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Judaism and American Civil/Political Society In the Age of Trump

Richard L. Claman

 

 

The Challenge

The United States is today (approaching Shavuot 5777) experiencing fundamental strains upon the foundational principles supporting the U.S. Constitution’s vision of a civil/political society—that is, (i) of a ‘civil society’ in which we can all participate on equal terms, regardless of our particular background religious views (or other worldviews), and in particular, (ii) of a “public political culture,”[1] within which we can all express ourselves as we wish on public issues, subject to some sort of constraint of respect for each other, and of a shared commitment to what we might call (in a philosophic sense, not a political-party sense) the ideals of a liberal democracy.

Thus, for example, President Trump has questioned the legitimacy of millions of votes cast for his opponent (among other recent challenges to the principles of fair elections, and of “one-person, one-vote”);[2] and the priority assigned by Superman[3] to “truth,” in his slogan, “truth, justice and the American way,” seems to have been replaced by “alternative facts.”[4]

Does Judaism teach us anything as to how we, as Jews and Americans, might respond to the present crisis? Conversely, what if any obligations do we, as Jews and Americans living in the United States, owe to American civil/political society—for instance, to act affirmatively to support liberal-democratic ideals when they are threatened?

My concern here is not, ‘should we as Jews endorse or oppose this or that particular policy of this or that government,’ but rather something more fundamental.

As even David Novak—a Jewish-political philosopher who vehemently opposes the vision of an ideal liberal-democratic state outlined by John Rawls[5]—has commented, liberal democracy has surely been good for the Jews:

 

Jews can well be seen as one of the chief beneficiaries of modern notions of rights… Prior to [the French Revolution], Jews faced the problem of being an alien minority community that was, at best, tolerated by an unsympathetic majority…; at worst, persecuted by a hostile majority…. But with rights-based political theories… one’s religions and cultural distinctions were no longer to be matters of any normative concern…

 

Jews should realize that only in democracies have we been able to survive, let alone flourish, politically, economically—and even religiously.[6]

Additionally, however, I suggest that liberal democracy, with its characteristic separation of church and state,[7] has been good for Judaism as a belief system: in contrast, for example, as we have unfortunately seen in Israel, when religion and state become too entangled, religion itself can become corrupted, and then may be rejected by a portion of the population because of that corruption.[8] (In U.S. history, the danger of such entanglement is often illustrated by reference to the Salem witch trials.)[9]

Thus, I suggest, it is not enough, on a number of levels (although it is certainly important and necessary, as a matter of practical politics), for example, in the face of President Trump’s executive orders seeking to ban certain immigrants, for Jews to march at the airports with banners proclaiming, per Deuteronomy 10:19, that the Torah commands us to “love the stranger” (“ve-ahavtem et ha-ger”), because such advocacy fails to address a number of other fundamental Jewish concerns:

  1. The Torah probably just doesn’t say, however, on fair analysis, what we might want it to say. Thus, ger, as used in Deuteronomy, is probably not an immigrant, nor a stranger: rather, ger refers to the technical ancient legal category of “resident alien,” a person who is allowed to live within the ancient Israelite political domain, subject however to certain obligations and legal disabilities. (See, e.g., the comment on Deut. 10:19 in Tigay’s commentary; contrast, for example, Deut. 23:21, allowing Israelites to charge interest to a nokhri, or foreigner.[10]) This Torah category also excludes, we might remember, any “Canaanites,” who were required to be expelled/exterminated—a concept that the Rabbis already found deeply troubling morally.[11] In short, even if we today might want to read (selectively) the Torah as endorsing free immigration, our interpretation is unlikely to persuade others who may well (and indeed with some justification) read Deuteronomy differently. (Notoriously, in the years leading up to the American Civil War, both Abolitionists and pro-slavery clergy found support in the Hebrew Bible, as well as in the Christian Bible, for their competing views);[12]
  2. We need to recall that the State of Israel has an immigration policy that, it has been argued, is discriminatory: i.e., the “Law of Return,” granting immediate citizenship to all immigrants with sufficient Jewish “roots.”[13] While I share the belief that the Law of Return can be defended (in that Israel, appropriately to her history, can legitimately aspire to be not a fully liberal-democratic state, but rather to be what Rawls calls a “decent” state[14]), some very careful analysis is necessary to establish the relevant distinctions;[15]
  3. At the end of the day—and particularly in the present climate—I do not want to see American political discourse being taken over by religious discourse. We may be seeing shortly, for example, a revival of demands to ban all forms of abortion, and we want, I suggest, to be prepared, on that day, to respond to such claims by insisting (per, e.g., Ronald Dworkin[16]) that all religious argumentation should be kept out of our courts, and indeed out of our public discourse about our fundamental political institutions; and
  4. religious advocacy too often fails to incorporate the competing values (values that indeed we also accept) involved in political decisions. For example, I don’t think that it helps to argue, as an absolute matter, that immigration should be allowed without any restrictions—for I share the view (following, e.g., the Canadian legal scholar Colin Grey[17]) that there are legitimate reasons for a state to limit new immigration in the interest of building “community” amongst both existing citizens and previous immigrants. Conversely, however (per Grey), while I think that “community” is an important value, there is also an important countervailing value calling us to respond to humanitarian emergencies, so that an absolute no-new-immigrants rule might not only not be good policy, but might also be, depending on the context, immoral. How to balance these values is, I suggest, a complex matter, which is not helped by “absolutist” arguments from either side.

