The Relationship Between Halakhah
and Mishpat HaMelukhah
Daniel J. Elazar
The Shaping of the Present Conflict
Since the reestablishment of the State of Israel in 1948, the fundamental constitutional issue on the table has been the issue of medinat hok (a state based on civil law) vs. medinat halakhah. It is no matter that, as phrased, this may be a false issue and a false dichotomy. It is the way the matter is phrased in public debate in Israel for reasons that are anterior to the phrases themselves and reflect a basic division in Israeli society between those who seek a secular state, perhaps totally secular (in the Jacobin-Communist way, not merely religiously neutral) whose law contains no religious overtones, is a better way to phrase it, and those who see a Jewish state grounded in the fundamentals of the Torah, perhaps totally within the four ells of the halakhah, as some would have it.
During the first generation of statehood, moderates from both camps dominated governmental and public decision-making on this issue. Those moderates who proclaimed their commitment to medinat hok nevertheless saw that civil law as protecting Jewish religious requirements for all
Jews and, indeed, making certain basic ones such as Shabbat, the Jewish calendar, kashrut, and the official expression of Jewish rights of passage normative in state institutions and the public square, albeit with clear protections for freedom of private behavior except as limited by civil law for the maintenance of public order. Moderates on the side of medinat halakhah, on the other hand, confined their demands to state institutions and the public square, holding that the matter of halakhic behavior was private for each individual or family and that the state need not legislate, perhaps even should not, its enforcement outside of a few spheres of public behavior.
This compromise between moderates on both sides was known as the "status quo" because it had been instituted in the days of the British Mandate.1 While there were periodic issues involving whether or not the status quo as agreed to by both parties was being maintained, basically both could live with the "status quo." The exceptions were the most militant secularists and the most militant ultra-Orthodox.
Even the secularist leaders of the new state had grown up in traditional homes. Not only did they know what tradition demanded and saw that as the natural basis for a Jewish state but may even have had a certain nostalgia for it which permitted them to live with the compromise, understanding it as publicly marking the state's Jewish character. This, combined with the relative poverty of the country, meant that there were few opportunities on the part of the population as a whole to pursue non-traditional courses of action even had they wished to. The extreme secularists, or at least their leaders, were mostly of German or Central European Jewish background who had come from families that had already assimilated and who did not have that nostalgia.
On the other side, the extremists were to be found principally or almost exclusively among the then small number of haredim (ultra- Orthodox) in the country. They were allowed to live their lives in their neighborhoods as they preferred, gaining exemption from those laws of the state that were particularly intrusive such as the exemption of yeshiva students from army service and the state education law which allowed haredim to establish and maintain independent schools rather than become part of the state system.
At least some of the religious moderates tried to establish a halakhic justification for the status quo through explorations of the halakhic concept of mishpat hamelukhah which they properly saw as establishing a sphere of jurisdiction for the state that was halakhically legitimate but which freed the civil authorities (keter malkhut in traditional terms) to act beyond the frame of halakhic rulings in critical matters.2 The intellectual movement that led to the development of a first round of studies of halakhah and mishpat hamelukhah was essentially confined to supporters of the National Religious Party. It reached its peak at the end of the 1950s and more or less exhausted itself by the mid-1960s, having failed to have any significant positive influence on those who did not recognize the binding character of halakhah in the first place and evoking the displeasure of the extremists on both sides. The moderates as pragmatists settled down to protect the status quo as a successful political device and not to worry about its ideational grounding.
The Six-Day War presented them with an opportunity to succeed and perhaps even to develop an ideational grounding as the vast majority of Israelis saw their victory as miraculous in some way and even previously secular Israelis opened themselves to a renewal of concern for Jewish tradition. However, the rabbinate, having moved in the interim toward the extremist camp or, if not, looking toward them over their shoulders, did not or could not come up with a program for reaching out to the Jewish public of Israel when the opportunity presented itself and the opportunity itself slowly wasted away over the next few years. In the meantime, the visible behavior, rigid and parochial, of the Jewish religious authorities in Israel actually promoted a backlash.
The result was a curious new synthesis. Among that part of the population that saw themselves as non-halakhic, the old secularism gave way to a vague belief in God coupled with a rejection of any halakhic limitations on their actions that might interfere with their comfort or convenience.3 As a result, even as the number of true secularists diminished, the status quo was being questioned by an increasing number of Israelis who saw it as an inconvenience. This was reflected in the Gutmann Institute study of 1993 where 62% of Israelis surveyed indicated that they believed in God and only 13% that they did not. More than that, 54% indicated that they believed that the Torah is from Sinai as against 14% who did not. On the other hand, only 27% believed that non-observance was punished by God.
In the religious camp, the ultra-Orthodox right began to predominate. The NRP essentially helped them by neglecting to support the kind of synthetic academic high school education that had been a hallmark of the Mizrachi in favor of having their best and brightest study in high school yeshivot with teachers who were primarily from the haredi camp. The latter insisted upon rigid, rabbinically-defined, halakhic standards that left no room for mishpat hamelukhah, even in the public sphere.
When the constitutional debate which had taken place briefly during the four years after the establishment of the state, reemerged in the 1970s, it was no longer a debate about what to include in the status quo but a debate as to whether Jewish tradition deserved any sanction on the part of the state. Thus, even the effort to remove Israeli law from its dependence upon Ottoman and British sources and to ground it in the civil dimensions of the Jewish legal tradition as advocated by partisans of the mishpat ivri movement ran into serious obstacles in the Knesset.4 What emerged was a vague statement which could be interpreted by the courts in various ways, depending on the inclination of the judges rather than firmly establishing any grounding in Jewish law, although that interpretation remained equally possible.5 In fact, the reality was that the courts would not have majorities of judges who would look for a "Jewish" interpretation but were likely to have those who would look for something else.
