Covenant as the Basis of the Jewish Political Tradition
Kinship and Consent, Chapter One
Daniel J. Elazar
I will bring you to the wilderness of the peoples and there will I plead with you face to face. Just as I pleaded with your fathers in the wilderness of the land of Egypt, so will I plead with you, saith the Lord God I will cause you to pass under the rod and will bring you into the tradition [bond] of the covenant. (Ezekiel 20: 35-37)1
The thesis of this volume is that there is a Jewish political tradition whose origins are to be found in the Bible, a tradition which emerged at the very beginning of the existence of the Jewish people and which has continued to influence Jewish political and communal life ever since. The basis of that political tradition is to be found in the biblical idea of covenant and in the political principles and processes which flow from it. The biblical political teaching as manifest in the Jewish political tradition is an important political teaching for Jews and non-Jews alike and has been so recognized throughout the Western world. At crucial moments in Western history its influence has been decisive. Nevertheless, after surviving changes of constitution and regime, exile and dispersion, the Jewish political tradition has been nearly lost in our times, for Jews as well as non-Jews, precisely at the threshold of the renewal of full Jewish political life, and needs to be recovered by systematic effort so that it may fill a vital and needed role in contemporary Jewish life, both in Israel and in the diaspora.
The Covenant Idea
In the past two decades, there has been a significant rediscovery of the covenantal basis of Judaism in most if not all contemporary Jewish intellectual circles, and the literature dealing with covenant and its implications has grown accordingly.2 The thrust of this effort has been theological in character and properly so. Yet the covenant is as much a political as a theological phenomenon. Perhaps it is best described as a theo-political phenomenon, especially in its original biblical form.
Like all great ideas, the covenant idea is at once simple and complex; simple enough to serve as a rallying point for a people, yet sufficiently complex for the entire worldview of the Bible and consequently the essential outlook of all biblically rooted traditions to be built around it.3 The Hebrew term brit signifies a covenant, usually meant to be perpetual between parties having independent but not necessarily equal status, that provides for joint action or obligation to achieve defined ends (limited or comprehensive) under conditions of mutual respect, in such a way as to protect the integrity of all parties involved. A covenant is much more than a contract, though our modern system of contracts is related to the covenant idea, because it involves a moral commitment beyond that demanded for mutual advantage, even involving the development of community among the partners to it. The biblical term hesed (often mistranslated as grace, but actually the loving obligation resulting from a covenantal tie) reflects this dimension of the covenantal relationship, adding a dynamic element to the relatively static character of the compact itself (see below). In essence, a covenant creates a partnership based upon a firm, legally defined relationship delineating the authority, power and integrity of all the partners but which, at the same time, requires them to go beyond the legal definition to fully realize the relationship. In other words, the covenant relationship is to social and political life what Buber's I-Thou relationship is to personal life. Through covenants humans and their institutions are enabled to enter into dialogue and are given (or themselves create) a framework for dialogue.
In its highest form, a covenant community is a community of souls, as expressed in I Samuel 18: "The soul of Jonathan was bound up with the soul of David and Jonathan loved him with all his soul...and David and Jonathan made a covenant in their love for each other (which was) like the love of each for his own soul." In that sense, covenantal relationships have been compared to marriages in which the integrity of each partner continues to exist within the community they create. On the other hand, covenants are used in far more limited ways for the long-term resolution of international problems by creating limited but lasting relationships between former or potential enemies, as in Genesis 21 or Joshua 9.
The first covenants of which we are aware were vassal treaties between ancient West Asian (Near Eastern) rulers. Indeed, modern scholars have traced the covenant idea to those treaties and have shown how the classic biblical covenants parallel them in style and structure.4 Yet the concept as it appears in the Bible, while retaining ancient West Asian forms, is utterly transformed and infused with a new character. The Hebrew language describes the difference succinctly. The relationships in the first instance were between ba'alei brit (literally, masters of the covenant), or partners in a particular international agreement, while in the second they involved bnei brit (literally, sons of the covenant), or partners in a common entity created by covenant. The transformation was critical, opening up a whole new set of possibilities and relationships, both intellectual and operational.
