The Chosen and the Elected
Monthly Learning Forum by Rabbi Yaakov Kermaier: May 6, 2008 The Chosen and the Elected: Torah Perspectives on Democracy Rabbi Kermaier opened by recounting an incident at the Yeshiva University Library as he was preparing this class. A security guard came through the library, somewhat agitated, and Rabbi Kermaier heard him command: “I want all the Jews out of the room.” It being the Yeshiva University Library, this was somewhat surprising, till Rabbi Kermaier realized the guard had said he wanted all the juice out of the room. Evidently, students had been smuggling juice into the library, contrary to the rules. Still, the incident gave some perspective on today’s class. In the United States, we do not expect Jews to be suddenly and arbitrarily ejected from a room. We should not take the blessings of our democracy for granted. Millions around the world who live under oppression view the United States as the dream, and we should be grateful for what the country has done for us.
Last Thursday, we observed Yom Hashoah, and this Thursday we will observe Yom Ha’atzmaut. It is a meaningful juxtaposition for this class, as the United States played so large a role in bringing the Holocaust to an end, and another democratic state, the State of Israel, was born out of the ashes of that tragedy. Rabbi Kermaier noted that, in preparing the class, he relied heavily on Tolerance, Dissent, and Democracy: Philosophical, Historical, and Halakhic Perspectives, a collection edited by Moshe Sokol, and on several articles by the late Daniel J. Elazar. The Torah’s View Against this background, Rabbi Kermaier asked: If democracy is so important in Western civilization, what does the Torah have to say about it? There is nothing explicit, but the Torah does talk about monarchy. Specifically, the Torah addresses monarchy in Devarim 17:14-20 (source sheet I(A)). The double language of “som tasim alecha melech” (Devarim 17:15) implies a Biblical imperative for monarchy. But the commentators note that a passage from I Shmuel 8:4-7 (source sheet I(B)) seems to contradict that view. There, the people demand a king, and this does not sit well with the prophet Shmuel. While G-d accedes to the people’s request, He does not consider it a noble appeal, telling Shmuel that the people have rejected Divine authority. In light of the apparently pro-monarchy language in the Torah, why did Shmuel bristle at the people’s request, and why did Hashem confirm his view? The rabbis’ answers take differing views of monarchy and democracy. (1) The Tosefta quoted various views that do not criticize the concept of monarchy but merely the way in which the people requested it of Shmuel. (a) There was effrontery in making this request during Shmuel’s lifetime, and directly from him. (b) The request was predicated on an attitude of wanting to be like the other nations. (c) The request also pointedly stated to Shmuel that his children were not worthy to succeed him. (2) The Rambam (1135-1204) views establishment of a monarchy as a mitzvah, citing Rabbi Yehuda’s statement in the Tosefta that the Jewish people, upon entering the land of Israel, are charged with appointing a king, building the Temple, and eradicating Amalek (Hilchot Melchaim U’milchamot 1:1). (3) By contrast, the Abarbanel (1437-1508) had good reasons to be skeptical of monarchy. He lived through the expulsion of the Jews from Spain, when the choice was to convert to Christianity, leave, or die. About half the Jews left, the Abarbanel among them, even though Ferdinand and Isabella were prepared to exempt him from the decree, as he was a powerful financier who had lent them money. He understood the inherent corruption of monarchy and the temptation to abuse power. Not surprisingly, he views (source sheet I(D)) the passage in Devarim, where the Torah forecasts a request by the Jewish people for a king, as a prediction of Israelite ingratitude. He notes that the people did not request a king when they ostensibly needed one, to conquer the land, but only after they were settled, when they did not need one, just for the sake of emulating the other nations. He views the Torah’s sanction of monarchy as merely a permissive mitzvah: if you must have a monarch, this is the way you should go about doing it. Even the Abarbanel concedes that monarchy is a goal in the Messianic era, but he would say it applies as a goal only then. Democracy in Jewish Thought What is the support for democracy in Jewish thought? Rav Kook (1865-1935) argued that the king is the representative of the people, the expression of their will. Though he has super-legislative authority, his power ultimately derives from the people. Therefore, when the monarchy was dissolved and since we lack the capacity to reconstitute it (e.g., there is no Sanhedrin), the power of the monarch reverts to the people. This is his Torah foundation for democracy. (For his part, Yeshayahu Leibowitz (1903-94) argued that the Torah does not support any particular form of government of another.) The Netziv (1817-93), in the Ha’amek Davar (source sheet II(B)), argued that the Torah was not absolutely