Meanwhile, the status quo began to crumble at the edges because of the majority's desire to protect or extend their comfort or convenience. In this they were supported by the courts. Local enforcement of Sabbath laws restricting the opening of places of entertainment and the selling of goods and services needed for that purpose became well-nigh impossible.6 The coming to power of a generation, many of whom were already unfamiliar with Jewish tradition meant that enforcement of Jewish norms in other spheres became more difficult and more frequently the exception rather than the rule. Leadership passed to the extremists on both sides, leaving the moderates in a difficult position. The status quo survived to the extent that it did out of political necessity rather than constitutional consensus.
At the present time, the country has no constitutional agreement on these matters. Indeed, there is a greater ideological polarization than ever before, even though studies continue to show that Jewish behavior among the Jews of Israel continues to be relatively strong and represents a continuum from ultra-Orthodox to ultra-secular with the great majority in the middle in some way "traditional."7 Nevertheless, the constitutional debate is increasingly conducted on the rather artificial basis of bipolarity. All of this is being exacerbated by Israel's opening itself to the world and the influences of world culture which by definition is not Jewish and, in its presentation by the media that spread it throughout the world, is distinctly secular or, even worse, idolatrous.
The Traditional Foundations
That is the context within which we turn to discuss halakhah and mishpat hamelukhah in the 1990s, thirty years, or a generation, after it last appeared on the Israeli intellectual agenda. We must begin that discussion by recognizing that, for those to whom Torah matters, the effort to see Israel as a modern, halakhically kosher state is an important one. The Jewish people has always been influenced by political, sociological, economic, geographic, and cultural realities and, like any other group of human beings, will continue to be in this world, but from the early days of their history as an organized people, the core of their collective existence has been the Torah as their constitution in both theory and practice.
The Torah became the core of Jewish collective existence around which were added layers of interpretation derived both from what we should consider as constitutional decision-making and the Jews' behavior in the face of the realities which confronted the Jewish people.8 The combination of the two allowed great changes in the interpretation of the Torah without its abandonment as the constitutional core of the Jewish people. The model here is not so much that used in modern times to describe constitutions and their translation into practice, whereby the constitutional documents constitute the frame and the interpretations and behavioral modifications the content that fills the space within the frame, a model more suitable to the European and other well-watered parts of the world where it is possible to establish boundaries and then to fill them in. It is more like an oasis in Israel and the arid or semi-arid parts of the world where the core is located around the continuing water source to which are added peripheries that spread out as far as the water supply enables them to, and that even fluctuate as the supply changes.
Thus, each set of experiences in Jewish history produced another layer of theoretical discussion and practical action that rested on the Torah as core and halakhah as its immediate expression, while taking into consideration (or attempting to) the world in which the people were living. What was critical here was that there was a dynamic between the Torah and the world, a dynamic which was captured in the continuing growth of halakhah. Mishpat hamelukhah emerged as part of the original Torah presented as a historical account in I Samuel (I Samuel 8-15), and in codified form in Deuteronomy 17: 11-20, in the course of what may have been one of the earliest of these dialectic encounters. Indeed, the Torah discussion of its emergence as part of the institution of the monarchy in ancient Israel is in itself a teaching of how to respond to the dialectic encounter between the Torah as we have it and the world as it is changing.9
While the precise use of mishpat hamelukhah in this form came to an end with the destruction of the First Temple and the Babylonian Exile and was often honored in the breach even during that era, it became part of the set of basic regime rules and relationships which the Torah provides for use in different regimes to make them legitimate by Torah standards. As I have described elsewhere, those rules involve Israel's:
Recognition of God's sovereignty in the universe and His special covenant with the Jewish people.
Recognition of the Torah as the constitution of the Jewish people for political and more than political purposes.
Recognition that the Jewish people in its political expression is as an edah, the Israelite equivalent of the Greek polis or the Roman res publica and that the edah consists of the entire people, the twelve tribes or their equivalent, and the many batei av (households) or townships into which they are divided.
Recognition that within the edah as well as between the edah and God, all relationships are covenantal, that is to say, based upon a fundamental equality (at least for the tasks toward which the covenant is directed) and broad consensus among all members or parties to the covenant.
Recognition that fundamental constitutional decisions have to be made through the assembly or in the name of the entire edah assembled.
Recognition that authority and power within the edah is divided into three domains, each empowered directly by God through covenant, known in Hebrew as the keter malkhut (domain of kingship or civil rule), keter torah (the domain of God's instructions and commandments), and keter kehunah (the domain through which the people reach out to God).
Recognition that all three domains share in some proportionate way in the governance of the edah.
On this basis, mishpat hamelukhah was later expanded to become a full legal system parallel to but connected with the halakhic system as developed and applied in Babylonia to define the authority and powers of the resh galuta. It was developed to apply even in the galut and continued to do so throughout the premodern period.
