Religion and State in Israel

A Modest Proposal
Religion and State in Israel
Frontispiece of Leviathan by Thomas Hobbes Abraham Bosse, 1651.
 
Essay
Moshe Koppel
July 1 2013

Every now and then, people who in the grand scheme of things look and sound more or less like me voice opinions that make me wonder whether I’ve been sucked through the rabbit hole. Often these opinions have to do with freedoms they would like to sacrifice to government bureaucrats. All too often, those freedoms are of the religious kind.

Once, when I was helping to draft a constitutional proposal for the state of Israel, a prominent rabbi urged me to include a provision that would require judges on rabbinical courts to be God-fearing. When I suggested that this kind of language was likely to prove ineffective in a constitutional context—and that it might be better if judges on rabbinical courts weren’t appointed by the government in the first place—he gave me an odd look and asked, in all sincerity: who, then, would pay for them if not the government? The possibility had never occurred to him that Jewish communities and not the state should support Jewish institutions.

Nor does the possibility seem to have occurred to the state itself. A case in point is a recent ruling by Israel’s Supreme Court involving a controversial loophole in Jewish religious law (halakhah). The loophole, in force since the establishment of the state, permits the growth and sale of agricultural produce during biblically-mandated sabbatical years. In anticipation of the latest such year, the state-sponsored chief rabbinate decided that local religious courts could allow or disallow the loophole at their discretion. Whereupon an organization of Orthodox rabbis encouraged farmers to petition the Court to strike down the decision of the chief rabbinate and instruct it instead to re-impose a statewide, across-the-board acceptance of the loophole. The Court ruled in favor of the petitioners.

Now, why would Orthodox rabbis approach a secular Supreme Court to intervene in a matter on which a century of rabbinic legists had written hundreds of learned opinions? Why wouldn’t such rabbis simply issue their own certification of disputed produce? And as for the Court, what made it think it had any competence to rule on an arcane question of religious law?

In brief, what sorts of ideas lead reasonable people to outlandish expectations concerning the relation of a Jewish state to the practice of Judaism?

I raise these questions because I want to make an argument for drastically limiting the role of the Israeli state in developing and maintaining Jewish institutions. I do so, however, as one who very much wishes to see an expansion of the influence of traditional Judaism in the Israeli public square. In my view, this expansion is possible only if the state ceases to usurp power better held by Jewish communities, which have successfully transmitted and evolved Jewish moral traditions for millennia. Strengthening these moral communities is my main objective. Although my specific concern is Israel, the issues at stake, as I hope to make clear, are applicable to every democratic society grappling with the crossroads between religion and state.

 

1. Romancing the State

Early supporters of the founding of a Jewish state envisioned it as replacing Diaspora communities that had grown weak and desiccated. The writer Micha Yosef Berdichevsky (1865-1921), turning a biblical encomium—“How goodly are your tents, O Jacob”—into a slur, railed: “How narrow are your tents, O Jacob.” In particular, the founders hoped the state would become an arbiter and enforcer of new values, using its authority to promote ideas and virtues central to the secular ethos of the time. The most glaring example of this policy was the forced re-education of young religious immigrants by placing them in secular kibbutzim with the intention of transforming “human dust,” in David Ben-Gurion’s pungent words, “into a cultured nation.”  

As Ben-Gurion’s formula suggests, the values the new state was intended to enforce were in most cases the opposite of those inculcated in traditional Jewish communities. Preeminently, the statist awakening aimed to overcome old habits of quietism and forbearance while replacing the authority of elders and sages with the authority of the young and vital in a redeemed land. While the young Zionists carried with them many elements of a classic Jewish narrative—they recalled a glorious Jewish past, roughly coterminous with the period of the Bible, and viewed their return to the land in millennial terms—those past glortraies were defined not in moral but in political terms, and the millennialism derived more from Comte and Marx than from Isaiah. As a result, both past glories and anticipated future ones were unmediated by a continuous traditional narrative. 

True, not all early Zionists were secularists. What, then, of early religious Zionists? They had to contend not only with their secular Zionist counterparts but with the strong arguments against Zionism leveled by many Jewish religious authorities. To the latter, the modern state, any modern state, posed a threat to the traditional Jewish ethos.

In Diaspora Judaism, the life of the spirit had been paramount. Jews had redefined power as, essentially, the ability to live their lives according to their own traditions and to pass on their cultural and intellectual legacy to their children. The capacity to move armies was not among their aspirations. Indeed, as a matter both of principle and of bitter historical experience, the Diaspora version of Judaism was suspicious of, if not downright antagonistic to, political authority. For its part, Jewish religious law had adapted itself to these circumstances and, when it came to managing the internal affairs of Diaspora Jewry, functioned reasonably well at the level of individuals or communities. It had not yet been tested at the level of the state—and assuredly not at the level of a modern state conceived along anti-traditionalist lines.

In the face of the arguments of their anti-Zionist counterparts, some early religious Zionists—like Rabbi Yitzhak Yaakov Reines (1839-1915), the founder of the Mizrahi movement—took a pragmatic approach to the Zionist project: pondering both the opportunities and the dangers, they decided that, given the Jews’ precarious political situation in the Diaspora, the risk posed to Judaism by a potential Jewish state was a risk worth taking. For many others, though, the prospective return to Jewish sovereignty in the land of Israel inspired a more exalted and momentous response, one that could be formulated in terms of a divine plan.

From this there flowed a new definition of national power that, going the secularists one better, saw the various aspects of state-building—agricultural, military, industrial—not simply as necessary burdens but as sacred endeavors worthy of a veneration earlier reserved for affairs of the spirit. For followers of Rabbi Abraham Isaac Kook (1865-1935), the first chief rabbi of Mandatory Palestine, the state and its institutions, however beset by flaws, were products of the redemptive process.

Fatefully, most religious Zionists were also ready to designate the state itself as the appropriate authority for regulating religious matters. The state would appoint rabbis, enforce religious legislation, and fund religious services. The management of these affairs would be entrusted to secular officials: bearers (in this view) of profound religious longings of which they might be unaware.

On some points, secular anti-traditionalists and religious traditionalists differed: while the former looked to the state to replace Jewish tradition, the latter looked to the state to upgrade and subsume it.1 But on the main point they were perfectly agreed: the state would take over the role of communities in enforcing morality and in funding and regulating religious institutions. In so reasoning, both were guilty of the same fundamental error, conflating peoplehood with statehood and community with state, and ignoring the fact that membership in each is determined in completely different ways.

How so? To put the matter at its simplest, a community (in the sense that I use the term here) is by definition composed of members who choose to submit to its authority because they identify themselves with its ethos. A state, on the other hand, imposes obligations (approximately) equally on all within its geographic scope. Thus, communities tend to be small, homogeneous, and voluntary associations, while states tend to be large, heterogeneous, and coercive.

 

2. The Universalist Delusion

The passage of time, in Israel as elsewhere, has exposed the folly of the romantic belief in the all-encompassing goodness of the state. But the ideas that have replaced statism have been no kinder to moral communities. To appreciate why this is so, it would help to take a brief foray into political philosophy.

Two questions regularly confront all democratic states, Israel among them. The first concerns the extent to which the state should engage in benign paternalism—e.g., by taxing wealthier citizens in order to supplement the income of poorer citizens, or regulating private acts in order to advance public health or safety. In short, should the state promote welfare? The second concerns the extent to which governments should encourage or enforce moral standards by outlawing behavior that many people find offensive, or by inculcating religious values or qualities of character they regard as necessary for citizenship. In short, should the state promote virtue?

For the statists of yore, it was clear that the state ought to promote both welfare and virtue. But contemporary public discourse in Israel, as in most of the West, is framed by the “progressive” understanding that welfare is the state’s business and virtue is not the state’s business. This understanding itself, however, has become a device for smuggling into public discourse certain assumptions about the right and the good, in the service of a specific agenda that runs contrary to the one I wish to advocate. Let’s see how this works. 

The British philosopher Jeremy Bentham (1748-1832) famously maintained that the state should act in such a way as to maximize the aggregate utility of its citizens—“utility” being an economic term less squishy than “happiness.” Bentham’s utilitarian theories have been subjected to much valid criticism in the intervening centuries, much of it focused on the fact that maximizing aggregate utility fails to take into account another essential element of a just society: the distribution of utility among individuals. The basic question at issue is how to balance these two criteria or, more broadly, how to determine which arrangement of life in society is the most just. Among thinkers who have tackled that question in recent times, none has been more influential than the late Harvard philosopher, John Rawls, in A Theory of Justice (1971).

Rawls argues that in order to understand what justice entails, we need to imagine a group of people who are together trying to establish from scratch (“the original position”) the rules that will govern them as a society. This setup is similar to the one invoked by Rousseau and Locke in imagining the origins of the social contract, but Rawls adds a wrinkle. In order to prevent participants from leveraging any prior advantages they may have, we should imagine they are behind a “veil of ignorance” and do not know anything about themselves: their age or sex, their natural abilities, their social, religious, and moral affiliations, their beliefs and preferences, and so on.

