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Not Written in Stone

 | 
Daniel J. Elazar
, 
Michael Brown
, 
Ira Robinson

Part I: The Setting

Using Foundation Documents in the Study of Jewish Public Affairs1

Daniel J. Elazar

Texte intégral

The New Jewish Constitutionalism

  • 1 At the time of his death, Professor Elazar had almost completed revision of the body of the paper (...)
  • 2 Simon Federbusch, Mishpat Ha-Melukhah Be-Yisrael (Jerusalem: Mosad Harav Kook, 5712-1952). On mish (...)

1Constitutionalism has been a pre-eminent aspect of the Jewish political tradition from earliest times. While the Torah, the fundamental constitution of the Jewish people, is traditionally viewed as God-given (assented to freely by the Jewish people through a series of covenants), Jews have nonetheless engaged in a considerable amount of constitutional design and redesign over the years. The Torah itself seems to have passed through several such stages. In addition, the Bible records several constitutional reform movements of importance, including the establishment of mishpat ha-melukhah (the constitutional law of the kingdom) at the time of the introduction of the office of melekh (king), the Josianic reform, and the re-covenanting under Ezra and Nehemiah.2

2The Mishna and Gemara from the rabbinic period are both massive examples of constitutional redesign which set out within them the accepted principles of constitutional change established by the sages for application within what came to be known as the halakhic (Jewish legal) framework. The transfer of the locus of power in the Jewish world to individual communities in the Middle Ages led to a period of great constitutional creativity, presided over by the major poskim (rabbinic legal experts) of the time. These poskim became the architects of a new constitutional law based on the Torah and Talmud that enabled communities to function as autonomous entities with full powers.

3Constitutional documents from a period stretching over five centuries or more can be identified from at least a few communities of the Old World. In the premodern period, askamot or takanot hakahal (communal ordinances) established the frameworks of internal government for Jewish communities based entirely on halakhic sources. Often they were paralleled by charters and grants from the non-Jewish rulers establishing Jews’ status and privileges. With the beginning of the modern epoch in the seventeenth century and the end of Jewish autonomy, Jewish communal constitutions increasingly were enacted as organic statutes adopted through the legislative process of the non-Jewish society. They were, however, still composed by representatives of the Jewish communities. These ordinances were already modern documents not directly derived from halakhic sources. Since most of the major Jewish communities of modern times are new or have had to be restored after centuries-long expulsions in late medieval times, there is often no inner continuity between the premodern and modern documents.

  • 3 Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity: Jewish Political Organiation From Biblica (...)

4The modern epoch in Jewish life is conventionally viewed as a time in which the indigenous constitutional apparatus broke down. This is true enough as far as it goes, but what is often overlooked is the degree to which the Jewish people did not abandon constitutionalism. Rather, they experimented with constitutional designs reflecting the new conditions of modernity and emancipation. Some of these experiments were very visible and represented grand efforts; others were local attempts to constitutionalize new or revamped institutions whose aim was to accommodate the ideologies of the surrounding societies and to give them a constitutional framework within which organized Jewish life could function. This process intensified following both World Wars, as the loci of Jewish life completed their movement from older centres, which had been organized under traditional constitutions, to the New World and the state of Israel, where new expressions of Jewish constitutionalism were emerging.3

5In the cases of Canada and the United States, both entirely modern Jewish communities, the practice has been for institutions and organizations to draw up their own constitutional documents. These are not communal constitutions as in the all-inclusive communities of the Old World, but rather constitutions serving organizations with differentiated roles in the community. State approval is essentially automatic. While the constitutions must conform to the general laws for the incorporation of non-profit associations, no further state action is required.

6Generally, American and Canadian law has directed that all voluntary associations, including Jewish ones, adopt such organic laws. Association members, however, have not necessarily treated those constitutions with deference or even viewed them as important. For the most part, only when controversy has erupted within a group, has one or another side had recourse to the body’s organic law in an effort to gain advantage or prove a point.

Constitutionalism in Modern Jewish Thought

  • 4 Josephus Flavius, “On the Polity Settled by Moses,” in his Antiquities of the Jews, William Whisto (...)
  • 5 George Foot Moore, Judaism in the First Centuries of the Christian Era: The Age of the Tannaim (Ca (...)

7Casual attitudes towards the constitutional documents of modern and postmodern Jewry have been compounded by the fate of constitutionalism in modern Jewish thought. There is every reason to believe that in the first epochs of Jewish history, at least through the Second Commonwealth, the Torah was viewed as a constitution or its equivalent. Josephus, who was the first to describe the Torah in the terminology of Western constitutionalism, tried to explain the ideas and practices of Judaism in the then dominant terminology of Greek thought. In doing so, he described something that rang true for the Jews of his time.4 With the triumph of the Pharisees in the latter years of the Second Commonwealth and particularly after its destruction, constitutionalism became more complex as the notion of Torah-as-constitution was increasingly replaced by the notion of Torah-as-detailed-code.5 This trend became more pronounced in the Middle Ages; it intensified on the threshold of the modern epoch with adoption of the Shulhan Arukh as the standard halakhic code in Jewish communities throughout the world.

