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Judaism and democracy.

1. VOX POPULI IS NOT VOX DEI

On the surface of it, no religion--certainly no religion based on the concept of divine revelation--is democratic. Vox Populi cannot be identified with, nor replace, Vox Dei. At no point does the Torah, for example, suggest that the source of authority for the mitzvot (commandments) lies with the people, and at no point are the divinely revealed laws subject to referendum, although in a sense, the covenant itself was ratified by the people: "Moses came and told the people all the words of the Lord and all the statutes; all the people replied in one voice, saying: All the things the Lord has spoken we shall do ... Moses took the book of the covenant and read it in the hearing of the people; they said: All that the Lord has spoken we will do and obey" (Exodus 24:3, 7). Nevertheless, the authority rested with God, not the people, and Josephus, writing a history of ancient Israel for non-Jewish readers, was the first to coin the term "theocracy" (theokratia) to describe the Jewish way of life based on the Torah.

According to the Bible's own descriptions of the behavior of the ancient Israelites, idolatry and immorality were far more frequently the norm than ethical monotheism. However, if one affirms some kind of transcendent standards, then truth and morality are not determined by human convention, namely what the majority of people happen, at any given moment, to believe and to do.

2. NOT "IS RELIGION DEMOCRATIC?" BUT "IS RELIGION COMPATIBLE WITH DEMOCRACY?"

The moment religion is no longer based on the direct prophetic experience of revelation, and becomes transmitted through human institutions, the obvious question of the human factor in its authority comes into play. At that point, the more meaningful question is no longer "Is religion democratic?" but "Is religion compatible with democracy?" That is the question I wish to address in a Jewish context, both in its internal dimension-can religious authority function democratically?--and in its external dimension--can religion acknowledge the legitimacy of the democratic state?

3. THE INTERNAL DIMENSION: THE TALMUDIC RABBIS AND MAJORITY VOTE

On the one hand, the Talmudic rabbis, following their Pharisaic predecessors, insisted that their authority ultimately went back to Moses at Sinai, and that the Oral Torah was revealed together with, and is equal to, the Written Torah of Moses: "Moses received the Torah at Sinai, and transmitted it to Joshua; Joshua to the elders; the elders to the prophets; the prophets transmitted it to the men of the Great Assembly." (1) That does not mean, however, that in the view of the rabbis, this transmission did not involve any evolutionary development and human judgment. In a famous story in the Talmud, (2) the rabbis envisaged Moses as visiting the academy of Rabbi Akiva, who was martyred in the Bar Kokhba revolt (132-135 C.E.). Moses sat down in the back rows, among the youngest students, and did not understand what Rabbi Akiva was teaching--but what Rabbi Akiva was teaching was halakhah le-Moshe mi-Sinai, "a law of Moses from Sinai." The rabbis, in short, were able to acknowledge that if Moses were to visit them, he would not recognize his own law.

Taking it one step further, the Talmudic rabbis went so far as to suggest that once the Torah has been entrusted to human authority, even God no longer has any say in it. In discussing a certain kind of oven, Rabbi Eliezer sought, by invoking miracles, to prove that his view, and not that of the majority, was correct: (3)
   If the law (halakhah) is as I claim, let this carob tree prove it;
   and the carob tree was uprooted a distance of 100 cubits ...
   [The rabbis] said to him: One cannot prove anything by a
   carob tree. He said again, If the law is as I claim, let this
   channel of water prove it; and the water flowed backwards.
   They said to him: One cannot prove anything by a channel
   of water ... He again said to them: If the law is as I claim,
   let the heavens prove it. A heavenly voice (bat kol) came
   down and said: What do you have against Rabbi Eliezer,
   who is correct about the law? Rabbi Joshua then stood up
   and said: "[The Torah] is not in heaven" (Deuteromomy
   30:12). Why is it not in heaven? Rabbi Jeremiah said that
   ever since the Torah was given at Sinai, we no longer pay
   attention to a heavenly voice, since [God] already wrote in
   the Torah at Sinai: "Follow the majority" (Exodus 23:2).
   Rabbi Nathan met [the prophet] Elijah and asked him:
   What did the Holy One, blessed be he, do at that lime?"
   [Elijah] replied: [God] laughed and said: My children have
   defeated me, my children have defeated me.


Recognizing that the Torah has been given to humans to interpret, and to determine its laws by majority vote, in which even God no longer has a say, cannot be equated with democracy in the Greek sense, but it is a significant step in that direction, and implies not only a de facto, but even a de jure pluralism of conflicting ideas: Rabbi Eliezer, in our story, wasn't wrong in theory (after all, a heavenly voice proclaimed that he was right), but when it came to making a practical decision, his view had to yield to that of the majority.

