensohn, however, claimed that a proper reading of the text could not countenance such a view of Jewish law. Rather, it is "an obligation imposed on us to go up and fight" against those currently in control "who stole our Land [asber gazla et artzeinu]." Such military activity does not constitute "rebellion [mered]" but "war [milhama]," and, as Hirschensohn had argued earlier, participation in a war for Jewish control of the Land of Israel was a milhemet mitzvah, an obligatory war. Military service for this cause imposed a legal obligation upon every Jew. The edict was directed only against "rebellion." It did not apply to "war." The Ketubot text could not be used as a warrant for posing a balakhic objection to the Jewish Legion formed in the Land of Israel. (34)
Having demonstrated that the Ketubot text posed no impediment to the formation of a Jewish army in the Land of Israel, Hirschensohn then turned to the principal problem that the text posed to the creation of a Jewish government: the ban against collective return to the Land imposed by the edict that barred the Jewish people from "going up together as if surrounded by a wall." Left unchallenged, this oath threatened the entire religious legitimacy of Zionism.
Hirschensohn started his discussion on this issue by asserting that this specific edict spoke "only of an Aliyab to Eretz Yisrael." He then provided a very close reading of the Ketubot text, and brought in textual parallels to elucidate and clarify its full meaning. While one textual version of Ketubot reads, "She'lo ya'a'lu ba-homah--that Israel not go up in a wall," another variant stated "K'homah," like a wall. Hirschensohn pointed out that this word, "K'homah," is also found in Yevamot 9b, and he claimed that the Yevamot text provided the correct understanding of the Ketubot text. (35)
Yevamot 9b reads, "For it is written: If she be a wall, we will build upon her a turret of silver; if she be a door, we will enclose her with boards of cedar (Song of Songs 8:9). Had you made yourself like a wall and had all come up in the days of Ezra, you would have been compared to silver, which no rottenness can ever affect. Now that you have come up like doors, you are like cedarwood, in which rottenness prevails."
Hirschensohn stated that this meant that if the entire Jewish people had heeded the call of Ezra to return to the Land after the Babylonian Exile, then the people of Israel would have been "compared to silver." However, because so many Jews chose to remain in Exile during the time of Ezra and only a few "came up like doors"--i.e., in small numbers--now the people Israel "are compared to cedar wood in which rottenness prevails." (36) By not seizing the opportunity provided to them during the time of Ezra, the people of Israel squandered the opportunity to restore Jewish national sovereignty in Eretz Yisrael for more than two millennia.
Despite this collective Jewish national failure, Hirschensohn claimed that the Jews, by coming to the Land as individuals "slowly, slowly [l'at Vat]," never surrendered their ultimate aim (mataratam) of becoming the majority population in the Land. "However, now," he concluded in this part of the responsum, "after the English declaration [Balfour] and the agreement of all the allied powers to it, the [political] situation [confronting the Jews today] is more favorable than it was in the days of Persia. It is fitting that all the Jews now go up [to Israel] as a wall to strengthen the Land, to build a turret of silver upon it that will not rust and we will inherit the Land and dwell within it." (37)
In concluding his exegesis of the Ketubot passage, Hirschensohn stated that the oath which admonished the Jews "against hastening the end [she'lo y'dbaku 'al ha-keitz]," was never intended to promote an ethos of collective Jewish political passivity. Instead, it was simply a stratagem (tachbolot) designed to instruct Israel not to "act hurriedly, i.e., without discretion and judgment [she'lo ya'a'su ba-bipazon b'li heshbon v'da'at]" in political matters. The oath against "hastening the end" was never intended to prevent the people of Israel from employing force to restore a Jewish nation in the Land of Israel. The oath only aimed to have the people of Israel behave prudently--to know when "to go up like a wall and when" to come up individually and slowly "like doors." (38)
Hirschensohn clearly viewed the Balfour Declaration as opening a new chapter in Jewish history. He offered a radically unique rendering of Ketubot 110b-111a, a rendering that obviated the notion that the rabbinic legal tradition demanded political meekness on the part of the Jewish people on the basis of the Three Oaths. On the contrary, the Three Oaths only required political prudence on the part of the people of Israel. God was surely active in the arena of history. However, divine activity did not render the Jewish people docile. On the contrary, historical events required a halakhic response. That the response in Malki Bakodesh deviated from the halakhic attitude of political tameness that dominated Jewish political thought for more than a millennium of Jewish existence in the Exile was undoubtedly true. However, Hirschensohn would not concede that his view of Jewish law was in any way less correct than that of other rabbis. Indeed, it was they who erred. In response to the Balfour Declaration, Ketubot demanded that Jews act boldly in the international political arena. The Jews were now called upon to act courageously, to "go up like a wall" and fight, if necessary, to return Jewish national sovereignty to their ancestral homeland. Contemporary Jewish law, as Hirschensohn read it, required such behavior.
