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Religion, Law, and the Dynamics of Intellectual Transmission: Weimar Jurisprudence among Religious Socialists in Israel

Published online by Cambridge University Press:  20 June 2022

Abstract

Weimar legal philosophy enjoyed a surprising prominence in religious kibbutzim. These were communities, established in Palestine/Israel, whose members attempted to create revolutionary utopian societies organized around the principles of socialism, Jewish nationalism, and Orthodox Jewish law. The kibbutzim existed under the shadow of a double crisis: the economic and social upheaval of the era, and the intellectual and spiritual challenge of synthesizing the diverse world views to which they were committed. Remarkably, the legal philosophy developed by the jurists of Weimar Germany – Hans Kelsen and Gustav Radbruch in particular – provided an intellectual framework by which the thinkers of the religious kibbutz navigated these crises.This article identifies references to Weimar jurisprudence in the discourse of the religious kibbutz, and addresses how and why kibbutz thinkers used it to think through issues that were so far removed from interwar Germany. It also expands our understanding of legal and historical phenomena in general, beyond the confines of the study of Israel or Judaism. It explores the ways that jurisprudence may be employed in religious and social thought. It also demonstrates how legal ideas flow along paths of immigration and intellectual exchange, how they can be applied by diverse actors in very different social circumstances, and how law and legal transplants operate, even outside the context of the state.

Type
Original Article
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the American Society for Legal History

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Footnotes

He thanks the staff at the Archive of the Religious Kibbutz Movement at Kvutzat Yavneh, and the editor and peer reviewers of this article for their valuable comments.

References

1. For studies of the kibbutz movement in English, see Spiro, Melford E., Kibbutz: Venture in Utopia (New York: Schocken Books, 1971)Google Scholar; and Near, Henry, The Kibbutz Movement: A History (Oxford ; Portland, Oregon: The Littman Library of Jewish Civilization, 2007)Google Scholar. On the Religious Kibbutz Movement, see Fishman, Aryei, Judaism and Modernization on the Religious Kibbutz (Cambridge; New York: Cambridge University Press, 1992)CrossRefGoogle Scholar.

2. Unna, Moshe, “The Elements of the Religious Kibbutz,” in The Religious Kibbutz Movement: The Revival of the Jewish Religious Community, ed. Fishman, Aryei (Jerusalem: Religious Section of the Youth and Hehalutz Department of the Zionist Organization, 1957), 195Google Scholar.

3. For an overview of the Religious Kibbutz Movement, see Fishman, Aryei, Judaism and Modernization on the Religious Kibbutz (Cambridge: Cambridge University Press, 1992)CrossRefGoogle Scholar. For historical relationships between the Orthodox Jews and Zionism, see Ravitzky, Aviezer, Messianism, Zionism, and Jewish Religious Radicalism (Chicago: University of Chicago Press, 1996)Google Scholar. For the history of the kibbutz in general, see Spiro, Melford E., Kibbutz: Venture In Utopia (New York: Schocken Books, 1971)Google Scholar; Near, Henry, The Kibbutz Movement, 2 vols. (Oxford: Littman Library of Jewish Civilization, 1992-–997)Google Scholar.

4. Statistics of the kibbutz populations are recorded in Near, The Kibbutz Movement, 2:364.

5. Kaye, Alexander, “Eliezer Goldman and the Origins of Meta-Halacha,” Modern Judaism 34 (2014): 309–33CrossRefGoogle Scholar shows that American jurisprudence, particularly the writings of Benjamin Cardozo, were also formative in the legal thought of the religious kibbutz philosopher Eliezer Goldman.

6. Schwartz, Richard D., “Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements,” The Yale Law Journal 63 (1954): 76CrossRefGoogle Scholar.

7. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, ed. Law and the Utopian Imagination, Amherst Series in Law, Jurisprudence, and Social Thought (Stanford, California: Stanford University Press, 2014).

8. Some scholars, however, have questioned the connection between anarchy and utopia. Ramiro Avilés, Miguel Angel, “The Law-Based Utopia,” Critical Review of International Social and Political Philosophy 3 (2000): 225–48CrossRefGoogle Scholar.

9. Eliezer Goldman, “Ha-yesod ha-mishpati be-haye ha-kevutzah,” in Amudim: Hoq u-mishpat veha-hevrah ha-qibutsit: proti-kol mi-mei ha-iyun sh-ne'erkhu be-be'erot yitshaq me-yamim 25-26 tishrei 5724 (Be'erot Yitshaq: Ha-qibuts ha-dati, 1964), 17. Unless otherwise noted, all translations are my own.