What arrangement would these rational participants arrive at? According to Rawls, it would be one in which each person would have the maximum degree of liberty consistent with others having the same degree, and in which, of all possible distributions of goods,  the poorest member would be the best off (because that poorest  member might be you). Furthermore, since, by the rules of the game, participants do not know anything about their prior moral affiliations, they should all agree that the state must remain limited in its moral commitments and not adopt any particular community’s definition of what constitutes morality.2

Here, then, is a principled argument in favor of the state’s promotion of welfare and against its promotion of virtue. But note that it depends on two crucial and rather crippling assumptions. The first is that a person’s self, or identity, does not rest on communal affiliations. Yet once I peel away my affiliations, loyalties, and beliefs—everything that makes me me—no self is left standing with interests to negotiate. The claim that there is some “unencumbered self” (in Michael Sandel’s useful term), independent of and prior to the affiliations that constitute my identity, already begs a conclusion: namely, that the rights attaching to this “unencumbered self” trump those deriving from communities with which I may be affiliated. This is a conclusion that anyone attached to a community would wish to resist.

 

The second assumption is that one can speak of individual liberty independently of any theory of morality. But such moral neutrality is actually impossible. It’s easy enough to implement the rule that your right to wave your fist ends at my nose. But how do we implement the rule that your right to make a public display ends where my sensibilities begin without first deciding which sensibilities are worthy of protection and which are not? In fact, the whole notion that the state can be neutral toward its citizens’ moral doctrines turns out to be a chimera once you start thinking about concrete examples. As the legal philosopher Steven Smith has argued in The Disenchantment of Secular Discourse (2010), seemingly benign words like “neutrality,” “equality,” and “reciprocity” are often in practice used as Trojan horses for insinuating into the discussion any number of strongly biased ideas that one might wish to shield from scrutiny.

Suppose, for example, that we are arguing about whether abortion should be legal or illegal. You say a fetus is a human being, but I say that a fetus is nothing but protoplasm and that the state, since it must remain neutral on questions of morality, must permit abortion. By invoking neutrality—and hence implicitly assuming that abortion is not murder—my argument shields from discussion the crucial issue. One never knows where the neutrality card will be played in order to disqualify some position, or conversely where it will be conveniently ignored. Should the state remain neutral on voluntarily contracted slavery? How about consensual incest? Blackmail? Drug dealing? Supersized sodas?3

These two assumptions—that both individual identity and individual rights are meaningful independently of any moral community or comprehensive moral theory—collectively constitute a view that might be called universalism. What I want to show is that the universalist view not only assumes the marginality of communities; it also advocates an agenda that weakens and undermines the roles of such communities. 

 

Despite its arguments in favor of neutrality, universalism is itself anything but neutral. In amoralizing certain behaviors, it moralizes others. When universalists get their way, the state’s withdrawal from some matters of morality are counter-balanced by a full charge into others, often under the guise of promoting public health and welfare. Thus, while legislated restrictions on sex are in constant retreat, new legal restrictions on food consumption crop up like mushrooms after the rain. As Mary Eberstadt has pointed out, many who are licentious about sex have become puritanical about food (“Is Food the New Sex?,” Policy Review, January 2009). The consumption of meat, industrial breeding, genetically-enhanced produce, the use of pesticides, trans-fats—these are not simply regulated but regarded as moral transgressions.

Moreover, the redefinition of moralization at the heart of today’s universalist agenda is  raised as a bludgeon against moral communities and their traditions. The loosening of sexual taboos, for example, weakens traditional family structure and so damages the continuity necessary for the maintenance of moral communities. Meanwhile, the social engineering implicit in legislating the alleged welfare of the public obviates the need for evolved communal means of dealing with social problems. In making state policy, the instincts of ordinary people, past or present, count for little. When experts are trusted to engineer societies, as Thomas Sowell writes in The Vision of the Anointed (1995), the world’s most pressing problems tend to become precisely the ones amenable to social engineering.

There is a final way that the universalist framework undermines communities. In my elementary-school days, my classmates and I spent our recess time playing punchball on West 89th Street in Manhattan. Each day we’d choose up sides and then together agree on ground rules: which cars were in fair territory and which in foul, where to place the bases, and so on. Since we generally settled such matters efficiently and fairly, deliberately ignoring the strengths and weaknesses of our respective teams, we were, unbeknownst to us, pretty good Rawlsians. But once the ground rules were established, we stopped being neutral and played to win. Imagine how boring a game it would have been if we actually played as though we didn’t know which team we were on.

In the Rawlsian game, by contrast, there is no distinction between setting the ground rules and playing the game. One is forever supposed to play for a tie. You want to argue about abortion? Fine, but we want a nice clean fight, so kindly leave your most deeply held beliefs at the door. Only the neutral should wield power, and only self-declared universalists are truly neutral. It follows that they alone must regulate the affairs of moral communities to which they do not belong but be immunized from the influence of the presumptively benighted denizens of those communities. Unlike in punchball, team members have to play the game, but they don’t get to make the rules.

 

3. In Praise of Prudence

If we wish for communities to flourish, what policies should we then pursue? Should we, reversing the Rawlsian paradigm, maximize the power of particular communities to determine state policy, or at least maximize direct state contributions to the development of communities? Not in my view. Rather, the single most important thing communities need from the state is the ability to organize their own lives according to their beliefs and convictions, free from state interference.

Let’s begin with religious values and then proceed to religious institutions. While I reject Rawls’s normative arguments against the legislation of these values, there is a closely related prudential argument that I find compelling. In plain English, I don’t think state involvement in religion is wrong in Rawls’s sense, but I think it’s usually a bad idea.

To be sure, I don’t see why arguments in support of particular public policies based on religion (“comprehensive theories”) are unacceptable while arguments from other no less rigid ideologies (“public values”) are fine. I don’t see why restrictions on selling pig meat because it is offensive to Jewish tradition are more objectionable than restrictions on selling dog meat because it is offensive to European tradition, or why forbidding the sale of whale blubber on grounds of kashrut is illegitimate but forbidding it on ecological grounds is praiseworthy.

But this hardly means that legislating religion is a good idea. In fact, some such legislation will almost certainly weaken precisely the communities we wish to strengthen.

Here is a prudential version of Rawls’s veil of ignorance. Suppose we have the power to pass some legislation designed to anchor a community-specific moral principle in law—say, forbidding the sale of non-kosher meat. The underlying moral principle in this case is meaningful to me but no doubt completely opaque to many other people. What are the benefits to me of such a law? I’m likely to get a public square more to my taste. If the sight and smell of pig flesh make me ill in the same way polluted air makes others ill, such a law might help me avoid them. If seeing people blithely flouting the common Jewish heritage offends my moral sensibilities the same way that the sale of cat or dog meat offends others’ sensibilities, such a law might spare me the offense. If I genuinely fear for the souls of sinners, it might help me save them from the fires of hell. Such a law might even help to strengthen national solidarity by contributing to a core of shared values.

But what is the cost I incur from such a law? Well, obviously it can backfire. It might cause resentment among people who otherwise have shown no particular interest in consuming the flesh of pigs, and thus result in more commerce in that commodity than there would otherwise have been. It might also increase divisiveness and weaken solidarity. But I think the main cost to me and those who share my moral commitments has to do with a very real veil of ignorance. We might have the power to pass legislation today to enforce some moral principle that we believe in, but we are quite ignorant about how the chips of power will fall tomorrow or the day after. If we push through a ban on non-kosher meat today, people with stricter sensibilities and sharper eyes might push through a ban on broccoli tomorrow, and the following day some tender souls might ban animal slaughter altogether.

In short, it might be in our interest—it might be in everyone’s interest—to call a truce on certain kinds of moral legislation, simply in order to avoid mutual harassment. At the very least, whenever we contemplate such legislation, we need to consider how important it is for us, and to estimate the expected benefit against the expected cost. As a practical matter, legislation of morality is likely to be worthwhile only if the issue is extremely important to us (so we have a lot to gain), or if there is a strong consensus on our side (so we have little to lose), or if no neutral position is possible.

How does this pragmatic argument differ from the normative argument I reject?

First, it does not preclude the possibility of legislating in the event that the benefit to a sufficiently strong coalition outweighs the cost.

Second, it does not posit the superiority, or even the existence, of any neutral view. In fact, there are many issues about which there is no neutral position; abortion is either murder or it’s not. True, the possibility of such a neutral position might be an important consideration in determining the degree to which one law is better than the next best alternative. In those relatively rare cases where a neutral position does exist on a matter of considerable controversy, we might indeed be well-advised to seize it.

Third, no position is disqualified from public discourse.

As a practical matter, we incur the smallest cost in legislating morality when the moral principle being legislated is least controversial; in that light, the most judicious investment of effort on our part would be in creating consensus around our moral views. The best way to achieve such consensus is to strengthen moral communities generally—or at least the kinds of communities that share a significant portion of our moral views. If we wish to strengthen the right kinds of communities, the worst thing to do is precisely what many people in my little corner of the world advocate—namely, to cede community power to the state.

 

4. Against Monopolies

So much for the legislation of religious values. Let’s now consider the advisability of state funding of religious institutions, which in Israel specifically includes state sponsorship of both religious functionaries and religious services. There are at least four reasons why this is bad for communities.

First, a rabbi imposed on a community by distant bureaucrats is unlikely to be chosen according to the particular needs of that community; he is more likely either to be the recipient of patronage or bland enough not to threaten anyone on the relevant committee.