Accordingly, the question of present concern to me might be rephrased: Can our Jewish tradition be understood as calling for us to support, as a general proposition—and leaving aside our particular views on specific issues—the fundamental institutions and principles of a liberal-democratic United States, as a matter of what ethics, in all its complexity, requires as applied to civil/political society?

Unsurprisingly, traditional rabbinic sources offer us no assistance in this regard. One of our best contemporaneous legal/halakhic theorists, Suzanne Last Stone, thus began her article on “Jewish Tradition and [the Concept of] Civil Society,” by stating:

 

There is no term for, much less a theory of, civil society in classical Jewish texts….

 

Judaism thus lacks the building blocks, drawn largely from Christian conceptions of society and the individual and experience of European Christendom, that gave rise to the idea of civil society in the West. Given the comprehensiveness of the [halakha], Judaism could not develop… a concept of independent realms of experience, separate domains such as the household, the state, the economy, and society itself, each arranged according to its own logic or laws; nor even a sharp distinction between public and private spheres.[18]

On the one hand, this “lack” is not surprising, for the very concepts of civil society, and of a neutral liberal-democratic state, did not exist until shortly before the American Revolution. And recent efforts to articulate some new synthesis, or to find a basis within the tradition for liberal-democratic ideals, have focused on the State of Israel, and the challenge of defining the principles of a “Jewish and Democratic State.”[19] (I note that the Talmudic principle of “dina demalchuta dina,” i.e., that “the law of the land should be respected as the binding law, subject however to some moral constraints,” is not adequate to task at hand; that principle has historically endorsed a “passive”[20] acceptance of whatever government exists, so long as it is not too abusive, but fails to obligate us as Jews to be concerned with advocating for a better, more moral, government.)

On the other hand, Professor Stone’s statement (about the absence of building blocks within Rabbinic Judaism for construction of a basis for advocating for a liberal-democratic society) might appear surprising, given how we have all heard, typically on or around July 4 of each year, synagogue sermons about how American democracy and Judaism are compatible, and/or how the Constitution reflects Jewish values. As Arnold Eisen has reviewed, however, those sermons are just an apologetic tradition, dating back to the 1940s, that fails, however, to confront the real differences between traditional Jewish thought, and liberal democracy.[21] Concerning the right to vote, for instance: while, as the Israeli legal scholar Haim Shapira has discussed,[22] Jewish tradition might not actively oppose the idea that a poor person should have the same vote as a rich person, neither does Jewish tradition endorse a notion of a general right to vote and be counted; and, to take one historical example, in voting for the Jewish Council of the Four Lands of Poland in the early 1600s, not more than 5% of the households, and often only 1%, in the participating Jewish communities, were eligible to vote.[23] (Imagine, by contrast, what the impact on Western thought would have been if, when Moses grew old, he had declared a general election to name his successor.) Accordingly, again, while we, as Jews, may feel motivated by our current perceptions of Jewish values to oppose voter suppression efforts aimed at minorities, we need, I suggest, to identify a Jewish basis for articulating our opposition thereto through liberal-democratic principles, because it is difficult to directly defend, from traditional Jewish texts, a broad right to vote.

Notwithstanding Professor Stone, however, I am not prepared to give up the search for some deeper Jewish basis applicable to the political challenges that we face today in the U.S. Paul Weithman, a liberal Catholic philosopher, writing in support of a Rawlsian vision of a liberal-democratic state (in which persons wishing to advance ‘religious’ public arguments would be obligated to also show how their positions also comported with liberal-democratic ideals), has stated a flat-out challenge to religions in the U.S., asserting that if religions in America today cannot support a liberal-democratic America, then that would reflect a deficiency in our religions:
Religious teachings are typically said to provide insight and guidance bearing on the most basic features of the human condition. The claim that they do is greatly strengthened if religion provides insight and guidance into the moral demands of political life. If the truth about political life is that citizens should live together as free equals, then religions that are true should help citizens of faith to live that way and to see where their societies fall short. If they can do that, then the political measures that their adherents put forward should be amenable to support by some interpretation, perhaps a prophetic interpretation, of liberal democratic values.[24]

This essay is, accordingly, an attempt to begin to respond to Weithman’s challenge, as made sharper by our present predicament.

Plainly, however, a single essay cannot even begin to sketch-out responses to all of the issues that would need to be addressed to construct a modern responsive Jewish ‘political philosophy of life’ as a minority people within a liberal-democratic political society.

Our aim here, accordingly, is very limited: we will first identify one traditional obstacle to an effective response, and then will consider how we might overcome or bypass it. The obstacle I propose to address here is a traditional concept of holiness (or ‘kedushah’).