The Modern Challenge
The critical challenge to this system came with the disruptions of modernity which brought with them demands for change that became a subject of controversy within the edah itself. There were those Jews who sought radical change to the point of abandoning the political dimensions of Jewish life to enable Jews to become individual citizens of the polities in which they lived, only with a different religion, and those who sought more limited change in the way of adaptation of halakhic Judaism to modern conditions. While these disruptions and the responses they invoked were all products of the diaspora, particularly in the Western Europe and the new worlds colonized by Western Europe, ultimately they became part and parcel of Jewish life everywhere including Eretz Israel.
In the old Yishuv, the old framework of governance through the three ketarim especially the Keter Torah and Keter Malkhut with attention paid to distinctions between halakhah and mishpat hamelukhah, at least implicitly, continued as long as the Ottomans ruled the land, that is, until the British conquest in World War I. Adaptations to modernity did take place at various points during the nineteenth century passed by the Ottomans and the Sephardic dominated edah was undermined by the secession of the Ashkenazik kollel in that had also abandoned the traditional pattern of governance. The Zionist movement from the first represented a kind of covenant between representatives of both camps, those advocating radical change and those advocating adaptation. The former saw the Zionist effort as an effort to enable Jews to survive by removing them from the lands of persecution and returning them to their own land where they, in effect, would assimilate as a nation among the nations. They looked upon the Jewish past as irrelevant to modern living, perhaps even less relevant than the medieval and ancient pasts of the various European nations they sought to emulate which were also reduced to the status of "heritage" rather than adapted to become vehicles for modern life.
The other camp valued Judaism and the Jewish heritage, wished to adapt it to modern life, and saw the reestablishment of a Jewish national home in Eretz Israel as the best or only way to do so under conditions of modernity. These camps were not divided between religious and secular since there were secular Jews � Ahad Ha-am, for example � who were in the latter camp, although one would be hard put to find religious Jews in the former. Indeed, those religious Jews who understood Zionism to be entirely within the former camp rejected it and Israel, its product, as violations of the will of God. Still, it was the religious Zionists who formed the backbone of the adaptation camp and from the first sought to find ways to rebuild the Jewish national home and ultimately the state along lines that would find a place for halakhah and at the same time a place for modern civil rule. It was from them that the movement to revive mishpat hamelukhah originally emerged.
During the period of British Mandatory rule, despite the strength and ideological fervor of those in the first camp, the second camp prevailed because it was in the interest of the British Mandatory authorities to support them. Thus the Jewish Yishuv in Eretz Israel became the last autonomous Jewish community following the older pre-modern model, with some significant modifications. Indeed, it more clearly approached a regime governed by representatives of the three ketarim, in theory as well as practice, than many of its diaspora predecessors. During the 1920s the British, after consulting and negotiating with the representatives of the Yishuv, established the Mandatory ordinances dealing with Knesset Israel, the civil structure of the Yishuv, in the form of a multi-party parliamentary system with universal suffrage, both male and female (a matter that involved some dispute in the Orthodox community). In another ordinance they established the present Chief Rabbinate, empowering them essentially as the keter torah, while the keter kehunah continued to be a minor and local function as it had become in the diaspora exercised through local religious councils in or around municipalities.
When the state was established in 1948, this system was continued under the new regime. Whatever contradictions were built into it were bridgeable either through compromises or by not confronting the theoretical issues directly. For example, because the original Jewish polity in biblical times had made God the sovereign, issues of authority and power within the Jewish polity were never issues of sovereignty but rather of jurisdiction. Consequently, they could be shared and the balance between them could be changed from time to time, as it has been throughout Jewish history.
Sovereignty and Jurisdiction
Although with the proclamation of the State of Israel the state became politically sovereign in international law, its sovereignty was democratic and thus different institutions of governance could be established or continued also on the basis of jurisdiction rather than entering into disputes over the locus of sovereignty. Since mishpat hamelukhah always had rested on issues of jurisdiction and not of sovereignty, this posed no particular problems for that school of thought. Indeed, while political scientists following European models talk about the sovereignty of the Israeli state or the Knesset, Israeli law has been very careful to formally avoid using the term "sovereignty" in reference to either, leaving the sovereignty question open and dealing only with empowering different jurisdictions.
Nevertheless, despite the possibilities of using mishpat hamelukhah to accommodate a modern state, as had been demonstrated by the earlier religious Zionist halakhists dealing with this question, the existence of the other camp with its strong and, in principle, unyielding secularism made it impossible to gain consensus around the theory of halakhah and mishpat hamelukhah going hand in hand, albeit with separate jurisdictions. Moreover, because of the rightward pull of the Haredim, the theory of halakhah and mishpat hamelukhah was in the end rejected by both camps, at least insofar as it was to be applied to the modern State of Israel.10
But that cannot be the end of the story. For those who want to simply abandon the issue, either because they want an entirely secular state, even one that is militantly secular, or because they see no way for a modern state to be linked to the halakhic system and that Judaism should become a private matter exclusively (the position of the late Yeshayahu Leibowitz), the effort is neither necessary or desirable. But for those who would like the Jewish state to have a significant Jewish component while being a democracy, the issue is not so easily disposed of.
Indeed, it has become a pressing one. The peace process has ended the covenant between the two camps that united the two original approaches to Zionism. The question of whether Israel will be a state like all other states only with a Jewish majority (at least as long as one survives) or whether it will be a Jewish state that has certain commitments to Jewish civilization and the religion of that civilization is now a real one and is getting more intense, leading to radical behavior on both sides even in ways that still are rejected by both.
