Consent of the Governed
Nachum Braverman

Consent of the Governed

Nachum Braverman

Part I.

I think it is commonly assumed that democracy and religion are antithetical in world view. The foundation of democracy is popular sovereignty, while religion is a body of non-negotiable demands from on-high. As the joke goes, the Ten Commandments are not suggestions.

As applied to Judaism this impression of disjunction is not wholly false, but neither is it wholly true. It misconstrues the relationship between man and God, and the nature of authority in Torah society. Consequently, and of greater practical importance, it is a misguiding indicator of the possible and appropriate relationship between religious and secular communities in a Jewish civil society.

The Torah's portrayal of the relationship between Man and God is not of a relationship between equals in power. It is however, a relationship in which God voluntarily concedes nay invites parity with His creation. It is a relationship in which God restrains His power and His prerogatives to give Man freedom.

Medieval kabbalists struggled to reconcile ain aud milvado (literally "there is nothing else but Him") with the existence of an apparently autonomous world, as they struggled with the classic disjunction between God's omniscience and Man's freedom of choice. To resolve the conflict they posited that God is perfect and unlimited, but created with limited power, restricting Himself to make room for Man, and leaving opportunity for discovery and virtue to choice.

The midrash suggests that though we yearn for deliverance from the confusion and suffering of this imperfect mortal life, we will ambivalently embrace the perfected, Messianic world with its diminished opportunity for the dignity of human choice, and for the merit that choice alone confers.

"So remember your creator in the days of your youth, before the evil days come, and those years arrive of which you will say, `I have no pleasure in them.'" (Ecclesiastes 12:1)

"What are these days in which you will have no pleasure? These are the days of the Messiah."

If the desirability of human freedom is implicit in creation, God's posture toward His creature remains profoundly respectful of Man's freedom as he emerges into his identity.

"God took Man, and He put him in the Garden of Eden."

"How did he `take him?' He took him with kind words and persuaded him to enter the Garden." (Rashi)

In fact Rashi makes the identical comment on every other verse in the Torah which speaks of "taking" a man. Animals may be taken with a ring through the nose, but a Man can only be taken through the mind, by the invitation to exercise his freedom.

Three verses later the Torah records that "the Lord God formed out of the ground every beast of the field and every bird of the sky, and brought them to the Man to see what he would call each one." (Emphasis added)

The motive attributed to God is not the satisfaction of any need of names for animals, but interest in the names that Man would choose. God invites Man to unfold his identity in relation to the animals, and in modest silence permits Man to name his world.

In fact, only in exercising freedom does man himself receive a name. Until he makes his first choice, to eat from the tree of knowledge, he is referred to only as "the Man." He is any man, everyman, Mankind. When he eats he becomes an individual man, "Adam." In making choices he surrenders (as must we all), the unlimited opportunity and potential of abstract humanity, and acquires the only life that can possibly be meaningful - the limited and individual life he chooses for himself.

God's covenant with the Jewish People is portrayed as free election on their part. God offered the Torah, says the Talmud, to the Romans and Arabs who declined it. The Jews were not chosen by fiat, but entered a compact freely of their own will. The revelation at Sinai was delayed to permit the Jews mature reflection on the benefits of offering obedience to God.

"'I am the Lord, your God." (Exodus 20:2)

Why were the Ten Commandments not proclaimed at the beginning of the Torah?

A parable - to what is this comparable? Like a human king who entered a province and said to the people, "Shall I rule over you?"

They replied, "Have you conferred any benefit that you should reign over us?"

What did he do? He built the city wall for them, he brought in the water supply for them, and he fought their battles.

[Then] he said to them, "Shall I reign over you?"

They replied, "Yes!"

Similarly God brought the Israelites out of Egypt, parted the sea for them, sent down the manna for them ... [then] He said to them, "Shall I reign over you?"

They replied, "Yes." (Mekhilta D'Rabbi Yishmael)

Developing the theme that divine authority can only be offered and not demanded, the Talmud concludes the revelation at Sinai was blemished, and required supplement by a later, freer acceptance at the time of Ester.

"The Jews stood beneath the mountain." (Exodus 19:17)

"God held the mountain over their heads and said, "Either you accept the Torah, or this is your grave." (Talmud, Shabat 88a)

"The Jews confirmed and undertook upon themselves ..." (Ester 9:27)

"They confirmed what they had already undertaken, since their previous commitment had been under duress." (Midrash, Esther)

If God's authority rests on human acceptance, it will be no surprise that subordinate authorities require communal ratification. The failure to grasp this truth was the proximate cause of the fatal and historic division between the 10 tribes and the northern kingdom.

[Solomon's son] Rehobam went to Shechem, for all of Israel had come to Shechem to make him king ... and they spoke to Rehobam saying,

"Your father made our yoke [of taxation] difficult. Now alleviate your father's difficult workload and his heavy yoke that he placed on us, and we will serve you."

He said to them,

"Go away for three days and then come back to me."

King Rehobam took counsel with the elders, who had stood before his father Solomon while he was alive, saying,

"How do you advise me?"

They spoke to him, saying,

"If today you become a servant to this people and serve them, and respond [favorably] to them and speak kind words to them, they will be your servants all the days."

But he ignored the advice of the elders who had counseled him, and he took counsel with the youths who had grown up with him. He said to them,

"What do you advise?"