10. Ibid.

11. Marx, Karl and Engels, Friedrich, The Communist Manifesto, ed. Isaac, Jeffrey C. and Lukes, Steven (New Haven: Yale University Press, 2012), 83Google Scholar.

12. Moshe Unna, “Hoq u-mishpat ba-qevutsa,” in Shutafut shel emet: qovets ma'amarim be-darkhei ha-qevutsah ha-datit (Tel Aviv: Moreshet, 1964), 135. This article was first published in the religious kibbutz journal, Alonim, in 1946.

13. Yizhak Maor, quoted in Moshe Unna, “Mahut ha-yehasim ha-notzrim a"y ha-mosad shel hoq u-mishpat ba-hevrah ha-kelalit be-tokh ha-qevutzah u-ben ha-qevutsah la-medinah,” in Amudim: Hoq u-mishpat veha-hevrah ha-qibutsit: proti kol mi-yemei ha-iyun she-ne'erkhu be-be'erot yitshaq 25-26 tishrei, [5]764 (Be'erot Yitshak: Ha-qibuts ha-dati, 1964), 4.

14. Ibid.

15. Unna, “Hoq u-mishpat ba-qevutsa,” 133.

16. Ibid.

17. Lilach Rosenberg-Friedman, “Orthodox, Zionist, Socialist, Female: A New Identity for Women in the Early Religious Kibbutzim,” in Dynamics of Gender Borders: Women in Israel's Cooperative Settlements, ed. Silvie Fogiel-Bijaoui and Rachel Sharaby (Berlin; Boston & Jerusalem: De Gruyter Oldenbourg & Hebrew University Magnes Press, 2017), 42.

18. Unna, “Hoq u-mishpat ba-qevutsa,” 135.

19. Ibid.

20. Unna, “Mahut ha-yehasim,” 5. For Ovid's “Golden Age,” see Ovid, Metamorphoses: A New Verse Translation, trans. D. A. Raeburn (London: Penguin, 2004), 9.

21. See Exodus 21:6. Traditional Jewish commentaries, such as Rashi, Ramban, and Ibn Ezra, take elohim in this verse to refer to the judge or the court.

22. Unna, “Hoq u-mishpat ba-qevutsa,” 132.

23. Steven Robert Wilf, The Law Before the Law (Lanham, MD: Lexington Books, 2008).

24. Except, arguably, for God's prohibition on eating from the tree of knowledge.

25. See, for example, Gershom Scholem, “The Crisis of Tradition in Jewish Messianism,” in The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (New York: Schocken Books, 1972), 49–77. Even those who were not experts in kabbalistic literature would likely have known about this theme from the writing of Gershom Scholem, whose seminal article on the topic, “Mitzvah ha-ba'ah ba-averah”, was published in 1937.

26. Arthur Jacobson, Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2000), 2 ff.

27. For the legal structure of the kibbutz and its relationship to the state, see J. Weisman, “The Kibbutz: Israel's Collective Settlement,” Israel Law Review 1 (1966): 99–131; Allan E. Shapiro, “Law in the Kibbutz: A Reappraisal,” Law & Society Review 10 (April 1976): 415–38; and Lionel Kestenbaum and Allan E. Shapiro, “Law and the Kibbutz in Process: Adapting Liability Rules to Communal Society,” Israel Law Review 25 (1991): 61–106.

28. Cooperative societies were defined by the Cooperative Societies Ordinance, 1933, which in turn was based on a similar colonial law that the British had enacted in Imperial India: the Indian Cooperative Societies Act, 1912. Weisman, “The Kibbutz,” 115.

29. Despite this state of affairs, organized legislation covering the kibbutzim was not forthcoming. For decades, the courts had to deal with the legal problems arising from the kibbutz with creative judicial interpretation. Kestenbaum and Shapiro, “Law and the Kibbutz in Process.”

30. The proceedings were collected in a special issue of the journal of the religious Zionist kibbutz movement, Amudim (May 1964), under the title Hoq u-mishpat veha-hevrah ha-qibutsit: proti-kol mi-mei ha-iyun sh-ne'erkhu be-be'erot yitshaq me-yamim 25-26 tishrei 5724. [Law, Justice, and Kibbutz Society: Protocols of the Conference at Kibbutz Be'erot Yitzhak on the 25-26 Tishrei 5724]. (The Hebrew date corresponds to 13-14 October 1963).