Second, even if the rabbi is competent, as a civil servant he will not have to maintain the respect of his community in order to keep his job and is hence unlikely to work any harder than absolutely necessary.4

Third, even in the event that a state-appointed rabbi is full of enthusiasm and positive energy, he can always be intimidated by state officials. An independent religious figure can lead resistance against overreaches of state power—think of Martin Luther King, Jr.—but is unlikely to do so if taking unpopular positions can get him fired by offended bureaucrats.

Finally, even if, despite everything, a state-appointed rabbi makes an independent decision, that decision will be subject to second-guessing by the courts.

That is precisely what happened in the Supreme Court case in Israel that I mentioned early on: an excellent example of how the very existence of a state-sponsored and state-regulated rabbinate can often do more harm than good. I asked there why a rabbinical organization that objected to a prevailing system of certification did not simply issue its own certification. The straightforward answer is that the only organization legally allowed to issue an official kashrut certificate in Israel is the state rabbinate.5

In the free-market system of kashrut supervision used, for example, in the United States, a certifying organization depends on its reputation to stay in business; if it is not respected by consumers, food manufacturers will have no incentive to pay for its services and it will go out of business. Different organizations tend to serve different markets, and for each, some level of stringency is a condition of survival. The system has proved to be quite efficient.

Under Israel’s quasi-monopolistic system, by contrast, the standards of supervision are extremely low. Since inspectors are paid directly by the establishments they supervise, they have strong incentives to overlook problems; also, inspections in Israel are extremely infrequent. Under normal market conditions, such poor service would be punished, first by suspicious restaurant patrons and next by the restaurants paying for the supervision; in a state-funded system, kashrut supervision is immune to punishment by clients.

An added disincentive is the fact that the state rabbinate is itself not at liberty to raise standards: on several occasions, the courts have ordered it to provide certification to establishments that did not meet the rabbinate’s own standards.6 Such, again, was the case in which the Supreme Court enjoined the chief rabbinate to force local religious courts to grant certification against their own best judgment. In a free-market system, it would not have been possible for the courts to have dictated standards to the rabbinate; nor would it have been necessary for them to do so, since the market demand for more lenient supervision would not have been frustrated by a legal monopoly.

 

Similarly serving little constructive purpose is the official rabbinate’s monopoly on recognized marriage. Currently, the marriage of two Jews in Israel is recognized by the state only if the officiating rabbi is authorized by the state rabbinate. Most arguments against this arrangement frame it as a violation of civil rights. But this is no more compelling than, hypothetically, an argument against laws restricting the performance of surgery to surgeons authorized by the official medical establishment. Once the government gets into the business of recognizing marriages, it has no choice but to establish standards. The line will be drawn somewhere, and no particular “somewhere” is inherently fairer than any other. The real problem is simply that the current arrangement is counterproductive by the rabbinate’s own criteria.

From the rabbinate’s point of view, the case for the current arrangement appears at first glance to be strong. For one thing, it compels Jews to meet a rabbi at a crucial point in their lives and hence has educational value. For another, it is said to reduce instances of mamzerut (“bastardy”), i.e., situations in which the children of adulterous unions are forbidden by halakhah to marry most Jews. For still another thing, it prevents same-sex marriages and inter-religious marriages, to both of which the rabbinate is strongly opposed.

Each of these points is vulnerable to objection. Jews who meet a rabbi out of legal compulsion are, to say the least, unlikely to come away from the experience with a warm and fuzzy feeling. This is especially true when, thanks to limitations on competition, rabbis have little incentive to provide the best possible service. Similarly, compelling people to marry according to halakhah when they are not strongly committed to the sanctity of marriage actually increases the chances of subsequent mamzerut. Nor does the rabbinic monopoly prevent same-sex marriage or intermarriage; it just causes them to be performed abroad, after which they are recognized in Israel.7

 

I don’t wish to overstate my case. While state intervention in what should be communal affairs is generally harmful to communities, there are areas lying at the intersection of religion and state in Israel where a bit of nuanced thinking is required to properly appreciate the tradeoffs between the costs and benefits of such intervention. Let’s consider three examples.

The first involves regulation of education. Communal resistance to the not-always-benign influence of state bureaucrats is assuredly important, particularly in sensitive areas like civics education, but in certain circumstances some state intervention can actually be beneficial. In the yeshiva elementary school I attended in my youth, most of our day was devoted to religious studies (and some punchball). For practical reasons, the vast majority of parents wanted their children to get a reasonable amount of “secular” education as well; but they and the head of the yeshiva were also eager to signal that ours was the most religious yeshiva in town. If left to the devices of the parents and the head of the school, this could have easily led to a race to the bottom in which the end result—very limited secular studies—would have left almost everybody unhappy. Conveniently for all concerned, it was necessary to conform with New York State educational requirements. This permitted all parties to maintain a principled position while still getting their preferred result. Thus, even bearing in mind the considerable risks of paternalism, one ought not ignore the potential benefits to communities of a state that is on occasion capable of identifying arms asking to be twisted.

A similar situation sometimes holds with regard to the enforcement of internal standards within a community. Surely, communities should wish to establish their own social norms, as well as mechanisms for limiting membership to those who conform to those norms. Nevertheless, when, for example, a “modesty patrol” harasses non-cooperators into leaving an ultra-Orthodox neighborhood, a fine line can be crossed between maintaining standards and criminal coercion. Enforcers of social norms have their own, possibly shifting, interests to attend to, and the system can too easily devolve into gang wars among groups with competing interests. (See, for instance, Eric Posner’s comments on charivari, a European precursor of modesty patrols, in Law and Social Norms, 2000, pp.76-77.) As opposed to such volatility, almost everybody would prefer the stability and (mostly) disinterested nature of state law enforcement.

Finally, consider the difference between charity, in which you give your money to a needy person or institution of your choice, and “social justice,” in which the state gives your money to a person or institution of its choice. The latter has the undeniably important advantage of being distributed according to transparent and objective criteria. Moreover, states have tools for coordinating and tracking disbursements to avoid duplication and waste, as well as enforcement mechanisms to punish and deter fraud.

Nevertheless, private or communal charity, while subject to no small amount of arbitrariness and duplication, also offers certain profound advantages. Those responsible for distributing local charities tend to be familiar with both donors and recipients, and they can establish criteria of eligibility that don’t encourage those who could be self-reliant to become dependent on handouts. Charity within a community is often regarded by today’s donors and recipients alike as a form of good fellowship that, in tomorrow’s circumstances, might be flowing in the reverse direction. It strengthens communal bonds and increases aggregate social capital.

For their part, states are too large and too committed to “neutral” policies to adopt criteria that might encourage self-reliance. Besides, the objective and static rules they must employ are easily gamed, thus rewarding precisely those least loyal to the state. Such entitlements often incentivize unemployment, encourage the dissolution of families, and reward manipulators. Moreover, just as citizens learn to game the system of entitlements, politicians learn to exploit it to increase their own power. The result is often a spiral of increasing power held by the state and of diminishing social capital within communities.8

 

5. Toward a Division of Roles

Let’s conclude by considering a plausible division of roles between the state and communal institutions. Just as there are a number of economic roles that even the most determined free-marketeers like Milton Friedman (in Capitalism and Freedom, 1962, Chapter 2) are prepared to concede to the state—starting with the protection of property rights by means of a police force, an army, and a justice system—so even in the realms of domestic virtue and public welfare there are some limited tasks that a central authority, particularly one with a monopoly on the use of force, can execute effectively.

The precise calibration of tradeoffs is a challenge of substantial proportions. The task of a state wishing to marshal the efforts of its citizens in their own collective interest is to maintain a delicate balance between liberty and solidarity. But the state’s ability to coordinate these efforts depends on the citizenry’s qualities of character, and those qualities are cultivated only through communal institutions. Even disparate communities are likely to share a regard for community-based moral instincts of the type rejected by many universalists. Such instincts—respect for authority and tradition, willingness to make personal sacrifices for communal benefit, and so on—are precisely the ones that ultimately strengthen states in the right way, increasing their viability without extending their reach. 

Strong voluntary communities offer the promise of liberty both from the power of the state and from the power of our own base passions. It is when communities are weak that societies begin to conflate morality with legality, leaving no middle ground between oppressive legislation and moral dissoluteness. As communities weaken, citizens’ lives are animated less and less by shared narratives that provide meaning, direction, and motivation for virtuous acts. Meanwhile, the state, unchecked by the mediating influence of these communities, expands its power. The resulting dystopia is characterized by the “soft despotism” of the state captured so perfectly by Tocqueville: “an immense, tutelary power, which takes sole charge of assuring [men’s] enjoyment and of watching over their fate [and whose] object [is] to keep them irrevocably fixed in childhood” (Democracy in America, Vol. 2, Book 4, Chapter VI).

 

Tocqueville was optimistic about the ability of 19th-century Americans to resist the soft despotism of the state, because he found in them an abiding love of liberty. One might wonder about the disposition of present-day Americans in this regard. But whatever the case may be in the U.S., historically Israel’s situation has been different.

The United States was founded by citizens of European states who sought freedom from those states; Israel was founded by members of a stateless people seeking their own state. And so it is unsurprising that Israel’s founding myths should have been all tied up with statism. As things have played out, today’s descendants of the Zionist group instrumental in founding the state constitute an entrenched elite pursuing a universalist agenda that, under Israel’s geo-political circumstances, imperils both state and society. Their religious counterparts, similarly, have become largely addicted to a statist agenda: religious Zionists out of faith in the state’s redemptive powers, and religious non-Zionists out of dependency on state welfare.