 

 

The Obstacle

In a classic essay, written in 1963, in the context of Vatican II, “the Rav,” Joseph Soloveitchik, addressed the extent to which Judaism should cooperate with the Church on matters of public policy. He argued that there was nothing wrong, for example, in case both we and the Church happen to favor public funding of religious schools, for us as Jews to participate with Christians in public political forums to advocate such public funding. But, he cautioned, we should not do this because we believe that there exists a “secular” society, i.e., a neutral civil/political sphere, that we share with persons of other religious beliefs:

 

For the man of faith, this term [i.e., “secular” sphere] is a misnomer. God claims the whole, not a part of man, and whatever He established as an order within the scheme of creation is sacred.[25]

 

While Soloveitchik did not spell out in that essay his specific conception of kedushah—and as will be noted in a moment, there are, unsurprisingly, a number of different, alternative, conceptions of “sacred,” or ‘holy,’ or ‘kadosh,’ within our tradition—it is clear that he was adopting what we will label here an ‘imperialistic’ conception of holiness. That is, per his conception, (i) holiness is the ultimate value; (ii) there is, by contrast, at best zero value, or indeed perhaps a negative value, where holiness is absent; and (iii) accordingly, our efforts should be directed solely within the realm of holiness—although we might also seek to expand that realm.

In the following paragraphs, we will review three familiar alternative conceptions of kedushah that all share this characteristic of being “imperialistic.” Our aim is not to critique these views, but rather simply to identify their key features as relevant to the issues here, and in particular, to highlight how each of these understands the relationship between kedushah and general ethical conduct in the public sphere. (Also, we do not mean, by our use of the label ‘imperialistic,’ to denigrate these views: it may be that this ‘expansionist’ tendency corresponds to an important utopian yearning for a world that is completely suffused with and transformed by God’s presence. I am suggesting, however, that there might also be a Jewish value in confronting the non-utopian present.[26])

Accordingly, the question here might be yet again rephrased: Does our tradition recognize any non-“imperialist” conception of kedushah, i.e., a conception that allows that there can be positive value outside of the realm of holiness? If so, then there might also be room for Jews to attribute some positive value to a liberal-democratic civil/political society.

Three familiar “imperialistic” conceptions of kedushah are as follows:

  1. Holiness as transcendence: Some Jewish thinkers have, in effect, adopted the picture articulated by Rudolf Otto, an early-20th-century Protestant theologian, who argued (in The Idea of the Holy, first published in German in 1917) that holiness is a non-rational characteristic of God as transcendent, awesome and powerful—simultaneously frightening but attracting. Thus, for example, in the entry on “Holiness” in Contemporary Jewish Religious Thought,[27] Allen Grossman (an award-winning poet, and a scholar, teaching then at Brandeis University) wrote:

 

Holiness, in Hebrew kedushah, indicates the highest value, or—more precisely—what can be said by men (or angels) when God comes immediately to mind…. Holiness is the word by which men describe God and therefore the ultimate doxological predicate….

 

The “highest value,” which holiness indicates and which the transactions of holiness produces, is not in its fundamental nature ethical value….

 

Our central task, then, according to Grossman’s summary, is to acknowledge God’s holiness through prayer and study—noting that we conclude both activities by reciting the kaddish, with its praise of God as “kadosh, kadosh, kadosh” (i.e., “holy, holy, holy”; see Isaiah 6:3).

Holiness, on this view, to oversimplify, is thus independent of ethics, so that, among other things, obedience to God’s commands would take precedent over any human understanding of ethics. (Philosophers who follow such a view often focus on the Akedah as illustrative.) In a recent discussion of holiness, the philosopher Ken Seeskin noted that Martin Buber had toyed with such a holiness-as-transcendence view for a time, but ultimately recognized that an understanding of holiness that was not restrained by ethics could lead to terrible consequences (such as perversions of “holy war”).[28]

There are also other reasons, from within our tradition, to question this holiness-as-transcendence view. For example, we might ask: if ‘holiness’ is the “highest value,” then, why is God not referred to a kadosh, or holy, in, say, the 10 Commandments? (The only adjective used therein of God is “El kana,” “a jealous/zealous God.”) Rather, it appears that kadosh originally (e.g., in Akkadian) just meant “dedicated to God”[29]; and we see in, say, Greek mythology, that humans can view, e.g., places like Mt. Olympus as holy in the sense of having been dedicated to Zeus, without, however, also believing that Zeus is holy. (The phrase “ne’dar ba-kodesh” in the section of the ‘Song of the Sea’ known as the “mi chamocha,” Ex. 15:11, arguably is not a reference to God as holy, but rather is best translated as parallel to the prior line, “ba-elim” [“amongst the other members of the divine council”], and so means in context “praised as strong by the subordinate members of the holy assembly;” compare Ps. 89:6-8).

As a general matter, accordingly, while Exodus and Deuteronomy refer to the people Israel as holy, they do not refer to God as holy.[30] One might then ask, why did Isaiah, and the ‘Holiness Code’ in Leviticus (e.g., Lev. 19:1), make the conceptual jump to viewing God as holy? And when they made that jump, what did they mean thereby? Did they mean, for example, to suggest that God was transcendent (in the sense of distant)?

In answer to this last question, the philosopher-of-Judaism Eliezer Berkovitz (1908- 1992)[31] argued that Rudolph Otto’s picture was exactly backwards: ‘kedushah’ referred, in Isaiah, not to God as transcendent, but rather to God as immanent—i.e., as involved and caring. Reading back into Isaiah the rabbinic midrashic view that each of God’s names signifies a different aspect or attribute of God,[32] Berkovitz pointed, as illustrative, to a line from Isaiah (5:16) that was included, early in the Rabbinic period, into our High Holiday liturgy, “va-yigbah Adonai Tz’vaot ba-mishpat; ve-ha-El ha-kadosh nikdash bitzdakah”—which he paraphrased: “the Lord of Hosts [i.e., God in his Transcendent aspect] is exalted through justice, but God the Holy One is sanctified through righteousness [tzedakah, i.e., acts of caring, in this world, in interaction with humans].” (Berkovitz then, as a post-Holocaust thinker, goes on to consider the problem of kedushah in an age when it seems that God has “hidden” His presence.)