Jewish Law and the Halakhic Demand for Democracy: The Daring of Malki Bakodesh
Hirschensohn also offered a provocative interpretation of what the nature of the government should be in the new state from the standpoint of Jewish law. For Hirschensohn, there was no doubt as to the form this government should take. He wrote that the Jewish people, "a wise and understanding" nation, recognized that "the time had come for a government of the people" and that the right of the government to rule extended only from "the will of the people." (39) As Schweid has observed, Hirschensohn was convinced that the new political regime had to be "a democratic Jewish state which rests its legislative authority on the will of the people." (40) The stance Hirschensohn adopted here was consistent with his overarching philosophy of Halakhah. As Ari Ackerman has stated, "Hirschensohn maintained that Torah must not conflict with norms of civilization, shifting historical circumstances, and societal reality." Consequently, "the possibility of restoring Jewish sovereignty in Palestine" meant that Jewish law had to be shown to be consistent with "the establishment of a democratic legal system." (41)
Hirschensohn could arrive at such conclusions because he was completely opposed to a heteronomous conception of Torah. As Yossi Turner has observed, for Hirschensohn, the nationhood of the Jewish people "was established only on the basis of its covenant with God." This covenant was the fruit of "an autonomous decision made by the community whereby it established its existence as a nation." While the Torah does obligate the Jewish community to observe its statutes and judgments for all generations, "this was only because the community freely agreed to adopt the Torah of God as its constitution." Unlike Saadia Gaon, who asserted, in his Book of Beliefs and Opinions (3:7), "Our people is a people only by virtue of its Torah," Hirschensohn maintained that the Jewish people was a people only by virtue of the covenant (brit 'am) that the people freely affirmed. (42)
The correctness of Turner's assessment of Hirschensohn's political thought is evidenced in words that Hirschensohn himself provided in a striking passage elsewhere in Malki Bakodesh. There he wrote:
It is one of the basics of our faith that the Holy One, Blessed be He, does not set himself up as a tyrant over His creatures, and just as he does not want one man to rule over another except for his good, so He would not want to force anyone to observe the commandments against his will nor to enter the Covenant at Sinai and the desert of Moab unless these commandments were accepted willingly ... God does not wish to appear as an overlord toward the people Israel but to be their Lord by entering into a covenantal relationship with them ... It is clear to us that the people Israel took a voluntary oath to live according to the Torah and its commandments ... Our obligation to Torah and to every one of the divine commandments is grounded in this covenant and is not by virtue of the nation's sages, judges, and elders. For if the Torah had been forced on the people, then it would have been a decree from above rather than a voluntary act of acceptance of the Law ... Only after the nation was united by entering into the covenant and willingly promised to observe the Law did the people choose judges and elders from among themselves to ensure the guardianship of their oath, as is the case whenever any nation accepts a constitution ab initio, only afterwards delegating authority to judges and officials of the people ... So we see that the Courts are invested with power by public consent, and without this the courts are powerless. (43)
This description of Jewish law and political tradition displays how closely Hirschensohn identified the values and ideals of Judaism and Jewish law with the values and ideals of the American Republic. There seems to be little doubt that American democracy and political institutions had a decisive impact on how Hirschensohn viewed Jewish law on these topics. He was now prepared to construct his argument for the establishment of a democratic government in a Jewish state.
