24 Mark Washofsky
outside observer might note that there is nothing essentially antihalakhic about legislative enactments; legislation, after all, is one of the primary“legal sources of Jewish law.”*® Still, even modern Orthodox scholars hesitated to push for the introduction of fundamental changes in the structure of the halakhah.*’ The Zionist rabbis preferred the time-honored“judicial” method of interpretation and analogical reasoning(dimu i milta lemilta), which, though more piecemeal and gradual than legislation, is for that reason less threatening to the integrity of traditional halakhah. Even though Talmudic reasoning can be quite“creative”(halakhists refer to the ideas developed through the interpretive method as chidushei halakhot,“new legal ideas”), it is generally not perceived as the creation of new law(i.e, legislation) but rather as the unfolding of the implied meaning of the existing law, the logical extension of the content of the legal sources.
The essays on constitutional theory that appear in the first two volumes of H7M provide a good example of this“judicial” method at work.? Perhaps the most basic halakhic problem that the Zionist rabbis had to solve was that of the very legitimacy of a modern sovereign state: does Jewish law permit the establishment of a commonwealth in the land of Israel prior to the age of the Messiah? Many scholars answer this question in the negative, basing themselves upon a Talmudic tradition that recounts that when the Temple was destroyed, God adjured Israel never again to rebel against the nations or to attempt to seize Jerusalem by force.” Mizrachi theorists had to argue that this prohibition no longer applies or, if it does, that it does not forbid the sort of political activity involved with the formation of the state.” Beyond the legitimacy of the idea of statehood, moreover, lay the problem of sovereign power: even if the halakhah permits the founding of a state, it is far from certain that it permits the government of the state to exercise the kinds of authority normally associated with sovereignty. While the Talmud and the classical codes(particularly Rambam ’s Mishneh Torah) do speak to the issue of governmental