Rights and Jewish tradition: claiming the higher and middle grounds. (Reviews).
Covenantal Rights: A Study in Jewish Political Theory. By DAVID NOVAK. Princeton, NJ: Princeton University Press, 2000.David Novak's Covenantal Rights is a bold effort to reshape Jewish political theory and political theory in general. Novak seeks to reconcile modernity and Jewish tradition by demonstrating that the concept and language of rights is an integral part of Jewish tradition. He argues that the liberal conception of rights, embraced by most Jews today, is fundamentally non-Jewish because it presupposes an anthropocentric universe with human autonomy as its highest value. Traditionalist Jews reject rights talk precisely because it is secular and stress instead the community's claims on the individual. Novak's task is to show that an authentically jewish political theory is a political theology that contains a sophisticated framework of correlative rights and duties.
In addressing this Jewish issue, Novak also aims to contribute to political theory in general by offering a theory that illuminates and overcomes the shortcomings of both liberal and conservative perspectives. Liberals have emphasized rights at the expense of duties, while conservatives have taken the inverse tack. The former leads to a fragmented social world driven by selfish interests, the latter invites authoritarianism. Novak proposes a balance of rights and duties.
Novak argues that rights and duties are correlative: every duty presupposes a prior right. For example, my duty to help the poor is created by the poor's prior claim to my help. The community and God, as well as individuals, have rights and duties. Of course, individuals, the community, and God, are not equal. God's claims on humans, as individuals and as a collective, are primary. Rights, for Jewish political theory, must be "grounded in the prior covenantal relationship between God and Israel" (116). Novak uses Torah to understand the rights and duties obtaining between God and individuals, between individuals and covenanted community, and among individuals. What appears to differentiate Novak from many other political theorists is his claim that rights and duties only become properly ordered within the covenant between God and Israel: "[O]nly when God's authority is presented in the covenant do the lesser authority of society and the lesser authority of the individual person find their rightful places resp ectively and their rightful correlation one with the other" (11).
God's creation of humans in God's image is the primary act of rights-creation: God as creator is entitled to command our response. Our duty to fulfill the commandments is the response required by God's creation of humans. The fact that God created us also generates a set of claims that we can make on God. These are prayer (the right to be heard by God, not to be confused with the right for God to grant us what we wish), the commandments (which Novak describes as God's response to our needs), and the right to God's justice.
Individuals' relationship to God, however, is of secondary importance to the relationship of God to the covenanted community, Israel. The core of the covenant, after all, is with the community, not with the individual. Novak is careful to argue that the covenant does not diminish a person's relationship to God; rather, the covenant enhances that relationship. God makes claims on the community to practice justice, act compassionately, and worship publicly; God also demands martyrdom in certain circumstances.
In return, the covenanted community makes claims on God that demand a response. The most immediate claim is survival as a people, "a claim that is justified by Jewish affirmation of the purposes of the covenant" (102). Just as God is faithful to the covenant, so should the Jews be faithful to the covenant- although our claim, just like our election, is ultimately not dependent on our virtue. We also have a claim on God related to fulfilling the commandments. Following Maimonides, Novak argues that we are entitled to physical benefits from God in so far as those benefits enable us to uphold the commandments; the benefits are not to be seen as a reward for fulfilling the commandments. Finally, the authority to interpret Torah as binding law is "Israel's claim on God for the sake of the covenant" (110). Because direct revelation no longer occurs, humans' access to God's will is through interpreting Torah. Any interpretation must be based on the purpose of Torah, namely, for the sake of God, either directly or in directly.
Relations between individuals are governed by the closely related injunctions "what is hateful to yourself, do not do to someone else," and "you shall love your neighbor as yourself." Novak's subtle discussion of the meaning of these commandments and their implications for humans' rights are grounded in God's love for Israel: "Because the Lord loves Israel, individual Jews are able to share that love with others in the covenant," as well as with non-Jews (152). Novak confronts liberal political theory directly by arguing that self-interest is one starting point for the exercise of rights, but that it should not be its terminus. Ultimately, self-interest is action taken for the sake of those we love; it is instrumental rather than an end in itself. As such, self-interest has a legitimate role in exercising rights, but it is less important than rights that are means to a "dutiful end" (132).
However, not all individual rights are rooted in specific duties. The general commandment to act for the sake of God still governs this realm, but it is a space for significant human autonomy. Novak provides some notion of the scope of this (semi-) autonomous sphere by distinguishing between the body and possessions. The former are so intrinsically part of who and what we are that they are not to be primarily under the control of our will. In contrast, possessions are one way that we project our will in the world. We may do so as we wish with our possessions, as long as we do not violate the community's and God's claims on us.
