|公 法 评 论||惟愿公平如大水滚滚，使公义如江河滔滔
et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis
Federal Liberty and the Jewish Political Tradition
Daniel J. Elazar
When, in 1952, David Ben-Gurion moved in the Knesset to end the debate over the adoption of a comprehensive constitution for the new State of Israel because the Knesset had reached a deadlock on the subject, he gave two good reasons why Israel did not need to adopt a single constitutional document at once. One, written constitutions were needed in federations to fix the relations between the federal government and the constituent states, and since Israel was not a federation, that was unnecessary. Two, written constitutions were needed when an absolutist regime was replaced by a republican one, but because the Jewish polity had always been republican, at least in its underlying principles, and the Jewish people were strongly committed to republicanism, it was not necessary for that reason either.1
Although Ben-Gurion's real reason was that the gap between Israel's extreme left that wanted a people's republic and religious right that rejected any written constitution other than the Torah, had led to the deadlock, his points were accurate enough. With the exception of regimes imposed on the Jewish people at the time of the Romans or situations in particular local communities where one man acquired absolute powers, usually because he controlled wealth needed for the community's survival, the Jewish people has never had an absolutist regime. Certainly, not every Jewish regime has been democratic-republican - there have been oligarchies of various kinds with various degrees of strength - but Jewish regimes have always been on a continuum between oligarchic and democratic republicanism, with aristocratic republicanism probably the most often preferred.2
In modern times, Jews from Spinoza onward as individuals have avidly embraced democratic republicanism in its liberal democratic manifestations.3 There have been no stronger supporters of democracy in the world than the Jewish people. At the same time, the Jewish political tradition, while demonstrably republican and hence committed to liberty, has had to grapple with a serious problem confronting all democratic republicanism and most especially modern liberal democracy, that is, combining liberty with a commitment to an absolute truth, and the norms required to give both full expression.
That problem has become exacerbated as liberty has come to mean human rights in the contemporary sense. As long as it was expected that belief in God was a sine qua non for free government and that atheists could not be trusted as citizens of a democratic republic, there was no need for conflict. Indeed, under certain circumstances, having God as the true sovereign of the universe actually facilitated republicanism. Since sovereignty was God's, it could not be in the hands of the state and because, following the Bible, humanity had made a covenant with God to become His partners on earth, human sovereignty had passed to them and governments had only powers which the people had delegated to them.
With the postmodern elevation of "life" to the position of the ultimate absolute good and human life primer inter parus, human rights have become, in Ronald Dworkin's words, "trumps," to be preferred in every situation where there is a conflict between them and other principles of human organization and order. This is clearly an impossible position in the Jewish understanding of the world, Jewish political thought, or in the political tradition that envelopes it. The matter is further compounded by two problems. In the Bible, obligations precede rights as the basis for norms and the individual does not stand naked in the universe but exists because he or she is a member of a community.4 Both of these are core positions in the Jewish political tradition.
This is not to suggest that the matter is one of obligations versus rights. Indeed, even in the narrowest understanding of the matter, the obligations of the community and its members to do God's will and fulfill his commandments establishes what are clearly analogous to rights. Even if helping widows and orphans is not in the first instance a right adhering to widows and orphans but rather an obligation that falls on the community, the right is automatically derivative from the obligation and is not a matter of dispute. Others, Lenn Goodman and Moshe Greenberg, for example, go beyond that to argue for a rights tradition in the Bible and Jewish political thought that goes beyond the derivatives.5 Greenberg especially has made a powerful case that the biblical phrase tzedakah u'mishpat refers to the biblical equivalent of natural rights and is built into the biblical framework as part of the way of the world, citing the verse in Genesis 4:10: "Kol demai achicha tzoakim alai min ha'adama" (The voice of your brother's blood cries out to me from the earth) as a proof text that tzedakah u'mishpat are built in to the very earth itself. He enunciates a substantial biblical human rights doctrine, but I would argue that it is a doctrine that still rests upon the primal obligations of humans to do justice. Be that as it may, there still needs to be a practical way to bridge the gap between traditional Jewish and contemporary expectations of rights and obligations.
In looking for a bridge between traditional Jewish and modern views of obligations and rights, we find the tradition of federal liberty - the liberty to live according to the covenants to which one has consented - as developed in the seventeenth century by Reformed Protestant theo-political revolutionaries. Taking the biblical paradigm as the starting point, it is possible to suggest reconstruction of the modern rights model in line with ideas of federal liberty as follows: All human beings are created equal and endowed by their Creator with certain inalienable rights - e.g., life, liberty, property and the pursuit of happiness. All human beings are also created as social beings and as such must form communities and polities.
Basic to all humans is the connection of these two aspects of humanity through the right and obligation to covenant, which is simultaneously both right and obligation. The exercise of all rights is through the covenants freely entered into by humans. Every individual human and every human community and polity lives within this network of covenants and only can find expression for rights within a network of covenants. Humanity is the sum of its obligations and rights, not to the state but to a transcendent and mutually accepted morality. Humans are free because only the free can be obligated to be moral and just and only by being obligated to strive to be moral and just do they find expression of their inalienable rights.