  • 6 Moses Mendelssohn, Jerusalem: A Treatise on Ecclesiastical Authority and Judaism (London: Longman, (...)

8The early modern era saw a sharp intellectual reaction to this development. The two great founders of modern Jewish thought, Spinoza and Moses Mendelssohn, laid the groundwork for change. In his Theological-Political Treatise (1670), Spinoza accepted the traditional understanding of the Torah as the constitution of the Jewish people. In opposition to the dominant trend in medieval European constitutional thought, however, he claimed that it was the constitution of the Jewish people only and applicable only in a Jewish state in the land of Israel. While not ruling out the future restoration of that state and its constitution, Spinoza argued that the Torah was irrelevant for Jews or Christians before such a restoration. Mendelssohn also emphasized the Torah as constitution. He did not reject Judaism in the way Spinoza did, however, and he made an even stronger case for its constitutional character in every realm, not only the political. In his book, Jerusalem, Mendelssohn argued that this constitution had limited authority. Furthermore, he asserted that in the Diaspora under modern conditions, it was precisely this constitutional dimension that Jews had to give up – except in the most narrow sense of Jewish ritual – in order to become citizens of modern civil societies.6 Thus Spinoza provided the justification and Mendelssohn the direction of the deinstitutionalization of modern Jewish consciousness.

  • 7 On the history of Reform Judaism, see Sylvan David Schwartzman, Reform Judaism in the Making (New (...)

9Their line of thinking was adopted by the Reform Movement that emerged in the early nineteenth century. Reform transformed Judaism into a religious cult resting on the ideas of the Enlightenment; it rejected the binding character both of the Torah as constitution and of the interpretative codes. Rather than an expounder of the Torah, the rabbi now became a leader whose task it was to enable his congregants to reach out to God as individuals. Meanwhile, Reform congregations adopted constitutions that outlined their structure and functions pursuant to state law.7

10But this is not the whole story. For ordinary Jews, especially those engaged in establishing new communities, writing a constitution could still prompt the desire to proclaim their goals and establish the rules of order necessary to achieve them. The contemporary constitutions of the Jewish people speak to that reality, even when they have been written to fulfil a legal requirement. What did happen, however, was that while congregations and communities continued to write and adopt constitutions, the idea of constitutionalism as part of the Jewish experience dropped from Jews’ intellectual consciousness. In Israel, the absence of a national constitutional document has persuaded most Israelis that the country has no constitution. Hence, constitutionalism plays a minor, albeit growing, role in public consciousness.

  • 8 Amnon Rubenstein, “The Struggle Over a Bill of Rights for Israel,” in Constitutionalism: The Israe (...)
  • 9 The Constitution of the State of Israel, 1996-5756, with an introduction by Daniel J. Elazar (Jeru (...)

11The experience of the recent past does not mean that constitutions will continue to be viewed as insignificant. In fact, in Israel in the past decade, there has been growing awareness of the importance of a constitution, first within the main institutions of the Israeli government, particularly the Supreme Court and the Knesset, and now also among the public.8 The Israeli experience may not yet be paradigmatic for world Jewry, but it may be a harbinger of what is to come. One reason is that constitutionalism has again become an important concern in the larger world. Increasingly, too, constitutions, the ideas of which are internalized by the publics they serve and translated into appropriate political action, are being recognized as vital to the preservation of democratic self-government.9

12It is my contention that modern and contemporary Jewish institutions and communities have developed constitutional documents that reflect the ways in which they function. Out of experimentation, moreover, a major constitutional movement has emerged in Jewish life, one reflected in new efforts at constitutional design appropriate to new situations. This thrust will persist within the next few generations leading towards the development of a common constitution or, at the very least, a common set of constitutional principles for a postmodern Jewish people.

The Jewish Textual Tradition and Jewish Political Studies

13Jewish tradition is pre-eminently textual, rooted in a series of written documents beginning with the Bible and continuing through the Talmud, the works of medieval biblical and talmudic commentators, the poskim, and the exponents of Jewish thought. An engagement with that tradition and the Judaism that flows from it continues to mean engagement with those texts. This is true for Jews of all persuasions, even those segments of Judaism that initially sought to abandon or reduce the role of texts.

14The textual tradition has successfully met the needs of the Jewish people, providing them with a constant and relatively definitive set of reference points. The textual tradition has served the Jewish people well despite differences in understanding and interpretation, differences which in modern times have been very real. One might say that the textual tradition has held Judaism together in the face of strong fissiparous tendencies; indeed, the study, teaching, and learning of texts have always played a major role in the promotion and dissemination of Judaism and Jewish civilization.

15The modern study of Jewry has invited consideration of historical and social scientific issues for the first time. Both disciplines represent departures from traditional Jewish studies, because they are not grounded in a set of received texts. Historians of the Jews were successful in securing the limited endorsement of traditional Jewish studies scholars because, like other historians, they rely on written documents. Social sciences, such as sociology, on the other hand, generally omit texts and documents from their methodology. As a result, they have had difficulty in gaining full recognition as legitimate Jewish studies disciplines.

  • 10 Daniel J. Elazar, “A Constitutional View of Jewish History,” Judaism 10 (summer 1961): 256-64; ide (...)

