In November, 2024, Yale University Press published Simon Rabinovitch’s book, Sovereignty and Religious Freedom: A Jewish History. The book is distinctive in its comparative, global approach to telling the story of Jewish people’s pursuit of legal sovereignty over several centuries. This spring, Professor Rabinovitch shared some thoughts about the book with The Docket.
The Docket [TD]: How did you come to be interested in this topic?
Simon Rabinovitch [SR]: I wrote an earlier book about a Jewish political movement in Eastern Europe that sought legal recognition for the Jews as a national minority group in the places they lived. These autonomists, as they were called, argued that Jews could have the same legally recognized communal and even national infrastructure as other national groups clamoring for rights and autonomy in the Austrian and Russian Empires and the independent states that came out of them. When finishing this book, I realized the extent to which Jews today, in many European states especially, continue to live in legally recognized communities with many of their educational, social, and cultural needs maintained by government support and even a government administered tithe of the Jewish population. The basis for Jewish legal rights as a community in these states is religious, not national, but I was still struck by what I saw as the persistence of Jewish collective rights. I started to ask questions about points of legal tension, such as when the rights of the community and those of an individual member conflict. I saw an opportunity to be able to compare the legal modernization of Jewish communities in different political systems. And I realized that nobody had yet compared the conflicts between individual and collective rights of Jews in the states where they live as minorities around the world to similar conflicts (involving both Jews and non-Jews) in the one state where they are in a majority, Israel.
TD: Can you provide readers with a glimpse into your research process?
SR: What is really exciting about a globally comparative project is the freedom to look anywhere, under any rock. I went into this project with an idea, but without a single case in mind. I knew some legal areas likely to result in tension between individual and collective religious freedom, such as family law and the control of public space. The article I wrote for LHR about a legal case debating whether Algerian Jews were properly French was the first step in constructing a chapter around cases where the definition of what it is to be a Jew was debated in civil cases with real legal ramifications. In the book, I compared nineteenth-century Algeria to a high-profile case in 1960s Israel and a more recent case in the United Kingdom and found fascinating common threads between them. I next went to the Russian archives that I was already familiar with to look for interesting cases, and looked closer in my own back yard, to New York and Quebec where there has been plenty of litigation. Naturally much of my research targets were determined by my language abilities and pre-existing familiarity with the place or topic, but I think I still managed to cast a very wide net.
TD: Was there a particular moment or research find that really surprised you?
SR: There were several, but the one I found most meaningful stemmed from a relationship I built with a family at the center of one of my cases. The Shalit case in Israel was about the right of parents to indicate the religion and nationality of their choice on their children’s birth certificate and in the state population registry. Benyamin and Anne Shalit won their case in a highly contentious Supreme Court battle, that was largely reversed in legislation. The family moved to and still lives in Sweden, except for one daughter who moved back to Israel, and I tracked down and reached out to Anne and her children (Benyamin having passed away) and they were incredibly kind and helpful. Benyamin kept careful records, and they invited me to come to Sweden to look through them, which I did on my way to a research trip in St. Petersburg. The records were a real treasure for gaining insight into the perspective of the litigants, and I helped facilitate their donation to the Archive of Israeli Legal History at Tel Aviv University. The most surprising thing I learned from Anne and her children was that Benyamin and Anne had no bitterness for being villainized by many in the press and government and accused of tearing at the fabric of Jewish unity. Benyamin believed himself to be fighting a necessary battle for separation of religion and state in Israel and for the identity of the state as a secular democracy, as well as for the rights of his family. Like so many others who move around for professional reasons, he moved to Sweden for a job and the family unexpectedly put down roots.
TD: The tension between individual and collective rights seems to be a tension that structures your approach and argument. Please explain to readers why this tension has been so meaningful, especially for the Jewish individuals and groups at the heart of your book.
SR: That’s a great question. Historians of the Jews seem to be perpetually stuck between arguing that the Jewish experience is singular and also that we can find parallels among many other groups. Admittedly, I’m probably in this camp too. On the one hand, Jews seem to be a paradigmatic case for the conventional way we understand the processes of legal and political modernization in the past two hundred years. They were de-corporated and gained rights as individuals in modernizing states around the world, and they gained collective sovereignty as a majority in their own nation state. On the other hand, states continued to treat their Jewish minorities as a collective, with unimaginably disastrous results for the Jews in 1930s and 1940s Europe, and largely positive or benign effects in the post-World War II era. What interested me most was to find those moments when an individual Jew and the Jewish community in which they lived seemed to have valid but competing claims to autonomy or religious freedom, and a civil court had to determine whose takes precedence. What I found would be unsurprising to most legal scholars: courts generally prioritized the party that seemed most in line with the ideology of the state at that moment. But I hope I also make a larger point about the persistence of collective rights in modern states—Jews are not the only group to have such legal conflicts.
TD: Do you see contemporary ramifications for your main arguments and conclusions?
SR: Yes, and it’s one that may not be shared by everyone. I think many cases litigated today as questions of religious freedom could instead be considered in the light of collective or group rights. Doing so would allow courts to avoid having to determine what counts as religion or religious necessity. True, they would still have to decide what counts as a necessary of protected collective or group right, but those categories strike me as providing rather more flexibility than weighing into questions of religious doctrine and could be extended beyond religious groups. Group membership in liberal democracies must be voluntary, and I’m not arguing for states to empower collective over individual rights. Acknowledging the persistence of collective rights in our legal systems, however, may smooth courts’ mediation of conflicts rooted in differing cultural or group practices between majority and minority populations, and in the process better protect the rights of individuals.