A History of Contrasts and Convergences
The biblical and subsequent Jewish tradition begins with the idea of the consenting community as manifested through covenants; initially covenants with God and then subsidiary covenants among humans for organizing authority and power. Those covenants established a system of obligations that included implied or stated rights, protections and liberties (using the English terminology, not Hebrew). Those who accepted the obligations accordingly were entitled to certain rights, protections and liberties, in the biblical terminology, tzedakah u'mishpat. This view, or some variant of it, animated Jewish and, later, enlightened Christian views of obligations and rights until modern times.
In Western Europe in the sixteenth through eighteenth centuries there was a revolution in the prevailing conception of rights and obligations, whose turning point came in the seventeenth century. The revolution began with the sixteenth century Reformed Protestant emphasis on covenant which opened the door. The seventeenth century natural rights philosophers' emphasis on political compact, a secularized version of the Reformed Protestant covenant, established a new basis for human rights and gave them precedence over obligations. Their theories were the basis of the great eighteenth century revolutions that emphasized the primacy of "natural rights" or "the rights of man." The eighteenth century revolutionaries' emphasis on the even further secularized social contract which spread the idea of the political contract in continental Europe (other than covenantal Switzerland) became the dominant form of covenantal thinking on the continent.6
Recall the differences between the three forms. Covenant involves a public act linking the human parties through or with a transcendent power. Political compact involves a public act based on mutual promises among human parties without any necessity for invoking a transcendent power. It might still be invoked - for decoration or even because there are those who see it as important in some way to do so, but mutuality renders it unnecessary in order to make the pact a binding one. The social contract, nominally a public act, really involves narrower agreements among human parties freed of other constraints. In that sense it is like any contract, essentially a private act to be interpreted by each party as narrowly as possible.7
This secularization led to a system whereby rights came to take precedence over obligations or, as they came to be called, responsibilities; indeed, a situation in which rights were real and necessary and responsibilities were voluntary. In the early stages of this transformation, it was assumed that for every right there was a correlative responsibility. But, unlike rights, the responsibilities were not graven in stone. At most they might be written down in constitutions as a way to base a civil society on an individual rights-based system.8
In the Jewish polity, obligation continued to be at the basis of Jewish organization with rights flowing from it, not just protections and liberties. As one took on the obligations, one gained rights. In the modern world, with their communities disempowered, the Jews also became a consensual rather than a consenting community.
For the new democratic polities, the voluntary dimension - the consensual dimension - was also very important. That is one of the reasons why the United States has always insisted, for example, on the right of emigration. The right of emigration is one of the critical American rights, although it is nowhere stated in the Bill of Rights or any similar document, because in order for people to be free to consent, they have to be free to leave. This is a right that the American government has defended for Jews and others at least since the nineteenth century.
In the late modern epoch, dissatisfaction with this libertarian model in some quarters led to totalitarianism or at the very least to new forms of deference to authority. The closest Jewish example of this is the Hassidic community whose embrace is well nigh total and where hierarchical deference takes the place of either the traditional form of obligations and protections or the modern form of rights and obligations.9
After World War II, the world entered the postmodern epoch. As part of the climax of its first generation in the 1960s, there developed a popular neo-contractarian spirit that soon was embodied in an intellectual school. John Rawls and Ronald Dworkin are good examples of that school.10 It has led to new conceptions of rights without corresponding obligations or responsibilities. Their thought has been widely echoed in popular behavior. Marriage, for example, was transformed from a covenant into a contract.
This is an enormously important transition fraught with all kinds of meaning. For the Jewish community, for example, synagogues are no longer communities but private, essentially contractarian, institutions. Private individuals or families become members by contract. Rights become totally detached from responsibilities or obligations except as an individual may or may not choose to contract and so then has to observe the terms of the contract.
There is a paradox here in that there was an extraordinary biblical influence on the development of modern rights theory. Whereas the biblical and classical traditions shared a sense of community and obligation, that is to say, both emphasized the primacy of the community, and the importance of individual obligations to the community because it was so primary, the biblical tradition diverges from the classical tradition and is more closely aligned with the modern one on the issue of equality.
The classical tradition is essentially a tradition of inequality. In the biblical tradition, human obligation is ultimately to God and all humans are equally obligated in fundamental ways to God. Even though the community becomes important, in this sense it is still a mediating institution between the individual and God. Therefore the biblical sense of equality is closer to the modern sense than it is to the classical tradition of the community of unequals, which is why Hobbes, Spinoza, Locke, and the other seventeenth century philosophic revolutionaries who broke with the classical theory all drew on biblical sources.11
Not only did they draw on biblical sources, but part of their revolution was to go back literally to the biblical texts themselves following the text-oriented tradition established in the Protestant Reformation in the previous century. They looked at the biblical text "straight," not through the traditions which they inherited respectively. They were influenced by their direct reading of the Bible, unmediated in any conscious way. Indeed, they made an effort not to have their reading mediated through the traditions from which they came. Philosophically, they continued the classical enterprise, but they rejected the central ideas of the classical enterprise and went to the biblical enterprise when it came to the question of anthropology. As we look for a bridge, we have to go back to the seventeenth century and seek clues as to where it might be possible to build bridges.