In his first two responsa in Malki Bakodesh, Hirschensohn addressed the questions of kingship and temple sacrifices. He acknowledged that some might think that restored Jewish national sovereignty in Eretz Yisrael might demand the restoration of the kingship and the temple cult. However, Hirschensohn argued against these positions, asserting that nothing "in biblical law and in the Halakhah is opposed in any way to the progress of civilization or logic [s'vara].'" This meant that the teachings Maimonides expressed in the Guide for the Perplexed, where he maintained that sacrifices were an outmoded form of worship, had to be followed. As he wrote, "To reinstitute these practices would make us the object of ridicule before all the nations of the world. Instead of being a light to the nations, they would think of us as an unenlightened people who walk in darkness." (44)
At the same time, Hirschensohn was not completely sanguine about adopting this position. After all, "If, upon our being in the Land, we agree not to build the Temple nor to offer sacrifices, will we not transgress the positive commandment of building the Chosen House?" (45) As an Orthodox rabbi, Hirschensohn could not abide violating the positive duty to rebuild the Temple and restore sacrificial worship without halakhic justification. From the Orthodox standpoint, obedience to the changing standards of civilization was insufficient without authority from the Halakhah.
Hirschensohn found this authority by constructing a rather straightforward halakhic argument. He noted that Jewish law demanded that there was no obligation to rebuild the Temple without the appointment of a king. Indeed, the two initial tasks Halakhah assigned a king in Israel immediately upon his appointment are i) the eradication of Amalek and his descendants and 2) the construction of the Temple. However, in our day, there are no Amalekites because the Assyrian King Sennacherib had dispersed all the nations more than 2,500 years earlier. Hence, this primary task of the king no longer existed. (46)
In addition, Hirschensohn wrote, "The commandment to appoint a King to rule over us," even if the Jewish people desired to do so, is impossible of fulfillment at present. As he observed, "The King must be appointed by a prophet, as it taught in Sifrei Parshat Shoftim 157:15, 'Place a King over you whom the Lord your God will select' (Deuteronomy 17:15). Should he die, appoint another one in his stead--a king and not a queen--whom the Lord your God will choose through the mouth of [His] prophet." Similarly, Maimonides, in the Mishneh Torah, Laws of Kings 1:3, states, "One can only appoint a King by a rabbinic court of seventy-one elders and by a prophet." (47)
Hirschensohn noted that this could be done during the days of Samuel the Prophet, for Samuel could turn directly to God to seek guidance as to whom to anoint as king. This, however, cannot be done in contemporary times for there is no prophet. As Hirschensohn stated, "And now, [in an era like ours] when we do not have a prophet, it is forbidden to appoint a king to rule over us, and since we do not have a king, we are not able to build the Temple to offer sacrifices, for the selection of a king must precede the building of the Temple." (48)
Hirschensohn thus dismissed on religious-legal grounds the possibility that the reborn Jewish State could select a monarchial form of government. However, as Turner, in his treatment of Hirschensohn and his political philosophy, has put it, "What then would the character of a contemporary Jewish government be, according to Halakhah, if it was not a monarchy?" (49) The answer, Hirschensohn immediately maintained, was that only a democratic system of government based on justice and righteousness was acceptable among modern-day civilized nations. In making this claim, Hirschensohn anticipated some of the arguments Rabbi Isaac Herzog, Chief Ashkenazic Rabbi of Israel, would make on behalf of a democratic form of government when Israel was established in 1948. In his work Techukah leYisrael al pi haTorah, Herzog stated that the United Nations would allow the creation of the State of Israel only on the conditions that it adhere to modern political norms and grant women the right to vote. His argument was a prudent one and did not involve a substantive affirmation of democracy and its institutions and rights. (50)