Again, my concern is not to provide anything like a full description of, let alone critique of, holiness-as-transcendence, nor of Berkovitz’s counter-view. I hope only to have shown, for present purposes, that holiness-as-transcendence (a) is not the only possible Jewish view, and (b) might not even be a desirable picture, within overall Jewish thought, but (c) clearly is ‘imperialist,’ and so indeed, per Soloveitchik, denies the existence of any independent sphere of ethics or tzedakah (i.e., caring for persons in need);

  1. Holiness as separateness: Perhaps the “mainline” Rabbinic picture of kedushah identified holiness with separation. According to an early rabbinic midrash, the command in (most famously) Leviticus 19:1, i.e., that we must be holy because God is holy, should be understood to mean that “just as God is separate from the world, so Israel must strive to separate itself from the nations:” “As I am separated, you shall be separate [‘perushim’].”[33]

This view too is plainly ‘imperialist,’ in the sense that it can (and indeed by some Jewish thinkers has been) expanded into a basic principle that would then control our understanding of Judaism. This is seen most notoriously in Judah Halevi’s The Kuzari (written between 1130-1140), arguing that Jewish souls are fundamentally different from, and indeed superior to, the souls of others. (This line of thought is continued in the Zohar, and in Hasidic thought to this day.)[34] This view is not only, I believe, deeply immoral in itself, but it is also plainly false as a fair reading of the tradition: as just noted by Berkovitz, God is not fundamentally separate from this world, for God is also, we believe, involved in, or at least deeply concerned with, this world—although there may be periods of Divine hiddenness (“hester panim”).

Thus Milgrom quotes Buber as, in effect, rewriting the old midrash as follows:[35]

 

God is the absolute authority over the world because he is separate from it and transcends it but He is not withdrawn from it. Israel, in imitating God by being a holy nation, similarly must not withdraw from the world of nations but rather radiate a positive influence on them through every aspect of Jewish living.

 

(Perhaps, to be charitable to the midrash, it was simply trying to proffer a play-on-words, since the Pharisees, considered by the Rabbis to be their predecessors, referred to themselves by the designation ‘perushim.’)

Again, what is relevant for present purposes is just to see how holiness, on this view, (a) is ‘imperialist,’ and (b) unrestrained by ethics; and

  1. Holiness as ethical perfection: The great German-Jewish philosopher Hermann Cohen (1842-1918) rejected the foregoing attempts to separate holiness from ethics, and instead, to the contrary, argued that holiness is ethical perfection. As summarized by Seeskin:[36]

 

God’s holiness [for Cohen] is inseparable from his moral perfection. According to Cohen, there is no way for humans to relate to God on any other terms, “Religion itself”, he tells us, “is moral teaching or it is not religion.”

 

Holiness, then, accordingly to Cohen is the task of humans to pursue the “target” of moral “perfection.”[37] In other words, for those who remember their high school trigonometry, holiness is the asymptote towards which our actions can attempt to approach, but never achieve.

As further summarized by Seeskin, this view has in turn influenced, among others, Franz Rosenzweig (1886-1929), and Emmanuel Levinas (1906-1995).

Again, this view is “imperialist”—although now in the direction of collapsing holiness into a theory of all-consuming moral perfection. Likewise, see, e.g., Levinas’ assertion that our ethical obligation to “the Other” (i.e., to all other persons) is a matter of “infinite   responsibility.”[38]

Also, again, this view is problematic on its own terms. In particular, if “holiness” is just “ethics,” then, what does “holiness” as a value add to our lives? For presumably it does add something—otherwise, we would not need the separate concepts of kedushah and tzedakah.

Also, following Isaiah Berlin, I reject the idea of ethics as an asymptotic ideal. Ethics is, rather, on Berlin’s picture, a matter of constantly attempting to achieve a balance amongst competing values, as the problems, and the competing demands, that we face, shift.[39]

In any event, Cohen’s concept of a combined, idealized, perfectionist, ethics/kedushah, appears to have the side-effect of by-passing, and failing to provide coherent responses to, the very practical problems of politics in our actual, present lives. Thus, Cohen not just failed to criticize, but rather indeed endorsed, Germany’s war aims during (what we now call) the First World War—for he argued that Jewish culture (on his view), and German culture (on his view), shared a common idealized target.[40] Conversely, Cohen saw no value in, and indeed opposed, Zionism.[41]

Plainly, none of these three “imperialist” models of kedushah suggests a way to attribute a positive value both to politics and to holiness.