We must again ask whether the model of halakhah and mishpat hamelukhah can be of service and, if so, what must be clarified to revive and improve it. This involves a clarification of Eliezer Schweid's restatement of the conventional question: Will Israel be democratic and Jewish too? What kind of democracy do we want? What kind of Judaism do we want? Here we can at least turn to the first.
Two Forms of Democracy11
In the rush of the most influential elements in the world to embrace the ideas and modes of liberal democracy, we have forgotten two things: one, the sources of liberal democracy which are in the idea of civil society developed by the great seventeenth century political philosophers, most especially John Locke, and; two, the fact that there is another form of democratic self-government that existed before the civil society model and which provided a place for normative expressions in the public square � the commonwealth model.
In the last decade, the leaders of the revolt against Communism in Eastern Europe turned to the idea of civil society to give them a political-philosophic basis for that revolution. Their revival of a concept long dormant if not forgotten in the West led to its resurrection there as well, especially after it worked so well in Eastern Europe. The essence of the idea of civil society is that every body politic that aspires to be republican and democratic must be organized around three sectors. The first is a large private sector in which individuals, families and groups are able to pursue their own interests privately with minimum government interference. The second is the governmental sector which frames society, establishes and enforces the rules of the political and social games, and serves to provide backing for the legitimate private aspirations and behavior of its population. These two sectors are held together by a public but non-governmental or voluntary sector which provides the wherewithal for living together without resting that wherewithal on a coercive basis. Most fully articulated, a civil society is one in which whatever can be done privately is, and what cannot be done privately is preferably done cooperatively on a voluntary basis, with government only serving as a framing institution and intervener of last resort. This was described in theory by Locke and his colleagues and lauded in practice by Tocqueville 150 years later, as he observed it working in the United States of America.
The civil society idea has proved to be a very important contribution to democratic republicanism, but there is another dimension of it which, in the passage of time, has generated many of the problems of democracy. The very openness of civil society generates or encourages a degree of heterogeneity that requires the rules of the game to be kept to a minimum and to deal mostly with protecting the existence of the players and their access to the game. This is especially true in large, heterogeneous civil societies as they have developed in the modern and early postmodern world. With this heterogeneity and those goals, the rules of the game are just that and embody an absolute minimum in terms of expectations of fostering of the quality of life in any sphere.
In a very real way, the larger the polity, the more heterogeneous it is likely to be and the more difficult it is likely to be to achieve agreement on common norms with regard to what constitutes the quality of life. Hence, the civil society approach offers the possibility of maintaining the minimum consensus around the rules of the game needed to keep the civil society intact. There is merit in that, but there are also great dangers. If no norms can be shared, no sense of mutual trust and responsibility can be developed. That, in turn, means no mutuality or neighborliness, both of which are necessary for community, and without community, the level of atomization of any society becomes unbearable.
That, indeed, is what has happened in the most advanced contemporary civil societies with the United States as the foremost example. American civil society today enjoys unprecedented individual freedom, based upon considerations of commerce or human rights, bought at the expense of weakening or destroying every effort to establish community within the states and localities. The result is a notable lack of solidarity in American society in matters other than appreciation of "the American way of life," provided it makes no demands upon individuals or requires any effort on their part, other than what they want to give.
All this is further exacerbated by the effects of mass culture whose purveyors know how much money there is to be made through promoting the lowest common denominator in life and, if they are allowed to do so, will, in order to make more money. More recently, the technological transformations in society have brought about a growing amount of structural unemployment that even makes it impossible for a growing number of these atomized individuals to support themselves. The results are an extensive welfare state that is by its very nature highly bureaucratized, taking on responsibilities that previously were handled in families and communities, thereby turning the public nongovernmental sector from an effective one that could act in its own right into a lobby to get others, particularly the state, to act. The organizations in that voluntary sector become "mediating institutions," robbed of most possibilities for independent action on their own. Those considered successful are the organizations and institutions recognized for their ability to get others to act or at least to spend money and to seem to be acting, whether usefully or not.
On the less savory side, all of this leads to a radical increase in the amount of selfishness in society as people are taught to think first of "number one" and not to sacrifice themselves for others, even their own offspring, for neighbors that has ended neighborliness for so many. Among the psychically weaker elements in the society this leads to the emergence and spread of random violence which, as the Bible wisely points out, is the major internal source of the destruction of societies.
Commonwealth: The Other Model
There is, indeed, another democratic model, able to foster not only what civil society fosters, with its support for great liberty within the rules of the game, but also common norms and the solidarity they can generate. We may call it the commonwealth model, after the name most frequently used for it in the sixteenth and seventeenth centuries. Commonwealths foster norms promoting some conception of the quality of life as well as liberty.
This commonwealth model appeared in the modern republican form West in the sixteenth century, perhaps a century before the civil society model was fully articulated. In its modern form, it is a product of Reformed Protestantism, that is to say, Calvinists, Puritans, Huguenots, Scottish Presbyterians and the like. Its proponents emphasized most of the same democratic goals that the proponents of civil society did, but they also advocated greater commitment to certain norms within the community, thereby enabling the body politic to develop and maintain shared norms as well as shared rules of the game.
In essence, the Reformed Protestants, deriving their ideas from the Bible, saw the commonwealth as responsible for bridging the differences between self-interest and conscience, the material means for making this life more enjoyable and the higher purposes toward which life is oriented, personal goals and collective or communal ones. In other words, while civil society promotes individual liberty almost exclusively as the way to democracy, the fostering of mutuality, mutual responsibility and neighborliness are vital components of the commonwealth approach to democracy, which envisions that the citizens of the commonwealth are members of a community and hence need to be bound by a sense of solidarity. In a commonwealth, individual rights are protected by maintaining membership in that community and its decent subcommunities rather than by asserting that the most extreme deviations of every individual need to be protected if the rights of any individuals are to be secure.
