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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