The young men [said],

"This is what you should say to this people who have spoken to you: `My little finger is thicker than my fathers' loins! My father saddled you with a heavy yoke. I shall add to your yoke. My father chastised you with sticks; I shall chastise you with scorpions!'"

The people came to Rehobam on the third day ... He spoke to them according to the counsel of the youths, saying,

"My father made your yoke heavy, and I shall add to your yoke ..."

All of Israel saw that the king did not listen to them, and the people gave their response to the king, saying,

"What share do we have in the [House of] David? ... Back to your homes, O Israel! Now see to your own house, O [kingdom of] David ..."

King Rehobam dispatched Adoram, who was in charge of the tax and all of Israel pelted him with stones ... Israel rebelled against the House of David." (I Kings 12:1 - 19)

But not only does the king's authority rest de facto on the consent of the governed, God Himself, on principle, consults with the governed, and His appointments are subject to popular assent.

R. Yitzchak said, "One does not appoint a leader over the community unless one consults the community. For it is stated: "See God has proclaimed by name, Betzalel."

The Holy One, Blessed is He, said to Moses, "Moses, do you consider Betzalel worthy?"

Moses said to God, "Master of the universe, if he is worthy before You, then he is certainly worthy before me."

God said to Moses, "Nevertheless, go and ask the people of Israel."

Moses went and asked them, "Do you consider Betzalel worthy?"

They said to him, "If he is worthy before the Holy One, Blessed is He, and before you, then he is certainly worthy before us." (Berachos 55a)

Maimonidies codifies popular assent as the permanent foundation of rabbinic legal authority.

"Since [the courts which arose after the Roman exile] were considered to be individuals and the High Court of 71 judges had been defunct for many years before the composition of the Talmud, people in one country could not be compelled to follow the practices of another country, nor is one court compelled to follow the practices of another country, nor is one court compelled to sanction decrees which another court had declared in its locale ... These [rules apply] regarding the judgments, decree, ordinances and customs which were established after the conclusion of the Talmud. However, all the matters mentioned by the Babylonian Talmud are incumbent on the entire Jewish people to follow. We must compel each and every city and each country to accept all the customs that were put into practice by the Sages of the Talmud, to pass decrees paralleling their decrees, and to observe their ordinances, since all the matters in the Babylonian Talmud were accepted by the entire Jewish people."¹ (Emphasis added)

To be sure, Maimonidies points out that obeying the Babylonian Talmud is not optional. It remains permanently binding, in the way that a state's laws bind future citizens. The binding status however, was achieved through popular assent.

Part II.

The relationship between secular and religious communities in a pluralistic society is a vexed issue. Parochial identifications combat the tendency of our society to anomie, and encourage a richer and denser civil society. Effectively integrated they contribute to a more cohesive whole. This recognition underlies the federalist system of government in the United States.

Conversely however, intense religious communities in intimate contact with a larger liberal and secular culture are subject to assimilation. Hence orthodox Jews (for example) tend to separate themselves, while they simultaneously seek to enact their own religious principles into law. This strategy seems doubly socially corrosive. It antagonizes the non-religious and it threatens the cohesiveness of the nation's social fabric. Parochial communities may provide federalist strength; they threaten balkanizing fragmentation.

In avowedly non-sectarian countries like the United States, religious communities can be invited to live and practice privately with all the passion they can muster, while the public square remains neutral.

But it is not obvious that this strategy can work in Israel. Israel is not non-sectarian. It is the homeland of the Jewish People. It would seem impossible for the Jewish state to remain silent on the meaning of being Jewish.

Furthermore, Israel's citizens face unique risks and challenges because they are Jews and willingness to face those challenges can only emerge from a sense of the meaning and value of Jewish survival. As Lieutenant-General Moshe Yaalon, (retired chief of staff of the Israel Defense Forces) said recently,

Without a national consensus as to the country's aims and justification, military might is of little use. Our enemies draw encouragement from Israeli self-doubt. The greatest challenge facing the State of Israel, therefore, is to restore to Israeli society its faith in the righteousness of its path.²

Achieving national consensus about the country's aims and justifications is no easy task. Israel has no constitution. And Aharon Barak, Chief Justice of the Israeli Supreme Court told me that the practical impossibility of negotiating the conflicting demands of Judaism and secular society meant that Israel would never have a constitution.

But perhaps that's too bleak a view. Certainly religious coercion will not work. If it were acceptable in principle, it could never work in practice, because freedom not only of religion, but from religion has become deeply engrained as a basic human right. But it is not acceptable in principle, and perhaps on this recognition, a way can be found to discuss the meaning of Jewish survival in Israel.

This will seem a difficult concession on the part of the religious communities who fear negotiating over the commandments appears to compromise their divine authority. But God Himself made the same concession. And whether in principle or in practice there is no choice. The risk of the alternative is that the disenfranchised will declare,

"What share do we have in the [House of] David? ... Back to your homes, O Israel! Now see to your own house, O [kingdom of] David ..."

Notes

1. The citation from the Rambam is from the Hakdama to the Mishneh Torah.
2. The Yaalon quote is from the Zalman C. Bernstein Memorial lecture in Jewish Political Thought, hosted by the Shalem Center and delivered in Jerusalem on January 19, 2006. It is reprinted in the Spring 5766 issue of Azure Magazine.