On the eve of the modern epoch, the commonwealth model was at the forefront of the struggle for what became democratic republicanism, championed as it was by Reformed Protestantism, especially in Switzerland, the Netherlands, and British North America. In those countries, commonwealths were founded on the basis of shared norms rooted in Reformed Protestant religious beliefs which together form the basis of a particular understanding of federal liberty. This understanding of commonwealth was first manifested in the Swiss republics, the Netherlands provinces, and the British North American colonies. It was given theoretical formulation by the great Reformed Protestant political scientist Johannes Althusius whose Politica was the most comprehensive expression of the commonwealth idea, its expression through institutions and processes, and its justification that we have based upon the theoretical perspective and practical experience of Althusius himself, one of the first to call himself a political scientist.12
Those smaller commonwealths then came together in federal ways to form the Helvetic Confederation, the United Provinces of the Netherlands, and the United States of America. But, as the modern epoch took shape, the Reformed Protestant restrictions on behavior in the commonwealth led to the emergence of a less deeply religiously rooted party. The idea of civil society emerged out of a degree of secularization. Although its proponents still saw popular sovereignty and democratic republicanism as existing "under God," they relied less on God's commandments for the design and functioning of their polities and more on human initiatives and God's providence. The Reformed Protestant idea of commonwealth lost its momentum, although elements of its ideas were incorporated into the syntheses that emerged in each of the polities where it had formally been dominant to a greater or lesser degree.
In time, the strengthening of radical individualism through the idea and practice of natural liberty weakened the synthesis and led to first the triumph and then the weakening of civil society and the replacement conceptually by liberal democracy. Meanwhile, application of the federal principle was confined to modern federations which came to be seen as the only viable form of federalism. Now in the postmodern epoch the revival of other, looser forms of federalism in the confederal mode has made it possible for small polities that retain or wish to restore the commonwealth model and are of a scale to do so, to flourish within larger frameworks that offer the benefits of the civil society model, whether with regard to human rights or to free trade.
In this respect, the negative effects of the restrictions which every commonwealth must impose to retain community can be modified at their harshest edges. Thus, paradoxically, globalization makes small commonwealths again possible, although, as it is presently developing, globalization is likely to make community even more difficult. In the last analysis, only the judicious actions of the people can prevent the latter from happening. Given the fact that natural liberty is so much more appealing to most people in the short run, it is not easy to expect judicious actions from the people when those actions are likely to be self-restrictive. To bring people around to appropriate self-restrictions has to be one of the major tasks of the statesmen of the new epoch.
At its founding, the United States itself was a synthesis of the ideas, institutions, and behavior represented by both the civil society and commonwealth models. As Robert Licht has pointed out,13 moderate exponents of each position joined together on the basis of what they shared in common to write the federal Constitution of 1787, pushing the extremists in both camps aside -- both Thomas Paine who advocated the secularism of the Jacobin state and those who wanted to maintain state-established religion in the new republic. Part of their compromise was that the general government of the United States would be more attuned to the civil society idea while the state governments would develop the commonwealth model.
We may identify four variants of civil society and commonwealth based upon the relationship between a polity's governing institutions and its society's value-bearing institutions. In the classic or pure commonwealth the two sets are joined and all must accept both to be citizens. The biblical model is the best example. It provides for a comprehensive constitution touching on every aspect of life and emphasizing the family and societal norms that underlie the polity, as well as the democratic and republican elements of the polity itself. The Bible leaves much private space, albeit within bounds that provide for strong normative limitations. The same is true of the Reformed Protestant republics of the sixteenth century, instructed as they were by the biblical model.
One of the difficulties with the biblical approach is the problem of balancing the rather absolute demands of religion in light of the weaknesses of humanity. For the Bible, one way of doing so was to use mishpat hamelukhah as a more flexible system of justice that could take contingency situations into consideration within a broad Torah framework. As biblical religion developed into what became halakhic Judaism this balance was re-established between halakhah and mishpat hamelukhah for the same purposes.
One of the major reasons that the original idea of commonwealth became difficult to sustain was because the demands of the Reformed Protestant commonwealth on humans, religiously devout or not, proved to be more than all but a handful could bear. So by the late seventeenth century, it gave way to the Whig commonwealth, morally informed but with lower expectations. It confined more norms to the public sphere which allowed more room for freer private behavior. In the Whig commonwealth the two sets are separated but sufficiently linked so that the operation of the public sphere, while the task of the governing institutions, is shaped by the value-bearing institutions.
A good example of this is the colonies, then states, of the United States from the end of the seventeenth century (after the original Puritan commonwealths underwent modification) until early in the nineteenth when the formal separation of the two sets of institutions in the public sphere was introduced. The ability of the latter to influence the former continued to be extensive until it was limited in the states by the U.S. Supreme Court for commercial and other considerations in the twentieth century.
A third model is that of civil society as originally conceived whereby some value-bearing institutions are favored in the public sphere as necessary for the health and proper functioning of the civil society. In essence, the United States as a whole from the early nineteenth to the early twentieth century fit this model. It gave way to the fourth, the individualistic society, whereby the governing institutions are as neutral as possible and the value-bearing institutions are placed entirely in the voluntary sector and are excluded from having a significant influence on the governing institutions as much as possible.
