The Jewish Social Contract: An Essay in Political Theology

Chapter 1
FORMULATING THE JEWISH SOCIAL CONTRACT
The Democratic Contract
To argue intelligently for the idea of the Jewish social contract today, one must situate the argument within current discussion of social contract theory in general. One must then take a stand on what an authentic social contract is and how sources for it can be activated from out of the Jewish tradition.
The original justification of a society as an agreement between its equal members has long been known as the idea of the social contract. It is a highly attractive idea as evidenced by the amount of discussion it has evoked for at least the past four hundred years, and especially during the past thirty years or so.1 Many contemporary political thinkers in democratic societies, who are loyal to their societies in principle, believe that this idea best explains how a democracy--especially their democracy--can cogently respect and defend the human rights of each of its citizens. These rights are the claims persons are justified in making before these societies can subsequently make their own claims on these persons as citizens. Moreover, even these subsequent claims are all essentially redistributive, that is, they are justified by being given an instrumental status. As such, the claims democratic society makes upon its members, to which they are to dutifully respond, are ultimately for the sake of the respect and defense of the prior human rights of the citizens of that society.2 Therefore, posterior social claims cannot contradict or overcome these prior human claims on society without losing their own derivative justification.
Respect and protection of human rights are considered the hallmark of a modern democracy. Respect and protection of these rights are what differentiates a modern constitutional democracy from democracy per se, for without the recognition of the prior rights of its citizens, a democracy could easily become nothing more than the dictatorship of the majority, whether that dictatorship be more spontaneously exercised by a mob (demos) or more systematically exercised by some authority (arche) acting in the name of a mob. Such majority dictatorship is always conducted at the expense of the minorities who have no rights against it, no prior claims to make upon it.3
As the basis of a democracy, a social contract presupposes that its parties come to it with rights that are theirs already.4 The contract itself is specifically designed to respect, defend, and even enhance these prior rights. Any attempt to rescind these rights puts the society in violation of its founding mandate, even if only a small minority might actually object to such rescission. Conversely, in any secular society not based on the idea of a social contract, even where human rights are acknowledged, these rights are at best conceived to be entitlements from the society rather than claims made to the society. In such societies, human rights are a matter of social largesse or tolerance rather than the duty of a society to ever respect and defend. This is why in societies that do not recognize anything prior to themselves, whatever human rights they do recognize are only entitlements granted by the society at will. As such, these rights can just as easily be rescinded from the citizens as they were granted to them by the society; and that can be done without the society contradicting its founding mandate. This type of a society can just as easily decide that these rights are useless for its projects as it can decide that they are useful, whenever any such perceived need arises. For this reason, it is inadequate to the human need for inalienable rights to argue, as one prominent liberal legal theorist has, that "the assumption of natural rights" is not "a metaphysically ambitious one," that it is no more than a "hypothesis," or a "programmatic decision."5 It would seem that if human rights in a democracy are to "have teeth," and not be vague, hypothetical claims made by rootless persons, then a real and sufficient foundation for these rights should be found and explicated. And, this requires substantial historical research and ontological reflection in order to be rationally persuasive.6
Because the social contract stems from the rights of persons even prior to their becoming citizens of a democracy, a society based on a social contract can also respect and defend the human rights of all human beings everywhere or anywhere. By virtue of simply being human, those other persons who are not now democratic citizens could in principle become citizens of this or any democracy later. Rights-based democracy, then, affirms an idea of human nature, and it is potentially global therefore. The social contract presupposes that humans are by nature rational beings capable of making contracts and keeping them. That view of human nature has huge political consequences everywhere. The question remaining, nonetheless, is whether we need to see human nature as more than the mere capacity of humans to make and keep contracts between themselves.
This emphasis on human rights is what makes modern constitutional democracy so attractive in theory, especially to Jews, who have greatly benefited from it in practice. Thus very few Jews today would want to live in anything but such a democracy. The other modern political alternatives (namely fascism, communism, and clerical oligarchy) have proven disastrous for any society that has adopted them, and especially disastrous for Jews (and many other minorities), who, unfortunately, have found themselves having to live in such societies. For this reason alone, Jews first need to think out a democratic theory by themselves for themselves, especially a democratic social contract theory, inasmuch as social contract theory seems to be the best explanation of a rights-based democratic order. Only in this way can Jews be participants in a contractually based democratic social order in good faith, and not regard the benefits that have accrued for them from such a social order as some sort of historical accident. But that must first be done in traditional Jewish terms, and only thereafter in terms that could appeal to rational persons who are taken to be actual or potential citizens of a democracy.