Hirschensohn, by contrast, argued that democracy was an inherent part of Jewish political tradition beginning with the Bible, and asserted that Jewish law mandated a democratic form of government for the Jewish state. He cited Deuteronomy 16:17, "You shall appoint judges and officers for yourselves in all your gates, which the Lord your God gives to you, tribe by tribe; and they shall judge the people with righteous judgment," and said that the first task of Jewish government was to appoint dayanim (judges). However, "Shoftim," in Hebrew, is an inclusive and broad term, not confined to "judges" alone. Rather, he stated that the term embraces the heads of the people and all its leaders, legislators, and public officials--civilian and military, national and local. (51) Furthermore, Hirschensohn pointed out that the people selected many of these officers even during the ancient period of the Judges. Even when God appointed leaders like Deborah as Judge over all the people, the Book of Judges 4:5 states, "The children of Israel came to her for judgment," indicating that her authority was confirmed by the people. (52)
Hirschensohn also stated that Jewish law demanded that elections for public offices be conducted with "justice, righteousness, and impartiality." He noted that these elements of even handedness and fairness were not directed primarily at the officials and officers of the people. Rather, all standards were stated in the singular, e.g., "Tzedek, tzedek tirdof [justice, justice you shall pursue]," or "Lo tikach shochad [you should not take a bribe]," because they were aimed at each individual person in Israel, reminding them their moral responsibility and civic duty required them to elect the officials who would rule over them. Furthermore, all the people were commanded to behave with absolute integrity when they "selected officials for the nation in [this] direct democratic |process] of election." Consequently, Hirschensohn concluded, "Democratic conduct like this, that is, a republican form of government with direct elections in which everyone enjoys equal rights in accordance with the highest standards of advanced civilization, will be the first form of government [established] in Israel." (53)
Hirschensohn thus put forth a "restorative vision" of Jewish political life that called for the establishment of freely-elected democratic governmental structures and institutions that would guide every facet of Jewish political and civic life. He contended that this vision flowed from the Bible and was consonant with Jewish law. The modern political setting made possible the reestablishment of Jewish political autonomy in the ancestral homeland of the Jewish people. Its government, in keeping with Halakhah, could only be democratic. (54)
In offering some final reflections on the New Jersey-based Rabbi Hirschensohn, it is not difficult to see why so many sectors of Israeli and Zionist intellectual life have taken renewed interest in him so many years after his death. His response to modernity was a positive one. There pulsated within him, as Eliezer Schweid has observed both of Hirschensohn and Rav Kook, "the aspiration to restore to the Jews the full life of a people, i.e., a people that lived in its own land, in a majority society of its own, in its own state." (55)
In one way, the religious Zionism of Rabbi Hirschensohn overlapped with the Zionism of Rav Kook. Messianic belief was a part of each of their systems of thought. However, Kook, again to quote Schweid, held that Y'mot ha-mashiah, the Days of the Messiah, "meant the divination of a new reality and a new truth which would break through far beyond the horizon of natural historical experience and natural human perception." Consequently, Rav Kook's "theory bypassed the cultural-social situation in the present, and looked toward the messianic future." Kook anticipated "a supernatural redemption." (56)
Hirschensohn also believed in "the imminent redemption." However, in sharp contrast to Kook, Hirschensohn did not believe "this redemption would ... break the historical process." Rather, redemption would emerge as "a continuous stage within its progression." (57) This led him to a positive embrace of history and caused him to view the religious significance of the Balfour Declaration in naturalistic terms. This is why he concluded that there was a necessity to adapt Halakhah to the demands of the present day. In doing this, Hirschensohn saw the naturalism and rationalism of Maimonides--who had declared in his days that the sacrificial cult was outmoded--as providing an authentic halakhic model. This caused him to go to great lengths, as we saw, to reinterpret Ketubot 110b-111a, for this was required to legitimate the Zionist enterprise and make the Torah viable for the vast majority of the Jewish people. Hirschensohn was determined to employ Jewish law to draw a bridge between the past and future of Jewish national life. Whether such a religiously naturalistic messianism can ultimately tame the apocalyptic elements found within the messianic idea unleashed by the ideological heirs of Rav Kook within Israel today remains to be seen. However, its more sober tones have clearly found resonance within sectors of the dati-l'eumi (Religious Zionism) community in Israel today.