The United States or its original colonies passed through all of these stages. Not the least reason for the changes was the size and diversity of the country as a nation of immigrants. Only the original colonies could maintain the commonwealth model and then only by the strongest measures (e.g., Massachusetts' expulsion or execution of Quakers in its early days). The United States as a whole could maintain the Whig commonwealth model as long as the states were what the Constitution of 1787 intended them to be, responsible for the moral life of the country, while the federal government was confined to responsibility for its commercial life.
The essence of the matter is that original American-style federation made possible the melding of models. The literature and popular culture of the time is filled with evidence for this synthesis. One need only look at the song closest to being the American national hymn, "America," more popularly known as "My Country Tis of Thee," written at the beginning of the nineteenth century. It is written in the manner and cadences of a Puritan hymn, only by post-Puritan New Englanders. It is a hymn to country, community and liberty with the ultimate emphasis on the last because it makes possible the first two. In reading its words, it is clear that to the author no distinction existed between civil society and commonwealth in his mind or in the New England of his day.
A commonwealth, to succeed, must be relatively small. Madison's extended republic has its advantages for democratic government, but only if it is a republic extended by federalism in which the constituent commonwealths are protected as such. That is what has happened in Switzerland. Switzerland originally was a closer confederation of small commonwealths, each maintaining its own norms and where the governing and value-bearing institutions were joined, that were close enough to permit confederation. After the Swiss abandoned their medieval and early modern commonwealths, they continued and continue to maintain tolerant commonwealths in which the governing institutions maintain a public square informed by the value bearing institutions. Even as they transformed themselves from a confederation into a federation, Switzerland was still small enough to be a commonwealth as long as it was reinforced by the localism built into its federal system. While it has moved in the direction of civil society, it has maintained a polity that can establish norms, even as it protects more diversity and equality through these norms than it might have in the past.
Modern Israel also was founded as a commonwealth. The labor camp, which was dominant in Israel's founding, sought to build a socialist, Zionist commonwealth but in truth, all the major camps had the commonwealth ideal in mind, whether in a socialist, a religious, or a progressive model. Whatever the disputes over various models of commonwealth sought, there was no dispute over the desirability of the commonwealth model. The yishuv in the inter-war period and the new state in the generation after 1948 were excellent examples of the modern commonwealth in operation featuring solidarity, a sense of mutual trust and responsibility, and neighborliness to degrees that never existed or had been disrupted in other polities. It is only in this second generation of Israel's statehood that the commonwealth model has been challenged by those who would replace it with a civil society model.
Meanwhile, the United States synthesis, once capable of doing the same, by adding to the protection of commerce the pursuit of human rights in place of the pursuit of community, has become a mass society that emphasizes the lowest common denominator in the name of individual freedom. Commercially, this is not inefficient, and for most people in the short term it seems highly liberating and beneficial, but the long-term results are beginning to come in and to show consequences that are much less pleasant, along the lines described above.
What has happened is that as these powerful democratic nations of the world that were founded within the commonwealth tradition moved away from their original commonwealth models and beyond the civil society models, proposed by the seventeenth century political philosophers, they developed the idea of liberal democracy. In the twentieth century, that idea came to be the only acceptable definition of democracy for many.
The liberal democratic approach as embodied within the framework of civil society offers the great virtue of enabling very heterogeneous populations to live within a single polity without abridging their legitimate rights, but it has the vice of fostering the separation between the society's governing institutions and its value-bearing institutions so that the polity can stand for very little beyond the basic value of individual liberty, which has demonstrated that while it is vitally necessary, is not in itself sufficient for the good society or the good life of individuals within it.
The commonwealth approach to democracy benefits and suffers from just the reverse situation. To be sufficiently homogeneous, at least with regard to norms, normally requires a small polity, not too extensive, one in which community and communal liberties can be maintained and fostered. That has the advantage of enabling the polity's governing institutions and its value- or norm-bearing institutions to be closely linked. On the other hand, it has the vice of excessive linkage that may limit individual liberty more than necessary to obtain the desired goals shared by the citizenry.
Contrast this with the politically correct view of contemporary liberal democracy that any individual has the right to do whatever he or she wishes anywhere as long as it does not hurt anyone else (an issue not easily resolved -- for example, when that principle is applied to divorce procedures to make divorce easier, many assumptions have to be made about the effects of a divorce and its aftermath on the children involved). Under this view, territory is neutral -- whoever lives in a particular territory is entitled to representation from it.
To better understand the context in which the differences between civil society and commonwealth are displayed, while recognizing that both, as democracies, are distinguishable from other modern regimes, it is useful to have a four-cell matrix in mind. The top two cells in that matrix are collectivism and communitarianism. Both are based upon solidarity, but in other respects each is the antithesis of the other, since the solidarity of collectivism is a kind of hierarchical solidarity imposed from the top or from the outside, while communitarianism involves more organic or covenantal ties.
The bottom two cells are fragmented or radical individualism, and individualism under obligation. Radical individualism is the antithesis of collectivism in a different way. It is also the antithesis of communitarianism since it does not provide for recognition of solidarity as a factor in human society. On the other hand, there is an individualism that is compatible with communitarianism; it can be labelled individualism under obligation, whereby the community maintains its solidarity because of its individual members' sense of obligation toward it or toward its purposes, while at the same time individuals can flourish in their individuality within it precisely because of the support they gain through communal solidarity.