The Jewish social contract is the means by which a Jew can actively and honestly--as a Jew--engage the democratic society in which he or she lives. This engagement is what is "Jewish," not the social contract itself, which operates among Jews and non-Jews and must, therefore, function in neutral secular space. This engagement is not located in a singular event like that of Exodus-Sinai, which for Jews has cosmic sig-nificance and is regularly celebrated whenever Jews faithfully practice the commandments of the Torah. Rather, that engagement is an ongoing process of negotiation and renegotiation among human beings coming from different cultural backgrounds. It is not a real covenant, as we shall see in the next chapter. Nevertheless, the social contract is more than the hypothetical construct of some philosophers. It is marked by such real events as voting in an election according to Jewish criteria (which does not necessarily require voting for Jewish candidates), and proposing public policies according to Jewish criteria (which need not always involve issues of special Jewish self-interest).7
The two tasks for Jewish political theorists--the theological and the philosophical justification of democracy--are not at odds with each other. In fact, they can be correlated. Accordingly, this book should be taken as an implicit polemic against those who theologically reject democracy due to their view of Judaism. It should also be taken as an implicit polemic against those who philosophically reject Judaism due to their view of democracy. Nevertheless, Judaism and democracy are by no means placed on an equal footing here. Instead, the historical and theological priority of Judaism over democracy, for Jews, shall be affirmed. Then it will be shown how Jews can be parties to a democratic social contract in good faith because of their Judaism, not in spite of it. Indeed, this book attempts to show how Jews can cogently formulate an idea of the social contract out of their own traditional sources. Thereafter members of other cultural traditions can appropriate by and for themselves whatever intersections with these representations of Judaism they find at home. This can be done when these representations of Judaism are philosophically attractive and can be argued for in a secular, democratic society.
Unfortunately, though, most modern arguments for democracy have been based on basically secularist, liberal ideologies, whether formulated by Jews or adopted by Jews from non-Jewish thinkers. As such, they have not been formulated with much perspicacity, either theological or philosophical. Theologically, they have not shown how the Jewish tradition can allow Jews to participate in a social contract as Jews. Philosophically, these modern arguments have been dependent on views of human nature that do not give a reason why any rational person should enter into a relationship of trust, like a contract, with any other rational person, even though these arguments have frequently recognized the social benefits of relations of trust among the members of a society.8 Nevertheless, secularist admiration for interhuman trust has been more phenomenological than ethical, that is, most secularists only describe how trust benefits society rather than why anyone ought to trust anyone else or be trusted by anyone else.
In fact, most of these modern secularist arguments for democracy have called for mistrust by their claims, both implicit and explicit, that persons coming from traditional cultures like Judaism need to break faith--that is, mistrust and thus overcome--their cultural origins in order to fully participate in civil society. Accordingly, most of these modern arguments for democracy have been, in fact, recipes for the public disappearance of Judaism and the traditional Jewish community. But without a defense of Judaism's public participation in civil society, which is theologically and philosophically cogent, individual Jews do not have enough cultural capital to maintain their Jewish identity even in private. For these privatized Jews, a democratic commitment turns out to be the sale of their very souls as Jews. This is why this book shall argue for a Jewish religious justification of a secular democratic order. It is an argument for a finite secularity, but it is against any secularist ideology that claims to be a suffi-cient foundation of that secularity. Because of this, this book shall not engage in the type of apologetics (with its hidden secularist premises) that looks to a secular democratic order to justify the Judaism lived by Jews who participate in that order.
This prior affirmation of Judaism does not mean, though, that one should argue that Judaism is the sufficient foundation for a democratic order. That would very much imply that one ought to convert to Judaism for the sake of having the best reason to be a citizen of a democracy. But were that argument to be made, as some Christian social theorists have tried to do for Christianity from time to time, the very secularity of the democratic social order would be threatened and one's theological commitments would become ultimately mundane.9 Indeed, when such political theology is applied, the secular social order for which this occurs inevitably takes on messianic pretensions. One should not argue that Judaism (or any religious tradition) is either the one necessary source or the one desired end (telos) of democracy. The fact that Judaism can enable Jews to participate in a democratic social order does not necessarily mean that Judaism entails democracy or that democracy should be regarded as the ultimate fulfillment Judaism anticipates. Democracy does not emerge directly from Jewish (or any other) revelation nor does it preview the kingdom of God. So the most this book can do is to attempt to show that Judaism can authorize a democratic commitment from faithful Jews for Judaism's own sake. Therefore, I shall only argue why Jews can be active participants in this social order in good faith, not that Jews must be such participants, or that all such participants in this social order ought to be Jews at all.