There was an effort, not Jewish, to build a bridge at that time. It was an effort shared by non-Jewish theo-political revolutionaries to build a political theology growing out of Reformed Protestantism that may have something to say to our problem. And that is the tradition of federal liberty; the liberty to live according to the covenants to which one has consented.12
John Winthrop was probably the foremost Puritan articulator of the idea of federal liberty in seventeenth century Massachusetts. He discussed it in terms of both belief and practice:
There is a twofold liberty, natural (I mean as our nature is now corrupt) and civil or federal. The first is common to man with beasts and other creatures. By this, man, as he stands in relation to man simply, hath liberty to do what he lists; it is a liberty to evil as well as to good. This liberty is incompatible and inconsistent with authority and cannot endure the least restraint of the most just authority. The exercise and maintaining of this liberty makes men grow more evil and in time to be worse than brute beasts: omnes sumus licentia deteriores. This is that great enemy of truth and peace, that wild best, which all of the ordinances of God are bent against, to restrain and subdue it. The other kind of liberty I call civil or federal; it may also be termed moral, in reference to the covenant between God and man, in the moral law and the politic covenants and constitutions amongst men themselves. This liberty is the proper end and object of authority and cannot subsist without it; and it is a liberty to that only which is good, just and honest.13
In Jewish tradition there is much more room for freedom of belief, as against freedom of practice.14 In that sense, the original Calvinist formulations of federal liberty were quite draconian. Nonetheless there is something to be learned from going back to the foundations of federal liberty as Winthrop and his peers understood them, namely that civil society is based on the covenants to which the people have consented and by which they are bound. They determine one's obligations, but they also determine one's liberties or rights.
Thomas Hobbes formulated a secularized and far more limited version of this doctrine in Leviathan, listing fifteen necessary articles of agreement or covenant to which all must consent in order to constitute civil society:
1. To seek peace, and follow it.
2. By all means we can, to defend ourselves.
3. That men perform their covenants made.
4. That a man which receiveth benefit from another of mere grace, endeavor that he which giveth it, have no reasonable cause to repent him of his good will.
5. That every man strive to accommodate himself to the rest.
6. That upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.
7. That in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.
8. That no man by deed, work, countenance, or gesture, declare hatred, or contempt of another.
9. That every man acknowledge another for his equal by nature.
10. That at the entrances into conditions of peace, no man require to reserve to himself any right which he is not content should be reserved to every one of the rest.
11. If a man be trusted to judge between man and man, that he deal equally between them.
12. That such things as cannot be divided, be enjoyed in common, if it can be; and if the quality of the thing permit, without stint; otherwise proportionably to the number of them that have right.
13. That the entire right; or else, making the use alternate, the first possession be determined by lot.
14. That all men that mediate peace, be allowed safe conduct.
15. That they that are at controversy, submit their right to the judgement of an arbitrator.15
The phrase itself was secularized when James Wilson, a Scots Presbyterian who settled in America and became a political leader in the new United States, used it in connection with the U.S. Constitution of 1787. He talked about federal liberty in completely secular terms, but it was still the same premise that one consents to covenants and one is then free within the terms of the covenant - the obligations of the covenant - to which one has consented and one derives one's rights from that.16 Rights, then, are derived from covenantal obligations, which is a continuation of the Jewish tradition. But the precedence of obligations to rights does not diminish rights, it simply does not allow them to go off and become entirely independent.
Here we may have the beginnings of a bridge. So far, this is not a worked out doctrine. Strictly speaking, it is thinking out loud as to where reading through this material seems to be leading.
With this approach, rights are fully present. They are as much a part of the covenant as the obligations, but they cannot detach themselves from the obligations, which is what has happened with modern rights theory in the postmodern epoch where rights have become detached from responsibilities or obligations except, perhaps, in the most narrow, contractual sense. And there are practical reasons even to be worried about that.
Looking at contemporary Jewish institutions, where being Jewish plays some role in determining one's obligations, one can say that all those who accept the covenant - all those who take on certain obligations -- gain certain rights which flow from them. Those Jews who do not accept the binding character of Torah will have accepted a somewhat different set of obligations from those who do. Those who are leaders will probably have still another or additional sets.17
This last is a strand that runs through Jewish tradition back to Moses, who after all is punished for what would otherwise be very minor infractions, apparently on the premise that if one is a leader, one has to set a higher example. That position may be watered down today but it is a characteristic dimension of differential obligation in Jewish tradition. In any case one has a set of obligations, depending on the covenants to which one has consented.
