Decades before the establishment of the State of Israel, Jewish jurists were busy crafting “Hebrew law”—a secular body of law that could support a modern society while embodying a “national idea.” Patched together from theological, archeological, linguistic, and Talmudic sources, Hebrew law would buttress the Zionist project by rendering an authentically Jewish, but not halakhic, set of norms. The school that became Tel Aviv University was founded in 1935 to teach Hebrew Law, and its founders were so dedicated to the movement that they did not prepare their graduates for work in British Mandate courts. While these efforts lost steam in Israel by the 1940s, they were picked up on the eve of the state’s creation across the Atlantic.
Alexander Pekelis was a brilliant lawyer who lived an unmistakably twentieth-century life. Born in Odessa in 1902, he studied legal philosophy in Germany and England, taught in Italy before fleeing the Racial Laws of 1938, and escaped Europe through Vichy France before spending the last five years of his short life in New York City. He died in a plane crash on his way back from a World Zionist Congress in 1946. After just two years in America, Pekelis had become an expert in American constitutional law and landed in the pages of the New York Times: “Russian Is Named Editor Of Columbia Law Review.” Pekelis advocated for New Deal economic policy and robust minority protection. He collaborated with Pauli Murray on a brief opposing racial segregation in public schools, petitioned the FCC to keep racists and antisemites off the radio, and penned a visionary strategy for postwar Jewish legal advocacy as head of the American Jewish Congress’s Committee on Law and Social Action.
Pekelis was a Labor Zionist, but the majority of his writings focused on American civil rights law and the concept of “group rights” for minorities. Pekelis believed strongly that groups who were persecuted and maligned had a right to respond as units, and that law should recognize ethnic groups as legal persons so that they could bring lawsuits together and more effectively challenge discrimination. Towards the end of his life, however, Pekelis wrote two important essays advocating for the development of autonomous national legal institutions and “Jewish law” in Mandatory Palestine, carrying forward the efforts of Hebrew Law revivalists. These papers, entitled “Law or State?” and “Towards a Labor Government,” are a fascinating window into a forgotten way of thinking.
Pekelis was a “legal realist.” He believed that law was bound up with social forces: law, he wrote, is “at the same time the consequence and the cause of social phenomena.” [1] He strove towards a theory of law that could both understand how law reflected social prejudices and norms and devise ways to use the law to protect minorities and their cultures. This meant centering organizations and institutions in between the individual and the state, like corporations, unions, schools, churches, and ethnic associations. He referred to these as “private governments” because they help govern us and make us who we are. Society is a play of overlapping groups with varying degrees of power that all create conflicting norms, expectations, identities, and loyalties. This meant two things. On the one hand, in a society dominated by a plurality of groups, prejudice and discrimination could radiate from all directions. On the other hand, group life was central to cultural and political flourishing and needed to be supported and nurtured by the law. Centering groups and associations helped Pekelis advocate for more expansive civil rights protections against non-state entities and for legal systems that supported religious and cultural life.
His pluralistic theory of law also helped him achieve a vision of Zionism premised on hope for a “multi-national state.” The same sensibility that encouraged the federal government to intervene against “private governments” to help protect Black and Jewish Americans from discrimination in the United States also supported the development of Jewish institutions in Palestine that could lead to an eventual state that protected the rights of all. Pekelis’s theory held that much of political life happened in between the state and the individual, supporting his proposal to build national institutions in Palestine before the recognition of a Jewish state. Pekelis resists any straightforward dichotomy between diasporist and Zionist. His essays on Palestine reveal that Pekelis’s legal theory and his Jewish political vision were deeply intertwined and focused on emancipation.
The National Sources of Law
While ultimately advocating for the creation of voluntary arbitration courts of “Jewish law” in Palestine, Pekelis’s essay, “Law or State?” begins by posing a basic question. Does law proceed organically from pre-political communities and lay the groundwork for the state, or is law the totality of the commands of a sovereign, embodied in a state? Pekelis favors the first answer, and argues that the formation of a state would be impossible without the existence of some form of law among a group of people.