 

 

An Alternative Model, And Possible Way-Out

There is, however, yet another model of holiness, which (a) is not ‘imperialist,’ and (b) may allow us to avoid the Rav’s objection to a separate secular realm. Jacob Milgrom (1923-2010), a leading commentator on Leviticus, argued[42] that the ‘opposite’ of ‘holy,’ according to Leviticus, is not “unholy,” but rather is “common.” Milgrom pointed in this regard to Lev. 10:10, where the priests are commanded to distinguish (and then to instruct all Israel as to how to distinguish) “bein ha-kodesh u-vein ha-chol, u-vein ha-tamei u-vein ha-tahor,” i.e., “between the sacred and the common, and between the impure and the pure.”

We might contrast Milgrom’s translation of “chol” (“common”) in Lev. 10:10 with the NJPS translation: “between the sacred and the profane.” “Profane,” in contrast to “common,” has various negative connotations. Such a negative connotation is expressed, e.g., in the “havdalah” blessing chanted at the conclusion of Shabbat—for we contrast “kodesh” and “chol,” and then “light and darkness.”

But perhaps Milgrom’s translation is better—or perhaps, in any event, we can simply choose to build on Milgrom’s insight.[43]

Perhaps, then, there is a sphere of the ordinary, or of the common, that is neither holy nor inherently polluted, but rather is a sphere in which we are free to act immorally or morally, and in ways that can create either purity or impurity, both in our individual lives, and as members of a political society.

And we might read Gen. 1:31 as teaching that, at least in its potentiality, such a common, ordinary world is “tov me’od,” i.e., “very good.” Note that the “first” creation story (Gen. 1:1-2:4) does not characterize creation as holy (in contrast to the Shabbat, which God declares to be holy; see Gen. 2:3).

One might wonder: perhaps, “very good” is not, however, as used in Genesis, an ethical statement, but rather only a statement to the effect that creation includes the physical elements necessary to sustain human life. The Bible scholar Mark S. Smith has considered this question, observing that there is no discussion in Gen. 1 of evil. Yet, he concludes, based on a review of parallel texts, that “tov” also connotes moral goodness:

 

both meanings apply in Genesis 1: creation is good in both meanings as benefit and moral good.[44]

Moreover, Smith notes that Gen. 1 (a) probably derives from the same source as Lev. 19:1 (and Lev. 11:44), noted above; and (b) was probably added by that school to be the opening chapter of the Torah following the destruction of the First Temple, as a “new prologue to the Pentateuch”[45]—to express a “decidedly hopeful vision, perhaps even a wildly optimistic one.”[46]

Accordingly, moral goodness and holiness were apparently understood by this school as distinct values, yet somehow working in tandem—and so perhaps we too can endorse both these concepts as working together, although we need to then articulate how they might do so.

To see how these concepts can work together, I propose an analogy, borrowed from the analysis by the philosopher Tom Scanlon[47] of the relationship between the concepts of morality and friendship. Scanlon wishes to describe our moral universe as consisting of (a) a common core of objective, shared, convictions (such as, torturing children is wrong), and (b) additional values that we can choose to adopt to add meaning to our lives, but which additional values all build upon our core moral convictions, and so can properly also be addressed (and criticized, as needed) as moral values. As an example of this interplay, he discusses the value of friendship. It is not necessary, as a core moral conviction, that we must value friendship; but valuing friendship plainly makes our lives more meaningful. One might question, however, whether friendship is a moral value, since it is inherently particularistic—we can be friends with only some persons, not with everyone. Nevertheless, Scanlon argues that friendship, to be valuable even on a particularistic basis, must be based upon a fundamental ethical respect for all persons. To illustrate, he asks us to consider a friend who would steal a kidney from some other person to help us in a time of our medical need:[48]

 

Friendship, at least as I understand it, involves recognizing the friend as a separate person with moral standing—as someone to whom justification is owed in his or her own right, not merely in virtue of being a friend. A person who saw only friends as having this status would therefore not have friends in the sense I am describing: their moral standing would be too dependent on the contingent fact of his affection. There would, for example, be something unnerving about a “friend” who would steal a kidney for you if you needed one. This is not just because you would feel guilty toward the person whose kidney was stolen, but because of what it implies about the “friend’s” view of your right to your own body parts: he wouldn’t steal them, but that is only because he happens to like you.

As is well known, it is crucial to friendship that we are moved to do things for a friend by the special affection and regard that we hold for him or her as a friend, not simply by consideration of a kind that we owe to everyone. But what the kidney example brings out is that friendship also requires us to recognize our friends as having moral standing as persons, independent of our friendship, which also places limits on our behavior….

[Thus] there is a form of friendship that is worth valuing, and in fact seems to capture what we normally mean by friendship, that does not clash with the requirements of morality…. If, as I have just maintained, the conception of friendship that we understand and have reason to value involves recognizing the moral claims of friends qua persons, hence the moral claims of nonfriends as well, then no sacrifice of friendship is involved when I refuse to violate the rights of strangers in order to help my friend. Compatibility with the demands of interpersonal morality is built into the value of friendship itself. I have argued, in addition, that this is not a watered-down version of friendship in which the claims of friends have been scaled back simply to meet the demands of strangers. Rather, it is a conception that has particular advantages from the point of view of friends themselves.

 

Applying Scanlon’s analysis of friendship to the interplay between holiness as a particularist Jewish value, and the values of a liberal-democratic civil/political society as a general moral value, I would like to say: as an aspect of public ethics—call it tikkun olam—we are obligated to engage with our fellow citizens as such, to protect the institutions that protect our common rights, and that foster our respect for each other; and this does not detract from, but rather provides a basis for also pursuing holiness as a Jewish value compatible with general ethics. And, in addition, we as Jews are particularly motivated, as a matter of our historical experiences, to uphold systems that foster respect for all individuals—for these systems also allow our Jewish communities to flourish, and thus facilitate bringing the additional values of Jewish community and holiness into our lives.