16Jewish political studies is a relatively new, separately articulated discipline within both Jewish studies and political science. It has been developed in the last thirty years by scholars around the world, most particularly by groups at the Jerusalem Center for Public Affairs and Bar-Ilan University. Like political science in general, it is in a bridging position among the social sciences, history, and the humanities, encompassing, as it does, the study or exploration of political philosophy, political institutions, and political behaviour. From the start, Jewish political studies was able to build links both with the contemporary social scientific study of Jewish life and with traditional Jewish studies; it was accepted by the latter somewhat more willingly than by the former. Since 1969, the field has been represented under its own name at the World Congress of Jewish Studies, at the Association for Jewish Studies, and worldwide at specialized conferences, institutes, workshops, and a variety of other forums and in publications (for example, articles by this writer that have appeared in Judaism and the American Jewish Year Book since the 1960s).10

17Like the social sciences, Jewish political studies suffered from an unclear connection to the Jewish textual tradition. Beginning in 1976 with the bicentennial of American independence and the general reconsideration of the basic texts of American democracy, a clearer relationship has emerged. Scholars of Jewish political studies found a way to connect with a textual discipline through the constitutional documents of modern and contemporary Jewish communities, polities, and institutions. These documents, beginning with those of medieval times but most particularly with those from the early years of the modern epoch in the seventeenth century, make up a rather coherent body of material.

18While not sacred in character, the recent documents express the norms, realities, and needs of Jewish political, communal, and congregational life. They reflect a sense of the higher self-understanding of Jewish communities and can be studied and appreciated as such. Knowledge of their applications and functions can increase understanding of Jewish communal and public affairs and of the relationship between those matters and the traditions of Jewish constitutionalism.

  • 11 Daniel J. Elazar, Jonathan Sarna, and Rela Geffen Monson, eds., A Double Bond: The Constitutional (...)

19The usefulness of these constitutional documents became apparent to researchers at the Jerusalem Center for Public Affairs when they began to explore eighteenth-century American Jewish communities. We were eager to know whether those communities had been influenced by American revolutionary and constitutional ideas, and whether their documents reflected such influences. We did, indeed, find a few documents that illustrated the direct influence of the American experience on colonial Jewish institutions: congregational constitutions written in the style of early state constitutions or of the federal Constitution of 1787, for example. There is even a bill of rights written for Congregation Shearith Israel in New York, the first Jewish congregation to be established in North America. Embodied in the congregation’s third constitutional revision, the bill of rights was written at the same time as the American constitution. More important, when reading these constitutional documents as a collection, researchers found a pattern suggesting a textual tradition, a text-based lens through which to view modern Jewish institutions.11

Studying the Constitutions of Contemporary Jewry

  • 12 Vincent Ostrom, A Political Theory of the Compound Republic (Lincoln: University of Nebraska Press (...)
  • 13 Keith G. Banting and Richard Simeon, eds., Redesigning the State: the Politics of Constitutional C (...)

20This brings us to the study of the constitutional documents themselves. Why should we study them? Constitution-making, properly considered, brings us back to the essence of the political. Extra-political forces may influence the writers of a constitution or the setting in which they undertake their task. The dynamics of constitution-making include questions of what Vincent Ostrom has termed, “constitutional choice”.12 They involve direct political expressions, engagements, and choices. A constitution is a political artifact; writing one combines science, art, and craft. It demands the identification of basic scientific principles of design and familiarity with the technologies derived from them. A scholar must study not only what is chosen, but who does the choosing and how.13

21Even greater skill is required to convince the constituency to bestow legitimacy upon the constitution. People can be coerced to obey a particular regime, but constitutional legitimacy involves consent. Consensual legitimacy is absolutely necessary for a constitution to have meaning and to endure. The very fact that constitutions can exist as meaningful instruments only through the consent of the governed, demonstrates that constitution-making is the pre-eminent political act.

22There is yet one more perspective from which to consider contemporary constitutional documents. They act as indicators and tracers. Even if these documents are of minor significance to Jews, they serve as measures of the impact of host cultures and Jewish communities on one another.

23The first step towards the revival of constitutionalism in the Jewish polity is the recognition of two aspects of contemporary constitutional documents: how they have been shaped by the modern and postmodern environments in which they have been produced, and the extent to which they perpetuate older Jewish models. In other words, the constitutional documents become a way of gauging the relationship between continuity and change in Jewish life. Given the origins of many such documents in the legal requirements of the government jurisdiction in which particular institutions are located, we can expect that the documents will reflect their environment. On the other hand, one should find manifest, or at least latent, expressions of the Jewish political tradition in organizational forms, if not in style or terminology.

24For example, the first constitutions of Jewish congregations and organizations in the United States echo traditional Jewish patterns. Over time, however, acculturating Jews changed or replaced those constitutions with new ones which increasingly reflected American democratic individualism and volunteerism. The documents move from a traditional outlook, including an almost universal commitment to religious observance, to a modern outlook, even among those who remain faithful to the religion. At the time of the American Revolution, there was deliberate recourse to constitutional change in order to give voice to the spirit of the event within the Jewish fold.