In essence, the Israelites took the idea and techniques of covenant making from their neighbors but turned them on their head. Mesopotamian and West Semitic covenants were designed to limit previously independent entities by making them vassals, regulating their external behavior but leaving their internal life alone. Israelite covenants function as liberating devices that call into existence new entities. God, by entering into a covenant with humans, accepts a limitation on the exercise of His omnipotence, thus endowing mankind with freedom, but its price is the acceptance of internal reform as well as external obligations. The covenant becomes the framework for mutual obligation and the basis of a new law and politics internally and externally. Consequently both the covenant itself and the ideas or principles which flow from it create and inform a new tradition. In the course of Jewish history, actual covenants and covenantal principles appear and reappear to give the Jewish political tradition both form and content.
In biblical terms, God relates to his universe and the creatures within it, including man, through a system of covenants. We are all familiar with God's covenants with the patriarchs and Israel. Yet the Bible teaches us that God's covenant with Israel must be viewed in the larger context of God's covenant with all men. The Talmud teaches that the beginning of this covenant relationship is implicit in God's relationship to Adam, particularly after man acquires knowledge of good and evil, but the first formal covenant was made with Noah after the flood (Genesis 9). Through Noah, the Talmud teaches that covenant is binding on all people as the basis for universal law.
So pervasive is the covenantal system in the Bible that even God's relationship with the natural order and lower forms of life is frequently portrayed in allegorical terms as a covenantal one (as in Jeremiah 33:25-26), as distinct from the biblical presentation of God's covenants with man as experiential events. From this perspective, brit is a term used to capture the Jewish myth of politics, sometimes through real covenants and sometimes symbolically.
Extending the pervasive covenantal relationship between God and man, presented as the only proper one, the Bible necessarily holds that the covenantal relationship is also the only proper basis for political organization, i.e., the structured allocating of authority and power among men. In a political sense, biblical covenants take the form of constituting acts that establish the parameters of authority and its division without prescribing the constitutional details of regimes. Thus the Sinai covenant establishes once and for all God's kingship over Israel and the partnership between God and Israel in tikun olam (the reconstruction of the universe). It does not establish any particular political regime. Rather, in the same weekly portion of the Torah (Jethro), it is explicitly pointed out that Moses' political reorganization of the emergent national government of Israel is based upon the highly utilitarian recommendations of Jethro, a Midianite priest far removed from divine authority (Exodus 18:13-26). The interplay is more subtle than that, since the Book of the Covenant which follows upon the giving of the tablets of the covenant (which is how they are referred to in Hebrew -- not as the two tablets or, worse, the Ten Commandments) seems to be presented as God's response to Moses' delegation of power (Exodus 20:19-23, 33). That is to say, as long as Moses himself was the sole judge and interpreter of God's commandments, they did not need to be set down. Specifics could be clarified through the direct and continuing discourse between Moses and God. However, once the power of judging, or interpreting and applying the commandments, was delegated, then a written collection of basic laws was necessary to provide the foundation for those who were not privy to direct communications with the Almighty. The fact that this written collection was explicitly linked to the covenant should speak for itself.5
Subsequent to the Sinai covenant, covenants are used to link the governors and the governed under God according to the terms of the great covenant and in light of changing circumstances. The model of such covenants is found in Joshua 24, where Joshua assembles the representatives of the twelve tribes of Israel and the tribal and national officers near Shechem, after the conquest and division of the land, to renew before God the covenant of Moses and reestablish the Israelite confederacy on a landed basis. As in the case of the original, that covenant also established (or reestablished) the basic distribution of authority and powers but did not include a frame of government per se, simply accepting the frame of government established earlier. With the introduction of the monarchy, which represented a major shift in the structure of authority within the nation, a new covenant was made (II Samuel 5:3). Similar covenants were initiated or renewed after every major political change or reform in the biblical period.6