The Bible goes beyond the obligations and rights of Jews, beginning as it does with humanity as a whole. Those who have consented to the Noahide covenant have one set of obligations. Those who have consented to the Sinai covenant have even a more detailed set of obligations. In essence, the Bible and its tradition assume that humans live in commonwealth. It does not deal with the problem of civil society as marketplace. On the other hand, a major part of the modern project was to make the marketplace the basis of human organization and to build commonwealths only within the context of the marketplace.
In diaspora Jewish life, to take a very practical example, that is one of the reasons why the kehilla of yesterday often has been replaced by the service center synagogue in which a member can say, "For my purposes I am willing to enter into a contract with this institution that will provide me with certain services. It won't make any demands on me other than that I pay my dues (and building fund), maybe one or two more that I am willing to accept, and I will know that I have a seat there when I want it, that my family and I can use its services for the rites of passage. That is really all I want."
In this respect the synagogue is only a microcosm for a whole set of marketplace relationships which fit in very nicely with the contractarian and especially the neo-contractarian view of the world. The neo-contractarians, even if they suggest what we normally call welfare-state results, are basically arguing for a marketplace basis for society. Many are quite frank about it; others less so. But what they are really arguing for is the completion of the modern project by extending the marketplace into every aspect of life.
Contra to this is the conception of commonwealth which is preserved both in the biblical and in the classical traditions.18 The commonwealth ideal has had to find new ways of expression within the context of the modern marketplace. Therefore many of its proponents often have been prone to reject the marketplace altogether in favor of some form of Utopianism or totalitarianism. The former is not achievable and the latter ceases to be a commonwealth, as we know, and also does not work, not from the right and not from the left. In other cases, some kind of synthesis has been sought as in Puritan and later Yankee New England, which lasted for much longer.
Some sense of obligation is required for there to be a commonwealth. There cannot be a res publica unless there is a public and a public exists only through a shared sense of common obligations on the part of its members. Every individual can exist in terms of his or her rights, but a public can only exist by virtue of a sense of shared obligations. That is why the enterprise of trying to develop a relationship between covenants, obligations and rights is a vitally important project for Jews and Jewish survival, nay, it is important for all humans as part of our efforts to come to grips with the present human condition.
Covenant, Compact, and Contract in a Secular Age
There are three terms to be considered here: covenant, compact, and contract. Some have suggested the possibility of a secular covenant in our secular age. I am not sure whether you can have a strictly secular covenant because a covenant has to have a public purpose, a moral dimension, and some kind of transcendent power that is considered to be either a partner, a witness, or a guarantor. In one sense one could argue that the transcendent power would be embodied in the natural laws of the universe in some way, but that is a little too deistic for covenant.
Contract is private; it does not have any moral dimension other than the fact that, in order to make contracts work, there is a utilitarian morality involved and if one does not live up to his commitments, no one will enter into contracts with him. Its morality is at most of limited utilitarian character. It requires no guarantors. That is the most extreme formulation of the marketplace, which to exist must have contracts and both the right and freedom of contract.
Between covenant and contract there is compact. Like covenant, it is public. Like contract, a compact is a secular device. It does have a moral dimension which is reinforced by mutual rather than transcendently-oriented promises. The seventeenth century philosophers and the secular constitutionalists who followed them in the eighteenth century tried to establish a world based on compacts.
Every conception of covenant comes with some parallel conception of hesed, e.g., comity in the English-speaking world; treu in German. In the Bible, hesed is the dynamic dimension of covenant, the requirement to interpret the covenant broadly in favor of all covenant partners and beyond the letter of the law. That is what keeps covenant from becoming mere contract. It is in this sense that hesed is frequently translated into English as "lovingkindness," but it must always be recalled that is a lovingkindness based upon a covenantal relationship.
Every civil society that has its roots in a political compact, a secularized version of covenant, has some similar term; e.g., mateship in Australia or partnership in the United States, which suggests how one relates to one's neighbors with which one has compacted - a secular hesed. Just about every federal system that is truly federal has to have such a value concept in jurisprudence and in ordinary discourse. This becomes the value term that is designed to give the covenant or compact more than a narrow contractual meaning.
Contracts are narrowly interpreted because each side goes into a contract essentially to get the most out of it for himself and to give only what he has to to the other side in order to make the contract work. That is why it is a strictly utilitarian morality. This does not mean that people cannot do a lot of good for each other through contracts because intelligent people understand that by being a little more generous on their side of the contract, they can bring the other party to be a little more generous in return so that all will live a little better. I am not trying to suggest that such enlightened self-interest does not exist, but it is not necessary for contracting. It is not a condition of the contract. It is only good sense that would lead one to think that that is a better way to live than not. It is not a moral commitment.