“It is Law that is the source of State and Society…Men cannot form a community, no matter how primitive, unless they have something in common in their actions and reactions…if the existence of a political commonwealth is, at least to some extent, a state of mind, greater self-awareness could do much to speed the growth of the Jewish Commonwealth.” [2]
Pekelis saw the Histadrut (the federation of labor unions in Jewish Palestine) as a “semi-government” because of how many areas of social life it administered, and claimed that building institutions before seeking recognition was the only way to ultimately succeed in becoming a state. [3] This theoretical move sets the stage for the development of Pekelis’s argument that Palestinian Jews could achieve “self-awareness” and hasten the achievement of a Jewish state by re-invigorating Jewish law. Before examining that argument it is worth explaining how it stems from his broader commitments.
Pekelis’s essay marries his legal realism and his belief in Jewish national consciousness as a prerequisite for emancipation. It reflects a deep engagement with the German school of historical jurisprudence, which privileges the nation rather than the state as the source of law, and with legal realism, which emphasized “the social” and sought to instrumentalize law in service of political reform. Pekelis frequently invoked a central slogan of realism, the idea of “living law,” which held that solutions to social needs were found not in deduction from frozen and rigidly codified systems of law but in norms developed by the social groups—labor unions, religious associations, fraternal orders—that defined an increasingly interdependent society. The bottom line was that the state did not have a monopoly on lawmaking.
This legal realism fit together with a commitment to the national roots of law. Friedrich Carl von Savigny, who Pekelis cites in the first paragraph of his essay, held that “all law arises through custom and national belief. It always arises, that is, through hidden, quietly-operative forces and not through the arbitrary actions of legislators.” [4] Pekelis shared this belief that law and institutions could develop in the hands of the nation over the course of time rather than through the contractual state. In his address “Training for a Labor Government,” Pekelis explicitly states that he desired a “Jewish legal system…without a legislature,” and “a system of judge made law.” [5] He also had an intrinsically historical understanding of Jewish law, and argued that this new legal project would provide the “powerful source of the ‘transcendental unity’ of Jewish past and Jewish future.” It must, he wrote, “reconcile the immutability of the basic truths of Revealed Law with the eternal progression of Life…to re-establish the harmonious consistency of the totality of Jewish law with a dynamic conception of society and with that Messianic idea of history which is the common foundation of Israel’s traditions and of its contemporary aspirations toward a Cooperative Commonwealth.” [6]
Pekelis’s views on Palestine are an application of his theory of realism to a society under construction. He suggests that law can emerge from living institutions that develop over time by solving social problems. Creating courts of Jewish law to handle modern problems would help achieve sovereignty while perpetuating the Jewish tradition. [7]
Making Law Jewish
Two things stand out about Pekelis’s argument that signal its importance beyond Mandatory Palestine. First, Pekelis believes that a renaissance of Jewish law is necessary regardless of whether a Jewish state is achieved. The second is that Pekelis believes that the practice of Jewish law he envisions would not be at odds with a state where “many ethnic and religious groups must live and prosper together.” [8] These two facts make it plausible to read Pekelis’s essay not only as a sign of Pekelis’s Zionism, but also as a part of a larger, transnational vision that applied to American constitutional law as well. If this revival of Jewish law would be useful without a territorial state, and could continue to exist under that state without conflicting with the rights of other national groups, presumably it would have also been useful in the United States.
The fact that Pekelis leaves the content of “Jewish law” extremely vague also shows how this form of law could serve as the basis for a tolerant and pluralistic “cooperative commonwealth” rather than an exclusionary Jewish nation-state. This is a form of Jewish law that would not obligate individuals to engage in Jewish religious practices. In fact, the only clear example of him putting this idea into practice is when he invokes the “fourth son of the Haggadah principle” to support the idea of “administrative initiative.” Pekelis argues that “the main function of modern society is to take into account the fourth son of Haggadah” (he who does not know how to ask). He argues that in legal systems in which it falls to petitioners to challenge every violation of the law, rights are not protected to a degree that ensures political freedom. Only the presence of agencies that can pursue violations on their own initiative, like the Federal Trade Commission, can ensure that citizens survive increasingly complex economic relationships. [9] This example shows just how “Jewish” Pekelis’s picture of Jewish law is: it uses the Haggadah to support a basic principle of progressive politics that has nothing to do with Jewish life (but that might form part of a labor government in a Palestinian Jewish state).
