Law, Politics, and Morality in Judaism

LAW, POLITICS, AND MORALITY IN JUDAISM

The Ethikon Series publishes studies on ethical issues of current importance. By bringing scholars representing a diversity of moral viewpoints into structured dialogue, the series aims to broaden the scope of ethical discourse and to identify commonalities and differences between alternative views.

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Brian Barry and Robert E. Goodin, eds.

Free Movement: Ethical Issues in the Transnational Migration

of People and Money

Chris Brown, ed.

Political Restructuring in Europe: Ethical Perspectives

Terry Nardin, ed.

The Ethics of War and Peace: Religious and Secular Perspectives

David R. Mapel and Terry Nardin, eds.

International Society: Diverse Ethical Perspectives

David Miller and Sohail H. Hashmi, eds.

Boundaries and Justice: Diverse Ethical Perspectives

Simone Chambers and Will Kymlicka, eds.

Alternative Conceptions of Civil Society

Nancy L. Rosenblum and Robert Post, eds.

Civil Society and Government

Sohail Hashmi, ed.

Foreword by Jack Miles Islamic Political Ethics: Civil Society, Pluralism, and Conflict

Richard Madsen and Tracy B. Strong, eds.

The Many and the One:

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States, Nations, and Borders: The Ethics of Making Boundaries

Sohail H. Hashmi and Steven P. Lee, eds.

Ethics and Weapons of Mass Destruction: Religious and Secular Perspectives

Michael Walzer, ed.

Law, Politics, and Morality in Judaism

LAW, POLITICS, AND MORALITY

IN JUDAISM

EDITED AND WITH A PREFACE

BY Michael Walzer

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Law, politics, and morality in Judaism / edited and with preface by Michael Walzer.

p.cm. — (Ethikon series in comparative ethics)

Includes bibliographical references (p. ) and index.

eISBN: 978-1-40082-720-6

1. Jewish law—Moral and ethical aspects. 2. Public law (Jewish law)

3. Judaism and state. 4. Law—Israel—Jewish influences. I. Walzer, Michael.

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Contents

Preface

Michael Walzer

PART I: POLITICAL ORDER AND CIVIL SOCIETY

One

Obligation: A Jewish Jurisprudence of the Social Order

Robert M. Cover

Two

Judaism and Civil Society

Suzanne Last Stone

Three

Civil Society and Government

Noam J. Zohar

Four

Autonomy and Modernity

David Biale

PART II: TERRITORY, SOVEREIGNTY, AND

INTERNATIONAL SOCIETY

Five

Land and People

David Novak

Six

Contested Boundaries: Visions of a Shared World

Noam J. Zohar

Seven

Diversity, Tolerance, and Sovereignty

Menachem Fisch

Eight

Responses to Modernity

Adam B. Seligman

Nine

Judaism and Cosmopolitanism

David Novak

PART III: WAR AND PEACE

Ten

Commanded and Permitted Wars

Michael Walzer

Eleven

Prohibited Wars

Aviezer Ravitzky

Twelve

Judaism and the Obligation to Die for the State

Geoffrey B. Levey

Contributors

Iendex

Preface

MICHAEL WALZER

THERE ARE TWO MODERN ANSWERS to what used to be called the Jewish question. I mean, two humane answers; we won’t be talking in this volume about the other kind. The question itself might be phrased as follows: What political space is there for Jews in the modern world? The first answer points toward citizenship in inclusive democratic states; the second answer points toward sovereignty in the land of Israel.

Both of these answers have now been realized; the process of emancipation brought Jews into the democratic state as equal members; a vote at the United Nations and a war for independence brought Jews a state of their own. These two achievements now require the revision and renewal of Judaism generally and of Jewish legal and moral dis-course (halakah) in particular. For Judaism and its halakah are essentially the products of exile and exclusion. They reflect the experience of being ruled by the others. They are shaped by a long and difficult adaptation to the harsh realities of homelessness. Now they must be reshaped to accommodate two different ways of being at home in the political world.

It is the normative system, the halakic order, that most requires revision and renewal. The resources available for this work are manifold: first of all, the long tradition of legal interpretation and controversy, and then the history of the Jews, the practice of ethical storytelling (aggadah), theological reflection, and, finally, secular philosophy. Interpretation has always been the dominant strategy of Jewish legal innovation, and many of our authors explore its uses here, but it is important to insist on the other possibilities also. In this volume, David Novak argues for the importance of theology, and Menachem Fisch for secular philosophy. As Maimonides appropriated Aristotle, so Fisch appropriates Karl Popper, it is a useful model.