31. Unna, “Mahut ha-yehasim,” 5.

32. Roscoe Pound, “Fifty Years of Jurisprudence, Part III,” Harvard Law Review 51 (1937): 449.

33. Hans Kelsen, Reine Rechtslehre (Leipzing and Vienna: Deuticke, 1934); and Hans Kelsen, Reine Rechtslehre, Second edition (Vienna: Deuticke 1960).

34. Hans Kelsen, Introduction To the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford, New York: Clarendon Press; Oxford University Press, 1992), 1.

35. Unna, “Mahut ha-yehasim,” 5.

36. For a fuller discussion of this point, see Edwin W. Patterson, ed., The Legal Philosophies of Lask, Radbruch and Dabin (Cambridge, MA: Harvard University Press, 1950), 91–93.

37. Gustav Radbruch, Rechtsphilosophie (Leipzig: Quelle & Meyer, 1932). On the context of Radbruch's thought and the reception of his Rechtsphilosophie, see Hasso Hofmann, “From Jhering to Radbruch: On the Logic of Traditional Legal Concepts to the Social Theories of Law to the Renewal of Legal Idealism,” in A Treatise of Legal Philosophy and General Jurisprudence, ed. Enrico Pattaro, Damiano Canale, Paolo Grossi, Hasso Hofmann, and Patrick Riley et al. (Dordrecht: Springer Netherlands, 2009), 301–54.

38. For the significance of jurisprudence in Weimar, and an overview of key jurists, see Peter Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law : The Theory & Practice of Weimar Constitutionalism (Durham NC: Duke University Press, 1997); Jacobson, Weimar: A Jurisprudence of Crisis; and David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelson, and Hermann Heller in Weimar (Oxford: Oxford University Press, 2003).

39. For a discussion of this debate in the terms of Kelsen and Radbruch, see Frank Haldemann, “Gustav Radbruch Vs. Hans Kelsen: A Debate on Nazi Law,” Ratio Juris 18 (2005): 162–78,

40. There is some debate if Radbruch's theory of law fundamentally changed after the war or if it just altered its emphasis. Stanley L. Paulson, “Radbruch on Unjust Laws: Competing Earlier and Later Views?” Oxford Journal of Legal Studies 15 (1995): 489–500. For a fuller analysis of the relationship between law and justice in Radbruch's thought, see Torben Spaak, “Meta-Ethics and Legal Theory: The Case of Gustav Radbruch,” Law and Philosophy 28 (2009): 261–90.

41. Gustav Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht,” Süddeutsche Juristen-Zeitung 1 (1946): 105–108. Quoted in: Stanley L. Paulson, “Lon L. Fuller, Gustav Radbruch, and the ‘Positivist’ Theses,” Law and Philosophy 13, no. 3 (1994): 313–59, 317.

42. Unna, “Mahut ha-yehasim,” 5.

43. Unna, “Mahut ha-yehasim,” 4. Unna appears to be translating into Hebrew the following sentence from Radbruch's Rechtsphilosophie: “Wir…bestimmen in diesem Sinne das Recht als den Inbegriff der generellen Anordnunger für das menschliche Zusammenleben.” [Emphasis in the original.] Gustav Radbruch, Rechtsphilosophie (Leipzig: Quelle & Meyer, 1932), 33.

44. Unna, “Mahut ha-yehasim,” 5. When the speech was published, the quotation was put in quotation marks, but no reference was given.

45. “Nur die Moral vermag die verpflichtende Kraft des Rechts zu begründen.” Gustav Radbruch, Rechtsphilosophie, 2nd ed., ed. Ralf Dreier and Stanley L. Paulson, (Heidelberg: C.F. Müller, 2003), 47.

46. Yoav Gelber, “The Historical Role of the Central European Immigration to Israel.” Leo Baeck Institute Year Book 38 (1993): 323–39; Judith Baumel, “’Bridges between Yesterday and Tomorrow’: The Role of ’Diaspora Culture’ in the Life Story of Heroines of the Fifth Aliyah,” Cathedra 114 (2004): 121–48; Judith Tydor Baumel-Schwartz, “Bridges Between Yesterday and Tomorrow: The Role of ’Diaspora Culture’ in the Stories of Fifth Aliyah Heroines,” in Identity, Heroism and Religion in the Lives of Contemporary Jewish Women (Bern: Peter Lang, 2013), 19–62; and Osnat Roth-Cohen and Yehiel Limor, “The German (Fifth) Aliyah and the Development of Israel's Advertising Industry,” Israel Studies Review 32 (2017): 126–45.