In making a final comment on the halakhic methodology that marks Rabbi Hirschensohn and his work, I would borrow from another work of Aviezer Ravitzky, who, in his article, '"Ways of Peace' and the Status of Gentiles according to the Rambam: An Exchange of Letters with Rabbi Hayyim David Halevi,"describes the legal approach of Rabbi Halevi as one of "conservative audacity." (58) By this, Ravitzky meant that the legal rulings of Rabbi Halevi facilitated innovation even as they affirmed a fidelity to the Tradition. It seems to me that this term, "conservative audacity," that Ravitzky applied to Halevi captures the approach of Hirschensohn as well.
As we have seen, his writings on the sources of Jewish law often allowed Hirschensohn to do more than "neutralize" earlier readings of specific "sources." (59) They permitted him "to display halakhic flexibility in response to a new [social-political-religious] reality." (60) Precedents contained in earlier writings are often deemed "irrelevant" because of changing circumstances. The vitality of Jewish law provides the rabbinic decisor with broad discretionary powers as the rabbi has the right to assert that as "the contours and circumstances of life change," so the application of the Law must change as well. The rabbinic interpreter must understand the meaning of the source precisely as it is and then determine carefully how it is actually applicable in the contemporary situation.
Hirschensohn acknowledged, for example, that the sources spoke of "sacrifices" and "kingship." There is no question that the Talmud and rabbinic tradition have views on these topics that might have led the modern Zionist Jew of his time (and ours) to regard the restoration of the Temple and the return of sacrificial offerings as commanded. However, his analysis of these sources permitted Rabbi Hirschensohn to honor classical rabbinic laws on these topics while simultaneously assigning and limiting the applications of these sources to the past. By reinterpreting Ketubot 110b-111a as he did, and by negating the contemporary relevance and authority of sources related to the rebuilding of the Temple and the offering of sacrifices, he "neutralized" the sources and went on to argue that only a democratic system of government was acceptable in a contemporary Jewish state. Hirschensohn displayed faithfulness to the past while forging novel pathways in modern Jewish law.
How Rabbi Hirschensohn would deal with a minority Arab population within this democratic governmental system remains unaddressed---a glaring lacuna for any modern commentator on the Israel scene. Nor did he deal with a Chief Rabbinate with coercive political authority. Nevertheless, the writings of Rabbi Hirschensohn still shine as a beacon for persons seeking a "usable traditional Jewish past" to guide their deliberations about the Jewish state today.
(1.) An earlier version of this article was delivered as the Robert and Florence Derben Lecture on Jewish Law, co-sponsored by the Harvard Center for Jewish Studies and the Julius-Rabinowitz Program on Jewish and Israeli Law at Harvard Law School on September 19, 2.016. I would like to thank David Stern for the invitation to address this topic, as well as Shaye Cohen, Adam Ferziger, Jay Harris, Iddo Haklai, Derek Penslar, Jonathan Sarna, and the anonymous readers of this article for American Jewish History for their comments and suggestions that enhanced this paper.
(2.) Emil Fackenheim, The Jewish Return into History: Reflections in the Age of Auschwitz and the New Jerusalem (New York: Schocken, 1980).
(3.) Eliezer Schweid, Democracy and Halakhah (Lanham: University Press of America and The Jerusalem Center for Public Affairs, 1994), 4.
(4.) Adam Ferziger, "Contemporary Religious Zionism and the Search for a 'Usable Past'" (Hebrew), in Joseph Goldstein, ed., Yosef Da'at: Studies in Modern Jewish History in Honor of Yosef Salmon (Jerusalem: Mossad Bialik, 2011), 262.