Recent events on the political front, including the repeated failure of diplomatic and other concessions to advance peace, the state’s rejection of the religious-Zionist territorial agenda, and the dramatic weakening of religious parties whose constituents depend in part or in full on state welfare, have precipitated some fresh thoughts on all sides. Nevertheless, the basic lineaments of the statist agenda remain in place, and any real change for the better will be slow and hard-fought.

Israel’s promise is that it will free the Jewish people from dependence on other nations and facilitate the transformation of Judaism from a counter-culture to a national culture; in short, that independence and liberty will allow the Jews to mature as a people.9 It would be worse than merely ironic if instead the Jewish people were to allow their own state to infantilize them, turning them from a stiff-necked people into, in Tocqueville’s words, “nothing more than a herd of timid and industrious animals, of which the government is the shepherd.” 

 

Responses

  1. Much Obliged by Yuval Levin, July 8
    Moshe Koppel argues brilliantly for the separation of religion and state in Israel. But he makes one mistake: religion is not just one choice among many.
  2. Privatizing Religion in the Jewish State? by Ruth Gavison, July 15
    They say America is the most religious Western democracy because and not in spite of its separation of religion and state. How would this work for Israel?
  3. Saving Religion from the State by Mosaic July 18 (Video)
    “I actually want Jewish thought to influence public policy in Israel,” Moshe Koppel tells us in this video interview.
  4. What Does the Covenant Require? by J.H.H. Weiler, July 22
    There should be no place in Judaism, or in the state of Israel, for religious coercion of any type. 
  5. Where Israel Differs by Yisrael Aumann, July 25
    Separating religion and state sends the wrong signal in principle, and could wreak havoc in practice. 
  6. How Not to Perpetuate Judaism in the Jewish State by Moshe Koppel, July 29 
    If you value Judaism and wish to see it retain its vitality, keep it out of the hands of the state bureaucracy. Is that so complicated?

More about: church and state, Free Exercise of Religion, Halakhah, Israel, Jewish State, Moshe Koppel, Social Justice, Universalism, Zionism

 

Much Obliged

Moshe Koppel argues brilliantly for the separation of religion and state in Israel. But he makes one mistake: religion is not just one choice among many.

 
Response
Yuval Levin
July 6 2013

Minerva as a symbol of enlightened wisdom protects the believers of all religions (Daniel Chodowiecki, 1791)

Minerva as a symbol of enlightened wisdom protects the believers of all religions Daniel Chodowiecki, 1791.

Moshe Koppel has written a brilliant critique of Israel’s approach to the relationship between religious communities and the government, and in the process has offered a profound meditation on the meaning of community in modern life. In a concise and learned way, he has opened up a crucial question to which many Israelis assume the wrong answer is the only answer. At the same time, he has shown an admirable appreciation for the limits of the Israeli polity. In short, he has accomplished the rare feat of writing an essay that is simultaneously practical and deep, ambitious and modest.

I worry, however, that his framing of the argument risks undermining its goal. Simply put, Koppel advocates the empowerment and independence of religious communities on the basis of their being communities, rather than on the basis of their being religious. In so doing, he puts himself at odds both with the Anglo-American tradition of religious toleration and with the Israeli tradition of social-democratic statism. By drawing upon a libertarian strain in Anglo-American political thought that emphasizes too simple a notion of choice, he denies himself recourse to arguments that might better appeal to his fellow Israelis.

 

Koppel begins by describing as “outlandish” the common view that the Jewish state should be deeply involved in the institutions and practices of its people’s Judaism. This view, he says, grounded as it is in the statism that has always defined Israel’s self-understanding, commits the fundamental error of “conflating peoplehood with statehood and community with state, and ignoring the fact that membership in each is determined in completely different ways.” 

On this distinction between the state and the community hangs a great deal of Koppel’s argument. Thus, he defines a community as “composed of members who choose to submit to its authority because they identify themselves with its ethos,” while a state “imposes obligations (approximately) equally on all within its geographic scope.” It follows that communities, being voluntary, should avoid imposing their moral views on the larger society through legislation or through connecting their institutions with those of the state.

In advancing this position, Koppel isn’t suggesting that such entanglement is illegitimate, only that it is imprudent and unwise. Indeed, he goes out of his way to distinguish his view from what he terms the “universalism” of liberal thinkers like John Rawls, who believe that the only legitimate moral code in politics is a thoroughly individualist one, built around the notion of a choosing self that exists prior to all community affiliations. As Koppel rightly notes, this would mean in effect that no moral arguments except utilitarian ones could be legitimately raised in the public square.

But Koppel’s rejection of the unaffiliated, choosing self as the basic unit of social and political analysis requires us to take another look at his own definition of community. To insist that what matters most about community affiliations is that they are voluntary is at least implicitly to accept the notion of a choosing self that pre-exists those affiliations. Even more consequentially, it is to make religious affiliation just one more choice among many.

That Koppel himself inclines to this view is clear from his defense of his “prudential” argument against legislating religious morality and practice. To repeat, he insists that, however unwise such legislation may be, it is not in and of itself illegitimate: 

I don’t see why arguments from religion are unacceptable while arguments from other, no less rigid ideologies are fine. I don’t see why restrictions on selling pig meat because it is offensive to Jewish tradition are more objectionable than restrictions on selling dog meat because it is offensive to European tradition.

Yet this passage points to the great vulnerability of the libertarian conception of community that Koppel seeks to advance. By contrasting religious convictions with “other, no less rigid ideologies,” he suggests that religious views are in fact just another ideology. Being fundamentally voluntary and chosen, religious commitments are no less but also no more important, and no more legitimate, than other choices.

 

By contrast, the tradition of religious toleration (or what the spirit of our times now compels us to call “religious liberty”), which is the foundation of the case for separating religious and political establishments in the Anglo-American world, emphatically rejects this equation. Instead, it argues for keeping religion apart from politics on the grounds that religion is more than just another ideology. Unlike affiliations with assorted civic organizations or community groups, religious commitments are understood to flow from a profound obligation that is not a product of choice. To force a citizen to violate his religious obligations is to compel him to violate his conscience. By the same token, allowing him to meet his religious obligations is not a matter of leaving him free to make a choice but a matter of leaving him free to do what he has no choice but to do.

John Locke’s Letter Concerning Toleration, written in 1689 and often regarded as the cornerstone of the Anglo-American idea of religious liberty, articulate this view concisely:

Every man has an immortal soul, capable of eternal happiness or misery; whose happiness depends upon his believing and doing those things in this life which are necessary to the obtaining of God’s favor, and are prescribed by God to that end. It follows from thence . . . that the observance of these things is the highest obligation that lies upon mankind. 

If religious affiliation and practice constitute our “highest obligation,” the state must take special care not to prevent us from meeting that obligation.

No less clear is James Madison, the author of the first amendment to the U.S. Constitution and so of America’s formal rejection of religious establishment. Here he is writing in his famous “Memorial and Remonstrance against Religious Assessments” (1785):

It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to Him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe.

Religion, in this reasoning, is prior to politics. The nature of each person’s or each community’s obligation to God is surely up to the judgment of that person or community. But the government cannot look upon those judgments as mere choices, because to the people involved they are not optional. Why, then, avoid the legislation of religious morality or practice? Because of the fact of religious diversity: there are contested questions among religious movements and sects, and the only way to govern people with such different views is to leave the government out of those questions.

It is not hard to imagine an argument along these same lines for the disestablishment of Israeli Judaism. Given the differences between secular and religious Jews in Israel, among religious Jews themselves, and among Jews, Christians, and Muslims, the case for allowing religious communities to govern their own specifically religious affairs is as strong as the case against state involvement in the management of religious institutions.

Koppel himself gestures toward this line of reasoning with his prudential argument against religious establishments. Entanglement with the state, he writes sharply, tends to undermine the quality of the clergy with perverse incentives and infantilizes the members of religious communities by encouraging dependence and sloth. Ultimately, however, he bases his appeal in an idea of the religious community that fails to elevate religion above assorted other choices, and he therefore fails to show why religion and politics ought to be distinguished—even in a nation that does not prize individual liberty above all.

Indeed, Koppel’s view of the proper relationship between state and community is even more foreign to Israel than his idea of religious communities independent of the government. After all, as he himself notes at the end of his essay, Israel’s intellectual and historical roots are not America’s. 

 

Israel’s political culture is a product mainly of the social-democratic movements that emerged in central Europe in the course of the 19th century. In the Israeli political tradition, therefore, the “conflation of peoplehood with statehood,” to use Koppel’s disapproving characterization, is an absolutely fundamental principle. That conflation is nearly the essence of Zionism. It is not going away, and if it is to be refined and mitigated, the process will have to take place as the consequence, not as the premise, of a burgeoning civil society and religious community.

Fortunately, signs of such a burgeoning are evident all around in today’s Israel. In the fullness of time, this should make it far easier to point to the uniqueness of religion—that is, to the fact that religion is a source of unchosen obligations and a source of division and disagreement among citizens—and to argue on those grounds for a religious exception to the notion that all social institutions should be government institutions. Easier, certainly, than to make the same argument by describing religious commitments as just another choice, no more or less legitimate than other rigid ideologies.

In the end, yielding to the fetish of choice seems an unconstructive path to the worthy goal that Koppel has set for himself and his fellow citizens. He might do better to argue for the limits of choice, as well as the limits of politics, as foundations for a clear distinction between religion and the state, even in the Jewish state. 