While the foregoing examples represent the most important uses of covenantal arrangements in the Bible, the term brit and the practice of covenanting involved a wide variety of situations, ranging from what were designed to be lasting or perpetual international treaties to secondary contractual obligations between rulers and ruled. This flexibility of usage is consistent with the biblical worldview which sees the universe as built upon an interlocking and overlapping system of covenantal relationships, each with its own measure of demands and equivalent responses.7
Covenantal politics are directed simultaneously toward linking men and communities as partners in common tasks and allowing them space in which to be free. The very idea of a covenant between God and man contains this implication in its most radical form. The omnipotent Deity, by freely covenanting with man, limits his own powers (or "competence" in the European legal usage) to allow man space in which to be free, only requiring of him that he live in accordance with the Law established as normative by the Covenant. The Puritans' recognition of this aspect of the covenantal relationship between God and man in sixteenth and seventeenth-century Britain and America became the basis of their "federal theology"--inventing the term "federal" (derived from the Latin foedus, meaning covenant) to express this theo-political relationship. John Winthrop, the great Puritan governor of Massachusetts, referred to this relationship as "federal liberty," or the freedom to freely obey the Law.8 A century later, in the process of the founding of the United States, the term federal was secularized by the descendents of the Puritans to become simply a political concept.
The ambiguous origins of the Hebrew word brit tell us much about this fettered freedom or liberating bondage. Of the two Akkadian words which scholars suggest are related to it, biritum means "space between" while bereiti means "fetter" or "binding agreement." This notion of dividing and then binding is present in the Hebrew phrase for covenant making, lichrot brit (literally, to cut a covenant) and the ceremony that went with that term which in its earliest form involved the halving of an animal and passing between its two parts to symbolically reunite them.9
It can be said that, in Jewish tradition, the ties of covenant are the concretization of the relationship of dialogue which, when addressed to God make man holy and, when addressed to one's fellows, make men human. As the Bible itself makes clear, the covenantal bonds transform what most religions understood as a mystical union into a real one, making life -- including political life -- possible in an all-too-real world. In many ways, the progress of civilization can be traced as corresponding to the periods in human history when significant groups of people have recognized the covenant idea and sought to concretely apply it to the building of human, political and social relationships.
Translated into less theological terminology, a covenant-based politics looks toward political arrangements established or, more appropriately, compounded for particular moral purposes, through the linking of separate entities so that each preserves its respective integrity while creating a common association to serve those purposes, broad or limited, for which it was called into being. The purposes range from keeping the peace through permanent but limited alliance of independent entities to forging of a new polity through union of previously separate entities to create a new whole. A covenant-based politics is not simply a symbolic matter; it has to do with very concrete demands for power-sharing and the development of institutionalized forms and processes for so doing.
Whether in its theological form or secularized as the compact theory of the origin of civil society, the covenant idea is one of the two or three fundamental political concepts illuminating the origins and basis of political life. As a major political idea, the covenant principle has manifested itself in a wide variety of ways and conditions, in different places and times, always enduring as a central element in political thought, Jewish and non-Jewish.1O Ultimately the concrete political embodiment of the covenant model took two forms -- the union of families or individuals to form bodies-politic and the federation of bodies-politic to form even more complex political systems. Both forms have manifested themselves in Jewish history. What follows is a brief survey of those manifestations within the Jewish body politic over space and time and then a survey of the ways in which the covenant idea has been applied through the Jewish political tradition. It should be understood from the first that the covenant has consistently manifested itself on three levels: the intellectual, the cultural and the operational. Here we shall treat all three without necessarily distinguishing between them in so many words at every turn. The reader should be prepared to recognized these three levels and make the requisite distinctions.