Is it possible to maintain contracts without a belief in the Divine? Looking at the world around me, I have my doubts. At one time I was more confident that it was possible than I am now. It is no accident that in courts one takes an oath or affirms before God, why the one thing that was not permitted until very recently in any polity was atheism. Why was it not permitted? For strictly utilitarian reasons. If one did not believe in the possibility of Divine retribution, how could that person's oath or promise be trusted? That is basically the objection to atheism by people who are not so much believers any more themselves. They may have been right.
It is not that the promise gives rise to the moral dimension. One starts with the moral dimension. The promises are an effort to give effect to the moral dimension, to reaffirm the moral dimension and to give it due recognition. That is just shared morality. A compact in that respect is like a covenant. People who share the same moral aspirations come together to organize and to accept obligations and to build institutions on the basis of those shared moral aspirations.
Empirically, compacts tend to involve people who have come out of a shared religious tradition but are only partly connected to that tradition, who do not necessarily see that being part of the religious tradition is critical to their enterprise. However, in the last analysis, it is the morality they have gotten from that religious tradition that undergirds their common enterprise. This is what Marquis Childs, talking about the crisis of democracy in the late 1930s, described as living off the spiritual capital of our forefathers.
Jewish Institutionalization of Covenantal Relations
The Jewish people has been able to maintain continuity by being very flexible about institutions, not placing its emphasis on particular institutions, but insisting on proper relationships. Jews start with a set of expected relationships: partnership with God, covenant, mitzvot ben adam l'havero (between humans as covenant partners) which are an extension of the mitzvot ben adam l'makom (between humans and God). Then they ask, how do we build institutions that promote those relationships. That essential premise is found in the Torah itself that sets out the fundamental relationships and discusses their achievement or lack of achievement through specific institutions. Both religiously and politically, Jewish institutions have been quite flexible under different circumstances but they are institutions for sure. The first thing Jews do when they come to a new place is to build institutions - to create frameworks for themselves; Jews are phenomenal institution builders.
Empirically, history determines what succeeds and what fails in institution-building. There is a lot of falling away. Take the Sadducees and Pharisees. The Sadducees bet on the institutions of temple and state. When those two institutions were destroyed, the Sadducees became easy game for the Pharisees. Maybe the Pharisees would have won anyhow. We cannot know. But it was clear, after the destruction of the Temple and the loss of political independence or any hope for political independence, that the successful way to remain Jewish was to internalize what became halakhah, so every person and every family carried everything necessary to be Jewish with them. A kind of portable Judaism was, in the Darwinian sense, the most successful adaptation for exile and therefore Pharisaic Judaism won.
In the diaspora, Pharisaic Judaism survived without any real rivals. The rivals that emerged - Karaism, Sabbateanism, Frankism - all failed until the radical changes of modernity. Now, in the postmodern epoch, as a result of the reestablishment of the Jewish state, a neo-Sadducean Judaism has emerged, which again is betting on the political order of the state and the different political institutions of the diaspora as the guarantors of Judaism. Right now they are the strongest but may be weakening. Will they be the successful ones in this new epoch? Will something else emerge? They will be subject to the empirical test of history, willy-nilly.19
Both neo-Pharisianism and neo-Sadduceanism are based on obligations voluntarily accepted or continued in the classic way. Reform Judaism, on the other hand, is modern, even postmodern, liberal, demanding no binding obligations on the part of its members, even with regard to who is a Jew or intermarriage. What will that mean for the Jewish people? Today we are dealing with the first generation of mass intermarriage before the children of such marriages have made their own private decisions about being Jewish. We all know some people of our age or older whose parents intermarried back in the 1920s or the 1930s, some of whom are Jewish, some of whom are not, many of whom are just American without any religious ties, but they had no direct impact on the community qua community. What is going to happen when the children grow up who were born within intermarriages in the 1970s and 1980s? We will only know in another 10-20 years.
We Jews will probably develop a whole set of constitutional adaptations to this new situation, perhaps in the same way that the Puritans did. Puritanism insisted that everybody had to be a member of the congregation to be a citizen. One joined a congregational covenant. To be able to do so, one needed to be "called," to have a vision, a faith. The first generation of Puritan emigrants to the New World left England because they believed themselves "called," but many of the second generation, those already born in Massachusetts, did not experience that calling. Some dissimulated and pretended to have had the experience in order to become full-fledged members of the community upon reaching adulthood, but others, many of the finest of the generation, were too honest to do so. They were sincerely religious but excluded from the congregation and the polity because they did not feel themselves "called." Their fathers came to recognize this problem and sought a way to deal with it.20 To that end, they developed the halfway covenant so that those of their children who accepted Puritan religious principles but could not say that they had undergone the necessary religious experience could still become citizens. In the end, even that did not maintain Puritanism or even Puritan unity. The Puritans became Yankees and what Ellsworth Huntington termed a "kith," a kinship group with a common culture but no more. The New England Yankees and their descendants are an identifiable kith to this day but they have no common covenant to make them a people.