25It is not always easy to distinguish between non-Jewish and Jewish influences. The constitution of Congregation Beth Shalom of Richmond, Virginia, adopted in 1789, the year that the U.S. Constitution went into effect, is a good example. It begins:

We, the subscribers of the Israelite religion resident in this place, desirous of promoting the Divine worship which, by the blessing of God, had been transmitted by our ancestors, have this day agreed to form ourselves into a society for the better effecting the said laudable purpose, to be known and distinguished in Israel by the name of Beth Shalom.

  • 14 Rabbi Judah ben Barzillai HaBargeloni, Sefer HaShtarot, reprinted in Jerusalem by Defus: Offset Ha (...)

26What could sound more American than this apparent imitation of the newly-adopted U.S. Constitution? In fact, however, constitutions with such ‘We the people’ preambles are found in Jewish history going back at least 1,000 years. They appear in Sefer HaShtarot, compiled by R. Judah ben Barzillai HaBargeloni in twelfth-century Spain from earlier sources.14 The book is a collection of model basic laws that Jews could use in organizing associations and communities.

27One can detect a movement from oligarchy to democracy in American Jewish constitutions. Historically, Jewish institutions have been republican. At various times, however, self-rule has been oligarchic within the republican framework. In other words, the Jewish polity and its communities constitute a res publica, a public entity in which all Jews are ultimately equal citizens. It is not the private preserve of any of its members, although the governance of communities often has been in the hands of small groups that have organized communal institutions in order to preserve their control.

  • 15 On oligarchic rule in Eastern Europe, see Michael Stanislavsky, The Transformation of Jewish Socie (...)

28In part, oligarchic control has been justified in the name of an aristocratic republican ideal fundamental to the older Jewish political tradition. According to that ideal, the special bearers of Torah merit a favoured position in the community and often form alliances with economically or politically powerful families. Early in the modern epoch, the disparity between rich and poor increased, especially in eastern Europe. The bearers of Torah allied themselves with the wealthy enabling them to devote their lives to Torah, thereby instituting oligarchic rule within the community.15 In small ways, this process drove Jews – at least those who were outsiders – away from traditional Jewish environments. The poor tended to emigrate. Those who came to the United States quickly seized upon the spirit sweeping the country to democratize their congregations. Similar transformations took place in other New World countries, moderated only by the degree to which the non-Jewish societies emphasized elite, rather than democratic, rule.

  • 16 Jewish Polity, “Epoch XIII,” pp. 207-57.

29In western Europe, on the other hand, rule by notables was well accepted and clearly reflected in the constitutional documents of the Jewish communities. Consider Germany, France, and Britain. Germany remained closest to the traditional Jewish community, with little distinction between congregation and community. Comprehensive community organizations embraced one or more congregations, and the customary division of power obtained. The baalei batim (householders) represented the keter malkhut (the domain of civil rule), and the rabbi represented the keter Torah (the domain of Torah, or God’s teaching) in Orthodox circles or the keter kehunah (the domain of priesthood assisting lay people in reaching towards the Divine) in non-Orthodox circles. The baalei batim and the rabbis shared communal governance, albeit with a certain tension built into the relationship. The result was a matrix of communal unions federated countrywide.16

  • 17 Phylliss Cohen Albert, The Modernization of French Jewry: Consistory and Community in the Nineteen (...)

30In France, external societal and state pressures transformed the Jewish community into a church similar to the hierarchical Catholic model and led to the emergence of consistorial constitutions. Those constitutions vested all authority in the synagogues and in territorial synagogue bodies whose leadership was to be self-perpetuating, in other words, a religiously-centred power pyramid. This, too, led to rule by notables; it also led to efforts to circumvent state-imposed constitutional limits on Jewish communal-cum-congregational organization.17

  • 18 Stuart A. Cohen, English Zionists and British Jews: The Communal Politics of Anglo-Jewry: 1895-192 (...)

31In Britain, the Board of Deputies model, introduced in 1760 by act of Parliament at the request of Jews and modified from time to time as warranted, established the constitutional basis for rule by the ‘cousinhood.’ This close-knit network of notable families represented the Jewish equivalent of the aristocracy that ruled Britain itself. A representative body embracing all (or almost all) Jewish congregations and other bodies in Britain, the Board of Deputies was the centre of communal governance and power by which the peripheries were represented.18

  • 19 Daniel J. Elazar, People and Polity: The Organizational Dynamics of World Jewry (Detroit: Wayne St (...)

32In the twentieth century, all three models underwent democratization that was manifested in constitutional documents. Germany and France relaxed or removed state control over the Jewish community. In France, looser state control led to a fuller articulation of Jewish communal comprehensiveness than had been possible under the consistorial system. In Britain, there were fewer structural changes, but a substantial broadening of the leadership base allowed the older structure to work.19

Elements to be Examined in the Study of Contemporary Jewish Constitutional Documents

  • 20 On the ketarim, see Elazar, People and Polity, especially, pp. 27-29; Elazar and Cohen, Jewish Pol (...)