commanding appointment of a king. Instead, he argued, monarchy is voluntary. It is all contingent on the will of the people, because some states cannot tolerate a king, while others need one. The Torah could not force monarchy on the people, because, in a state that cannot tolerate a king, it would be a case of danger to life (sakanat nefashot), which overrides positive commandments in any event. Therefore, the consent of the governed is necessary. Rabbi Kermaier further noted that the Torah permits slavery, at least in a strict legal sense. That does not mean we would view slavery as desirable today, and one cannot argue that the Torah creates an obligation to establish slavery. The Torah simultaneously establishes the concept that humanity was created in the image of G-d (tzelem Elokim) and recognizes that human weakness will in some circumstances call for slavery. The ideal is that the principle of tzelem Elokim will ultimately overwhelm the institution of slavery. (A comparable dichotomy existed in the US Constitution at the time of its ratification.) Similarly, the Torah may contemplate monarchy without favoring it. Thus, even if one does not accept the exegesis of the Abarbanel or the Netziv, it is entirely consistent with the Torah to support democracy. This does not mean that we favor pure democracy. As James Madison (1751-1836) observed in Federalist No. 10: From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. What we call democracy is liberal constitutional democracy, in which the law protects the rights of individuals. Liberal Constitutional Democracy and the State of Israel This tension presents difficult problems for the State of Israel. The State’s Basic Law: Human Dignity and Liberty (source sheet III(A)) calls for the country to be both a Jewish and democratic state. Is it possible to be both? This is the issue of issues for the modern State of Israel. The hallmark of liberal constitutional democracies is equality before the law, with no religious tests or the like qualifying one’s rights. The far left and far right in Israel agree that the twin goals cannot be reconciled. The far left would thus abandon the State’s Jewish character, while the far right would abandon democracy. In the middle, there is a consensus that the State should be both Jewish and democratic, with the contested ground being where to draw the line. The State of Israel’s Proclamation of Independence (source sheet III(B)) promises full and equal citizenship to Arabs. Arabs have legal equality once they are citizens of Israel, but the criteria for citizenship can exclude them from becoming citizens. What is more, the flag, the national symbol (the menorah), and the anthem of the State of Israel all have Jewish themes. The tension between Judaism and democracy further plays out in the conflict between religious and secular citizens, most recently in the context of a decision by a religious court to retroactively invalidate conversions performed since 1999 by the head of Israel’s Conversion Authority. (Rabbi Kermaier noted parenthetically that he sees no halachic sanction for wholesale retroactive invalidation of conversions without case-by-case analysis.) Finally, some groups in Israel — both Gush Emunim and elements of Chabad — hold that the Messiah is coming imminently, that there is an urgency to our engagement in that process, and that the democratic institutions of the State could be hindering that process. What’s more, the existential threats to the State of Israel raise the stakes, as a mistake by a democratic leader could not merely do harm to the future of the country but jeopardize its survival. Rabbi Kermaier noted the irony that many American Jews embrace liberal constitutional democracy at home, because the US protects minority — including Jewish — rights, but want to protect the Jewish character of the State of Israel at the expense of US-style liberal constitutional democracy. He cited an analogy by Professor Shalom Rosenberg of Hebrew University. Imagine being stranded in an isolated area, with one bus and one driver available to take the group to safety. The majority votes to take Route A, but you know (or feel that you know) that Route A is unsafe and the entire group would be endangered. As Prof. Rosenberg put it, the passenger in this scenario has three choices: (1) respect the decision of the majority and do one’s best to help it succeed; (2) stay behind, refusing to “go down” with the group; (3) kill the driver. Rabbi Kermaier noted that most of us would choose a moderate path, even when we disagree with the majority decision, but pointed to the risks faced by the State of Israel as an explanation for why these issues are so explosive. In conclusion, Rabbi Kermaier noted that the State of Israel struggles daily with external enemies but also with an internal battle between the values of Judaism and those of democracy. Though this tension can cause pain, the struggle to combine these values lends richness to the Zionist experience and is worth embracing as we celebrate Israel’s sixtieth anniversary.
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