MOSHE KOPPEL JULY 1 2013
Every now and then, people who in the grand scheme of things look and sound more or less like me voice opinions that make me wonder whether I’ve been sucked through the rabbit hole. Often these opinions have to do with freedoms they would like to sacrifice to government bureaucrats. All too often, those freedoms are of the religious kind.
Once, when I was helping to draft a constitutional proposal for the state of Israel, a prominent rabbi urged me to include a provision that would require judges on rabbinical courts to be God-fearing. When I suggested that this kind of language was likely to prove ineffective in a constitutional context—and that it might be better if judges on rabbinical courts weren’t appointed by the government in the first place—he gave me an odd look and asked, in all sincerity: who, then, would pay for them if not the government? The possibility had never occurred to him that Jewish communities and not the state should support Jewish institutions.
Nor does the possibility seem to have occurred to the state itself. A case in point is a recent ruling by Israel’s Supreme Court involving a controversial loophole in Jewish religious law (halakhah). The loophole, in force since the establishment of the state, permits the growth and sale of agricultural produce during biblically-mandated sabbatical years. In anticipation of the latest such year, the state-sponsored chief rabbinate decided that local religious courts could allow or disallow the loophole at their discretion. Whereupon an organization of Orthodox rabbis encouraged farmers to petition the Court to strike down the decision of the chief rabbinate and instruct it instead to re-impose a statewide, across-the-board acceptance of the loophole. The Court ruled in favor of the petitioners.
Now, why would Orthodox rabbis approach a secular Supreme Court to intervene in a matter on which a century of rabbinic legists had written hundreds of learned opinions? Why wouldn’t such rabbis simply issue their own certification of disputed produce? And as for the Court, what made it think it had any competence to rule on an arcane question of religious law?
In brief, what sorts of ideas lead reasonable people to outlandish expectations concerning the relation of a Jewish state to the practice of Judaism?
I raise these questions because I want to make an argument for drastically limiting the role of the Israeli state in developing and maintaining Jewish institutions. I do so, however, as one who very much wishes to see an expansion of the influence of traditional Judaism in the Israeli public square. In my view, this expansion is possible only if the state ceases to usurp power better held by Jewish communities, which have successfully transmitted and evolved Jewish moral traditions for millennia. Strengthening these moral communities is my main objective. Although my specific concern is Israel, the issues at stake, as I hope to make clear, are applicable to every democratic society grappling with the crossroads between religion and state.
1. Romancing the State
Early supporters of the founding of a Jewish state envisioned it as replacing Diaspora communities that had grown weak and desiccated. The writer Micha Yosef Berdichevsky (1865-1921), turning a biblical encomium—“How goodly are your tents, O Jacob”—into a slur, railed: “How narrow are your tents, O Jacob.” In particular, the founders hoped the state would become an arbiter and enforcer of new values, using its authority to promote ideas and virtues central to the secular ethos of the time. The most glaring example of this policy was the forced re-education of young religious immigrants by placing them in secular kibbutzim with the intention of transforming “human dust,” in David Ben-Gurion’s pungent words, “into a cultured nation.”
As Ben-Gurion’s formula suggests, the values the new state was intended to enforce were in most cases the opposite of those inculcated in traditional Jewish communities. Preeminently, the statist awakening aimed to overcome old habits of quietism and forbearance while replacing the authority of elders and sages with the authority of the young and vital in a redeemed land. While the young Zionists carried with them many elements of a classic Jewish narrative—they recalled a glorious Jewish past, roughly coterminous with the period of the Bible, and viewed their return to the land in millennial terms—those past glortraies were defined not in moral but in political terms, and the millennialism derived more from Comte and Marx than from Isaiah. As a result, both past glories and anticipated future ones were unmediated by a continuous traditional narrative.
True, not all early Zionists were secularists. What, then, of early religious Zionists? They had to contend not only with their secular Zionist counterparts but with the strong arguments against Zionism leveled by many Jewish religious authorities. To the latter, the modern state, any modern state, posed a threat to the traditional Jewish ethos.
In Diaspora Judaism, the life of the spirit had been paramount. Jews had redefined power as, essentially, the ability to live their lives according to their own traditions and to pass on their cultural and intellectual legacy to their children. The capacity to move armies was not among their aspirations. Indeed, as a matter both of principle and of bitter historical experience, the Diaspora version of Judaism was suspicious of, if not downright antagonistic to, political authority. For its part, Jewish religious law had adapted itself to these circumstances and, when it came to managing the internal affairs of Diaspora Jewry, functioned reasonably well at the level of individuals or communities. It had not yet been tested at the level of the state—and assuredly not at the level of a modern state conceived along anti-traditionalist lines.
In the face of the arguments of their anti-Zionist counterparts, some early religious Zionists—like Rabbi Yitzhak Yaakov Reines (1839-1915), the founder of the Mizrahi movement—took a pragmatic approach to the Zionist project: pondering both the opportunities and the dangers, they decided that, given the Jews’ precarious political situation in the Diaspora, the risk posed to Judaism by a potential Jewish state was a risk worth taking. For many others, though, the prospective return to Jewish sovereignty in the land of Israel inspired a more exalted and momentous response, one that could be formulated in terms of a divine plan.