The stress in all these essays is more on making the tradition usable (though some of our authors insist on the difficulties of doing that) than on learning from the tradition. There is, indeed, a lot to learn from the Jewish experience of sustaining a national identity and a common law without territory, sovereignty, citizenship, or, most of the time, coercive power. Some of that learning is visible here, but what is mostly on display in these essays is the effort to find features of Jewish experience that might be useful in thinking about how to live as citizens and sover-eigns. The point is not to negate the exile, as the first generation of Zionist writers wanted to do, but rather to pull exilic Judaism into the world of modern democracy. Whatever the value of medieval and early modern communal life, it was a sharply segregated life, and it did not prepare the Jews for two crucial features of modern citizenship and statehood. The first of these is voluntary association, where Jews and non-Jews coexist in civil society, with Jewish groups operating side by side with Christian, Muslim, and secular groups, all under the same set of rules—and where individual Jews and non-Jews often join together in the same association for some common purpose. The second feature of modern politics for which exile did not prepare the Jews is democratic responsibility: the sense of being committed, along with non-Jewish fellow citizens, to the well-being of the commonwealth—responsible for the others as they are for you. The kahal, the semiautonomous Jewish community of the exile, was radically homogeneous. In it, Jews were responsible only for their own well-being. They were denied any share in the larger political community and any role in its decision-making; there were a small number of Jewish ministers and even generals (in medieval Spain, for example), but the Jews generally were a pariah community. The common good belonged to the others, who of-ten looked after it very badly, but who had at least some sense that it needed looking after. Jews today, in Israel especially, but also in every democratic setting, need to revise exilic law and moral sensibility so as to accommodate the idea of an extended common good.

These are some of the issues that we mean to take up in this book, joining a discussion already in progress, which will continue for a long time. The adjustment to exile took place over decades and centuries; the adjustment to citizenship and statehood will take place over a similar span. It isn’t our intention to rush the adjustment along, only to participate in the work it involves. We are not collecting programmatic statements about how religious Jews should relate, here and now, to American democracy and secularism or about how Jews, as the majority religious community in Israel, should deal with the different minorities. With regard to questions like these, most of our contributors have classically liberal views. But what they are investigating here is the range of options for thinking about such questions within the religious tradition. What are the possibilities for innovative thought that builds on historically familiar elements and tendencies within Judaism? What are the possibilities for the criticism, revision, elaboration, and extension of halakah—and perhaps also of liberalism and democracy themselves—by scholars working from inside the tradition? We include, of course, a number of writers who think that the possibilities are limited, and who argue that help must be sought outside the tradition—and at least one writer who wonders whether the adaptation to modern politics is really worthwhile. It seems fair to say that the plurality of voices and the mixed messages in this book are themselves expressive of the very tradition that some of the voices criticize.

This last point leads me to a more personal reflection, with which some of my fellow authors might disagree. Years of reading and arguing about Jewish texts suggest to me a doubled view of Judaism over the centuries. On the one hand, it is a standard traditional orthodoxy, whose believers are very much like other orthodox believers with different histories and doctrinal commitments. Like Christian fundamentalists, say, they resist change, sometimes with great vigor. Recall the famous dictum of Moses Sofer, one of the founders of contemporary ultra-orthodoxy: Everything new is forbidden by the Torah. But Judaism is also, at the same time, a premodern anticipation of modernism. There are many possible explanations for the remarkable argumentativeness, the ironical cast of mind, the deep-seated skepticism, and the tolerance for ambiguity that marked so many (not all) Jews in the early modern period and that facilitated their passage into modernity. Exile itself must be the paramount explanation, and the wandering it required, and the absence of coercive power, and the inability to establish stable hierarchical authority structures. But if that were the whole story, then the end of exile might enable the formation of a newly authoritarian Judaism; certainly, there are signs of this in the modern state of Israel. I suspect, however, that there is a deeper explanation of the Jewish fit with modernist culture and politics, which has to do with the earliest history of the religion—with slavery and deliverance, with the covenant, with the multiple and dissimilar law codes, with the prophets and the scribes standing alongside and some-times against the priests. In any case, it is these features of Judaism, re-membered over many centuries, that make me optimistic about the chances for revision and renewal.