33To study contemporary Jewish constitutional documents, it is necessary to begin by identifying the areas in which continuity and change are likely to be expressed. Governance is the most important of these. How are authority and power organized constitutionally? To what extent do the constitutional documents reflect the traditional Jewish division of powers among the three ketarim? To what extent do they embody different forms of organizing power which themselves reflect specific circumstances?20 The second most important area is the relationships between congregation and community, between local and countrywide communities, and between individual communities and the Jewish people as a whole. Are these relationships federal in the traditional Jewish manner? Do they take on some other form when responding to external demands? With regard to both governance and institutional relationships, to what extent is continuity a result of practices being appropriate to the specific circumstances of a community?

34A third element is religious observance and the relationship to halakhah and traditionalism. Constitutions invite particular questions. For example: To what extent do institutions and communities maintain a connection with halakhah and the tradition? What attitudes towards religious practice do they adopt (regarding separate seating at religious services or kosher food in ‘secular’ organizations)?

35Constitutional documents reflect the aspirations of those who design them. Those aspirations are embedded in the principles on which the documents are based; understanding them requires a comparison with the traditional constitutional principles of the edah (community). The latter can be delineated as follows:

  1. The Torah is the constitution of the edah.
  2. All members of the edah – men, women, and children – participate in constitutional decisions.
  3. Political equality exists for those capable of taking full responsibility for Jewish survival.
  4. Decisions are made by an assembly that determines its own leaders within the parameters of Divine mandate.
  5. The edah is portable and transcends geography.
  6. Nevertheless, for it to function completely, the edah needs Eretz Yisrael (the land of Israel).

36These basic principles have been preserved over the centuries with modification when necessary. In biblical times, taking responsibility for Jewish survival meant being able to bear arms. Subsequently, the arms-bearing criterion of political equality gave way to one of Torah study. Today, the criterion in the Diaspora is contributing to the support of Israel, while bearing arms is again the criterion in Israel itself. The principles of assembly, leadership, and decision-making have remained the same, although modes of assembling, leadership recruitment, and leadership itself have changed from time to time. The portability of the edah born in the desert is as notable a characteristic as attachment to Zion. The Torah has persisted as the constitution of the edah, albeit with changing interpretations.

37With those principles in mind, we can examine constitutional documents in light of three important notions of the emerging world Jewish polity:

  1. Torah is constitution rather than code. That is to say, it consists of basic principles and guidelines, rather than detailed prescriptions for specific aspects of life.
  2. State and Diaspora are linked through national institutions in an emerging federal relationship.
  3. Citizenship in the Diaspora is increasingly voluntary and based upon contributions to the United Jewish Appeal and congregational or organizational membership. In Israel, it is based upon the formal obligations of Israeli citizenship.
  • 21 These were developed in the Workshop on the Study and Teaching of the Jewish Political Tradition o (...)

38Constitutional documents should help us delineate the fundamental norms of each Jewish community. In the American case, for example, we have identified fifteen such principles which define the basic components, purposes, powers, processes, and limitations of the polity:21

  1. voluntary citizenship;
  2. associationalism;
  3. federalism;
  4. governance through trusteeship;
  5. shared and divided authority;
  6. consensualism;
  7. Jewish survivalism;
  8. mutual responsibility (brit arevut);
  9. vital importance of Israel;
  10. respect for Jewish tradition without necessarily being traditraditional;
  11. recognition of the Jewish polity as a partnership between God and the Jewish people;
  12. recognition of the Torah as the constitution of the edah;
  13. viewing the edah as portable and transcending geography;
  14. pluralism;
  15. American patriotism as sacred and compatible with Jewish loyalty.

39Once the constitutional principles have been identified, it is important to determine the special constitutional terminology or language used in particular documents. Is that language traditionally Jewish, or is it a convention of the environment in which the constitution was prepared? Does the language reflect the covenantal element in the Jewish political tradition, the division of power among the ketarim, and the constitutional standing of the Torah?

40Using these guidelines, the Jerusalem Center for Public Affairs initiated a project in 1987 to study the constitutions of contemporary Jewish communities, institutions, and organizations. The study began with the constitutions of American Jewry which represent perhaps the largest concentration of new forms of Jewish constitutional expression. The initial study asked two central questions: To what degree did the American experience influence Jews who settled or were born in the United States, as they built their institutions, and to what extent were older elements of the Jewish political tradition (identified through other research) preserved and reflected? The first stage of this project was initiated by the Center for Jewish Community Studies of the Jerusalem Center with the Center for the Study of the American Jewish Experience of the Hebrew Union College – Jewish Institute of Religion in Cincinnati and New York. The project was undertaken in 1987, as part of the commemoration of the bicentennial of the United States constitution.

41The study asked the following: “What is Jewish about the constitutions and other foundation documents of American Jewry, and what is American in character?” In other words, what did the Jews who settled in the New World bring with them from the Jewish political tradition and pass on to their descendants, and what did they and their descendants acquire from the American experience? The study examined constitutions of synagogues, community federations, and other local and countrywide organizations from colonial times to the present, looking for patterns of development. Valuable material was discovered that proved helpful in understanding such processes as the democratization of Jewish life, the changing basic norms of Jewish affiliation and public behaviour, the development of new institutions appropriate to the demands of modern republicanism, and others. These documents are significant, even though they are not necessarily treated with any special reverence within the organizations they serve, and even though they are consulted only when constitutional issues arise. The study concluded that, at the very least, the documents reflect both continuity and change as well as expectations at a given moment.

