An important point of history for Jewish philosophers interested in law, Halakha, and rabbinic authority, who pine for times when Jewish culture was corporate in character, and also for scholars of religion who have bought into the post-secular mantra that the separation, even distinction between religion and politics is a modern “invention” that reflects Protestant culture.
Joshua Shanes reminded me in a private conversation that, throughout Tradition and Crisis, the eminent Jewish social historian Jacob Katz talks about the “interdependence” between lay leaders and rabbis in the old kehila structure of early modern Ashkenaz up until the dissolution of the Council of Four Lands in 1764. It would lend itself to that kind of Jewish philosophy and to that kind of post-secularism theory.
But what does “interdependence” actually mean? There are two sets of questions. First, does interdependence mean that there were no distinct, if not separate spheres? Or does interdependence presume the twoness in social relations between religious and lay authorities. Second, interdependence may involve a balance and equal equilibrium between distinct sources of power and functional authority. Or it might be the case that the “interdependency” might involve an unequal balance of authority.
Not a historian, I can only follow the internal logic as Katz sketches the historical material. As he presents them, the rabbis seem consistently to be in a supportive role of the lay leaders who are the one who make actual decisions, but which they couch in traditional, halakhic terms vested in aura of tradition. The “interdependence” seems to be an uneven one, weighted towards lay leaders. Halakha and rabbinic authority are used to prop up lay leadership, on one hand, while serviing as a normative source of religious legitimation by providing general principles (justice, righteousness) in order to constitute right rule instead of arbitrary rule based on brute force and intimidation.
Here are sections from Tradition and Crisis from which I grabbed this notion:
In a chapter on the local kehila, Katz notes that Halakha was not used for public policy even as lay leaders appeal to tradition when the issue legal takanot. Halakha constitutes a legitimating structure more than a governing one. It’s here that Katz Halakhic principles of justice and righteous ness used as a brake against arbitrary ruling and intimidation by lay authority. (Tradition and Crisis, Syracuse University Press, p.67). There were rabbinic courts and lay courts. On the lay courts, the role of halakha was supervisory, not involved in planning and executing law. Here again, reference to Halakha served to uphold tradition. But it was the lay leaders who decided civil disputes. If rabbis joined, it was to legitimate by way of upholding lay authority. At any rate, the members of lay courts did not decide cases on the basis of Talmudic sources. Cases were decided upon their own best judgment and upon local precedent (custom). Katz also tells us that halahkicists were not happy with lay courts, although they grudgingly accepted them as better than gentile courts. He describes as well large-scale derogation of civil matters to lay authority weakening halakhic authority. In 17th and 18th C. with rise of yeshivot, there were increased demand by rabbis (?) for rabbis to take over, to set up parallel court, or have rabbis join lay courts. But the struggle continues between them. In the second half of 18th c. in Prague, there was a complaint that rabbinic courts were only hearing minor cases, big cases going to lay courts. Katz tells us that lay courts were preferred because they were able to render more rapid judgment, being not bogged down by halakhic rules (pp.80ff)
Writing about the super-kehila (e.g. the Council of Four Lands and other inter-kehila bodies), Katz returns to this them about lay and rabbinic authority. Surprisingly, even in matters regarding religious ritual, cases were decided by lay leaders, not scholars, even as lay leaders recognized the duty to uphold religios law, if not, presumably the authority of the rabbis. Katz states that there were no clear-cut demarcation between authorities, but that’s not what he actually states. He also describes how lay leaders upheld the dominance of religious law in public life, and how they were assisted in turn by the rabbis. He notes that, in public pronouncements, lay and rabbis appear as “virtually a single entity.” While lay leader didn’t always solicit rabbinic opinion, rabbis could sign on, and rulings were couched in religious terms. Katz then goes on to say that the super kehila had not no actual powers of executive enforcement. This would have been unlike the kehila which did exercise that kind of power; and where, it seems from a reading of his analysis, actual authority was weighted more towards local lay authority, common sense, and custom, not Halakha as a body of prescriptive law. What then were the rabbis and rabbinic authority? They seem to have been more like a privileged social class held in high esteem serving the needs of a traditional community by lending to its life the religious aura of tradition; and less like a group of privileged social actors actually in charge of the community (p.106).