The chapters in this book are divided into three parts, which reflect imperfectly the structure of the four volumes in The Ethikon Series in Comparative Ethics from which they have been drawn. Each of those volumes was devoted to a particular topic (civil society, boundaries, pluralism and international society, and war and peace) and brought together essays written from the perspective of different religions and philosophical/political positions: Christianity, Islam, and Judaism, and also liberalism, egalitarianism, and feminism. Each of these positions, and others too, was presented, analyzed, and criticized at a conference organized by the Ethikon Institute and then rewritten for the different volumes. We have collected here the essays written from the Jewish perspective or, better, from differing Jewish perspectives, added a few closely connected pieces prepared for other occasions, and rearranged them slightly in the interests of intellectual coherence. The point is to display a range of Jewish responses to some of the hardest questions posed by modern democratic politics.

The first set of chapters deals with the general shape of the social and political orders—first, with the foundational question of rights and obligations and then, more particularly, with the experience of living in civil society, where voluntary association is the rule, and indi-viduals move (relatively) freely from one group to another. Was there ever anything like this in Jewish experience? What might religious Jews think about the wide toleration on which this kind of civility rests, and that makes room for groups that would otherwise be called heretical or wicked?

The second part of the book deals with the boundedness of state territory and the openness of international society. Jewish law has always insisted on the connection of land and people, but what exactly is the nature of, and the justification for, the specific connection of the land and the people of Israel? And how might this connection be generalized in a highly diverse and contentious world of lands and peoples? What kinds of responsibility come with membership in the society of states? What kinds of responsibility come with sovereignty in a single state?

The third set of chapters deals with questions of war and peace, most centrally with the classification and judgment of wars by Jewish writers over many centuries, including the centuries when there was no Jewish state and no Jewish army. The dominant classification scheme in the contemporary world is provided by the Catholic doctrine of just (and unjust) war. The Jewish scheme was different, though our authors disagree about exactly how different it was. We conclude the book with a chapter that continues the discussion of warfare but also looks back to the issues of citizenship and obligation—seen now from the perspective of the state in dire straits: what can it ask of its citizens when its own survival is at risk?

Our authors are Americans and Israelis; European Jewry is unrepresented here. But it is America where emancipation has, arguably, been most successful, and only in Israel is there a full engagement with political sovereignty. So the limitations of our contributors list is not necessarily a disadvantage. Many of the examples and texts discussed in these chapters come from the European diaspora, and the discussion of tolerance and diversity should be of interest to all the world’s Jewries—and also to the many different neighbors of the world’s Jews. It is, of course, Israel’s experience of external war and internal division that gives these chapters their special urgency, but the unusually ex-tensive participation of American Jews in their country’s civil society and politics invites democratic theorists everywhere to attend to these arguments.

The trustees of the Ethikon Institute join with Philip Valera, president; Carole Pateman, series editor; and the volume editor, in thanking all who contributed to the development of this book. In addition to the authors and original volume editors, special thanks are due to the Ahmanson Foundation, the Pew Charitable Trusts, the Sidney Stern Memorial Trust, the Doheny Foundation, the Carnegie Council on Ethics and International Affairs, Joan Palevsky and the Skirball Institute on American Values for their generous support of the various Ethikon dialogue projects from which most of these essays and other books emerged. Finally, we wish to express our thanks to Ian Malcolm, our editor at Princeton University Press; and Carolyn Hollis, also of Princeton University Press, for their valuable guidance and support.

Information on Sources

Chapter 1 was originally published in The Journal of Law and Religion (Catholic University of America Press, 1988).

Chapter 2 was originally published in Alternative Conceptions of Civil Society, eds. Simone Chambers and Will Kymlicka (Princeton: Princeton University Press, 2002), 151–70.

Chapters 3 and 4 were first published in Civil Society and Government, eds. Nancy L. Rosenblum and Robert Post (Princeton: Princeton University Press, 2002), 265–83.

Chapters 5 and 6 were originally published in Boundaries and Justice, eds. David Miller and Sohail H. Hashmi (Princeton: Princeton University Press, 2001), 213–48.

Chapters 7 and 8 were first published in The Many and the One, eds. Richard Madsen and Tracy B. Strong (Princeton: Princeton University Press, 2003), 195–225.

Chapter 9 was first published in International Society, eds. David R. Mapel and Terry Nardin (Princeton: Princeton University Press, 1998), 185–200.