(5.) Schweid was the first to publish academically on Hirschensohn. See Schweid, Democracy and Halakbah (Lanham: University Press of America and The Jerusalem Center for Public Affairs, 1994); while David Zohar wrote, Jewish Commitment in a Modern World: Rabbi Hayyim Hirschensohn and His Attitude to Modernity (Hebrew) (Jerusalem: Z003). The citation from Shapiro is found in Marc Shapiro, "Review of Jewish Commitment in a Modern World: Rabbi Hayyim Hirschensohn and His Attitude to Modernity," The Edah Journal 5,no. 1 (2005): 6.
(6.) While a full bibliography of all this secondary literature is beyond the scope of this essay, a number of the most significant Hebrew articles on Hirschensohn-- some of which will be cited later in this article--by Israeli scholars Ari Ackerman, Avi Sagi and Zvi Zohar, Yossi Turner, and Meir Roth, can be found in Adam Ferziger, Beyond Sectarianism: The Realignment of American Orthodox Judaism (Detroit: Wayne State University Press, Z015), Z33. I would also take special note of the doctoral dissertation by Shaiya Rothberg, "Rabbi Chaim Hirschensohn's Vision of Torah Democracy and Its Jewish Sources" (PhD diss., Hebrew University, 2008). Suffice it to say, these works demonstrate the renewed interested in Hirschensohn in the modern period, as does reissuance of the halakhic writings of Hirschensohn by Zohar. See Malki Bakodesh: Responsa, Volumesi and z (Hebrew) (Jerusalem: Bar Ilan University, Schechter Institute of Jewish Studies; and the Shalom Hartman Institute, 2006 and zoiz).
(7.) Daniel Elazar, "Foreword," in Schweid, Democracy and Hatakhah, xi-xii.
(8.) All these details about Hirschensohn's life are taken from Schweid, "Introduction," Ibid., xviii.
(9.) Ibid, xix-xx.
(10.) Ibid., xxi.
(11.) See Malki Bakodesh, 7 ff., where Hirschensohn himself describes his motivations for and the necessity of a Jewish legal response to the Balfour Declaration and the decisions of the American Zionist Conference in Pittsburgh. All citations in this paper to Malki Bakodesh are taken from this edition and volume of the work unless otherwise noted. In addition, David Zohar discusses the context in which Hirschensohn wrote his response to the American Zionist Congress, in David Zohar, "Rabbi Hayyim Hirschensohn-- The Forgotten Sage Who Was Rediscovered." Ideals: Institute for Jewish Ideas and Ideals, https:// www.jewishideas.org/dr-david-zohar/rabbi-hayyim-hirschensohn-forgotten-sage-who- .
(12.) Jonathan Sarna, "A Projection of America as It Ought to Be: Zion in the Mind's Eye of American Jews," in Envisioning Israel: The Changing Ideals and Images of North American Jews, ed. Allon Gal (Jerusalem and Detroit: The Magnes Press, Hebrew University, and Wayne State University Press, 1996), 51-52.
(13.) Jonathan Frankel, Prophecy and Politics: Socialism, Nationalism, and the Russian Jews, 1862-1917 (Cambridge: Cambridge University Press, 1981), 539.
(14.) Jeffrey S. Gurock, "American Orthodox Organizations in Support of Zionism, 1880-1930," in Zionism and Religion, eds. Shmuel Almog, Jehuda Reinharz, and Anita Shapira (Hanover and London: Brandeis University Press, 2011), 220-22iff.
(15.) This citation is taken from a seminar paper, "Rabbi Haim Hirschensohn on Democracy and Halakhah," that Brandeis University Senior Yaakov Malomet wrote for my seminar on "Modern Responsa," which I taught at Brandeis during spring, 2 or 6. I thank him for his superb work that stimulated me to write on this topic.
(16.) Aviezer Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism (Chicago: The University of Chicago Press, 1996), 47. The observation by Ravitzky as well as the quotation from Shapira are found on the same page.