Covenant and Partnership in Jewish Historical Experience
The first biblical covenant explicitly involving Jews is the set of covenants between God and Abraham described in Genesis 15 and 17. They are preconstitutional but provide the preconditions for later developments. While they involve God's promise to one individual only, since that promise explicitly forms the basis for the emergence of a new nation in a land of its own, it sets the stage for the more formally political covenanting at Sinai and subsequently. God's reaffirmation of that covenant in Exodus 6 links those pre-constitutional covenants with that of Sinai.
As already suggested, from the political perspective the Sinai covenant is reminiscent of a social compact in that it provides the political and social framework for constitution-making but not the constitution itself. The restatement of the Sinai covenant in Deuteronomy is constructed along more explicitly political-legal lines, the pattern characteristic of that book.11 The Exodus and the Sinai covenant usher in an epoch in Jewish history, the principal political manifestation of which was the tribal federation. During this epoch, the Jewish people clearly began to forge its unique blend of kinship and consent as the basis of its political life, transcending the real or putative links of kinship which characterize tribal society to add the dimension of deliberate consent -- one of the outstanding manifestations of the covenant idea -- without destroying the people's or the polity's tribal base.12 The biblical phrase am v'edah is a kind of statement of this linkage between kinship and consent. The term am (people) reflects a common descent, a kinship, albeit with overtones of a special tie beyond mere kinship; the institutional embodiment of that tie is to be found in the edah (the assembly of citizens which met regularly, also used to designate the form of government under the Mosaic covenants) which, as a constituent assembly, is the operational embodiment of the principle of consent.
The political dimensions of the covenant were at their most pronounced at sinai and in the desert, where the Jewish people acquired a single national constitution and law (in fact, the two were not really separated), which was administered by a combination of tribal and national officers, and which served a federation of tribes, each of which was in itself compounded as a union of families -- "houses" in the biblical term. This federation has been describe by some scholars as an amphictyony -- a limited confederation for religious purposes built around a common shrine.13 Whatever elements of amphictyony may have existed in the tribal federation, according to the biblical account, the tribes were more comprehensively linked in a true federation, that is to say, formed around a common constitutional and legal system applied in a non-centralized fashion with power shared among several different institutions and centers.14
One major stream in Jewish tradition has consistently viewed the tribal federation as the classical form of Jewish polity (for example, Joshua and Samuel, Ezekiel, the champions of the Elijah tradition, Josephus, Don Isaac Abravanel, and Martin Buber).15 Moreover, the political model embodied by the tribal confederacy, particularly during its first two generations under Moses and Joshua, must be counted as one of the most influential political models in the Western world while the subsequent history of the tribes during the period of the Judges and on through the attempt to restore the original regime in the days of Samuel, served as the raw material for the debates of political philosophers and constitution-makers in the Western world at least as late as the nineteenth century.16
The Bible itself offers contradictory assessments as to the success of the tribal confederacy as a polity. What is clear, however, is that its collapse was a result of external forces rather than internal weakness per se. A non-centralized polity based on a loose federation of tribes could not stand up to the assaults of the Philistines. In the process of responding to those assaults, Israel created its own particular brand of what is formally termed a monarchy, but which, in the strict meaning of the term -- rule by one -- was not that at all because it was limited by specific covenants and the covenant idea generally. According to the biblical account, a limited constitutional monarchy was established and periodically reaffirmed through a covenant between king, people and God. While under the monarchy a much stronger center of power was created in the polity, other centers and institutions retained real powers as well and at least one, the institution of the prophets, was actually strengthened to counterbalance the king (see chapter seven).17
The first such covenant was with David (2 Samuel 5:3; 1 Chronicles 11:3). It introduced a new epoch in Jewish history, one that gave the federation of tribes a common capital with a national government capable of reaching into the lives of every citizen in ways far beyond the limited role of the Judges and Levites in the previous epoch. It seems that, despite the hereditary element introduced by David, his heirs had to be confirmed through covenants with the representatives of the people. Thus Solomon and the people covenanted with one another before God at the time of the transferring of the Ark of the Covenant (I Kings 8). This was at least so after crises involving a previously reigning monarch who had violated the covenant and thereby cast doubt on the legitimacy of the Davidic house, as in the covenants of Jehoiadah, Josiah, Asa and Hezekiah.