The most interesting and problematic chapters of the book deal with the ordering of rights and duties between the community and individuals. Here Novak's argument addresses several controversial issues that bring the twin problems of the potential for communal tyranny and the apotheosis of human will sharply into focus. Novak argues that humans have a need for community above and beyond the satisfaction of instrumental needs. However, the communal realm is merely the first, not the last, reference point beyond the individual: Jewish collective life must be for the sake of God, rather than, as some seem to claim, simply to be different from other peoples. Communal needs take precedence over individual needs and thus the community has the authority to make rules that inhibit or limit the exercise of individual rights. Individual rights are to be protected only when they do not conflict with a prior duty. Being ever mindful that these rights and duties are undertaken for the sake of God prevents a slide into aut horitarianism, on the one hand, and unbridled selfishness, on the other.
Traditional Jewish sources fairly easily yield evidence for individuals' right to the community's protecting them from harm, providing welfare, and offering social inclusion. Novak notes that finding support in classical Jewish texts for individual rights against the intrusion of communal authority is more difficult. However, his discussion of rabbinic writings on the right of eminent domain indicates that the right to resist the community's claims exists in the Jewish tradition and can be developed--as long as this right does not interfere with the common good.
The book makes a major contribution to Jewish political theory and, beyond that, to questions of Jewish identity and politics. Novak clearly sees secular and religious liberal Jewishness as inadequate to responding to the imperatives of Jewish tradition, which are rooted in the covenant. In his reading, the liberal notions of individual rights to which these Jews adhere are incompatible with traditional Judaism because they have non-Jewish sources and nourish non-Jewish commitments. Secular and religious liberalism misconceives the Jewish people's role in the world and, as a consequence, constitutes a weak basis for sustaining a Jewish community (in part because liberal Jews misconceive this role). Likewise, religious and political conservatives' privileging of communal authority also distorts the Jewish people's role in the world, isolating it from other peoples and providing ideological support for the sorts of authoritarian regimes that have caused so much suffering among Jews (as well as non-Jews) through out the last century.
The book's main attraction lies in this attempt to reconcile liberal and conservative perspectives and, in doing so, modernity and Jewish tradition. Liberal Jews who are uncomfortable reflecting on the content of their Jewishness--what exactly distinguishes us from non-Jews-will be heartened by Novak's account of how Jewish tradition makes strong claims to communal duty, while recognizing certain types of individual rights. There is much in Novak's theory that will appeal to those seeking a deeper meaning to Jewish communal experience. For example, Novak asserts that the function of most of the commandments is to fulfill human needs. Once this is granted, one can see the commandments as God's response to human needs. This restoration of human rights vis-a-vis God, while simultaneously recognizing God's claim as creator that we fulfill the commandments, creates a tension in the human-divine relationship that seems to me more challenging, exciting, and grounding than a liberal Judaism unmoored from halakha.
Novak will also surely dismay or anger liberal Jews because his theory leads to positions that challenge cherished ideals of individual rights. For example, Novak states that Jewish tradition exclusively privileges heterosexuality and can never recognize homosexuality as legitimate. In his account, human sexuality intends procreation, pleasure, and personal communion, with procreation being the most important aspect. Heterosexuality is natural, precisely because it can result in procreation. Families, the basic building blocks of community, and where individuals are created and socialized, are built on a hierarchy determined by gender and age. "The community needs new members, and these new members are best born, cared for, and raised... in a home founded on a permanently intended heterosexual union. In fact, the community's interest in a traditional family life is so strong that to compromise it in any way could only seriously weaken it" (171). Homosexual unions, because the partners cannot conceive and give birth to a child with each other, "do not intend the core of good family life, which is to procreate in both the narrowest and widest senses of the term" (176). The Jewish community has a right to "the procreative duty of all its members" (171); this right is a covenantal entitlement from God.
There are several objections to this line of reasoning. First, the statement that children are best born and raised in a permanently intended heterosexual union is not borne out by research. Findings consistently show that children of gay and lesbian parents do not differ significantly from other children in terms of well- being. (1) Moreover, the intentionality of a union is largely irrelevant to the quality of child-rearing: most failed marriages were intended to be permanent. A stable homosexual union is more likely to provide a better home than an unstable heterosexual one. Raising the issue of intention evokes the stereotype of homosexual unions as ephemeral, based primarily on sexual desire. Research does not support the stereotype. (2)
Even considered within the terms of his overall argument there are reasons to contest Novak's conclusions regarding homosexuality. Novak contends that the common good takes preference over individual rights when these rights harm the common good. For example, he makes a strong case for halakhic authorities' social obligation to "rectify" the situation of agunot (women whose husbands refuse to grant a divorce) because it has a harmful effect on the institution of marriage. Likewise, I would argue, denying gays and lesbians social recognition for their unions damages marriage because it implicates the institution in making gays' and lesbians' child-rearing more difficult. Denied the legal protections afforded heterosexual couples, gay and lesbian unions are more vulnerable to economic instability, as well as to other assaults on their human dignity. Reserving marriage exclusively for heterosexual people thus helps limit the community's capacity to raise its children in loving, safe, and materially adequate fami lies. Indeed, discriminating against gays and lesbians--and denial of marriage is a form of discrimination--surely has a greater negative impact on the well-being of children of gays and lesbians than the putative harm to the children caused by their parents' sexual orientation. The urge to raise children is very strong, and gay and lesbian Jews will continue to form families. Obliging them to do so outside of marriage, rather than strengthen the institution, will weaken it in the eyes of a generation of children whose family situations have not been recognized under traditional Judaism. In short, it is likely to further widen rifts within the Jewish community, alienating many people, gay and straight, from Jewish tradition itself.