Yuval Levin is the founding editor of National Affairs, a quarterly journal of public policy and political thought, and Hertog Fellow at the Ethics and Public Policy Center in Washington, DC. He has been awarded a 2013 Bradley Prize for distinguished contributions in the fields of scholarship, journalism, and public service. 

More about: church and state, Free Exercise of Religion, Jewish identity, Moshe Koppel

 

Privatizing Religion in the Jewish State?

It is often remarked that America is the most religious Western democracy because and not in spite of its separation of religion and state. Would an Israel that adopted a similar system be both more democratic and more Jewish?


 Yes but also no, argues Ruth Gavison. In the Israeli context, the relevance of the American model is limited.

 
Response
Ruth Gavison
July 14 2013

Moshe Koppel is a supporter of the Jewish state who, in marked contrast to many of his religious and political allies, argues for the separation and privatization of religion in Israel. This he does on the basis of a distinction between states (large, heterogeneous, territorial) and communities (small, homogeneous, voluntary). Between these disparate entities he urges a division of labor, under which states should enforce liberty and provide for some corrections of market failures but mainly facilitate and encourage the freedom of communities, including religious ones, to pursue their moral and social purposes—which often enough provide value and meaning to the life of the society served by the state. 

In this account, good states seek a balance between political freedom and social solidarity, and wise states know that the path toward this goal lies through restricting their own reach by empowering the work of communities. Hence the distinct features of the American model, which Koppel on the whole endorses: broad religious freedom from the state, very limited legal endorsement of religious values as such, no establishment or financing by the state of religious institutions and services.

In the Israeli context, however, the relevance of the American model is limited. On the one hand, we have a large, successful, modern state whose defining ethos is a Constitution privatizing and legally equalizing all non-civic affiliations while simultaneously building on the fact that (at least until recently) Christianity cuts across most of its social divides. On the other hand, we have a small and still relatively new state founded in order to enable the revival of Jewish independence in its ancient homeland while respecting democracy and the human rights of all within it. This state also operates in a region mostly Arab and Muslim and hostile, where democracy has not been entrenched and where non-civic affiliations (religious as well as ethnic) are much deeper and stronger than civic ones, leading at times to bloody wars among domestic communities themselves.  

One way to square the Jewishness of Israel with the American model might be to posit that Israel is Jewish (in the religious sense) just as the U.S. has often been described (again, at least until recently) as Christian. That is to say, the particular non-civic quality of each society is embodied in its history, culture, and demography, but is not endorsed by the state itself even as, for a variety of historical and political reasons, the country’s “civil religion” singles out religion from other forms of association and affiliation.

From the inception of Zionism, Zionists, whether religious or secular, aimed at something different—a difference reflected in the fact that, in its basic laws, Israel defines itself as “Jewish and democratic.” The state thereby declares emphatically that it does not want totally to privatize its Jewishness. Nor is that Jewishness a matter of private communities independent of (though also supportive of) a state defined only as a home to all its citizens.

Does Koppel mean to suggest that Israel can and should nevertheless privatize the Jewish religion, without necessarily privatizing all possible Jewish affiliations, preeminently the ethnic and cultural ones? According to this reading, Israel should be considered “Jewish” as Arab states are considered Arab, as in the formulation of the 1947 UN resolution partitioning Palestine into two states, one Arab and one Jewish. It is unlikely that he does mean to suggest this (or even to concede that Jewishness can be totally separable from religion). Yet it is worth noting that even this sense of Jewishness would be problematic in terms of Koppel’s own account of the good state. For how could non-Jewish communities of Israeli citizens be expected to instill in their young a sense of patriotism and membership in a state that makes them second-class citizens at best?  

Koppel is right that good and wise states do not seek to replace the thick moral and social identity of their citizens and communities. Liberal “universalists” who ignore this truth do so at their peril. Yet issues of state and religion (as well as state and ethnicity) in Israel cannot be analyzed only along the very contingent and fortunate lines of present-day America.1 The model cannot be one of a small “night-watchman” state versus robust and free communities, for the simple reason that the state of Israel must arbitrate among the particular visions of many different communities whose attitudes to each other, and to the state, are complex and not always positive. On top of this, Israel must square its obligation to all its citizens, Jews and non-Jews alike, with its own avowed and non-privatized Jewish distinctiveness.

A great deal of privatization of (Jewish) religion is indeed consistent with this enormous task, and is even desirable and necessary for its implementation. About this, Koppel is undoubtedly correct. Indeed, it is bad for the debate about the Jewishness of Israel to be interpreted in purely religious terms, since the justification for statehood relates not to the creation of a Jewish theocracy but rather to the self-determination of all Jews interested in such self-determination, regardless of their attitude to religion.

The difficulty of the task is both political and philosophical/theological. One cannot deal, as Koppel does, only with the internal Jewish debate. Nor can one discuss law and religion without regard to the ongoing debate in Israel about the nature of Judaism and the Jewish collective. Jews in Israel are not one community. They are many. Their visions of the good life are similarly many and at times incompatible—despite and possibly because of the fact that most of them want both to maintain their Jewish identity and to transmit that identity to future generations.

These, then, are some necessary qualifications to Koppel’s analytical framework. As it happens, though, taking them into consideration actually strengthens many of his practical suggestions for state-religion arrangements in Israel.

 

As the place where Jews of all stripes and attitudes enjoy self-determination with respect to their Judaism, Israel will in fact be stronger in its insistence on the importance of communities and their moral robustness if the state is not dragged into religious debates that it is neither competent nor able to resolve; if the integrity of religion and of religious services and institutions is not wedded to state largesse; and if the cause of Jewish statehood is immunized against the increased intrusion of Jewish religious law (halakha), in its most exclusivist interpretation (especially concerning the status of women and non-Jews), into Israel’s public life and legal arrangements. 

The state should welcome the opportunity to relegate these debates to a religious sphere not endorsed by the state itself. If it does so clearly and consistently, it will be more able to maintain its complex identity as both Jewish and democratic. Doing so will also facilitate a sense of Jewish solidarity among all Zionist Jews—a sense critical to the health of Israeli society but now threatened by state-sanctioned religious monopolies with control over the life of many non-observant Jews. A shared awareness of just this critical need was central to the effort undertaken by Rabbi Yaakov Medan and myself to draft a set of consensus proposals for Jews on issues of state and religion. In his article, Koppel graciously indicates his general agreement with these concrete ideas.

Nevertheless, I am not arguing that religion in general, and Judaism in particular, can be fully privatized. To the contrary, I believe they cannot and should not be. Israel is the one place in the world where Jews are a majority and enjoy self-determination. It is and will be and should be Jewish in a cultural sense (as is clearly evidenced in the current debate over the public observance of Shabbat as a day of rest). At the same time, it should protect freedom of religion and provide all of its citizens, irrespective of religion or ethnic identity, with such services as education, health, security, social security, marriage and divorce, burial and housing. It should not be in the business of employing religious leaders who advocate, in the name of religion, violating its laws, challenging the legitimacy of its government, or denying its services to its citizens.

Like Koppel, I firmly believe that separating halakha and religious teachings as such from the state will facilitate all these ends, not only making Israel more democratic but making it more Jewish as well. Let me illustrate with the example of marriage and divorce.

Koppel supports the abolition of the religious monopoly over these matters—a monopoly inherited from the Ottoman millet system—because it is counter-productive to achieving such legitimate Jewish goals as the prevention of mixed marriages and mamzerut.2 I join his bottom line, but my approach starts from the viewpoint not of the religious establishments but of the state.

Empires often used the millet system as a way of maintaining “thin” central control while granting autonomy to local, mostly communal authorities. They did not see themselves as also responsible for the freedom of individual members of religious and ethnic communities. Modern states cannot do that. They need to permit and cultivate communities, but also to develop civic cohesion and to protect individual rights. To this, Israel must add the obligation to maintain and develop Jewish flourishing. The regime of marriage and divorce is a prime instrument for achieving this complex task, but the present religious monopoly protects communities only under orthodox interpretations of the religion, ignoring all other parts of the equation.

In short, it is and should be the obligation of the state to allow its citizens to form the family unions that the state authorizes. What Israel should have—similar to the American model that Koppel usually endorses—is a civil framework for marriage and divorce under which the state decides who can get married in its jurisdiction, with that framework being arrived at through a political, democratic process attending to the preferences of all groups.3 Couples eligible to marry can decide how and by which ceremony and with which authorized official they will exercise their right. The state should also regulate divorce (while ensuring that individuals obtain a proper religious divorce where applicable).

All this is designed to promote state responsibility and the development of a civic place to which all citizens have access, but which in itself does not force citizens into a specific religion or culture or community. At the same time, by supporting and encouraging the tendency of couples to choose the ceremony most suited to their way of life, the state also recognizes that families and kin are primarily communal matters.

It is often remarked that America is the most religious Western democracy because and not in spite of its separation of religion and state. An Israel that adopted a similar regime for marriage and divorce would be a state recognizing its duties to all its citizens. It would be a state that encouraged members of the Jewish majority, along with all others, to work creatively on their communal life. It would no longer be a state sidelined by the perceived need to fight a holy war for or against religion. And it would be, I confidently predict, a state both more democratic and more Jewish.4

Ruth Gavison is the Haim H. Cohn Professor Emerita of human rights at the Hebrew University of Jerusalem and the founding president of the Metzilah Center in Jerusalem. 