The “fourth son” principle of administrative initiative is the clearest example of the impulse behind the Hebrew law movement. Pekelis aims to link a secular position on law to a biblical Jewish source. Without overreading, however, it is important to point out that his intention is not to prove to non-Jews that the Jewish tradition supports a broadly accepted vision of progressive politics. Instead, Pekelis’s audience is other Zionist Jews, and his claim is that this vision of politics is supported by the Jewish tradition. Pekelis’s articles are clearly written with other Zionists as his audience, and his goal was to shape the future Jewish state in a progressive direction. This is symptomatic of the Hebrew Law movement. Zionist thinkers wanted to convince themselves and others that their ultimately secular project of state creation could have a basis in something Jewish. This also recalls Savigny: according to Pekelis, administrative initiative is a principle with deep roots in the Jewish imagination. It was shaped by the national narrative of exodus from bondage and formed as an outgrowth of the experience in which all Jewish children are invited into a process of historical remembrance. Agencies such as the Federal Trade Commission are, ideally, dedicated to economic emancipation and seek out opportunities to protect individuals—just as the virtuous Jewish father initiates his child into the memory of emancipation from slavery. Invoking the Passover Haggadah in anticipation of the recognition of the State of Israel, and in support of progressive economic regulation, is doubly significant. Ethical principles can travel through time and become stabilized in new political arrangements held together by a common community.
Pekelis also likens Kvutza Degania, the first socialist-Zionist Kibbutz, to the Mayflower Compact and the settlers of the American Frontier to Jewish settlers in Palestine. [10] He claims that the same elements of social life that had flowered into a state in America could be seen in Palestine: the spontaneous development of institutions and the “free association” of individuals into groups. Pekelis insisted that organizations could be built consciously rather than merely discovered and, again, employed a biblical reference point.
“The Jewish conception of society is that of a man-made society, of a planned society, erected and maintained by men for men, of an organization rather than of an organism. From the Book of Samuel to Franz Oppenheimer’s plan for Merkhavia, the line is unmistakably plain and reveals both the reliance on a conscious, planned human effort and the belief that agreement, social compact, and law antedate society and state.” [11]
Like the idea of administrative initiative, this represents a symbolic gesture towards the Jewish tradition meant to suggest to Jews that progressive politics could be integrated into a “Jewish” way of life and legal framework. Here the claim is that the Jewish tradition supports a vision of experimental political ordering based on human agency and creativity embodied in group relations. The plan for the Merkhavia kibbutz, sketched by the German sociologist and political theorist Franz Oppenheimer, held out hope that Arabs could work alongside Jews in agrarian endeavors. This provides the best clue to what Pekelis meant by a “cooperative commonwealth.” [12]
Group Life and the State
Pekelis claims that “Jewish Palestine” should revive Jewish law “regardless of whether or not an official Jewish state is at once created.” [13] While Pekelis was a Zionist, he was ultimately most interested in the act by which individuals “convert themselves…from a mere aggregation of chance arrivals into a political and legal entity.” [14] He firmly believed that building autonomous national bodies such as courts would aid in that process and ultimately enable the Jews to achieve statehood in Israel. But the idea that Jews should comprise “political and legal entit[ies]” also applied to the United States, where Pekelis believed that Jews should act together, democratically, to achieve collective rights including the ability to bring libel claims against antisemitic speech. He continually states that these goals are worth pursuing whether or not an “official Jewish state” emerges. [15]
This “mere aggregation of chance arrivals into a political and legal entity” was a process that also took place among Jews in the United States. The theory of legal realism makes the slippage between group life in Palestine and the diaspora even more clear. It dictates that corporate recognition could be a vehicle for political freedom, because groups below the state often facilitated political order and liberty in ways that excessively individualistic legal regimes could shut down. [16] Groups existed in society, and a proper state recognized the norm-creating capacities of these groups. Whenever the state denied these groups recognition, they were failing to recognize the forms of social interdependence which compose society and without which individuals could not sustain themselves.
On this theory, it is not crucial whether the process of legal development and group aggregation happens in the multinational United States or in the fledgling pioneer society of Palestine. Both sites can serve as homes for group life, self-government, and norm-creation—in New York, while Jews did not have their own monetary policy and self-defense, they surely had organizations dedicated to “social security, the care of the invalid, collective responsibility, economic planning.” [17] One startling moment brings both the importance of legal realism and the analogy between its application in Palestine and America into even sharper focus. Pekelis argues that the Histadrut must continue to make connections with Arab workers.