Perhaps more troubling--again, within Novak's framework--is the implication that God creates people whom God's laws prohibit from experiencing sexual pleasure and personal communion, as well as denying them the joys and burdens of marriage and parenthood. (In Novak's view, Jewish tradition prohibits all homosexual acts.) It is simply hard to know what to make of such a creator whose halakha thwarts, rather than fulfills, such basic human needs.
At times, in dealing with this topic Novak's writing takes on an uncharacteristic shrillness. He makes the curious claim that advocating social approval of homosexuality leads to advocating the removal of all limits on sexuality. In objecting to this notion, in a paragraph (174) comprised of a string of no fewer than ten rhetorical questions, each swollen with indignation, Novak does not state why limits on sexuality are necessarily directed exclusively at same-sex relations.
The threat that homosexuality poses to Novak's political theology seems to share, at least in part, the same (extra-Scriptural) source as the threat posed by women's assuming roles of agency in public worship in Judaism: a challenge to male authority. As noted, Novak believes that the tradition did and should continue to be based on gender hierarchy, learned first in the family, and mirrored in community life. Likewise, he sees liberal Judaism's ordination of women rabbis and cantors as an illegitimate displacement of a male prerogative. There is no doubt that Novak has the support of a preponderance of traditional authorities on his side. Note, however, that he does not address the fact that the Conservative movement claims a halakhic rationale for its decision to ordain women rabbis. Novak's gratingly paternalistic endorsement of Orthodox women's prayer groups is an unapologetic celebration of male dominance. Borrowing a telling metaphor from Wittgentstein, he compares the place of these voluntary groups in relation to the formal, male-conducted services by stating that "it is like adding suburbs onto an old city which are valid extensions of it as long as they are kept in their secondary, 'suburban' role and do not destroy the order of the old city onto which they have been added" (203). It would be wonderful for a man with as fine a mind and as firm a grasp of secular and Judaic learning as Novak to join others dedicated to reconciling traditional Judaism with modem gender and sexual relationships.
These reservations to Novak's contributions to Jewish political theory extend to his work's impact on general political theory. Novak brings powerful arguments to bear on the proper relationship between rights and duties, arguments that propose a way of overcoming the deficiencies of both liberal and communitarian thought. However, it seems that non-Jews and non-Jewish institutions would need to accept the covenant in order to restructure the social world in accordance with God's purpose as expressed in the covenant. As Novak points out, the Christian notion of love is quite different from the Jewish notion, and leads to quite different ends. What impact would this incongruence have on the careful weighing of rights and duties among individuals, covenanted community, and God that Novak's system effects? Furthermore, the implications of a polity explicitly governed by theocratic norms is troubling. As Novak points out, Jews have flourished in polities that respect majority rule and protect individual rights. A hallmark of these democracies has been the separation of religion and politics. The mischief resulting from confounding religious and political authority is potentially enormous. In attempting to resolve the undeniable and long-standing dilemmas of modern political theory, Novak's reliance on theocracy as the rule of God may lead to a slide toward the rule of the clerics, a cure worse than the ill.
NOTES
(1.) For reviews of the literature, see Julie S. Gottman, "Children of Gay and Lesbian Parents," Marriage and Family Review 14 (1990): 177-196, and Cheryl A. Parks, "Lesbian Parenthood: A Review of the Literature," American Journal of Orthopsychiatry 68.3 (July 1998): 376-389.
(2.) Michael S. Wald, Same-Sex Couples: Marriage, Families, and Children. An Analysis of Proposition 22, The Knight Initiative (The Stanford Institute for Research on Women and Gender and The Stanford Center on Adolescence, No date), p. 10. Also available at: http://www.law.stanford.edu.
JOEL STREICKER is a recovering cultural anthropologist. His review of Moses and the Angels, by Ileene Smith Sobel, appeared in the Winter 2002 issue.
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| Author: | Streicker, Joel |
|---|---|
| Publication: | Judaism: A Quarterly Journal of Jewish Life and Thought |
| Date: | Jun 22, 2002 |
| Words: | 2872 |
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