However, a Jew's commitment to Judaism is far more profound than any commitment to democracy can or should be. A Jew's commitment to Judaism must be lived as one elected by God to be part of the Jewish people covenanted with God. That election is either by birth or conversion.10 One chooses to participate in a democratic social contract; one is chosen to be part of the covenant. One initially affirms the social contract; one only chooses to reconfirm the covenant initiated by God. Hence a Jew needs to live by Judaism, whereas he or she opts for a democratic society. Although one's democratic commitment should be consistent with his or her prior Jewish commitment, it neither can nor should be identical with it. Accordingly, a Jew should evaluate democracy by Jewish criteria rather than evaluate Judaism by democratic criteria. Whereas one can say that democracy is the best political option available to Jews, one must say that Judaism is the only religion Jews can live by with Jewish authenticity.
The Political Value of the Social Contract
What, then, is the current political value of the idea of a social contract for Jews as a people and then as individuals that would inspire Jewish thinkers to search for its positive theological and philosophical justification in the Jewish tradition? It would seem that the value of the idea of a social contract is that it is better able to justify a multicultural society than any other idea of political authority. As we shall see, Judaism can function most successfully in a modern multicultural or pluralistic society. The plurality built into the idea of multiculturalism or pluralism is also built into the idea of the social contract. Furthermore, in the idea of the social contract presented here, in which the parties to the contract retain their original rights, these parties are not required to become parts of the whole that the contract itself creates. Instead, the parties are participants in a multiplicity they themselves create out of their own prior commitments. These prior social commitments are not overcome or meant to be overcome in the social contract.11 These earlier communal commitments will survive intact as they have survived other types of subsequent social arrangements in which Jews have had to participate in the past. Indeed, this covenant will transcend this world and all its mundane social arrangements.12
Persons enter into a social contract not only because of their prior commitments, but just as much for the sake of them. As I shall argue in this book, if what people bring to the social contract are their prepolitical, cultural rights, which are their rights to be rooted in their original communities, then the social contract can be seen as an ongoing agreement as to what is necessary for different cultures to justly and peacefully transact with one another in common social space. This should by no means require the members of any of these cultures to surrender their communal identity to some sort of "melting pot." Furthermore, what people obtain in their original communities is not only the way they are to justly interact with their own kind, but also the way they are to justly interact with all others--including all others in civil society. As we shall see, this interaction with others in a democratic society enables Jews to develop certain more general tendencies in their own tradition. It is where Jews need to constitute the idea of natural law, that is, the idea of a universal law binding on both the Jews and the gentiles.13
Because of Jewish interest in a multicultural society, a more communitarian idea of social contract should be more attractive to Jews. Surely, Jews should want civil society to respect Jewish communality and not foster the assimilation of Jews, whether as individuals in the Diaspora or even collectively in the land of Israel, into some amorphous "democratic culture." Accordingly, I shall argue that civil society ought not and, indeed, cannot construct its own culture.14 Instead, civil society ought to depend on the plurality of cultures that in truth precede and transcend the construction of civil society through the social contract.
The very creation of a secular realm by humans is the result of an inter-cultural agreement to create a space distinct from the sacred space of any primal community, an invented realm in which many cultures can participate. But even the suggestion that this should lead to the creation of some new secular culture to replace the older cultures of the contracting parties is to be firmly rejected. The very secularity of this new space--as distinct from the older sacred spaces of traditional cultures like Judaism--requires that it be both participated in and limited by the members of the cultures who need such space for their own communal survival and flourishing. Thus a social contract is both useful and desirable for the members of any historical culture, certainly for Jews. By means of such a social contract, a historical culture can claim from civil society its prior right to continue to function as a primal community for its own members. In return, a historical culture like Judaism allows civil society to claim its loyalty and support in that society's political, economic, and even its intellectual efforts on behalf of all the citizens of that society. Furthermore, an intercultural social contract makes the political life of civil society far more exalted--even more inspiring--than a social contract fundamentally conceived in terms of economic rights. A society dedicated to the protection and enhancement of its participating cultures surely commands more respect and more devotion than a society merely established to protect and enhance private or corporate property.