“The possibility of full cooperation between different national groups must be fully explored and utilized in Palestine. New York City is a multi-national state. Palestine must do as well—and much better.” [18]
It is clear that his claims about Palestine reflect the same theory that led him to argue for group rights in the United States. But it is entirely unclear what the state at the end of the this process would look like in Palestine. Despite de-emphasizing it, a Jewish state is still the stated aim for all of the measures Pekelis advocates. If his visions for the American commonwealth are any clue, it would be a federal state where aggregations of individuals would be protected and provide nourishment to their members. It would be a state that intervened in intermediate bodies to promote basic rights, as the United States did not adequately do until after Pekelis’s death, while also respecting these bodies’ sovereignty.
For Pekelis, Jewish emancipation could be embodied in American constitutional law or in a Jewish cooperative commonwealth in Palestine. He was driven by a theory of law that understood the power of group life to shape the individual and the state. In the presence of legalized discrimination, American Jews would need to activate the federal government’s eventual role in promoting civil rights. Without a state, Jews in Palestine would need to build their own legal systems in order to build sovereignty from the ground up with the ultimate goal of a multinational state.
Notes:
1. Alexander Pekelis, “Compulsory Racial Segregation and the Constitution,” 165.
2. Pekelis, “Law or State,” 210-211.
3. Pekelis saw this as further evidence of his larger legal and social theory which had nothing to do with Palestine and informed his entire program of jurisprudence, and stressed the plural distribution of sovereignty between groups in between the individual and state. “This is but another example of the necessity of intermediate concepts in the field of political science, and in the domestic and international field,”Pekelis claimed. Pekelis, “Training for a Labor Government,” 9. Institutionalization before recognition also mimics his point from “Full Equality in a Free Society” that “Jewishness must be more than the recognition of a bond imposed from without. It must be the assertion of a bond felt from within.” See Pekelis, “Full Equality in a Free Society,” 245.
4. Savigny, Vom Beruf Unserer Zeit für Gesetzbung und Rechtswissenschaft (1814), quoted in Friedrich Meinecke, Cosmopolitanism and the National State (Princeton, N.J.: Princeton University Press, 1970), 158.
5. Pekelis, “Training for a Labor Government,” 10.
6. Pekelis, “Law or State?” 214.
7. “From a historical viewpoint, the Histadrut cannot be characterized otherwise than a de facto government of Palestine, exercising fundamental governmental functions, such as social security, the care of the invalid, collective responsibility, economic planning, and I would every say—having a certain monetary policy, a commodity money and a commodity monetary policy, a managed commodity currency. Of course, to be precise, I should say that Histadrut is increasingly becoming the government of Palestine.” Pekelis, “Training for a Labor Government,” 8.
8. Pekelis ends by summarizing objections which he promises to overcome in subsequent articles, among them the argument that “emphasizing the traditional, religious-Jewish flavor of the laws of a commonwealth that seems destined to include a number of widely different ethnic and religious groups” would endanger the possibility of creating a pluralistic country. Pekelis, “Law or State,” 217.
9. Pekelis, “Training for a Labor Government,” 16.
10. “More than any other group of Jews, those of Palestine should be and, in fact, are free from the fallacious belief in the primacy of the State or any other political community over the free agreement of people. Observations which have been made about the fundamental political beliefs of frontier Americans could equally well be applied to the Jewish frontier.” Pekelis, “Law or State,” 212.
11. Pekelis, “Law or State,” 213.
12. See Dekel Peretz, “Franz Oppenheimer: A Pioneer of Diasporic Zionism.” Internal Outsiders – Imagined Orientals? Antisemitism, Colonialism and Modern Constructions of Jewish Identity, January 1, 2017. https://www.academia.edu/45026330/Franz_Oppenheimer_A_Pioneer_of_Diasporic_Zionism.
13. Pekelis, “Full Equality in a Free Society,” 245
14. Ibid., 212.
15. Ibid., 215.
16. Such as doctrines of “liberty of contract” that were used to impede the power of labor unions from getting in the way of contract negotiations. This was the Supreme Court’s logic in Lochner v. New York (1905), which became the symbolic target in the progressive and realist assault on laissez-faire capitalism.
17. The qualities that Pekelis uses to support his assertion that the Histadrut is a de-facto government. See Pekelis, “Training for a Labor Government,” 8.
18. Pekelis, “Training for a Labor Government,” 14.