Like all models, these are four ideal types and never exist in a vacuum or completely on their own. Each modifies the other in some way. So a civil society shaped by the principles and practices of liberal democracy can develop an individualism under obligation but has a strong penchant for fragmented individualism, whereas a commonwealth, which ideally would emphasize communitarianism, as long as it remains a commonwealth it is likely to foster individualism under obligation, and if it loses its democratic and republican characteristics, will tend to foster collectivism.
The Models Compared
If we are to compare the commonwealth and civil society models, we might best begin with five concerns: (1) the source of authority empowering each, (2) the basic norms cultivated by each, (3) the forms of governance preferred by each, (4) their respective definitions of citizenship, and (5) their respective definitions of obligations and rights and the relationship between the two.
Source of Authority
For the classic commonwealth, the primary source of authority is transcendent, although how that authority is applied specifically depends upon the people of the commonwealth who accept and interpret the demands of the transcendent authority. In civil society, the source of authority is in the people of the civil society, although, as originally conceived, at least nominally seen by them as under some transcendent grace or protection.
For example, in the Bible, God is directly sovereign over the Israelites and rules them directly as well, until the introduction of the monarchy which He describes as the Israelites' repudiation of His rule, although not His sovereignty. On the other hand, the Americans describe the United States and its government as "under God," an understanding that was expressed at the American founding and reiterated after World War II when those words were inserted in the American Pledge of Allegiance. Contemporary Israel, in an effort to combine the Jewish people's earlier commonwealth-based reliance on transcendent authority with the socialist secularism of its founders, placed the new state under the protection of the "Rock of Israel," a traditional euphemism for God, in its Declaration of Independence in 1948.
The basic norms of a commonwealth can be summed up as piety, i.e., a deep awe of the transcendent authority; covenant, i.e., a political society and polity founded on a morally binding pact whose terms flow from the requirements of the transcendent authority; liberty in the form of federal liberty, i.e., the liberty to make and live up to one's covenants; equality, i.e., the fundamental equality of all parties to the covenant under covenant law and in relation to the tasks at hand; justice, as defined by the covenant; community; and solidarity. The commonwealth is supported by the obligation of its citizens to maintain those norms.
The basic norms of a civil society are liberty and equality founded on the coming together of individuals to establish a compact which may be considered to be under transcendent authority but is essentially a political compact through which the individuals form themselves into a people and organize their civil society and polity. Their basic commitment is to an open society emphasizing equality, justice, and rights based on individualism ahead of solidarity. Loyalty to the civil society is justified as long as it lives up to these terms and protects its individual citizens according to them.
In matters of governance, the differences between commonwealth and civil society generally rest on matters of scope, structure, and political culture. The government of a commonwealth is designed first and foremost to maintain the commonwealth's norms, while the government of a civil society exists first and foremost to maintain the rules of the game and to enable all of those who accept those rules to participate in the game. The structure of a commonwealth will not only include basic executive, legislative, and judicial organs of constitutional government, but also provision for an appropriate status for the norm-enforcing institutions of the commonwealth, either through an established religion, state support for recognized religions, or in some other appropriate way.
Governance of the commonwealth will be in the hands of those whose political culture supports its commonwealth norms and goals and will see the governing role of others as minimal to illegitimate. This is achieved through fully democratic processes because the predominant political culture in the commonwealth is moralistic. Those who govern the commonwealth are expected by the voters to be fully within that political culture or at least to keep its norms, and the citizenry, sharing the same political culture, makes major normative demands upon their governors. In a civil society, the political culture is predominantly individualistic; that is to say, those who govern are expected to abide by and enforce the rules of the game but are entitled to reasonable return for their time and effort. Participation in the body politic depends only on acceptance and adherence to the accepted rules of the game, with most of life left outside of the political arena.
Citizenship in a commonwealth is, at least in principle, for those who share the norms of the commonwealth and their descendants, while in civil society it is open more broadly to those who simply accept the rules of the game in the civil society and their descendants.
On the issue of obligations and rights, in a commonwealth there is an obligation to do justice and uphold the norms of the commonwealth that precedes the issue of rights, although part of that obligation is to establish certain rights in order to do justice. In civil society the rights to life, liberty, property, and the pursuit of happiness are prior since they are seen as inherent in the individuals who constitute the civil society and are inalienable. They, in turn, may establish obligations to maintain those rights.
For a commonwealth to implement its principles it must have sufficient homogeneity of norms. This homogeneity may be derived from religious, ethnic, social, or cultural sources, of which the first is the most important. It must rest upon sufficient solidarity that is essentially social in nature, based upon public perceptions and a public sense of obligation, and sustained by the reciprocal response of government to promote justice as its people understand it. Third, a commonwealth must be committed to republicanism and, since the beginning of modernity, democratic republicanism at that.
Fourth, the commonwealth must have a sense of mutual obligation that involves respect for rights but concentrates on the rights of the normal rather than the rights of the deviant. That is to say, the test of rights is not whether all deviance is sustained and protected but whether those in the normal range of society are protected. Deviance is protected relative to the needs of the normal society rather than the needs of the deviants.
Finally, all of this must be based upon federal foundations and their extensions, beginning with a covenant (the original meaning of the term "federal") and continuing through the organization of power in such a way that the parties to it come together in partnership or for cooperative action while at the same time respecting their respective integrities wherever possible. Table 1 compares the two versions of democratic republicanism.