______________________________________

1 Of course, I cannot discuss the accuracy of this portrait of the American model, together with its social and philosophical presuppositions.

2 If the monopoly were not counter-productive, would he support the current arrangement, despite the fact that it enforces religious values on all and grants to religious authorities both state power and a state salary? Koppel professes not to see a violation of human rights here, drawing an analogy between the chief rabbinate’s exclusive power over state-recognized marriages and the medical establishment’s power to authorize those competent to perform surgery. This is an odd statement from someone sensitive to religious freedom, which presumably includes the freedom not to be religious at all.

3 With Koppel, I reject the claim that religious arguments must be excluded from political deliberations. The only constraint I accept on democratic legislation is the protection of core human rights, among which is religious freedom, including freedom from religious coercion. But not every limitation of freedom based in part on religious considerations amounts to religious coercion. Sunday or Shabbat laws are a prime instance.

4 For a full development of the ideas in the preceding paragraphs, see A Civil Framework for Marriage and Divorce in Israel by Pinhas Shiffman and Avishalom Westreich (2013), a paper by the Metzilah Center.

More about: church and state, Israel, Jewish identity, Moshe Koppel, Zionism

 

The Jews Will Take Care of the Rest

Moshe Koppel wants to clear something up: He's not actually calling for less religious involvement in public life. 

 
Response
Mosaic
July 17 2013

Moshe Koppel wants to clear something up: He’s not calling for less religious involvement in public life. “I actually want Jewish thought to influence public policy in Israel,” the author of our July essay, “Religion and State in Israel,” told us when we visited him in his Jerusalem office last week. “There are all kinds of issues about which Jewish tradition has important things to say.” 

Watch now:

More about: church and state, Free Exercise of Religion, Israel, Jewish identity, Jewish State, Moshe Koppel

 

What Does the Covenant Require?

There should be no place in Judaism or in the state of Israel for religious coercion of any type. This is not a facile concession to modernity, nor to convenience. It is a position rooted in deep theological reflection.
 
Response
J.H.H. Weiler
July 21 2013

Like Moshe Koppel, I too would like to see in Israel a society where adherence to Jewish religious norms is self-generated by the country’s Jewish community, or communities, rather than state-imposed. I also share several of Koppel’s specific policy recommendations. The observance of kashrut, for example, would certainly be enhanced if the state were to remove itself from the business of supervision and enforcement—except for the need, in this area as in all others, to interdict consumer fraud (as when someone falsely affixes an Orthodox Union sticker to a product not supervised by that organization).  It works in America, Koppel persuasively shows, so why not in Israel?

I am inclined to go even farther than he when it comes to the issue of marriage, or rather the use of state power to compel all citizens—Jews of all kinds, Muslims, Christians, confirmed atheists, etc.—into a religious form of matrimony. This may be the single most egregious violation by Israel of human-right standards accepted in every Western democracy. Conceptually, forcing an atheist to undergo a religious ceremony in order to vindicate the right to marry is as otiose as forcing a Jew to attend church in order to vindicate the same right. To me, most arguments against a civil-marriage option in Israel smack not only of bad faith (in the sense of being driven by ulterior considerations of power) but of truly bad faith (in the sense of being inimical to halakhic Judaism and to Jewishness). Here, too, Koppel’s “it works in America” is very persuasive.

Finally, I am in agreement with two central pillars of Koppel’s larger quarrel with contemporary political theory. Thus, he ably debunks John Rawls’s distinction between, on the one hand, “comprehensive theories”—Rawls’s disdainful term for, mostly, religion—which in the Rawlsian scheme must not be allowed to form the basis of general legislation, and, on the other hand, ideologies espousing so-called “public values” that a majority may impose on a minority through the majoritarian democratic process. (My own critique of Rawls would stress his lack of any nuance or subtlety concerning religion in general and more specifically the nature of religious normativity.) Similarly, Koppel usefully explodes the tired canard that secularism, or what the French call laicité—i.e,. the choice for strict separation of church and state—is somehow “neutral,” when it is nothing of the kind. 

 

But there is a gaping hole in the Koppel vision, as well as a conceptual issue of consequence, on which I would like to comment.

“What sorts of ideas,” Koppel asks, “lead reasonable people to outlandish expectations concerning the relation of a Jewish state to the practice of Judaism?”  Well, many reasonable people might wonder in turn how Koppel himself understands the meaning of Israel as a “Jewish state.” Indeed, Koppel’s own preferred scenario might strike many such people as just another version of secularized, multicultural America, only with a Jewish majority. With this in mind, I think it useful to introduce a broader perspective.

  

America’s constitutional values have had a huge impact around the globe, not least on those in Israel who think about issues of religion and state. But America, as the paradigm of “a state of all its citizens,” is also something of an anomaly. Most Western liberal democracies, notably in Europe, have followed a different path. In most, the state is instead an expression of the self-determination of a distinct people with a no less distinct national identity, and is so recognized in international law. That identity is itself made up of a mix of attributes including a common language, high and low culture, and, historically and importantly, religion. Everywhere, it is accepted as axiomatic that the state may privilege these aspects of peoplehood.

Take England, for example. There, the monarch is not only the head of state but also the titular head of the established church, the Church of England; the national anthem is a hymn from the Anglican prayer book; the flag carries not one but three Christian crosses; and, most striking of all, the bishops of the Church of England sit, ex officio, in the House of Lords.

Or take Ireland, whose national identity is intricately connected to Catholicism, and where the preamble to the constitution makes reference to the Holy Trinity and the divine Lord Jesus Christ. Or take Italy, where the language of instruction in schools is of course Italian; one studies more Dante than Shakespeare; Italian history is accorded pride of place.  An exception is made to accommodate the sensibilities of some of the German linguistic minorities in northern Italy, but this exception is driven by respect for those minorities and hardly involves a denial of the “Italian-ness” of the state or the national culture. Moreover, to say that the Italian national culture is deeply Catholic is only to state the obvious; a cross is required in every public classroom.  

In all these places, admittedly, religion is a delicate matter. The question is this: how can the state affirm the religious elements in its national identity without compromising the imperative of freedom of religion—and from religion? In other words, how can a state be both Christian and democratic? The answer has lain in drawing a line between those facets of the state, including religion, that give robust expression to the dominant national identity and the individual level at which all citizens are regarded as equal in rights and duties and where strict freedom of and from religion has to be respected. This is now part of the common constitutional endowment of Western democratic pluralism.

The example of England is again pertinent. In England, the state supports Church of England schools but also, on the principle of equality, Catholic, Jewish, Muslim, and countless secular schools. Despite the troublesome issues this can raise, some of which Koppel rightly alludes to, there is much to be in said in favor of such across-the-board state support. 

Why? For the simple reason that the major cleavage in today’s democratic societies is not between, say, Catholics and Anglicans, or Jews and Muslims, but between the religious and the non-religious. In these circumstances, to have secular education enjoying the full financial support of the state but forcing religious educational establishments to be self-reliant disadvantages large numbers of parents and students who wish a religious school. In the face of such discrimination, the British or Dutch model seems to me both more “neutral” and more just than does the American or French model of strict separation.

True, at an individual level, most British citizens have a weak religious sensibility. But the prevailing arrangement is part and parcel of what it means to be English, and any attempt to abolish it would be opposed by a majority of the population. What is of critical importance is that the sizable communities of Catholics, Muslims, and Jews in England (and more broadly in the rest of the UK) not only live in peace with this same arrangement but regard the Queen as their monarch and themselves as subject to all the rights and duties of citizenship and entitled to the same capacious freedom of religion (and from religion) as is granted to every Anglican. 

What is true of England is true also of Ireland, where the same constitution that refers to the Holy Trinity guarantees freedom of and from religion to all. As for Italy, interestingly, the presence of a cross in all public classrooms (not unlike the mezuzah that can be found in all public classrooms in the Jewish sector in Israel) was challenged in a 2010 case argued before the Grand Chamber of the European Court of Human Rights on the grounds that the requirement violated the right to freedom from religion. In a 15-2 decision, the court rejected the challenge. The decision has been much debated, and there is no denying that hard cases can indeed make questionable law. What is nonetheless impressive, and telling, is the mere fact of such a huge majority on a court famed for its liberalism and its assiduous protection of individual rights.

All of this would be considered anathema to American sensibilities. But I have already indicated that the U.S. Constitution is the exception, not the rule; and so is the strictly secular French model of laicité. A majority of the people of Europe beg to differ.

In sum, Israel can rely comfortably and with full assurance on its constitutional identity as the state in which the right of the Jewish people to self-determination finds expression. That state may, and I think should, allow space for expressive self-identification on the part of its national and religious minorities; but the flag, the national anthem, the day of rest (restrictive “Sunday trading rules” exist in many liberal democracies), the festival days, the language, the curriculum in schools, and many more aspects of its national and religious identity are all perfectly commonplace and appropriate. The one thing that the state may not do, if it wishes to belong to the family of Western liberal democracies, is to impose religious practices on individual citizens.