42The first stage of the project resulted in the publication of A Double Bond: The Constitutional Documents of American Jewry edited by Professors Daniel J. Elazar, Jonathan Sarna, and Rela G. Monson. The book consists of five analytical articles in addition to a selection of constitutional documents. As well, archives of constitutional documents were established at the American Jewish Archives in Cincinnati, the Center for Jewish Community Studies and Gratz College in Philadelphia, and the Jerusalem Center for Public Affairs.

  • 22 “Constitutional Documents of Modern and Contemporary Jewish Communities,” Jewish Political Studies (...)
  • 23 Daniel J. Elazar and Harold M. Waller, Maintaining Consensus: The Canadian Jewish Polity in the Po (...)

43An additional result of the first project was a determination to apply the same methodology in examining the constitutional documents of other Jewish communities in the modern and postmodern worlds. At present, the project is collecting and studying the documents of late medieval, modern, and contemporary British, German, and Italian Jewries; records of the nineteenth-and twentieth-century communities of Australia, Canada, France, Israel, New Zealand, and South Africa; documents of the revived communities in the former Soviet Union, other countries of eastern Europe, and Latin America.22 This book on Canadian Jewish constitutions is the second comprehensive study to be produced by the project. It is a fitting second volume, because of the similarities and differences between the United States and Canada, and because Canadian Jewry serves as a bridge between American Jewry and other diaspora communities.23

  • 24 Elazar and Cohen, Jewish Polity, and Elazar, “Constitutional View.”

44The methodology of the studies was originally developed by this writer and his colleagues at the Center for the Study of Federalism at Temple University while undertaking work on American federal and state constitutional design. These methods have been used in conjunction with models developed by this writer and Stuart A. Cohen in their study of constitutionalism in Jewish political history.24 With the assistance of Rela G. Monson (now Geffen) and Jonathan Sarna, they were adapted to the American scene for the first stage of the project. Michael Brown and Ira Robinson are doing the same for the present study.

45The research has two aims. One is to explore the process of Jews’ integration into their countries of residence to understand better how they assimilate to the political patterns of those countries and the extent to which they preserve elements of traditional Jewish political models. Second, and perhaps more important in the long term, the study seeks to build a textual framework for the social scientific study of modern and contemporary Jewish communities that will link the political and social sciences to the older and normative Jewish textual tradition.

  • 25 Y.A. Lattes, “The New Status of the Italian Jewish Community,” Jerusalem Letter 103 (1988); idem, (...)

46The intention is to replicate the U.S. study in as many countries as possible. In European countries, particularly Italy and Germany, researchers have the added opportunity of studying the full process of communal modernization; foundation documents from the High Middle Ages to the latest revision of the constitution of the Italian Jewish community in 1989 are available.25 These documents can be found in various archives in Europe, the National Library in Israel, and the Widener Library at Harvard University. As part of this project, special archival collections have also been established at the Jerusalem Center for Public Affairs and the Center for Jewish Community Studies in Philadelphia.

  • 26 Ibid.

47Individual scholars or teams will research different parts of the project. In addition to the present volume, Alan Mittleman is studying Germany; Steven Levine is researching New Zealand; Rela Geffen has gathered a broad sample of British documents; Yaakov Lattes has been studying the documents of Italian Jewry; and this writer and Ilan Troen are working on Israeli documents. As ‘cases’ are completed, a comparative analysis will be undertaken. To date, two issues of Jewish Political Studies Review have been devoted to analyzing cases and documents.26

What Have We Learned so Far?

48Generalized findings from this project fall into six categories:

  • 27 Elazar and Cohen, Jewish Polity; and Stuart A. Cohen, The Three Crowns: Structures of Communal Dis (...)