When, however, a civil society no longer respects that communal priority, it inevitably attempts to replace the sacred realm by becoming a sacred realm itself. That is, such a society attempts to become the moral authority over which there is no greater authority in the lives of its citizens. Thus by becoming "civil religion," civil society usurps the role of historic faith traditions and becomes what it was never originally intended to be: unlimited authority.15 But the hallmark of a democratic social order is the continuing limitation of its governing range. Without such limitation, any society tends to expand its government indefinitely. But such limitation cannot come from within; it can only come from what is both outside it and above it.16 Today that external and transcendent limitation can be found in the freedom of citizens of a democracy to find their primal identity by being and remaining parts of their traditional communities. This is what has come to be known in democracies as "religious liberty."
Membership in these traditional communities is outside the range of civil society because of their historical precedence, and it is above the range of civil society because of the ontological status the relationship of these communities with God gives them. For Jews, this means that their historical and ontological identity in God's covenant with the people of Israel is what both limits secularity and entitles its limited range to be beneficial for them. Judaism is both older and deeper than any civil society. Without historical priority, the assertion of ontological priority tends to become hypothetical rather than real, abtsract rather than concrete; it becomes formal rather than substantial, tentative rather than permanent. And without ontological priority, the invocation of historical priority can easily be overcome by the present-day secular world; it can become a mere precedent rather than an ever present foundation, a matter of nostalgia rather than an active normative force.17
A Contract between Minorities
Multiculturalism, in my understanding, assumes that all the bearers of the various cultures participating in the social contract are minorities. Any notion of a majority rule, except for purposes of election to public office, legislation, or judicial decision, requires the type of singular or monoculture that is inimical to the cultural rights of any and all minorities. Surely, multiculturalism is for the sake of minority groups.18 Only when that logic is carried further does it also function for the sake of the individual person and his or her rights. An individual person is the smallest minority possible, but he or she is not the only minority possible. As such, that individual minority only functions as a rights bearer in cases involving certain political, legal, or economic claims on society. But in cases involving larger social claims, such as religious liberty or domestic sanctity, cultural rights--which are the claims of persons to be able to exercise their cultural identity both in their primal communities and in the secular realm--much more is at issue.19 And, more often than not, the minorities by themselves and between themselves can come to a common consensus with good reason, and that can be without having to formally designate a majority conclusion. Certainly that is the case with a social contract as distinct from a formal political pact. The social contract is not adjudicated in a court or argued in a legislature, even though its negotiation in the larger civil society often has judicial and legislative effects.
Jews have experienced minority status probably longer than any other people on earth. Indeed, at the very beginnings of their history as a people, Moses tells them, "you are the smallest [ha-me"at] of all the peoples" (Deuteronomy 7:7), which turned out to be as much a prediction of their future as it was a description of their original condition. And, several of the later prophets referred to "the remnant" [she'erit] of Israel, which was immediately intelligible to the Jews (that is, the "Judeans" of the tribe of Judah), who knew that the majority of the whole people of Israel (the Northern Kingdom, also known as the Lost Ten Tribes) had gone into exile at the hands of the Assyrians in 721 B.C.E., and that it was most unlikely that those lost tribes would ever return.20
Most Jews today, even in the Jewish State of Israel, live in multicultural societies where they thrive as minorities. Even religious Jews in the State of Israel are a cultural minority and must, therefore, play by multicultural rules in order to survive in that secular society. The establishment of a specifically religious state in Israel, that is, a state governed by Jewish law, both ritual and civil-criminal, would no doubt require a coup d'�tat that would very likely destroy the already besieged Jewish state by bringing about a civil war. This would be a far greater threat to the survival of Israel than any of the considerable foreign threats it has successfully resisted to date. For this reason of realpolitik alone, many religious Israelis would rather be a powerful minority (indeed, in Israel today there is no cultural majority in any real sense) in a multicultural society than a hated oligarchy. And even if Israel were to become a monocultural society, and even were that to happen through a peaceful transfer of power to a religious establishment, Israel would become more and more of an outcast in an increasingly multicultural, globalized world. It would not even be a minority society among the multicultural democracies of the world, especially the Western world in which almost all Jews want to be included. If that is true even in the State of Israel, all the more so is it true in the Diaspora.
As we shall see in the course of this book, any contract between persons, be it a private contract between some individual parties or a public contract between all parties to the society and for the sake of the society, any such contract is not the most original or even the most persistent social bond, certainly not for Jews. Truly, without the presupposition of more original social or communal bonds, the idea of the social contract becomes incoherent since there are no real persons to come to it. Only full persons and not abstractions can contract with one another in any substantial way. Persons are social beings by nature, not by mutual agreement.21 There cannot be contracting persons, as distinct from humanoid phantoms, who are not already socialized. And that socialization takes place in the family as the basic component of a primal community.