47. Fania Oz-Salzberger and Eli Salzberger, “The Secret German Sources of the Israeli Supreme Court,” Israel Studies 3 (1998): 159–92.

48. See, for example, Benjamin Akzin, Torat ha-mishtarim, Pirsumim be-mada'ei ha-ruah veha-hevrah (Jerusalem: Mifal ha-shikhpul, Bet ha-hotsa'ah shel histadrut ha-studentim shel ha-universitah ha-ivrit, 1963).

49. Hans Kelsen, “On the Pure Theory of Law,” Israel Law Review 1 (1966): 1–7.

50. Benjamin Akzin, “Hans Kelsen: In Memoriam,” Israel Law Review 8 (1973): 325–29, 326.

51. Jacobson, Weimar: A Jurisprudence of Crisis.

52. Naturally, Kelsen's positivism was not the only resource for Israeli jurists and constitutionalists as they contended with these issues. They drew on aspects of American jurisprudence and, for Ben-Gurion in particular, Russian political thought. Pnina Lahav, Judgement in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997); and Nir Kedar, Mamlakhti'ut: ha-tefisah ha-ezrahit shel david ben-gurion (Beersheba; Jerusalem: Mekhon Ben-Gurion Le-heqer Yisra'el, Ben-Gurion University in the Negev; Yad Yitshak Ben Tsvi, 2009).

53. Eliezer Schweid, “The Rejection of the Diaspora in Zionist Thought: Two Approaches,” Studies in Zionism 5 (1984): 43–70; and Michael Walzer, “The State of Israel and the Negation of Exile,” in Israel in the World: Legitimacy and Exceptionalism, ed. Emanuel Adler (London: Taylor & Francis, 2013), 24–31.

54. Religious Zionism comes in many forms. For an overview, see Dov Schwartz, Faith at the Crossroads: A Theological Profile of Religious Zionism (Leiden; Boston: Brill, 2002); and Dov Schwartz, Religious-Zionism: History and Ideology (Boston: Academic Studies Press, 2009).

55. On the use of loopholes in rabbinic law, see Elana Stein, “Rabbinic Legal Loopholes: Formalism, Equity and Subjectivity” (PhD diss., Columbia University, 2014).

56. Akibah Ernst Simon, Talmid Chacham und Chaluz (Hamburg: Zeire Misrachi, 1934). See also Fishman, Judaism and Modernization on the Religious Kibbutz, 112–14.

57. See the brief introduction to Landau in Arthur Hertzberg, The Zionist Idea: A Historical Analysis and Reader (Philadelphia: Jewish Publication Society, 1997), 432–38.

58. S Shimshon, “How Shall we Celebrate?” Amudim 152 (n.d.). Quoted from Fishman, Judaism and Modernization on the Religious Kibbutz, 190 fn. 9.

59. Ibid.

60. The factors determining the place of a given Jewish group within the Orthodox community are complex, but a commitment to the “interpretive tradition” of halakha is among the most important. David Hartman, A Heart of Many Rooms: Celebrating the Many Voices Within Judaism (Woodstock, VT: Jewish Lights Publishing, 2001); and Tamar Ross, Expanding the Palace of Torah: Orthodoxy and Feminism (Waltham, MA: UPNE, 2004).

61. From the protocol of the Meeting of the Central Religious Committee, December 12, 1946. Fishman, Judaism and Modernization on the Religious Kibbutz, 149.

62. See Refael Auerbach, Shimon Weiser, and Shemuel Emanuel, eds., Ha-qibuts be-halakha (Jerusalem: Qevutsat Sha'alvim, 1984), especially 214–15. Significantly, perhaps, the solution to milking on the Sabbath seems to have first been implemented on Kibbutz Hafets Hayim, a religious kibbutz that was founded not by members of ha-Po'el ha-Mizrahi but by members of the ultra-Orthodox party Po'alei Agudat Yisra'el.

63. Moshe Una, Ha-qehilah ha-hadashah: iyunim be-mishnah ha-qevutsah ha-datit: asupat ma'amarim 1940-1983 (Tel Aviv: Ha-qibuts Ha-me'uhad, 1984), 63.