1. There is an overall shift from more traditional and indigenous Jewish models to more modern patterns, often those used in the larger society. The Jewish political tradition, however, has not been abandoned. The shift takes several forms.
In the Old World context, we find that prior to Jewish emancipation, communities and organizations were governed by askamot or takkanot (ordinances), which were drawn up on the basis of talmudically-defined formulas grounded both in halakhah and in ‘lessons’ derived from the Bible and filtered through the halakhic process. These pre-modern constitutional documents contain echoes of the larger, non-Jewish environments in which they were developed. Their overwhelming thrust, however, was derived from the Jewish political and halakhic traditions.
After emancipation, Jewish communities and associations, like other religious and non-religious bodies, were required by governments to adopt constitutions and other foundation documents. While there was some willingness to allow Jews to preserve Jewish elements in their constitutional documents, the framework of those documents and some portion of their content had to conform to general state regulations. For example, until the eighteenth century, constitutional documents in Italy were based entirely on talmudic forms. They were redrawn in modern form as required by the authorities in the various Italian states even prior to unification in 1860.
In countries where there were no official requirements or where there were only general requirements of incorporation, Jewish communities and organizations were free to design constitutional documents as they wished. In most of these cases, however, the desire to conform to local norms meant that Jews freely adopted the societal models. An example is the congregations and communities in the United States, which have never been required to do more than meet minimal laws of incorporation. At the same time, however, the American communities had no local pre-modern models to follow. They brought precedents with them from their countries of origin, but these were rapidly abandoned as ‘foreign’ to the American spirit. The newcomers embraced the common constitutional styles of the American colonies and later the United States.
Finally, in Israel, the secularism of the socialist pioneers and others outside the ‘religious’ camp led to the adoption of modern constitutional norms even where there was no external pressure to do so. There modernization is manifested in the constitutions of the Jewish neighbourhoods in Jerusalem and Jaffa and the moshavot (agricultural settlements) of the late nineteenth century. Originally, those constitutions were either continuations of traditional documents or modernized modifications of them. By the period of the Second Aliya (turn of the century) and particularly after the First World War, a new Zionist tradition of basic laws and foundation documents – which divorced or substantially separated ‘religion’ and ‘state’ – became the norm. These culminated in the foundation documents and basic laws of the state of Israel, which reflect both that separation and ambivalence towards it.
It can easily be seen how certain concepts, customs, and terminology were derived from historic Jewish political practice. Examples include scheduling elections to communal office during the intermediate days of the Sukkot or Passover and the use of traditional Hebrew terms to designate constitutional offices, institutions, or activities. These were adopted by those who constructed the modern documents without much attention at first, then translated into the local vernacular, and finally, in many cases, eliminated in favour of local, non-Jewish custom.
2. Certain basic elements, however, have persisted into the contemporary period. For example, the consensual basis of the constitutional documents was maintained without alteration. The structure was, however, redefined at specific times and in particular places as is shown by the varying uses of terms such as brit (covenant) and askama (ordinance) or their vernacular equivalents. One may point as well to the division of authority and powers among the three domains (ketarim) of Torah (God’s teaching), malkhut (civil rule), and kehunah (priesthood).27 In general, the diffusion of functional authority and powers and at least some formal means of checks and balances are common to all these documents.
3. Major adaptations are evident everywhere, either because governments required them or because Jews absorbed notions from the surrounding society.
4. The modernization process was universal; no Jewish community or organization avoided it. Even haredi (ultra-Orthodox) institutions have had to adopt modern constitutions to be recognized, although, of course, they have tried to preserve many traditional Jewish terms and concepts. Perhaps the major exception to this rule was the Hasidic world, where new constitutional customs appeared in conventional form but, in fact, represented radical breaks with tradition by combining the three ketarim in the person of the charismatic leader, the rebbe. Although it is a departure from past practice, the Hasidic constitutions do not reflect the spirit of modernism either.
5. Almost all the constitutional documents include some material specific to the community or organization. For instance, the eighteenth-and early nineteenth-century constitutions of congregations in New Orleans, Louisiana, and Charleston, South Carolina, provide for granting or withholding membership to prostitutes and former prostitutes. In a different vein, American congregations have recently had to deal with the consequences of intermarriage including the presence of significant numbers of non-Jews and their children in the congregation. These issues find expression in constitutions which try to define the rights, obligations, and opportunities for members and their children who are not halakhically Jewish.
6. Throughout all of these documents one finds certain fundamental principles of Jewish life expressed or implied, most especially the need for Jewish unity and mutual responsibility.

The Constitutional Documents as a Learning Device

49Conventional wisdom views constitutional documents as essentially dry, technical, and uninteresting. Even the members of the research teams, however, have been surprised to discover how useful they are in pedagogical settings. Comparative study of these documents is like holding up a mirror of the Jewish condition or, perhaps more accurately, a series of photographs taken over the lifetime of communities recording similarities and changes. As such, the documents have enormous fascination for those who encounter them. Obviously, the more piquant elements have a certain additional attraction, but even statements of basic principles and practices have interest. It is possible to learn about the Jewish political tradition and its various adaptations through the study of constitutional documents. Such learning can go on at an academic or a popular level with equally useful results.

Notes

1 At the time of his death, Professor Elazar had almost completed revision of the body of the paper but not the notes. Michael Brown has endeavoured to complete the revisions to the text. There remain some gaps in the notes.

2 Simon Federbusch, Mishpat Ha-Melukhah Be-Yisrael (Jerusalem: Mosad Harav Kook, 5712-1952). On mishpat ha-melukhah, see S. Yavin, Mehkarim be-Toldot Yisrael ve-Artzo (Jerusalem: M. Newman, 1960), pp. 226-93; Y. Blidstein, ‘Ekronot Mediniyim BeMishnat HaRamban (Ramat Gan: Bar-Ilan University Press, 1983), passim.

3 Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity: Jewish Political Organiation From Biblical Times to the Present (Bloomington: Indiana University Press, 1985).

4 Josephus Flavius, “On the Polity Settled by Moses,” in his Antiquities of the Jews, William Whiston, trans. (Manchester: R. Mipos, n.d.).

5 George Foot Moore, Judaism in the First Centuries of the Christian Era: The Age of the Tannaim (Cambridge, MA: Harvard University Press, 1932); Louis Finkelstein, Jewish Self-Government in the Middle Ages (New York: Jewish Theological Seminary, 1924); and idem, The Pharisees: Their Origin and Their Philosophy (Cambridge, MA: Harvard University Press, 1929).