What was characteristic of this period was the combination of monarchic and tribal (or federal) institutions. David was elevated to the kingship by the tribal leadership speaking in the name of the people. Solomon was reaffirmed by that leadership, and Rehoboam was denied the kingship by ten of the tribes acting in concert when he went to them to establish a similar compact at the beginning of his reign (I Kings 12; II Chronicles 10). Considering his arrogant attitude toward the tribal leadership, it is clear that he was required to go before them by the constitution and did not do so of his own free will. Subsequently, while multi-tribal institutions disappeared from the southern kingdom because of the dominance of Judah (with the original federal institutions surviving only in the realm of local government), the northern kingdom of Israel maintained them until the very end of its existence.
The disappearance of the tribal federation as a reality after the fall of the northern kingdom can be said to mark the end of the original monarchic epoch in Jewish constitutional history, leading to a search for new political arrangements which culminated in the days of King Josiah when the Book of Deuteronomy became the constitutional basis of the regime (II Kings 22 and 23). The Josianic reform restored the idea that the Israelite polity was based on a tripartite compact between God, Israel and the king, with God as sovereign and lawgiver represented in day-to-day matters by his prophets (II Chronicles 23:1-2, 21; and 34:29-32). Coming as it did after the reconstitution of the Israelite regime on a non-tribal basis, the reform reaffirmed the essentially covenantal basis of the Israelite polity, just in time to strengthen the Jewish will to survive after the destruction of the First Temple.
The prophetic vision of Ezekiel (Chapters 16, 17, 20, 34, 37, 44), which embodies the theo-political aspirations of the exiles in Babylonia, explicitly foresees the restoration of the covenantal polity in its full multi-tribal form. While the proximate restoration of Jewish rule in Jerusalem (on a home rule basis within the Persian Empire) did not even approach that messianic vision, its political dimension was clearly based on a popular renewal of the covenant at the initiative of Ezra when the people assembled on Succoth to hear the Torah and to assent to its authority, as graphically portrayed in the Bible (Nehemiah 8-10). As at Sinai, the Succoth covenant set the framework for the renewed Jewish polity while the details of the regime were developed subsequently within it. Overall, the regime seems to have been a non-centralized union of families and community-congregations within the framework of the Torah and the developing oral law, whose local and national institutions and leaders respectively, were extremely powerful within their respective spheres.
The Succoth covenant was the last of the biblical covenants. The regime it produced survived until the time of the Hasmoneans, and nominally continued to be the basis of the Hasmonean regime as well. It was supplemented by an additional covenant between "the priests, the people, the heads of the nation, and the elders of the land," on one hand, and Simon the Maccabean on the other -- whom they designated as "high priest, commander-in-chief and nasi (literally one raised up [to leadership], in modern Hebrew, president) -- which was embodied in a covenant document (given in full in I Maccabees 14: 25-49). Even those later Hasmonean rulers who referred to themselves as kings in Greek, cautiously continued to refer to themselves as high priests and nasiim in Hebrew. In both cases, political covenants confirmed inauguration of new historical epochs for the Jewish people. Characteristic of the first was the abjuration of monarchic leadership in favor of what has been termed theocracy but is better characterized as a nomocracy in which powers of government were shared by priests, soferim ("secretaries" as in Secretary of State), and an assembly of family heads and notables. In the second epoch, a central political leader was added to the structure of the regime.