I am also intrigued, in this regard, by the statement in Exodus 31:17, which we sing at kiddush every Shabbat morning, that God is ‘refreshed’ by the Shabbat (“va-yi-nafash”). Holiness is there conceived of as a sort of re-invigorating power, which can also revive our energies as human beings, to then take on the burdens of tikkun olam—in the original ethical sense of that concept[49]—during the six “ordinary” days of the creation and re-creation of our ordinary world.

 

 

Conclusion

We face practical political problems today in America. We turn to our tradition for some insight, confident that the resources are there to allow us to articulate guiding principles, even if those principles have not (yet) been articulated as such. We have tried to show here, by addressing the obstacle of ‘imperialist’ concepts of ‘holiness,’ how holiness might, however, be reconceived as motivating us to value, and then to act to strengthen, our American liberal-democratic society.

 

Richard L. Claman has written and lectured, for the past 20 years, on various issues in contemporary Jewish philosophy. In particular, his work draws upon concepts from modern Anglo-American political/moral philosophers (such as Isaiah Berlin’s concept of objective value pluralism, and John Rawls’ notion of a ‘decent’ state) in order to illuminate, by contrast, the assumptions underlying classical Rabbinic thinking, so as then to try to better understand the ‘transition to modernity’, the philosophical options open to us today, and the importance of Israel as a Jewish and Democratic State to our ‘religious’ lives. For his ‘day job’, he is head of business litigation at a New York City law firm. He is a graduate of Harvard College and Harvard Law School, and has also studied at JTS and Tel Aviv University.

[1] See, e.g., John Rawls, “The Idea of Public Reason Revisited,” in The Law of Peoples (Cambridge, MA: Harvard U.P.; 1999); idem., A Theory of Justice (Cambridge, MA: Harvard U.P.; 1971), and idem., Political Liberalism (New York: Columbia U.P.; 1993).

[2] See, e.g., Ari Berman, “Voting Rights in the Age of Trump,” New York Times, 11/22/2016, p. A31 (available online).

[3] See, e.g., Harry Brod, Superman is Jewish? How Comic Book Superheroes Came To Serve Truth, Justice and the Jewish-American Way (NY: Free Press; 2012).

[4] Nicholas Fandos, “White House Pushes ‘Alternative Facts,’” New York Times, 1/23/2017, p. A15 (available online).

[5] See fn. 1, supra.

[6] David Novak, Covenantal Rights: A Study in Jewish Political Theory (Princeton: Princeton U.P.; 2000), at 25-27. Novak’s response to this realization is, however, very different from that here. To oversimplify the thrust of Novak’s agenda [see also his The Jewish Social Contract: An Essay in Political Theology (Princeton: Princeton U.P.; 2005)]: he has sought to make American democracy a comfortable option for a modern Orthodox Jew by arguing that, if only everyone would accept a belief in God as foundational, then we could recharacterize a version of American democracy—albeit with some adjustments that many liberal-democratic theorists, such as Rawls, would surely reject—as just an application of the Talmudic fiction of a state governed in accordance with the ‘Seven Commandments of the Sons of Noah.’

Whether Novak achieves his self-proclaimed goals, those are just not the goals addressed here. For a critique of Novak’s agenda, see Allan Arkush, “Drawing Up The Jewish Social Contract,” JQR vol. 98, no. 2 (Spring 2008) pp. 255-271.

[7] See, e.g., Martha C. Nussbaum, Liberty of Conscience (N.Y.: Basic Books; 2008) at 64 (“Rawls stresses that political society has a moral foundation. But he holds that this is a ‘module’ that can be linked to different doctrines and metaphysical justifications in a variety of ways”); and my essay, “Mishnah as a Model for a New Overlapping Consensus,” Conservative Judaism, vol. 63, no. 2 (Winter 2012), pp. 49-77, esp. at 56 (pursuing this “module” metaphor and suggesting that the Mishnah, in seeking in the 2nd cent. to bring Jews together, correspondingly focused on the values and practices that we share, deliberately omitting discussions of the theoretical justifications therefor that could only lead to argument and division).

[8] For an anecdotal response, see, e.g., Gil Troy, “Center Field: Save Israeli Judaism—End The Chief Rabbinate,” Jerusalem Post, 12/22/2015 (available online). For a theoretical perspective, see, e.g., Suzanne Last Stone, “Religion and State: Models of Separation from Within Jewish Law,” Int’l J. of Constitutional Law, vol. 6, no. 3-4 (2008), pp. 631-661 (available online), suggesting that the ‘Ran’ (Rabbeinu Nissim Gerondi), in the 14th Cent., and Yeshayahu Leibowitz in our day, can be read to support such a ‘separation of church and state’ in order to protect Judaism.

[9] See, e.g., Edmond S. Morgan, American Heroes: Profiles of Men and Women Who Shaped Early America (N.Y.: Norton; 2009). See chs. 9-10, a review of the Salem witch trials, and then a “Postscript: Philadelphia 1787,” speculating as to the effect of those trials on the Constitutional Convention, noting, e.g., that Benjamin Franklin, a hero of the latter, had spoken in his youth to Cotton Matter—commonly remembered as one of the villains of the former.