(17.) Ibid., 18.
(18.) Ibid., 16-17
(19.) See Ravitzky, "The Impact of the Three Oaths in Jewish History," Ibid., 211-234.
(21.) Yosef Hayim Yerushalmi, Zakhor: Jewish History and Jewish Memory (Seattle: University of Washington Press, 1996), 24.
(22.) Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism, 160.
(23.) Gurock, "American Orthodox Organizations in Support of Zionism, 1880- 1930," 220.
(24.) Avi Sagi, Elu va-Elu: A Study on the Meaning of Halakhic Discourse 3rd Edition (Israel: HaKibbutz Ha'me'u'chad, 1998) (Hebrew), 148.
(25.) Ibid., 148-149.
(26.) Malki Bakodesh, Volume 1, 142ft.
(27.) Ibid., 156ff.
(28.) Ibid., 160ff.
(29.) Ibid., 160.
(31.) Ibid., 161.
(35.) Ibid., 161-162.
(36.) Ibid., 161.
(37.) Ibid., 162.
(39.) Malki Bakodesh, 9.
(40.) Schweid, Democracy and Halakhah, 15.
(41.) Ari Ackerman, '"Judging the Sinner Favorably': R. Hayyim Hirschensohn on the Need for Leniency in Halakhic Decision-Making," Modern Judaism 22 (2002): 267.
(42.) See Yossi Turner, '"Empowerment of the People' in Rabbi Haim Hirschensohn's Religious-Zionist Thought," in Judaism: A Dialogue Between Cultures, eds. Avi Sagi, Dudi Schwartz, and Yedidya Z. Stern (Jerusalem: Magnes Press, 1999) (Hebrew), 33; and Yossi Turner, "The Political Philosophy of Rabbi Haim Hirschensohn and its Affinities to Maimonides and Baruch Spinoza," in Selected Essays in Jewish Studies, Volume 1: The Bible and Its World, Rabbinic Literature and Jewish Law, and Jewish Thought, eds. Baruch J. Schwartz, Abraham Melamed, and Aharon Shemesh (Jerusalem: World Union of Jewish Studies, 2008) (Hebrew), 395.
(43.) Hayim Hirschensohn, Sefer Malki Bakodesh, Volume 3 (St. Louis, Missouri: Moinester Printing Company, 1923," 80-81. This translation is taken from Schweid, Democracy and Halakhah, 49-50.
(44.) Malki Badoesh, 11.
(46.) Ibid., 53 & 55.
(47.) Ibid., 55-56.
(48.) Ibid., 56.
(49.) Turner, "The Political Philosophy of Rabbi Haim Hirschensohn and its Affinities to Maimonides and Baruch Spinoza," 387.
(50.) On the position of Herzog on this matter, see David Ellenson, After Emancipation: Jewish Religious Responses to Modernity (Cincinnati: HUC Press, 2004), 358ft.
(51.) Malki Bakodesh, 65.
(52.) Ibid., 66.
(53.) Ibid., 66-67.
(54.) See Turner, "The Political Philosophy of Rabbi Haim Hirschensohn and its Affinities to Maimonides and Baruch Spinoza," 388-389.
(55.) Schweid, Democracy and Halakhah, 144.
(56.) Ibid., 149.
(57.) Ibid., 150.
(58.) All quotations here are taken from Aviezer Ravitzky, "'Ways of Peace' and the Status of Gentiles according to the Rambam: An Exchange of Letters with Rabbi Hayyim David Halevi," in A Living Judaism, eds. Zvi Zohar and Avi Sagi (Jerusalem: Shalom Hartman Institute and Bar-Ilan University, 2007) (Hebrew), 258-264.
(59.) Ibid., 260.
(60.) Ibid., 264.
Caption: Figure 1. Rabbi Haim Hirschensohn. Israel National Library.
Caption: Figure 2. Title Page, Malki Bakodesh.
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|Date:||Jul 1, 2017|
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