 

This brings me to my conceptual divergence from Koppel. He speaks throughout of Jewish values. The term, with its connotation of commonly agreed-upon ethical and moral ideals, strikes me as only partially capturing the Jewish context. To be sure, ethics and moral ideals are central to Judaism, not only in the worldview of the biblical prophets but also in the realm of halakha, religious law. But the practice of traditional Judaism embraces many norms—mitzvot—whose underpinnings lie not in the sphere of public reason and ethical deliberation but in revelation alone. This is not to deny that these mitzvot are carriers of values, perhaps even the deepest values of Judaism. But that is not the sense in which Koppel invokes the term. The distinction I am driving at is critical, since the binding nature of revelation-based mitzvot is predicated on their being part of, and on the individual Jew’s acceptance of, the covenantal bond.

In the past, Judaism has not shied away from coercing members of the community not only in matters of ethical practice but in the observance of revelation-based mitzvot. Needless to say, those circumstances have long since ceased to obtain. And yet, in its difficult adjustment to modernity, today’s traditional Judaism has still not seriously faced the issue posed by those members of the community who in one way or another reject the covenant in its halakhic form.

Modern or centrist Orthodoxy, which represents halakhic Judaism’s only chance of not descending into an Amish-like exclusivity, displays two kinds of heroism. One, captured famously in Rabbi Joseph B. Soloveitchik’s The Lonely Man of Faith, is the heroism to be guided by a normative halakha that stands steadfast in the face of time, that transcends time, and that in many ways defies the tides of time. The other, enacted most strikingly in the precedent-breaking decision by the same Rabbi Soloveitchik to include girls as co-equals in the study of Talmud in modern-Orthodox day schools, required not only courage but a deep understanding of how the eternity of halakha must be rooted in the encounter with new realities. Indeed, rabbinic Judaism in its ancient formation may be seen as just such a response to a truly cataclysmic new reality: the one created by the destruction of the Temple, the end of prophecy, the loss of Jewish sovereignty followed by exile, and the rise of Christianity.

The sociological changes in the Jewish people over the last centuries have been no less radical. For the first time, there emerged a massive, internal decoupling from Judaism and Jewishness, traditionally understood as encompassing both peoplehood and covenantal faith. “Secular Jew,” no longer an oxymoron, became a social reality, as millions of Jews retained their commitment to an identity shorn of its halakhic component but no less profound than the identity proclaimed and practiced by the most pious of halakhic Jews.

For halakhic Judaism to disregard, minimize, or trivialize the revolutionary nature of this development—as  halakhists do who treat this huge part of the community as “captive infants,” suffering from false consciousness—is not only morally repugnant but  equivalent to pretending the Temple was not destroyed. When I say that halakhic Judaism has to grapple seriously with the new reality, I do not mean that it has to dilute its normative commitments or even to cease regarding all Jews as covenantally bound. But it does have to refrain from using coercion, not least legal coercion by the state, to achieve adherence to revelation-based commandments. 

Moshe Koppel, too, issues a cautionary note against religious coercion. But he bases his caution in a prudential argument: we must be wary, he writes, lest such coercion come back one day to sting us. Speaking as a Jew who strives, imperfectly, to live a halakhic life, I believe that even if we were absolutely certain that coercion would not come back to be used against us, there should be no place in Judaism or in the state of Israel for religious coercion of any type. This is not a facile concession to modernity. Nor is it a concession to convenience. For all of the reasons explained above, it is a position that must be derived from and buttressed by halakha itself, out of deep theological reflection and religious conviction.

In contemporary discourse, as it happens, the most powerful justification of freedom from religion arises precisely out of the depths of religious conviction itself. The principle is simply stated: it is hateful to God that individuals be coerced to worship Him. The deepest expression of this principle is to be found in the idea of covenant on which normative, halakhic Judaism is based. At Sinai, Judaism not only gave the world monotheism, it also revolutionized, through the idea of voluntary covenant, the relationship between God and man.  

Historically and theologically, the coercive aspects of Judaism were also predicated on the voluntary acceptance of the covenant by the people as a whole. It is precisely the decoupling of Jewish peoplehood from covenantal normativity, as described above, which removes that predicate. This radical change requires not an accommodation but its own radical thinking of the coercive aspects of Judaism as applied to those loyal parts of the Jewish people whose self-understanding as Jews is no longer covenantal. 

We Jews, throughout significant epochs of history, were victims of persistent attempts at religious coercion. We revere those who sanctified the name of God by resisting, even unto death. In the age of our newfound sovereignty in Israel, we should reject all such coercion, not only out of prudential or democratic-pluralist considerations but also as a matter of internalized halakhic norms, the norms of Judaism itself.  

J.H.H. Weiler is co-director of the Tikvah Center for Law & Jewish Civilization at the New York University School of Law.

More about: church and state, Free Exercise of Religion, Israel, Jewish identity, Jewish sovereignty, Jewish State, Moshe Koppel

 

Where Israel Differs

Separating religion and state sends the wrong signal in principle, and could wreak havoc in practice.

 
Response
Yisrael Aumann
July 24 2013

The provocative “Modest Proposal of my good friend Moshe Koppel is well thought out, lucidly presented, and buttressed by history, logic, facts on the ground, and clear thinking; altogether, it makes fascinating reading, like everything he writes. Had I not been requested explicitly and urgently to do so, I would not have presumed to comment on it; but I was, so I will. I won’t disagree—rather, I will present an alternative view for the readers’ consideration.

Koppel makes two key points: (i) On general philosophical grounds, there is no reason for the state of Israel to refrain from being in the business of religion: regulating marriage and divorce, involving itself in matters of kashrut and the sabbatical year and Shabbat and family purity, financing the building of synagogues, appointing rabbis, supporting religious schools and other cultural institutions, and so on. (ii) Pragmatically, such involvement of the state in religious affairs weakens the impact of traditional religion, so Koppel is against it.

And, at the very beginning of his essay, he writes that “Although my specific concern is Israel, the issues at stake . . . are applicable to every democratic society grappling with the crossroads between religion and state.”

There, precisely, lies the rub. Israel is not like “every democratic society grappling with,” etc. Indeed, other than Israel there are very few such societies, if any. But even if there were, Israel would be different, unique. Israel is a Jewish state. It is also democratic; but first and foremost, it is, or should be, Jewish. Koppel’s reasoning is based on general considerations, on “every democratic society”; it fails to take account of Israel’s unique situation.

For thousands of years, we have been begging G-d, three times a day, to “return in mercy to Your city of Jerusalem.” He has now returned, or so we hope; it is up to us to make Him feel at home, to make Him stay. I myself came from the United States to Israel, some sixty years ago, only because of that: I wanted to come home.

Koppel repeatedly stresses that the “community” is the proper instrument for transmitting Jewish traditions and values. Jewish communities, he writes, “have successfully transmitted. . . Jewish moral traditions for millennia.”¹ But these communities operated in the diaspora, where Jews constituted a numerically negligent minority. Affluent, influential Jews, who derived much of their wealth and power from outside the community, supported it. In Israel, the “community” is the whole state; the “Jewish community” is not, and should not be, a separate entity.

The “community” model sends the wrong signal. It intimates that the state of Israel has no religious identity; its citizens may, or may not, organize themselves into religious communities—Jewish, Muslim, Christian, or Druze—but the state itself is unaffiliated, “disengaged.” As in the diaspora, the communities are divorced from the state.

Looking both outward and inward, the model has disastrous implications. To the world at large, it says that Israel is a state like any other, that we have no special rights in this part of the world. But then we are colonialists, and colonialism has long since breathed its last; as Helen Thomas suggested, we should then go back to the countries that welcomed us and our “communities” before, like Morocco, Yemen, Poland, Germany, Russia, England, the U.S., and many others.

The message to ourselves is, if anything, even worse. As of now, Jewish awareness in Israel is nothing to write home about; already, there are Jewish Israelis who think of themselves primarily as Israelis—citizens of a state, like France or Switzerland—and only secondarily as Jews. Some, unfortunately, do not think of themselves as Jews at all; they have disengaged. But for most Jewish Israelis, the consciousness of being Jewish—as well as some familiarity with Jewish history and culture—is there, is palpable. An official divorce of the state from Judaism would greatly accelerate the process of disengagement from Judaism.

Koppel may protest that he is advocating that the state disengage not from Judaism, but only from Jewish religious practice. Unfortunately—perhaps fortunately—that does not work. Jewish religious practice lies at the core of Judaism, at the core of Jewish culture. In the diaspora, there are not many self-professed Jews whose grandparents or great-grandparents were not observant. I have heard of a Reform rabbi in Florida who boasted that 99 percent of his congregants had no Jewish grandchildren. Though this is no doubt exaggerated, it rings true. “If G-d does not build a house, in vain do its builders labor” (Psalms 127:1). Non-observant Judaism can live and thrive—but only in the shadow of religious observance.

Pragmatically, Koppel’s proposal would create great problems. One of the big advantages of life in Israel is that at almost all—perhaps all—public functions, only kosher food is served. That is true in the government, at the universities, at large corporations, at conferences in hotels, you name it. Though it may sound trivial, it is an important factor in holding the people together.

When you have the kosher certification of the chief rabbinate, that’s easy to do. But if you would not—if there were a dozen different kosher certifications, as in the U.S.—the organizers would not know to whom to turn, and the practice would fizzle out. A single recognized standard of observance is vital, even for those who do not adhere to it.

And what about the army? With a disengaged state, it would not take long before somebody goes to court asking for non-kosher food, non-observance of Shabbat, and so on. We would get separate dining rooms; perhaps, eventually, separate fighting units. Is that what we want?