Israel was founded as a commonwealth even if the conceptions in the foregoing pages were not actively part of the founders' thought processes. It was to be a socialist commonwealth with a strong Jewish dimension. Now the foundations of that commonwealth have begun to crumble. Indeed, many of those who represent the normalizers of the Zionist camp are working hard to bring about the further disintegration of those foundations and often justify their efforts on the grounds that Israel needs to become a civil society in the manner of the post-Communist societies of Eastern Europe. Intentionally or not, they understand that civil society will bring them the kind of release from communal norms, especially Jewish ones, that they are so actively seeking.
Table 1
| | COMMONWEALTH | CIVIL SOCIETY |
|---|
| Source of Authority | Transcendent (+ People of the Covenant) | People of the Civil Society (under Transcendent Authority) |
| Basic Norms | Piety, Covenant, Federal Liberty, Community, Justice, Equality, Solidarity | Federal or Natural Liberty, Compact, Equality, Open Society, Individualism, Justice |
| Governance | Government exists to maintain norms.
People participate in common self-government.
Government limited.
Moralistic political culture dominant. | Government exists to maintain rules of game.
People participate in common self-government.
Government limited.
Individualistic political culture dominant.
|
| Citizenship | Those who share norms (and their descendants) | Those who accept rules of the game (and their descendants) |
| Obligations and Rights | Obligations to do justice and maintain norms precede and establish rights | Right to life, liberty and pursuit of happiness establish obligations
|
For those who wish to maintain commonwealth solidarity and norms for Israel, one of the best possibilities for doing so is by anchoring them within the framework of halakhah and mishpat hamelukhah, just as the founders of the United States from John Winthrop through James Wilson attempted to anchor the new American federal republic in the concept of federal liberty. That, indeed, is what the first generation of Israelis who explored the relationship between the two sought but failed to achieve because they could not find sufficient support in either the religious or non-religious sectors of Israeli society. This paper argues on behalf of a renewed attempt, undertaken very soberly, understanding that it is most unlikely to lead an acceptable understanding for both camps. For those who pursue that line of exploration for practical purposes, we can hope that the results will stimulate an effort on the part of those who are uncomfortable with this formulation because of its religious character, to formulate a proper definition of commonwealth for Israel from the perspective of the civil society model. To do so, we need a new or extended exploration of the relationship between halakhah and mishpat hamelukhah in Jewish tradition from the perspective of the two forms of democracy of modernity � civil society and commonwealth � especially emphasizing the commonwealth model and how the traditional edifice can be developed through it. That is the necessary task of our times and it is a worthy one for us to pursue.
Notes
1. S. Z. Abramov, Perpetual Dilemma (Rutherford: Fairleigh Dickinson University Press, 1976).
2. Simon Federbush, Mishpat Ha Melukhah (Jerusalem: Mosad Harav Kook, 5712-1952).
3. Shalom Levy, Hanna Levinsohn, Elihu Katz, Beliefs, Observances and Social Interaction Among Israeli Jews (Jerusalem: Louis Guttman Israel Institute of Applied Social Research, 1993).
4. The mishpat ha-ivri movement was initially developed at the Hebrew University by professors of law and Jewish studies who were themselves Orthodox from the moderate camp. They sought to develop an understanding of Jewish law as part of the general heritage of all Jews regardless of their religious commitments. While based on halakhah, mishpat ha-ivri emphasized its civil dimension and how they were applied over the generation. See Menachem Elon, Mishpat Ivri, the classic work in the field.
Menachem Elon, Jewish Law; History, Sources, Principles trans. B. Auerbach and M.J. Sykes (Philadelphia: Jewish Publication Society of America, 1994).
5. Zvi H. Preisler ed. Legislation in the State of Israel (Jerusalem: Ketuviim Publishers, 1996); Divrei HaKnesset 89II, (Jerusalem, 1980) p.4025-4031; Aharon Kirschenbaum "Hok Yesodot HaMishpat--Mitziut VeTzipiyot" in Iyunei Mishpat 11 (Tel Aviv: Hotzaat Ramot, 1985-6) p.117-126; G. Prokachya "Hok Yesodot HaMishpat, TSH"M--1980 in Iyunei Mishpat 10 (Tel Aviv: Hotzaat Ramot, 1984) p.145-157.
6. Cite the court decision and its aftermath.
7. Shalom Levy, Hanna Levinsohn, Elihu Katz, Beliefs, Observances and Social Interaction Among Israeli Jews (Jerusalem: Louis Guttman Israel Institute of Applied Social Research, 1993).
8. Menachem Elon, Jewish Law; History, Sources, Principles trans. B. Auerbach and M.J. Sykes (Philadelphia: Jewish Publication Society of America, 1994).
9. I Samuel, Chapters 8-15.
10. Rav Haim Hirschensohn, Hidushei Hirschensohn Horayot (1914-1916), Malkhi BaKodesh (1919-1928), Eileh Divrei HaBrit (1926-1928) and Torat Eretz Yisrael (1935);
Eliezer Schweid, Democracy and Halakhah (Lanham, MD and London, England: Jerusalem Center for Public Affairs and University Press of America, Inc., 1994).
11. The following section is taken from a larger work of mine, The Swiss Model of Commonwealth (forthcoming).
12. Johannes Althusius, Politica (Indianapolis: Liberty Press, 1995).
13. Robert Licht, "Israel Among the Nationalisms" (paper delivered at the Association for Jewish Studies, July 9, 1990).