In the immediate post-biblical period, Jewish political thought took two directions which had a vital impact on later generations' view of the covenant idea. Under Hellenistic influences, an attempt was made to reconcile the biblical and philosophical worldviews by recasting the history of ancient Israel and the political teaching of the Bible in Greek modes. Philo and Josephus are the two most prominent exemplars of this effort. The effort was made to satisfy Jews who had come under Hellenistic influences, and to explain Judaism to the non-Jewish world which engulfed it. This tended to substantially reduce the emphasis on the covenant idea, which was not indigenous to Greek thought, in Jewish intellectual circles. It had a lasting influence on our understanding of the Jewish political tradition, precisely because it filtered that tradition through a very powerful and compelling non-Jewish filter. Nevertheless, the continued utilization of the principle shows through in the descriptions of actual political behavior from that period, as in the case of the Maccabean reconstitution.
The epoch initiated by the Hasmonean revolution reached a climax in the destruction of the Second Temple, and came to an end after the failure of the Bar Kochba rebellion. Subsequently, such institutions of national authority as the Jews were able to formally maintain (e.g., the Patriarchate in Israel and the Exilarchate in Babylonia) were formally instituted by the foreign powers holding dominion over them and existed at the sufferance of those powers. One of the struggles of the millennium following the loss of Jewish sovereignty involved the Jews' effort to infuse their own consensual-covenantal dimension into institutions which were designed to rule them hierarchically -- precisely because they were forced upon them by foreign powers seeking to keep them in line.18 This problem is reflected in the Chronicle of Rabbi Natan, which describes how the community acted to assume a role in the appointment of the Exilarch, a position that was actually hereditary:
When he is appointed, if the mind of the community has agreed to appoint him, the two heads of the Yeshivot met with their students and all the heads of the congregation and the elders appoint.
In this way the dual principles of consent and power sharing were at least formally maintained.19
In the interim, however, the Jews had developed a device through which to maintain their own autonomy and in a covenantal manner to boot, namely the local house of congregation or assembly which is generally known by its Greek name, "synagogue." The congregation-synagogue became a crucial vehicle for Jewish self-expression precisely because it was based upon authentic Jewish political principles and was eminently suited to the wide variety of conditions under which Jews found themselves in their dispersion. As an institution, a congregation could be established anywhere that ten Jewish males came together. Thoroughly portable, it could adapt itself to particular geo-historical conditions to provide the Jews with whatever degree of self-government they were allowed and had the strength to maintain. Thus in the land of Israel, and later in the small Jewish settlements of the medieval Diaspora, it was usually synonymous with the local community (as the Hebrew name it acquired -- Kahal Kadosh -- indicates), while in the great Hellenistic cities, and later in the great cities of Europe and America, it was perhaps one of several synagogues, sometimes linked within a larger communal framework on a federal or confederal basis and sometimes independent for all intents and purposes.
Every congregation by its very nature came into existence through a compact or covenant between its founders which was extended to those who subsequently became part of it. Although there is some dispute in the halakhic literature with regard to the precise legal implications of this, in effect every local Jewish community, as a congregation, was considered to be a kind of partnership based upon a common contractual obligation within the framework of the overall Jewish constitution, namely the Torah (see chapters four and eight). In the Sephardic world, these compacts came to be called askamot, perhaps best translated as articles of agreement. The flexibility of this form led to a variety of arrangements depending on local circumstances. In some communities, the entire community was organized as a single congregation with the appropriate governing bodies usually divided along functional lines. On the other extreme, the community as a whole consisted of a loose league of many independent congregations, each of which represented a particular religious point of view or socio-economic distinction.
The associational model that emerged from this congregational form became the basis for the entire web of Jewish communal organization in the European diaspora. Sefer Hashtarot (The Book of Contracts) compiled in the eleventh century by R. Judah HaBarceloni as the era's classic collection of model laws for the governance of the Jewish people, includes a model charter for establishing a community, whose Preamble (an excellent example of the style of covenant documents essentially unchanged since the first ancient Near Eastern vassal covenants) is worth quoting in full.