[10] Jeffrey H. Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: JPS; 1996). See generally James K. Hoffmeier, The Immigration Crisis: Immigrants, Aliens and the Bible (Wheaton, IL: Crossway; 2009), reviewing the use of the term ger in the Torah in its Ancient Near Eastern context.

[11] See various essays in the volume The Gift of the Land and the Fate of the Canaanites in Jewish Thought, Katell Berthelot, Joseph E. David, and Marc Hirshman, eds. (N.Y.; Oxford U.P.; 2014).

[12] See, e.g., Mark A. Noll, The Civil War As A Theological Crisis (Chapel Hill: U.N.C. Press; 2006).

[13] See, e.g., Yehiel S. Kaplan, “Immigration Policy of Israel: The Unique Perspective of a Jewish State,” Touro L. Rev., vol. 31, no. 4 (August 2015), pp. 1089-1135 (available online).

[14] See Rawls, Law of Peoples, supra fn. 1.

[15] See, e.g., Ruth Gavison, The Law of Return at Sixty Years: History, Ideology, Justification (Jerusalem: Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought; 2010) (available online).

[16] See, e.g., Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard U.P., 1996), esp. at 85-104, arguing that the debate over abortion should be understood, for constitutional purposes, as a debate concerning persons’ fundamental religious beliefs—and the Constitution should not favor one religion as against another.

[17] See, e.g., Colin Grey, Justice and Authority in Immigration Law (Portland, OR: Hart Publishing [Bloomsbury]; 2015), esp. pp. 210-211.

[18] Suzanne Last Stone, “The Jewish Tradition and Civil Society,” ch. 8 in Alternative Conceptions of Civil Society, Simone Chambers and Will Kymlicka, eds. (Princeton: Princeton U.P.; 2002), quoting from pp. 151, 153-154.

Professor Stone speculates, in her conclusion, that there might be a way forward by appealing to the concept that all persons are, according to Genesis ch. 1, created in the image of God, and hence are in some sense all entitled to be regarded with equal dignity. The obvious problem is that a straightforward fundamental premise of equality would seem to preclude a belief that in some sense Judaism is special. I believe that it is possible to maintain both a conviction that Judaism is special, and a conviction that other belief systems are also worthy of respect (so long as they meet certain minimum moral criteria). But the argument is somewhat complex, and depends on, in effect, a ‘pluralistic’ conception of holiness as advocated herein. See also my essay “Is Theological Pluralism Possible?,” Conservative Judaism, vol. 64, no. 4 (Summer 2013), pp. 49-70.

[19] See, e.g., various essays in The State of Israel: Between Judaism and Democracy, Joseph E. David, ed. (Jerusalem: Israel Democracy Institute; 2003).

[20] See, at the theoretical level, Menachem Lorberbaum, “Commentary: Consent Theory in Dina de-Malkhuta Dina,” pp. 446-450 (quote from p. 447) in Michael Walzer, et al., ed., The Jewish Political Tradition: Volume One − Authority (New Haven: Yale U.P.; 2000). And at the practical level, see Jacob Katz, Tradition and Crisis (N.Y.: Schocken Books; 1993), Bernard Dov Cooperman, trans. (first published in Hebrew, 1957-1958), at pp. 14-15, noting that, in the face of the expulsion of the Jews from Vienna in 1670, and from Prague in 1745, “even the Jews themselves did not see expulsion per se as an infringement of their rights.”

[21] Arnold Eisen, The Chosen People in America (Bloomington: Indiana U.P.; 1983), esp. pp. 37-41.

[22] See Haim Shapira, “Majority Rule in the Jewish Legal Tradition” 82-83 HUCA (2011-2012) pp. 161-201; and “The Right to Political Participation in Jewish Tradition: Contribution and Challenges,” in Religion and the Discourse of Human Rights, Dagan, Lifshitz and Stern, eds. (Israel Democracy Institute; 2014), pp. 266-296 (both available online).

[23] See H.H. Ben-Sasson, “The Middle Ages,” in H.H. Ben-Sasson, ed., A History of the Jewish People (Cambridge, MA: Harvard U.P.; 1976), p. 679.

[24] Paul Weithman, “Inclusivism, Stability, and Assurance,” in Rawls and Religion, Tom Bailey and Valentina Gentile, eds. (New York: Columbia U. P.; 2015), pp. 75-96, quoting from p. 93.

[25] Published in Tradition, vol. 6, no. 2 (1964) pp. 5-29, available online at http://traditionarchive.org/news/originals/Volume%206/No.%202/Confrontation.pdf, at fn. 8.

David Novak, supra fn. 6, in effect takes a similar position, in arguing that a common ‘secular’ society is only acceptable if its members all agree that such common secular society must be based on a common fundamental belief in God—and Novak believes that (orthodox) Jews and Christians share such a common foundational belief in God. But such a society plainly does not qualify as a Rawlsian secular liberal-democratic society; and Novak is clear that he rejects Rawls’ advocacy/defense of a liberal-democratic society.