From this there flowed a new definition of national power that, going the secularists one better, saw the various aspects of state-building—agricultural, military, industrial—not simply as necessary burdens but as sacred endeavors worthy of a veneration earlier reserved for affairs of the spirit. For followers of Rabbi Abraham Isaac Kook (1865-1935), the first chief rabbi of Mandatory Palestine, the state and its institutions, however beset by flaws, were products of the redemptive process.
Fatefully, most religious Zionists were also ready to designate the state itself as the appropriate authority for regulating religiousmatters. The state would appoint rabbis, enforce religious legislation, and fund religious services. The management of these affairs would be entrusted to secular officials: bearers (in this view) of profound religious longings of which they might be unaware.
On some points, secular anti-traditionalists and religious traditionalists differed: while the former looked to the state to replace Jewish tradition, the latter looked to the state to upgrade and subsume it.1 But on the main point they were perfectly agreed: the state would take over the role of communities in enforcing morality and in funding and regulating religious institutions. In so reasoning, both were guilty of the same fundamental error, conflating peoplehood with statehood and community with state, and ignoring the fact that membership in each is determined in completely different ways.
How so? To put the matter at its simplest, a community (in the sense that I use the term here) is by definition composed of members who choose to submit to its authority because they identify themselves with its ethos. A state, on the other hand, imposes obligations (approximately) equally on all within its geographic scope. Thus, communities tend to be small, homogeneous, and voluntary associations, while states tend to be large, heterogeneous, and coercive.
2. The Universalist Delusion
The passage of time, in Israel as elsewhere, has exposed the folly of the romantic belief in the all-encompassing goodness of the state. But the ideas that have replaced statism have been no kinder to moral communities. To appreciate why this is so, it would help to take a brief foray into political philosophy.
Two questions regularly confront all democratic states, Israel among them. The first concerns the extent to which the state should engage in benign paternalism—e.g., by taxing wealthier citizens in order to supplement the income of poorer citizens, or regulating private acts in order to advance public health or safety. In short, should the state promote welfare? The second concerns the extent to which governments should encourage or enforce moral standards by outlawing behavior that many people find offensive, or by inculcating religious values or qualities of character they regard as necessary for citizenship. In short, should the state promote virtue?
For the statists of yore, it was clear that the state ought to promote both welfare and virtue. But contemporary public discourse in Israel, as in most of the West, is framed by the “progressive” understanding that welfare is the state’s business and virtue is not the state’s business. This understanding itself, however, has become a device for smuggling into public discourse certain assumptions about the right and the good, in the service of a specific agenda that runs contrary to the one I wish to advocate. Let’s see how this works.
The British philosopher Jeremy Bentham (1748-1832) famously maintained that the state should act in such a way as to maximize the aggregate utility of its citizens—“utility” being an economic term less squishy than “happiness.” Bentham’s utilitarian theories have been subjected to much valid criticism in the intervening centuries, much of it focused on the fact that maximizing aggregate utility fails to take into account another essential element of a just society: the distribution of utility among individuals. The basic question at issue is how to balance these two criteria or, more broadly, how to determine which arrangement of life in society is the most just. Among thinkers who have tackled that question in recent times, none has been more influential than the late Harvard philosopher, John Rawls, in A Theory of Justice (1971).
What arrangement would these rational participants arrive at? According to Rawls, it would be one in which each person would have the maximum degree of liberty consistent with others having the same degree, and in which, of all possible distributions of goods, the poorest member would be the best off (because that poorest member might be you). Furthermore, since, by the rules of the game, participants do not know anything about their prior moral affiliations, they should all agree that the state must remain limited in its moral commitments and not adopt any particular community’s definition of what constitutes morality.2
Here, then, is a principled argument in favor of the state’s promotion of welfare and against its promotion of virtue. But note that it depends on two crucial and rather crippling assumptions. The first is that a person’s self, or identity, does not rest on communal affiliations. Yet once I peel away my affiliations, loyalties, and beliefs—everything that makes me me—no self is left standing with interests to negotiate. The claim that there is some “unencumbered self” (in Michael Sandel’s useful term), independent of and prior to the affiliations that constitute my identity, already begs a conclusion: namely, that the rights attaching to this “unencumbered self” trump those deriving from communities with which I may be affiliated. This is a conclusion that anyone attached to a community would wish to resist.
The second assumption is that one can speak of individual liberty independently of any theory of morality. But such moral neutrality is actually impossible. It’s easy enough to implement the rule that your right to wave your fist ends at my nose. But how do we implement the rule that your right to make a public display ends where my sensibilities begin without first deciding which sensibilities are worthy of protection and which are not? In fact, the whole notion that the state can be neutral toward its citizens’ moral doctrines turns out to be a chimera once you start thinking about concrete examples. As the legal philosopher Steven Smith has argued in The Disenchantment of Secular Discourse (2010), seemingly benign words like “neutrality,” “equality,” and “reciprocity” are often in practice used as Trojan horses for insinuating into the discussion any number of strongly biased ideas that one might wish to shield from scrutiny.
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From Mosaic, here.