Far more important, of course, is the matter of marriage and divorce. Right now, you can get married in Cyprus, and the marriage is recognized in Israel. I don’t know how the authorities deal with the very serious halakhic problems this raises, but they deal with them somehow. Though the phenomenon is significant, its magnitude is marginal; mostly, we are talking about couples whose halakhic status poses problems. By and large, even totally non-observant couples want their families and friends at the wedding, they want to be married “at home” and not alone in a strange, foreign place.

Allowing civil marriage and divorce would change all that drastically; it would make the non-halakhic option much more accessible, and so would greatly enlarge the number of couples using it. And so it would force the authorities to face up to the halakhic problems mentioned above, quite possibly creating two communities within Israel; communities that will not—indeed cannot—intermarry, now and for generations to come. That would be absolutely disastrous.

Perhaps most important is the matter of schools. In the non-religious state schools, there is precious little Judaism now; disengaging the state from religion might well lead to its disappearance altogether. And who would pay for the religious schools? The “communities”? Come, that’s laughable. In the United States, tuition at Jewish schools can run to $35,000 per year per child; many families come on aliya for that reason alone. The Jewish community in Israel does shoulder that cost, but it cannot possibly do so on a voluntary basis.

The above are only three examples of involvement of the state in religious matters which it would be difficult to forgo; there are many more.

To summarize: on the surface, Moshe Koppel’s proposal sounds interesting—even tenable—for a “democratic society grappling with the crossroads between religion and state.” But when one takes a closer look at Israel’s particular situation, it becomes less attractive. In principle, it sends the wrong signal, both to the world at large and to ourselves; and in practice, it could wreak havoc with the delicate fabric of Israeli society.

Yisrael Aumann, a 2005 Nobel laureate in economic sciences, is a founder and professor in the Center for Rationality at the Hebrew University of Jerusalem. He is the author of six books and many papers in the area of game theory.

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¹One wonders what the adjective “moral” is meant to exclude. Are there amoral traditions that were not transmitted? Does Koppel mean to exclude traditions like kashrut or Shabbat that have no clear moral component?

More about: church and state, Cyprus, Free Exercise of Religion, Intermarriage, Israel, Jewish State, Moshe Koppel

 

How Not to Perpetuate Judaism in the Jewish State

If you value Judaism and wish to see it retain its vitality, keep it out of the hands of the state. Is that so complicated?

 
Response
Moshe Koppel
July 28 2013

I am grateful to Mosaic for inviting four such distinguished respondents as Yuval Levin, Ruth Gavison, Joseph Weiler, and Yisrael Aumann to comment on my essay. I am equally grateful to the respondents themselves both for the efforts they have made to address my thesis and for the generosity of spirit with which they have done so. The fact that the differences among us are relatively minor is surely a reflection of the substantial influence each of the four respondents has had on my own thought.

Of the four respondents, the first three all assume that I am making a principled argument for the separation of religion and state in Israel; while agreeing with the main thrust of my remarks, however, they contend that my principles are too weak and my conclusion too strong. For Yuval Levin, I fail to emphasize the exceptional quality of religion as an obligation rather than a choice; for Ruth Gavison, I fail to stress the right of any particular religious denomination not to have the state take the side of its competitors; for Joseph Weiler, I fail to invoke the inherent obtuseness of coercing religious devotion. Each argues that the separation of religion and state, which I am presumed to advocate, is neither implementable nor desirable because it runs counter to the very purposes for which Israel was founded.

There is less to these disagreements than meets the eye—and the reason is that I do not support separation of religion and state in Israel in any of the usual senses of that phrase. Nor, crucially, is my argument a principled one; to the contrary, it is an unprincipled one.

Let me explain what I mean. Broadly speaking, there are two sorts of cases one can advance concerning relations among actors with competing interests. One is to argue that a particular actor should adopt some specific strategy because that strategy will yield benefit to that actor. I’ll call this a “strategic” argument. The alternative is to argue that all participating actors should agree to certain procedural constraints on permissible strategies in order to promote some collective good or to satisfy some principle of fairness. This is what I’ll call a “principled” argument.

In actual debates over public policy, it is common for strategic arguments to be disguised as principled ones. Not satisfied with preaching to the choir, people wishing to advance an agenda that benefits their own community will often frame (or invent) principled arguments to persuade others who do not necessarily stand to benefit from that agenda that they nevertheless have a moral obligation to accede to it.

This “principled” approach strikes me as disingenuous and counter-productive, and I wish to avoid it. Therefore, my argument is unabashedly strategic. For me, those committed to perpetuating Judaism in Israel have an interest in limiting state involvement in religion. If Judaism is to evolve organically, as it must do and as it always has done, it must reflect the sensibilities of those committed to it, not the sensibilities of those who happen to be citizens or officials of the state of Israel. That is mainly why, pace Yuval Levin, I emphasize the voluntary nature of membership in religious communities; such membership is not coextensive with citizenship, and hence citizenship cannot and should not substitute for it.

My strategic and “unprincipled” approach is also the reason that, contrary to the impression of my first three respondents, I do not advocate the separation of religion and state in Israel in the usual sense. Instead, I argue only that the state’s influence on Judaism is bad for Judaism. As for Judaism’s influence on the state, that is a subtler question. From my point of view, such influence is actually desirable—except insofar as it is likely to boomerang. How so? For one thing, certain kinds of legislation based on Judaism inevitably invite the involvement of state institutions in redefining or regulating Judaism. For another, unnecessary and divisive legislation of this kind can provoke culture wars that inspire undesirable counter-legislation or other deleterious consequences.

But, as I write in my essay, deciding the costs and benefits in this case is entirely a prudential matter. There are many instances where a reasonable person might conclude that the benefits of legislation outweigh the costs. That might be the case, for example, with regard to such contemporary hot-button issues as the beginning and end of life or the definition of marriage. It is surely the case with regard to the legislation of the Jewish character of Israel’s symbols, language, calendar, and policy in the sphere of public education and immigration. Although Joseph Weiler assumes (and Ruth Gavison and Yuval Levin implicitly concur) that I would be opposed to such legislation, in fact I co-authored a legislative proposal in just this area which is now being debated in the Knesset.

All this notwithstanding, coercing private behavior that has no public consequences—say, forcing people to keep kosher or observe Shabbat in their own homes—is almost certain to incur small returns at high cost. Since my point here is again strategic rather than principled, I have no need to resort to Joseph Weiler’s argument that coercing devotion is both a contradiction in terms and repugnant to religion itself (both of which principled claims are plausible but not self-evident). 

Finally, to return to Yuval Levin’s defense of the obligatory nature of religion in the eyes of its adherents: as an observant Jew, I am fully in sympathy. But from my strategic perspective I believe that stressing this point is ill-advised in Israel’s case. If my purpose were to persuade the unaffiliated that they owe it to religious people not to interfere with religion—that is, if I were making a principled argument—perhaps I’d proceed along the lines that Levin favors. But as the core of a strategic argument, the practical effect of his reasoning would be (a) to disqualify religion altogether as a basis for legislation since each religion is regarded as a rival of every other religion whose integrity we wish to protect but (b) not to disqualify secular ideologies since, anachronistically, these are not regarded as inherent threats to the integrity of religion. For anyone wishing to encourage the influence of Judaism in Israel, this is indeed a counter-productive approach.

 

If the first three respondents claim to disagree with me while in fact more or less agreeing, my good friend Yisrael Aumann claims that he “won’t disagree” with me while in fact disagreeing—and on precisely the essential point. Aumann perfectly understands the strategic and unprincipled nature of my argument but disputes me on my own terms. He believes that, given Israel’s purpose as a Jewish nation-state, and the centrality of religion in Jewish identity, direct state involvement in legislating and regulating religion is preferable to the alternative.

I suspect that Aumann is no less aware than I am of the considerable costs of such involvement. Our disagreement lies instead in our respective answers to a counterfactual question: if the state were to limit its involvement in religion, for example by privatizing kashrut supervision or recognizing civil marriages, would the costs be even greater? Aumann is concerned that such a withdrawal on the part of the state might lead to a race to the bottom or to the unraveling of some ephemeral common culture. For my own part, I believe that safeguards are possible to make a race to the bottom no more likely than it already is under the current arrangements. I also maintain that whatever exists in Israel by way of a common Jewish culture grows from the bottom up, and is in no way preserved or enhanced by the state’s guiding hand. Perhaps on this point, Aumann and I can agree to disagree.

 

To summarize, I am grateful to all four respondents for their cogent remarks. Were I attempting to convince my religious and political opponents that they have a moral obligation to accept my position in support of more limited state involvement in religion, I surely would invoke all the powerful intellectual tools my respondents have put at my disposal.  But the objectives of my “modest proposal” do not require this arsenal. It is enough to appeal to common sense: if you value Judaism and wish to see it retain (or regain) its vitality, keep it out of the hands of the state bureaucracy. Is that so complicated? 

Moshe Koppel, who teaches computer science at Bar-Ilan University in Israel, is the author of two books on the Talmud and co-author of a proposed constitution for the State of Israel, and has published over 100 academic papers in computer science, linguistics, and other disciplines. He is chairman of the Kohelet Policy Forum, a think tank in Jerusalem.

More about: church and state, Free Exercise of Religion, Israel, Jewish identity, Jewish State, Moshe Koppel