At least until recently, the keter malkhut leadership of American Jewry, whatever they observe personally, would have been very happy to have halakhic criteria for who is a Jew clearly established. They simply did not want all of the power to do so placed (or left) in the hands of a narrowly defining Orthodox or ultra-Orthodox rabbinate. In other words, if they could have achieved a situation in which any rabbi whom they recognized, which means Conservative and Reform, could perform recognized halakhic conversions, they would have been more than willing to establish clear rules of what constitutes halakhic conversion and do it in a halakhic way. Anybody who met an agreed upon set of halakhic criteria - and they were prepared to accept the Orthodox set, the set that appears in the halakhah as we have it - would be able to become a Jew. They would have been happy to establish clear halakhic rules in this case for the sake of stability and conflict-resolution.
Alas, the window of opportunity to do so a few years ago has been closed. Unfortunately, too many rabbis could not agree because they cannot agree on what the obligations of being Jewish are. Empirically, the reality is that we cannot get agreement and that the possibility for agreement breaks down over the question of obligations.
No Jews that I know of define them as being outside of the covenant. That is why the differences between Jews are interfering with the corresponding understanding of what the obligations are. All Jews accept some obligations as being part of the covenant. Jews will sit with one another in the institutions of the keter malkhut, even when they differ on the question of whether they accept the obligations of the covenant defined by the keter torah.21
What of Contemporary Israel?
Jewish tradition and political culture converge around the sense that obligations are considered a very important dimension, but both are now modified by the modern rights tradition.22 One of the principal controversies in Israel today is whether or not the Jewish state should introduce a bill of rights into its constitution. The draft bills of rights that have been proposed all come out of the strictly rights-oriented modern worldview. (It should be noted, however, that they are totally deficient from the American prospective because they all follow the European model. In other words, instead of assuming the prior existence of rights and specifying only their protection by government, i.e., "Congress shall make no law," they start by specifying rights and then list exceptions whereby government can limit them for reasons of state. I am not alone in considering the European model, as such, to provide very little protection for individual rights as a consequence.)
As far as obligations are concerned, the critical political dimension here is that every Israeli (more or less) is obliged to serve in the army. If one does not serve in the army for other than an approved reason, one is considered to be an inferior citizen, and some of those in the latter category are rejected by the Israeli public because the reason, even if officially approved, is not considered just. As for the rest of Israel, even those who are willing to grant certain exemptions to keep peace or whatever else, really believe that every Israeli starts with the obligation of serving in the army and that such service is fundamental as a definition of citizenship. Even the Israeli handicapped try to cope with the fact that they cannot serve in the army and how that effects their whole sense of self-esteem. Many try to compensate for it through other kinds of voluntary public service. This is a classic commonwealth concept that the definition of citizenship rested on the obligation to defend the commonwealth, which normally meant to bear arms in its defense. This was true of the Native American tribes until they were crushed by the Europeans, of Swiss communal and cantonal militias, and many other examples of commonwealth in the world, past or present.
For another example, culturally, voting in Israel is perceived to be an obligation as much as a right. That is the only way we can explain a situation in which there is effectively 100 percent voting. (The formal figure is actually 80 percent but there are at least 10 percent of those on the voting lists who are no longer living in the country and, of the other 10 percent, 5 percent of them are too old, they simply physically cannot get out, and 5 percent are too sick on election day. Hence an 80 percent turnout the way the voting list is kept represents just about 100 percent.) That is already more than exercising a right. That reflects a sense of obligation - especially in light of the widespread cynicism about politicians and the processes of politics in Israel.
Now these are not classically Jewish obligations in any direct sense. There is no obligation, for example, to observe Shabbat or to learn Hebrew, or to live in Israel - not even Zionist Jewish obligations in the sense that these are the Zionist mitzvot that the World Zionist Organization tried to develop. But they are the obligations that make Israel a commonwealth.
Back to Federal Liberty
Returning to federal liberty, let us posit a world rested on the covenantal basis of rights and obligations. We begin with the initial equality of humans by nature and then their equality under law. Then we covenant with one another for the rest.
Taking the biblical paradigm as the starting point, it is possible to suggest reconstruction of the modern rights model in line with ideas of federal liberty as follows: All human beings are created equal and endowed by their Creator with certain inalienable rights - e.g., life, liberty, property and the pursuit of happiness. All human beings are also created as social beings and as such must form communities and polities. To paraphrase Maimonides, no species is more in need of government than the human species and none is more resistant to it. Hence, humans are driven by their natures to organize themselves into political societies. The way to do so that most conforms with the equality of humans by nature is through covenant. Indeed, the basic right of all humans connecting these two aspects of humanity is the right to covenant, which is both right and obligation. All humans have the right to form and enter into covenants based on partnership with the transcendent and/or mutual promises. More than that, the exercise of all rights is possible only through the covenants freely entered into by humans.