Chapters 10 and 11 were originally published in The Ethics of War and Peace, ed. Terry Nardin (Princeton: Princeton University Press, 1996), 95–127.

Chapter 12 was originally published in the Association of Jewish Studies Re-view (1987).

Part I

POLITICAL ORDER AND CIVIL SOCIETY

1

Obligation: A Jewish Jurisprudence of the Social Order

ROBERT M. COVER

Fundamental Words

Every legal culture has its fundamental words. When we define our subject as human rights, we also locate ourselves in a normative universe at a particular place. The word rights is a highly evocative one for those of us who have grown up in the post-Enlightenment secular society of the West. Even those among us who have been graced with a deep and abiding religious background can hardly have escaped the evocations that the terminology of rights carries. Indeed, we try in this essay to take a little credit here and there for the luster that the edifice of rights reflects, perhaps suggesting now and again that the fine reflection owes something to some ultimate source of the light.

Judaism is, itself, a legal culture of great antiquity. It has hardly led a wholly autonomous existence these past three millennia. Yet, I suppose it can lay as much claim as any of the other great legal cultures to having an integrity in its basic categories. When I am asked to reflect upon Judaism and human rights, therefore, the first thought that comes to mind is that the categories are wrong. I do not mean, of course, that basic ideas of human dignity and worth are not powerfully expressed in the Jewish legal and literary traditions. Rather, I mean that because it is a legal tradition, Judaism has its own categories for expressing through law the worth and dignity of each human being. And the categories are not closely analogous to human rights. The principal word in Jewish law, which occupies a place equivalent in evocative force to the American legal system’s rights, is the word mitzvah, which literally means commandment but has a general meaning closer to incumbent obli-gation.

Before I begin an analysis of the differing implications of these two rather different key words, I should like to put the words in context—the contexts of their respective myths. These words are connected to fundamental stories and receive their force from those stories as much as from the denotative meaning of the words themselves. The story behind the term rights is the story of social contract. The myth postulates free and independent if highly vulnerable beings who voluntarily trade a portion of their autonomy for a measure of collective security. The myth makes the collective arrangement the product of individual choice and thus secondary to the individual. Rights is the fundamental category because it is the normative category that most nearly approximates that which is the source of the legitimacy of everything else. Rights are traded for collective security. But some rights are retained, and, in some theories, some rights are inalienable. In any event the first and fundamental unit is the individual, and rights locate him as an individual separate and apart from every other individual.

I must stress that I do not mean to suggest that all or even most theories that are founded upon rights are individualistic or atomistic. Nor would I suggest for a moment that with a starting point of rights and social contract one must get to a certain end. Hobbes as well as Locke is part of this tradition. And, of course, so is Rousseau. Collective solutions as well as individualistic ones are possible, but it is the case that even the collective solutions are solutions that arrive at their destination by way of a theory that derives the authority of the collective from the individual. It is necessarily a theory that posits that that which was given up and therefore, at least implicitly, that which is desired, is a perfect freedom with all the alienated rights returned and the contradictions resolved.

The basic word of Judaism is obligation or mitzvah. It, too, is intrinsically bound up in a myth—the myth of Sinai. Just as the myth of social contract is essentially a myth of autonomy, so the myth of Sinai is essentially a myth of heteronomy. Sinai is a collective—indeed, a corporate—experience. The experience at Sinai is not chosen. The event gives forth the words, which are commandments. In all rabbinic and post-rabbinic embellishment upon the biblical account of Sinai this event is the code for all law. All law was given at Sinai and therefore all law is related back to the ultimate heteronomous event in which we were chosen—passive voice.

Now, just as the social contract theories generated by Hobbes and others who bore a monstrous and powerful collective engine from the myth of individualism, so the Sinaitic myth has given rise to countermyths and accounts that stress human autonomy. Indeed, the rabbinic accounts of law-making autonomy are powerful indeed, though they all conclude by suggesting that everything—even the questions yet to be asked by the brilliant students of the future and the answers to those questions—everything was given at Sinai. And, of course, therefore, all is, was, and has been commanded—and we are obligated to this command.