64. For the relationship between the separability thesis and other aspects of Kelsen's positivism, see Martin Van Hees, “Legal Positivism and the Separability Thesis,” in Legal Reductionism and Freedom, Law and Philosophy Library (Dordrecht: Springer Netherlands, 2000), 27–43.

65. Kelsen is, of course, not the only legal positivist. And the theory of positivism is not the only basis on which to distinguish law from politics. Given Friedman's context, however, Kelsen's theory is the most likely source for Friedman's analysis.

66. Simha Friedman, “The Extension of the Scope of Halakhah,” in The Religious Kibbutz Movement: The Revival of the Jewish Religious Community, ed. Aryei Fishman (Jerusalem: Religious Section of the Youth and Hehalutz Dept. of the Zionist Organization, 1957), 39.

67. Deuteronomy 17:11.

68. For the history of how halakha was reconstructed by religious Zionists in the image of a legal system of a sovereign state, see Alexander Kaye, The Invention of Jewish Theocracy: The Struggle for Legal Authority in Modern Israel (New York: Oxford University Press, 2020), especially ch. 4–6.

69. Friedman was presumably thinking of Plato's Crito, in which Socrates obeys the law even at the cost of his own life.

70. See Lawrence Kaplan, “Daas Torah: A Modern Conception of Rabbinic Authority,” in Rabbinic Authority and Personal Autonomy, ed. Moshe J. Sokol (Northvale: Jason Aronson, 1992), 1–60; Benjamin Brown, “Jewish Political Theology: The Doctrine of Daat Torah as a Case Study,” Harvard Theological Review 107 (2014): 255–89; and Chana Kehat, Mishe-hafkha ha-torah le-talmud torah: temurot ba-ide'ah shel talmud torah ba-idan ha-moderni (Jerusalem: Karmel, 2016), 237–60.

71. Brown, “Jewish Political Theology,” 257.

72. Zerah Warhaftig, Huqah le-yisra'el: dat u-medinah (Jerusalem: Mesilot, 1988), 221–61.

73. The question of whether halakha permits women to carry weapons is based on the Biblical instruction that “a woman must not put on man's apparel [kli].” (Deut. 22:5. JPS Translation.) Already in ancient times, the Targum translated kli as weapon. See Onkelos at ibid. The prohibition was elaborated upon in medieval times. For example, “Women should not wear men's accessories, so women should not wear a turban or hat, or armor or the like.” Maimonides, Mishneh Torah, Laws of Foreign Worship 12:10.

74. Asher Cohen and Bernard Susser, Israel and the Politics of Jewish Identity: The Secular Religious Impasse (Baltimore: Johns Hopkins University Press, 2000), 25–27.

75. Friedman, “The Extension of the Scope of Halakhah,” 50. It should be noted that the decision of which matters are “legal,” and which are “political” may itself be construed as a political decision. Dworkin, for one, argued that the realms are not neatly separable. Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986).

76. For the classic historical account of this phenomenon, see Jacob Katz, The “Shabbes Goy”: A Study in Halakhic Flexibility (Philadelphia: Jewish Publication Society, 1989).

77. Ironically, but inescapably, this rejection was itself a modern phenomenon. Jacob Katz, A House Divided: Orthodoxy and Schism in Nineteenth-Century Central European Jewry (Hanover: Brandeis University Press, 1998); and Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,” Tradition 28 (1994): 64–130.

78. Aviezer Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism (Chicago: University of Chicago Press, 1996).

79. A conservative outlook, however, concealed radical change on a structural level. Kaye, The Invention of Jewish Theocracy.

80. For the history of Jewish approaches to the significance of the text of the Torah, and the hermeneutic theories associated with them, see Jay M. Harris, How Do We Know This?: Midrash and the Fragmentation of Modern Judaism (New York: SUNY Press, 2012). In some Jewish circles, the modern period brought an ideological intensification of the supreme significance of the text. Yaakov Elman, “The Rebirth of Omnisignificant Biblical Exegesis in the Nineteenth and Twentieth Centuries,” JSIJ - Jewish Studies: an Internet Journal 2 (2003): 199–249.

81. Moshe Tsvi Neriah, Kuntrus ha-vikuah: hilkhot shabbat ve-hilkhot medinah (Jerusalem: Or olam, 1952), 4. For more on this position, see Kaye, “Eliezer Goldman and the Origins of Meta-Halacha.”