Covenants, indeed, demonstrate the humanity of humans, whether in partnership with God whereby God limits himself to make humans His partners in yishuv ha'aretz and tikkun olam (the settlement of the earth and the reformation of the world) or through the flowering of human potential through mutual promising involved in covenanting. Thus humans must begin with covenants such as the Noahide covenant, which unites all humanity and requires them to assume a few simple but far-reaching obligations in order to effectuate their rights, and move on to more specific covenants such as the Sinai covenant with Israel describing a detailed way of life, and the covenants with Moses and Aaron which provide for even more specific behavior of leaders within the framework of the Sinai covenant.
The Noahide and Sinai covenants are classic biblical covenants known to all students of the subject. In modern times, covenants may not be openly proclaimed as such. Take, for example, the U.S. Declaration of Independence which provides a set of principles by which a particular people is to live, which was followed by constitutional covenants, state and federal, establishing the relationships and institutions through which those principles were to be implemented in practical ways. Thus there are foundation covenants and subsidiary ones. Each foundation covenant requires numerous subsidiary ones to translate the principles of the first into practical expressions. This approach echoes the early modern theory of two covenants, the first establishing a people or society and the second, a government. Covenanting in the modern epoch, based as it was on the nation-state as its fundamental building block, generally took the form of proclamations of independence from the late eighteenth century onward. Sometimes those proclamations included the term "covenant" and other times they included other covenantal terms and the covenantal formula which has been described by biblical historians and other historians in the ancient Near East as having remained substantially the same since ancient times.23
Every proper individual human and every human community and polity lives within a network of covenants and only can find expression for rights within and through it. Each covenant in turn forms a moral community. To associate in a covenant is to associate with a covenantal community and to accept the moral structure of that covenantal community. Those who do not associate with the fundamental moral communities of humanity or who violate the conditions of the covenant in effect declare themselves outlaws and should be treated as such.
Thus there no longer would be a possibility of claiming abstract rights to do as one pleases. In a free society most covenants will be limited and indeed those that go beyond the limitations of the founding covenants may themselves be challenged. Still, there are limits and rights do not adhere automatically but by virtue of the covenants which establish obligations from which rights are derived.
In other words, humanity is the sum of its obligations and rights, not to the state but to a transcendent and mutually accepted morality. Humans are free because only the free can be obligated to be moral and just and only by being obligated to strive to be moral and just do they find expression of their inalienable rights.
It is obvious that very few people today would want to be bound by a set of obligations that would govern every aspect of life as in classic formulations of rabbinic Judaism. That is where federal liberty is flexible since one's obligations depend on the nature of the covenant to which one is bound. This is a theory of association which goes beyond the Jewish issue. There are different levels or different forms of association. What is critical is that every association should be by covenant or compact or contract. Some associations should be no more than contracts. Other associations should involve compacts and the highest -- the framing -- associations should involve covenants. Once we get beyond contracts what we are looking for is a reasonable amount of shared moral commitment as the basis for them.
For example, in a university a moral commitment to the academic pursuit of truth with a respect for the others engaged in the enterprise is the minimum required for a university community to exist. If we cannot have that, we cannot have a university. Now a college might go beyond that. A college might be an institution that seeks a higher level of moral commitment, even a college within a university. For example, a college of law in a university may then have certain commitments to the moral pursuit of justice as well as truth that should bind the people within it. That is why it is important to be able to have different kinds of associations and to link them in appropriate ways without making more demands than one should for any particular association. In my opinion, a person who is not prepared to make that moral commitment to the pursuit of truth can be denied the right to teach in a university. I believe that is a reasonable sanction.
Civil society does not have to force people who reject a covenant obligation into the desert or anything like that, but it can say to them, to be part of this enterprise you have to accept its covenants or compacts. That is our mutual promise to each other. That is what makes a human enterprise work. Otherwise the enterprise is not going to work because it is going to be a cover for people to do other things. Perennially, anti-democrats in democracy try to use the instrumentalities of freedom against themselves. I believe that there are reasonable grounds for considering them as not having made a moral commitment to participate in the covenants of democracy according to the terms of those covenants. Therefore we have reason for denying them the right to use the institutions of democracy if they endanger those institutions.
The problem is that moral opinion today runs contrary to this practical judgement. It is incumbent to have a moral basis for such practical judgements, otherwise we get into the German situation. We do anything that is practically justifiable even if it goes against our nominal morality because it is practical. That certainly is insufficient. The great thing about the Jewish project is the effort not to divorce moral grounds from practical grounds. Our task is to relink the two on right grounds.