What have these stories to do with the ways in which the law languages of these respective legal cultures are spoken? Social movements in the United States organize around rights. When there is some urgently felt need to change the law or keep it in one way or another, a rights movement is started, civil rights, the right to life, welfare rights, and so on. The premium that is to be put upon an entitlement is so coded. When we take rights seriously we understand them to be trumps in the legal game. In Jewish law, an entitlement without an ob-ligation is a sad, almost pathetic thing. There were, in ancient rabbinic Judaism, many obligations from which a blind person was excused. One of the great rabbis of the fourth century, Rabbi Joseph, who was blind, asked the great question of his colleagues: is it greater to do the commandments out of love when one is not obligated to do them or is it greater to do the commandments out of obligation? He had at first assumed that to voluntarily comply with the commandments though not obligated to do so entailed a greater merit. But his colleagues held that to do the commandments out of obligation—more correctly, to do them as obligated—was the act that entailed greater merit. He then offered a feast for the scholars if any could demonstrate that Rabbi Judah’s position that the blind were not obligated to do the commandments was erroneous.

Indeed, to be one who acts out of obligation is the closest thing there is to a Jewish definition of completion as a person within the community. A child does not become emancipated or free when he or she reaches maturity. Nor does she/he become sui juris. No, the child be-comes bar or bat mitzvah, literally one who is of the obligations. Traditionally, the parent at that time says a blessing. Blessed is He that has exonerated me from the punishment of this child. The primary legal distinction between Jew and non-Jew is that the non-Jew is only obligated to the seven Noahide commandments. Where women have been denied by traditional Judaism an equal participation in ritual, the reasoning of the traditional legist has been that women are not obligated in the same way as are men with respect to those ritual matters (public prayer). It is almost a sure sign of a nontraditional background for someone to argue that women in Judaism should have the right to be counted in the prayer quorum, to lead prayer services, or to be called to the Torah. Traditionalists who do argue for women’s participation (and there are some who do) do so not on the basis of rights. They argue rather that the law, properly understood, does or ought to impose on women the obligation of public prayer, of study of Torah, and so forth. For the logic of Jewish law is such that once the obligation is understood as falling upon women, or whomever, then there is no question of right of participation. Indeed, the public role is a responsibility.

The Uses of Rights and Obligations

The Jewish legal system has evolved for the past 1,900 years without a state and largely without much in the way of coercive powers to be exercised upon the adherents of the faith. I do not mean to idealize the situation. The Jewish communities over the millennia have wielded power. Communal sanctions of banning and shunning have been regularly and occasionally cruelly imposed on individuals or groups. Less frequently, but often enough, Jewish communities granted quasiautonomy by gen-tile rulers have used the power of the gentile state to discipline dissidents and deviants. Nonetheless, there remains a difference between wielding a power that draws on but also depends on preexisting social solidarity, and wielding one that depends on violence. There is also a difference between controlling the violence that is wielded autonomously and being dependent upon a potentially hostile power for that force. The Jewish legal apparatus had not had the autonomous use of violence at its disposal for the two millennial that are, indeed, for all practical purposes the period in which Jewish law as we know it came to be.

In a situation in which there is no centralized power and little in the way of coercive violence, it is critical that the mythic center of the law reinforce the bonds of solidarity. Common, mutual, reciprocal obligation is necessary. The myth of divine commandment creates that web. It must also be pointed out that through most of the past two millennia there has been no well-defined hierarchy of law articulating voices in Judaism. There have been times when great figures have lamented the cacophony of laws, and have understood it to be a condition imposed upon us for our sins. But another strain has almost rejoiced in the plethora of laws and has drawn strength from the traditional solution given by the Talmud to the question of whether the School of Hillel or the School of Shammai was truly correct. Both are the words of the Living God. The acceptance of the idea that the single great mythic event of lawgiving can issue in apparently inconsistent precepts and understandings but that the apparent inconsistency can, itself, be the product of two correct readings of a larger understanding—that way of looking at the normative world—was immensely useful to a people doomed to live without a hierarchically determined authoritative voice. It was a myth that created legitimacy for a radically diffuse and coordinate system of authority. But while it created room for the diffusion of authority, it did not have a place for individualism. One might have in-dependent and divergent understandings of the obligations imposed by God through his chosen people, but one could not have a world-view that denied the obligations.

The jurisprudence of rights, on the other hand, has gained ascendance in the Western world together with the rise of the national state with its almost unique mastery of violence over extensive territories. Certainly, it may be argued, it has been essential to counterbalance the development of the state with a myth that (a) establishes the state as legitimate only insofar as it can be derived from the autonomous creatures who trade in their rights for security—that is, one