6 Moses Mendelssohn, Jerusalem: A Treatise on Ecclesiastical Authority and Judaism (London: Longman, 1838).

7 On the history of Reform Judaism, see Sylvan David Schwartzman, Reform Judaism in the Making (New York: Union of American Hebrew Congregations, 1970); W. Gunther Plaut, The Growth of Reform Judaism: American and European Sources Until 1948 (New York: World Union for Progressive Judaism, 1965).

8 Amnon Rubenstein, “The Struggle Over a Bill of Rights for Israel,” in Constitutionalism: The Israeli and American Experiences, Daniel J. Elazar, ed. (Lanham, MD: University Press of America, and Jerusalem: Jerusalem Center for Public Affairs, 1990), pp. 139-42; Amos Shapira, “The Israeli Supreme Court and Human Rights,” in Constitutionalism, Elazar, pp. 133-37.

9 The Constitution of the State of Israel, 1996-5756, with an introduction by Daniel J. Elazar (Jerusalem: Jerusalem Center for Public Affairs, 1996).

10 Daniel J. Elazar, “A Constitutional View of Jewish History,” Judaism 10 (summer 1961): 256-64; idem, “The Pursuit of Community: Selections from the Literature of Jewish Public Affairs, 1965-66,” American Jewish Year Book 68 (1967); and idem, “The Rediscovered Polity: Selections from the Literature of Jewish Public Affairs, 1967-68,” American Jewish Year Book, 70 (1969): 172-239.

11 Daniel J. Elazar, Jonathan Sarna, and Rela Geffen Monson, eds., A Double Bond: The Constitutional Documents of American Jewry (Jerusalem: Jerusalem Center for Public Affairs, and Lanham, MD: University Press of America, 1992).

12 Vincent Ostrom, A Political Theory of the Compound Republic (Lincoln: University of Nebraska Press, 1987); and idem, “A Computational-Conceptual Logic for Federal Systems of Governance,” in Constitutional Design and Power-Sharing in the Post-Modern Epoch, Daniel J. Elazar, ed. (Jerusalem: Jerusalem Center for Public Affairs, 1991, and Lanham, MD: University Press of America), pp. 3-21.

13 Keith G. Banting and Richard Simeon, eds., Redesigning the State: the Politics of Constitutional Change (London: Macmillan, 1986).

14 Rabbi Judah ben Barzillai HaBargeloni, Sefer HaShtarot, reprinted in Jerusalem by Defus: Offset HaOmanim, 1967.

15 On oligarchic rule in Eastern Europe, see Michael Stanislavsky, The Transformation of Jewish Society in Russia, 1825-1855 (Philadelphia: Jewish Publication Society of America, 1983).

16 Jewish Polity, “Epoch XIII,” pp. 207-57.

17 Phylliss Cohen Albert, The Modernization of French Jewry: Consistory and Community in the Nineteenth Century (Hanover, NH: Brandeis University Press, 1977).

18 Stuart A. Cohen, English Zionists and British Jews: The Communal Politics of Anglo-Jewry: 1895-1920 (Princeton: Princeton University Press, 1982).

19 Daniel J. Elazar, People and Polity: The Organizational Dynamics of World Jewry (Detroit: Wayne State University Press, 1989).

20 On the ketarim, see Elazar, People and Polity, especially, pp. 27-29; Elazar and Cohen, Jewish Polity; Stuart A. Cohen, “The Concept of the Three Ketarim: Its Place in Jewish Political Thought,” AJS Review 9 (spring 1984): 27-54.

21 These were developed in the Workshop on the Study and Teaching of the Jewish Political Tradition of the Jerusalem Center for Public Affairs at its initial meeting in 1981 and subsequently refined.

22 “Constitutional Documents of Modern and Contemporary Jewish Communities,” Jewish Political Studies Review 8 (fall 1996).

23 Daniel J. Elazar and Harold M. Waller, Maintaining Consensus: The Canadian Jewish Polity in the Postwar World (Jerusalem: Jerusalem Center for Public Affairs, 1990, and Lanham, MD: University Press of America); and Elazar, People and Polity, chap. 11, “Jewries of the British Commonwealth,” pp. 234-61.

24 Elazar and Cohen, Jewish Polity, and Elazar, “Constitutional View.”

25 Y.A. Lattes, “The New Status of the Italian Jewish Community,” Jerusalem Letter 103 (1988); idem, “The Organizational Framework of the Jewish Communities in Italy,” Jewish Political Studies Review 5 (1993); and idem, “The Constitutional Documents of the Italian Jewish Community,” Jewish Political Studies Review 8 (1996).

26 Ibid.

27 Elazar and Cohen, Jewish Polity; and Stuart A. Cohen, The Three Crowns: Structures of Communal Discourse in Early Rabbinic Society (Cambridge: Cambridge University Press, 1990).

Auteur

Professor of Political Science at Bar-Ilan and Temple Universities and a consultant to governments. He was the founding president of the Jerusalem Center for Public Affairs and pioneered the new field of Jewish Political Studies. His many books include Maintaining Consensus: The Canadian Jewish Polity in the Postwar World (1990), written with Harold Waller

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