Final Note on Civil Society
The lessons of premodern history suggest that commonwealth alone is not enough, that even the most well-meaning commonwealth has a tendency to be corrupted by replacing consensus and cooperation with coercion by elites for lack of competition, while the modern experience suggests that marketplace is not enough. However great its advantage is in economics, it has a tendency to degenerate quickly into dog-eat-dog competition or to transform itself into monopoly if there is no commonwealth dimension present by which it can set its compass. It is the development of an appropriate synthesis of marketplace and commonwealth that is the task of the postmodern man - in some cases, with commonwealth developing out of the marketplace framework and in others where the marketplace is developing within a commonwealth framework. The difference will no doubt reflect antecedent developments of individualistic or communitarian social orders. Commonwealths must be democratized; marketplaces must be given their direction by democratic commonwealths, and then must keep those commonwealths competitive, open and honest. The best way to do that is through covenant and its expression in federal liberty and democracy.
1. David Ben-Gurion, "Laws or a Constitution," in Rebirth and Destiny of Israel, edited and translated from the Hebrew under the supervision of Mordecai Nurock (New York: Philosophical Library, 1954), pp.363-379.
2. Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity: Jewish Political Organization From Biblical Times to the Present, (Indiana: Indiana University Press, 1985).
3. Daniel J. Elazar ed. "Spinoza and the Bible," Jewish Political Studies Review, Vol. 7, No. 1 & 2 (Spring 5755/1995).
4. Daniel J. Elazar, "Obligations and Rights in the Jewish Political Tradition: Some Preliminary Observations," in Jewish Political Studies Review, Vol. 3, Nos. 3 & 4 (Fall 1991).
5. Moshe Greenberg "HeArut al Musag Hazekhut VeMunachav BeMikra," and Lenn Goodman "Individual Human Rights as Laid Out on the Philosophies of Sa'adia Gaon and Maimonides," in Mishpat HaMelukhah and Halakhah (forthcoming).
6. Daniel J. Elazar, Covenant & Commonwealth: From Christian Separation through the Protestant Reformation, the Covenant Tradition in Politics, Volume II (New Brunswick, NJ and London, U.K.: Transaction Publishers, 1996); Daniel J. Elazar, The Covenant Connection (forthcoming).
7. Daniel J. Elazar, Covenant and Polity in Biblical Israel: Biblical Foundation and Jewish Expressions, Volume I of the Covenant Tradition in Politics (New Brunswick, NJ and London, U.K.: Transaction Publishers, 1995).
8. Daniel J. Elazar ed., "Thomas Hobbes Confronts the Bible," Jewish Political Studies Review, Vol. 4, no. 2 (Fall 5753/1992).
9. Daniel. J. Elazar, "The Jewish Political Tradition," in Kinship and Consent, Daniel J. Elazar ed., (Ramat Gan, Philadelphia, London and Montreal: Turtledove Publishing, 1981) pp. 1-17.
10. John Rawls, A Theory of Justice, (Cambridge, Mass: Belknap Press of Harvard University Press, 1971) and Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).
11. Daniel J. Elazar ed., "Thomas Hobbes Confronts the Bible," Jewish Political Studies Review, Vol. 4, no. 2 (Fall 5753/1992); Daniel J. Elazar ed. "Spinoza and the Bible," Jewish Political Studies Review, Vol. 7, no. 1 & 2 (Spring 5755/1995); and Daniel J. Elazar ed. "Locke" Jewish Political Studies Review (forthcoming).
12. Perry Miller, The New England Mind The Seventeenth Century (Boston: Beacon Press, 1939); and The New England Mind from Colony to Province (Boston: Beacon Press, 1953).
13. Sam Savage, ed, History of New England, 1630-1649 (Boston: 1853) 2:279-82.
14. Norbert Samuelson, "The Right to Belief in Jewish Philosophy," Jewish Political Studies Review, Vol. 3, no. 3 & 4 (Fall 5752/1991).
15. Thomas Hobbes, Leviathan, edited with an introduction by Richard Tuck (Cambridge: The University Press, 1991).
16. Quoted in J. B. McMaster and F. B. Stone, Pennsylvania and the Federal Constitution, 1787-1788 (New York: De Capo, 1970).
17. Daniel J. Elazar ed., "Judaism and Modernity," Jewish Political Studies Review Vol. 8 nos. 1 & 2 (Spring 1996).
18. Johannes Althusius, Politica, Trans. and Introduction by Frederic S. Carney (Indianapolis, Indiana: Liberty Press, 1995).
19. Daniel J. Elazar, "The New Sadducees," in Midstream (September 1978).
20. Perry Miller, The New England Mind: From Colony to Province (Boston: Beacon Press, 1953) pp. 93-118.
21. Irving Greenberg, The Third Great Cycle in Jewish History, (New York: National Jewish Resource Center, 1981); and Eugene Borowitz, Renewing the Covenant, (Philadelphia: Jewish Publication Society, 1991); Rabbi J. D. Soloveichik, "Lonely Man of Faith," Tradition, Vol. 14, no. 3 (Summer 1974).
22. Daniel J. Elazar, "The Peace Process and the Jewishness of the Jewish State," Jerusalem Letter/Viewpoints, No. 299, August 1, 1994.
23. George Mendenhall, "Covenant Forms in Israelite Tradition," Biblical Archeologist, XVII (1959), pp. 50-76.