82. Yeshayahu Leibowitz, Torah u-mitsvot ba-zeman ha-zeh: hartza'ot u-ma'amarim 5703-5714 (Tel Aviv: Masada, 1954), 86–100.

83. Eliezer Goldman, “Ha-halakha veha-medinah,” in Mehqarim ve-iyunim: hagut yehudit be-avar uva-hoveh, ed. Daniel Statman and Avi Sagi (Jerusalem: Magnes Press, 1996), 422.

84. Fishman, Judaism and Modernization on the Religious Kibbutz, 147.

85. For more on Unna's thought, see Mikhael Benadmon, Mered ve-yetsirah ba-hagut ha-tsi'onut ha-datit: Moshe Una u-mahapekhaat ha-qibuts ha-dati, Mahshavot: sidrat mehqarim be-mahshevet yisra'el le-zikhro shel Izidor Fridman (Ramat Gan: Bar-Ilan University, 2013).

86. Friedman, “The Extension of the Scope of Halakhah,” 38. This article was based on a speech originally delivered by Friedman at the Jerusalem Community Center in 1954. In 1957, the same year as its publication in English, it was published in Hebrew in the religious kibbutz journal Amudim. The translation here is based on the English version and the page numbers also refer to it.

87. Friedman, “The Extension of the Scope of Halakhah,” 39. Friedman does not cite the original case, but it can be found here: Entscheidungen des Reichsgerichts in Strafsachen (Berlin: Veit & Comp., 1880), 29:111.

88. Friedman, “The Extension of the Scope of Halakhah,” 39.

89. Josef L. Kunz, “The Vienna School and International Law,” New York University Law Quarterly Review 11 (1933): 370–422; Hans Kelsen, Pure Theory of Law, trans. from the Second (Revised and Enlarged) German Edition by Max Knight (Berkeley; Los Angeles: University of California Press, 1967), 246.

90. Kelsen, Pure Theory of Law, 245.

91. Ibid., 246.

92. Ibid.

93. Friedman, “The Extension of the Scope of Halakhah,” 39.

94. It is possible to read Friedman in a way that does not contradict Kelsen outright. Friedman argued that the law should be changed to become aligned with principles of justice, but he may have agreed with Kelsen that until such a change has taken place, the acquittal of the electricity thief was legally legitimate, if morally wanting. At the very least, however, it can be stated that Friedman used Kelsen's example in a very different way than Kelsen himself. Kelsen was interested in the question of legal legitimacy; Friedman in judging law by the standards of morality.

95. Alan Watson, Legal Transplants: An Approach to Comparative Law (Athens, GA: University of Georgia Press, 1993); David A. Westbrook, “Theorizing the Diffusion of Law: Conceptual Difficulties, Unstable Imaginations, and the Effort to Think Gracefully Nonetheless,” Harvard International Law Journal 47 (2006): 489–505. For the Israeli context, see Assaf Likhovski, “Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling,” Theoretical Inquiries in Law 10 (2009): 619–51.

96. For a recent attempt at re-envisioning the consequences of legal pluralism, see Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge; New York: Cambridge University Press, 2012), and the collection Paul Schiff Berman, ed., The Oxford Handbook of Global Legal Pluralism, (Oxford: Oxford University Press, 2020).

97. See, for example, Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005); and Elizabeth Shakman Hurd, Beyond Religious Freedom: The New Global Politics of Religion (Princeton: Princeton University Press, 2015). Some have called for the “juridification of religion” to be investigated in its own right. Helge Årsheim and Pamela Slotte, The Juridification of Religion? (Leiden; Boston: Brill, 2017).

98. Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (New York: Columbia University Press, 2011). This theological aspect of law is, perhaps, especially strong when it comes to Weimar jurisprudence. It was, after all, a Weimar jurist who coined the term “political theology.” Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University Of Chicago Press, 2006). The theological predispositions of Jewish jurists in Weimar may also have informed their theories. Reut Yael Paz, A Gateway Between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law (Leiden; Boston: Martinus Nijhoff Publishers, 2012).

99. See, for example, Winnifred Fallers Sullivan, “The Rule of Law,” in At Home and Abroad: The Politics of American Religion, ed. Elizabeth Shakman Hurd and Winnifred Fallers Sullivan (New York: Columbia University Press, 2021), 183–95, which explores why members of an American evangelical community assume that the “rule of law” should have a place in the community's regulatory institutions as a judicial axiom.