We have here a clear and sharp distinction between the Pharisaic approach, subsequently adopted by the rabbis as the heirs of the Pharisees, and the approach of the Sadducees. For the Sadducees, the only legitimate authority is that of the Written Torah, and anything not explicitly commanded in the Torah--whether the doctrine of resurrection in ancient times or the concept of democracy in modern times--is prohibited. For the Pharisees and the later rabbis, on the other hand, everything is permitted, except for what the Torah explicitly prohibits. So concepts that seem reasonable, like resurrection in ancient times or democracy in modern times, may not be explicitly commanded or referred to in the Torah, but so long as they do not violate anything in the Torah, they are permitted. Democracy, in short, may not be taught in the Torah, but that does not mean that the Torah and democracy are incompatible.

4. THE EXTERNAL DIMENSION: TORAH AND THE DEMOCRATIC STATE

Baruch (Benedict de) Spinoza (1632-1677) explicitly addressed the external dimension of the democratic state in his Theologico-Political Treatise. In his view, "Democracy ... [is] of all forms of government the most natural and the most consonant with individual liberty. In it, no one transforms his natural right so absolutely that he has no further voice in affairs; he only hands it over to the majority of a society, of which he is a unit. Thus all men remain, as they were in the state of nature, equals." (4) Therefore, the citizen has no right of civil disobedience: "So long as a man acts in obedience to the laws of his rulers, he in nowise contravenes his reason, for in obedience to reason he transferred the right of controlling his actions from his own hand to theirs." (5) Spinoza, then, does not take into account the distinct possibility of the tyranny of the majority.

Moses Mendelssohn (1729-1786), although in many respects deeply influenced by Spinoza's thought, and by Spinoza's excommunication in 1656 (at the age of 24) by the Amsterdam Jewish community, nevertheless arrives at radically different conclusions, all of which are relevant to our question of the relation of the Torah and the democratic state.

First, Mendelssohn sharply opposed excommunication of religious dissidents, including the rabbinic ban (cherem) that had been imposed upon Spinoza. "True divine religion arrogates no dominion over thought and opinion ... It knows of no other force than that of winning by argument, of convincing and rendering blessed by conviction." (6)

Second, because of his sensitivity concerning the right of a conscientious dissent--as exemplified by Spinoza himself--Mendelssohn rejected Spinoza's view that civil disobedience is illegitimate in a democracy. He wrote: "That barbarous laws are of the most terrible consequences the more legally the proceedings are conducted ... is an important truth which cannot be too often inculcated. The only way of amending unwise laws is by deviating from them, as one would correct mistakes in calculation by other willful mistakes." (7)

Third, in Spinoza's view, the Torah only had authority within the context of the ancient Jewish state, and since the destruction of that state, the Torah's laws are no longer binding. For Mendelssohn, however, the Torah's laws were politically enforceable only in the ancient Jewish state, but they remain valid and binding, albeit unenforceable politically, since the destruction of the Jewish state.

Contrary to the popular view--even today--that because a law is divine, it should be enforced politically by the state, Mendelssohn argued that a divine law must be observed voluntarily and sincerely, and must not be enforced by the state upon dissenters. How, he was then challenged in 1782, is this position compatible with the Torah, which provides for the punishment of those who violate its laws, and recognizes no democratic right of dissent? Is the Torah, in fact, compatible with democracy?

In his Jerusalem: Or On Religious Power and Judaism, Mendelssohn begins by stating that the relation between the forces of religion and state "has for centuries been one of the most difficult tasks in political life," and ends with a note expressing concern that "Alas, we can hear even the American Congress intone the old song once again when it speaks of a 'dominant religion'." (8) John Locke's Concerning Toleration had attempted to resolve the tension between religion and state by suggesting that religion is responsible for matters relating to eternity, and the state for affairs of this world. Mendelssohn rejects this distinction, because the temporal is part of the eternal, and the eternal is the extension of the temporal. In the words of the rabbis, "this world is a corridor leading to the next." (9) The correct distinction between religion and state lies in the rabbinic differentiation between those actions and convictions which are entirely bein adam la-maqom, between a person and God, and which do not affect other people, and those actions and convictions which are bein adam lechavero, between a person and his fellow. It is only in the context of the social contract that the state may legitimately use force to prevent people from harming each other or infringing upon others' rights. Such harm does not exist between a person and God, and therefore there is never a basis for the state to coerce in matters of religion. Moreover, whereas the state is satisfied with mere compliance to its laws, in religion an action which lacks sincere intention, or which is coerced, has no value or validity.