Another much-published Jewish ‘political’ thinker, Lenn Goodman, likewise rejects Rawls’ program, see Lenn E. Goodman, Religious Pluralism and Values in the Public Sphere (NY: Cambridge U.P.; 2014).

[26] The reader might be reminded here of the debate concerning whether or not there is a basis within the tradition for an obligation of ‘tikkun olam,’ in the modern sense of ‘social action.’ See, e.g., addressing various aspects of that debate, the two collections of essays, Tikkun Olam: Social Responsibility in Jewish Thought and Law (vol. 6 in the Orthodox Forum series), David Shatz, Chaim I. Waxman and Nathan J. Diament, eds. (Northvale, NJ: Jason Aronson Inc.; 1997); and Tikkun Olam: Judaism, Humanism and Transcendence, David Birnbaum and Martin S. Cohen, eds. (NY: New Paradigm Matrix Publishing; 2015) (available online).

[27] Arthur A. Cohen and Paul Mendes-Flohr, eds. (NY: Free Press; 1987).

[28] See his chapter on “Ethics and Holiness: Leviticus 11:44” in Kenneth Seeskin, Thinking About the Torah: A Philosopher Reads the Bible (Philadelphia: JPS; 2016), 113-133, esp. at 127.

[29] See Jacob Milgrom, Leviticus 17-22 (NY: Doubleday [Anchor Bible]; 2000) at 1711.

[30] See, e.g., Eyal Regev, “Priestly Dynamic Holiness and Deuteronomic Static Holiness” VT, vol. 51, no. 12 (April 2001), pp. 243-261.

[31] Eliezer Berkovitz, “The Concept of Holiness,” in his Essential Essays on Judaism, David Hazoni, ed. (Jerusalem; Shalem Press; 2002) [first published in Man and God, Studies in Biblical Theology (Detroit: Wayne State U.P.; 1969)].

One might contrast Berkowitz’s homiletic paraphrase with the translation of this verse in the current NJPS translation (1978): “And the Lord of Hosts is exalted by judgment; The Holy God proved by retribution.” Mahzor Lev Shalem (e.g., at 88) follows Berkovitz’s ‘midrashic’ paraphrase.

[32] See, e.g., Ephraim E. Urbach, The Sages: Their Concepts and Beliefs, Israel Abrahams, trans. (Cambridge, MA: Harvard U.P.; 1987) (first published in Hebrew in 1969).

[33] Milgrom, supra fn. 29, at 1603, quoting from Sifra Shemini 12:3; see also Sifra Qedoshim l:1 and Num. Rab. 10:1.

[34] See, e.g., Elliot R. Wolfson, Open Secret: Postmessianism and the Mystical Revision of Menahem Mendel Schneerson (N.Y.: Columbia U.P.; 2009), p. 239.

[35] Milgrom, supra fn. 29, at 1605, quoting (and translating) from the Hebrew version of The Way of the Bible (1964), available in English as Martin Buber, On The Bible (N.M. Glatzer, trans.) (N.Y.: Schocken; 1982).

[36] Supra fn. 28, at 119.

[37]Id. at 120.

[38] See discussion in Hilary Putnam, Jewish Philosophy as a Guide to Life: Rosenzweig, Buber, Levinas, Wittgenstein (Bloomington, IN: Indiana U.P.; 2008), at 81.

[39] See, e.g., Berlin’s “The Pursuit of the Ideal,” in his The Proper Study of Mankind, Henry Hardy and Roger Hausheer, eds. (N.Y.: Farrar, Straus & Giroux; 1998) [first published in N.Y. Review of Books (3/17/1988)] at 10-12.

[40]See, e.g., David N. Myers, “Hermann Cohen and the Quest for Protestant Judaism,” Yearbook of the Leo Baeck Inst., vol. XLVI (2001), pp. 195-214, esp. p. 211.

[41]See, e.g., Rory Schacter, “Herman Cohen’s Secular Messianism and Liberal Cosmopolitanism,” Jewish Political Studies Rev., vol. 20, no. 1-2 (Spring 2008), pp. 107-123.

[42] See, e.g., Leviticus 17-22, supra fn. 29, at 1721; see also Milgrom, Leviticus 1-16 (N.Y.: Doubleday; 1991) at 616.

[43] In support of Milgrom: “chol” is also used in a neutral sense in a story in 1 Sam. 21:5-6, where David, running from Saul, arrives in a “priestly” city, and is informed that there are no “common” loaves of bread there, available to be eaten by persons not in a state of ritual purity, but only consecrated loaves.

[44] Mark S. Smith, The Priestly Vision of Genesis 1 (Minneapolis: Fortress Press; 2010) at 61-62.

[45] Id. at 127.

[46] Id. at 64.

[47] T.M. Scanlon, What We Owe To Each Other (Cambridge, MA: Harvard U.P.; 1998).

[48] Id. at 164-165.

[49] See fn. 26 supra, for two collections of essays on the history and evolution of this concept, beginning in the Mishna, Gittin chs. 4-5. One author, in an essay in the above-referenced volume edited by Birnbaum and Cohen, suggests that the ethical obligation of tikkun olam derives from Deut. 22:3, lo tukhal l’hitalleim, “you must not remain indifferent.” See Bradley Shavit Artson, “You Must Not Remain Indifferent: Personal Decency and Social Justice,” pp. 335-351, esp. at 346-348.