Having outlined, in the first part of Jerusalem, the proper relation of religion and state, Mendelssohn returns, in the second part, to the challenge which led him to write the book: how is the Torah, which provides for coercive enforcement of its laws, compatible with a democratic state? His answer is that the attempt to unite the distinct realms of religion and state leads, inevitably, to a loss of human liberty and freedom of conscience: "Enormous evil has resulted from the clash of these forces; more threatens yet to come. Whenever there is a conflict between these forces, mankind becomes the victim of their quarrels." (10)

However, in the ancient Jewish polity, which Mendelssohn calls "the Mosaic constitution" (Mosaische Verfassung), a term he preferred to Josephus' and Locke's "theocracy," religion and state were not distinct realms which were united. They were identical, because God was the lawgiver, and the divine Torah was the constitution of that state. Religious and political loyalty were thus identical, not united. That constitution was unique in human history, and it was only in the context of that unique constitution that the Torah was politically enforceable. In all other political contexts, religion and state are distinct, and religious law may not legitimately be enforced politically. For Mendelssohn, therefore, there was no inconsistency between maintaining that the authority of the Torah remains valid (contra Spinoza) but that it is no longer politically enforceable; and there is no incompatibility between affirming the Torah as divine law and affirming the modern democratic state in which religion may not be coerced politically, but must be practiced freely and voluntarily. To reiterate: people mistakenly think that because a law is divinely revealed or of divine authority, it must be imposed upon others by the power of the state. Mendelssohn, by contrast, argued that it is precisely because the law is divine that it must never be enforced by the power of the state, and that such coercion corrupts both the state and religion. True religion is thus compatible with democracy, and thrives best within democratic pluralism.

5. THE STATE OF ISRAEL

A final note, concerning the modern State of Israel, which Mendelssohn, of course, could never have envisaged. However, the implications of Mendelssohn's theory are clear. The State of Israel is a secular state, like any other; it is a Jewish state, in the sense of being the state of the Jewish people and in its national culture, ethos, and character. But it is not a theocracy, despite frequent attempts by religious political parties to legislate religious laws, because the sovereign is not God, but the people, represented by the Knesset (including non-Jewish members). Where religious laws are in force, they are so because of the Knesset, not because of the Torah. The Declaration of Independence of the State of Israel (which, in a compromise over whether or not to mention God, concludes with a reference to "trust in the Rock of Israel") did not establish a theocracy, nor did it establish an official state religion, or religious test for citizenship or public office. It proclaims that "the State of Israel ... will rest upon foundations of liberty, justice, and peace, as envisaged by the prophets of Israel. It will maintain complete equality of social and political fights for all its citizens, without distinction of creed, race, or sex. It will guarantee freedom of religion and conscience."

NOTES:

(1.) Mishnah, Avot 1:1.

(2.) Babylonian Talmud, Menachot 29b.

(3.) Babylonian Talmud, Bava Metzia 59b.

(4.) Spinoza, Theologico-Political Treatise, in The Chief Works of Benedict de Spinoza, trans. R.H.M. Elwes; ch. 16, p. 207.

(5.) Spinoza, Theologico-Political Treatise, ch. 20, p. 260.

(6.) Moses Mendelssohn, Preface (1782) to the German translation of Manassah ben Israel, Vindiciae Judaeorum (1656); English translation by M. Samuels (London, 1838), p. 104.

(7.) Moses Mendelssohn, Preface (1782) to the German translation of Manassah ben Israel, Vindiciae Judaeorum, p. 89.

(8.) Moses Mendelssohn, Jerusalem, oder uber religiose Macht und Judenthum. English translation by Alfred Jospe, Jerusalem and Other Jewish Writings (New York: Schocken, 1969), p. 11, and p. 168, note 43.

(9.) Mishnah, Avot 4:21.

(10.) Mendelssohn, Jerusalem, p. 11.

RAPHAEL JOSPE teaches Jewish philosophy at Bar Ilan University and at the Hebrew University of Jerasalem--Rothberg International School Prof. Jospe is the author of eight books (three in Hebrew, five in English) and edited six books. He also was editor of the philosophy division of the Encyclopaedia Juaica (2nd edition), a resident of Jerusalem and the father of seven children, Dr. Jospe serves as a major (res.) in the Israel Defense Forces.
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Author:Jospe, Raphi
Publication:Midstream
Article Type:Essay
Geographic Code:7ISRA
Date:Sep 22, 2010
Words:2574
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