We, the elders and leaders of the community of -x-, due to our many sins we have declined and become fewer and weaker, and until only few have been left of many, like a single tree at the mountaintop, and the people of our community have been left with no head or nasi, or head justice or leader, so that they are like sheep without a shepherd and some of our community go about improperly clothed and some speak obscenely and some mix with the gentiles and eat their bread and become like them, so that only in the Jewish name, are they at all different. We have seen and discussed the matter and we agreed in assembly of the entire community, and we all, great and small alike, have gone on to establish this charter in this community.
The model charter continues to describe how the community, by this action, establishes its right to enact ordinances, establish institutions, levy and collect taxes; in short, carry on all the functions of a municipal government.
The principles of community enunciated in the foregoing document are clear. In order for the actions of a community to be legally binding in Jewish law, it had to be duly constituted by its potential members, preferably through a constituent assembly and constitutional document. They must be able to say that "we have discussed the matter," that "we have agreed in assembly of the entire community." If these patterns were not followed, the action would not be valid.
In those cases where communities created inter-community federations, as in northern France and the Rhineland, the Council of the Communities of Aragon and the Council of the Four Lands, the compacts restored a strong federal element to the overall covenantal base.20 Within communities, individual hevrot (guilds -- the term has strong connotations of partnership) were similarly organized as partnerships on a sub-communal basis, usually with some functional orientation.21
The great questions of power and authority in the medieval Jewish community were for the most part based upon differences of opinion regarding the implications of this contractual base. So, for example, questions of the apportionment of taxation or the reduction of air rights (so important in densely populated medieval towns) were often related to the issue of whether or not the community was a partnership and, if so, what were the rights of the partners. In essence, the partnership issue was important in all questions of whether decisions could be made by majority vote or required unanimity (see chapter eight).22 Thus the Rashba (R. Shlomo ben Aderet) who, along with Rabbi Meir of Rothenberg, established the constitutional and jurisprudential basis for the medieval Jewish community, responded to a question from the Jewish community of Lerida in fourteenth-century Spain, as follows:
In all matters of the community, no one part of the community is permitted to do as they please, unless the entire community consents. For the community are as partners in all communal responsibilities and in all communal appointments, such as tax collectors, unless there exist men who have been appointed to deal with communal affairs; those who are called by our sages the seven tuvei ha'ir. In most places, nowadays, the important men of the community direct the affairs of the community in consultation and agreement. In general, it is assumed that the individual avoids his own opinion, but if some of the community, even from among those who are not great in wisdom, object, their objection stands. This is certainly so, where the objection is made by some of the men who are normally those to be consulted.
This was qualified in a further response to the Jews of Saragossa:
The customs of different locales differ in these matters, for there are places where all matters are handled by their elders and advisors, and there are places where even the council can do nothing without the consent of the entire congregation in which there is found the agreement of all, and there are places which appoint for themselves a group of men whose direction they will follow for a given period of time in all matters related to the group.
This is the kind of debate that can only occur in a covenant-created setting where what is at stake is the definition of how much autonomy does each partner maintain. The resolution of this issue (and there are opinions on both sides) is less important for our purposes here than the fact that it was an issue at all, that the discussion was not whether there should be rule by one or by the few or by the many, but rather in a system in which the many were assumed to rule, how they were to arrive at their decisions. The fact that many communities did become oligarchies, and a few even fell under autocratic domination, is significant and deserves exploration in its own right as well as in relationship to the theory, but the theory reflected real circumstances, more so than any of the deviations from it in practice. We know this because we find records of the debate not in the esoteric writings of learned men and abstract thinkers but in the responsa of the great sages of those generations, who were forced to adjudicate real disputes.23
These questions took on special importance in cases involving the admission of new members to the community, particularly people who wanted to move in from outside in situations where the non-Jewish ruling power made living conditions particularly difficult for the existing Jewish residents.24 In short, the greater part of Jewish public law in the medieval period had to do with interpreting the meaning of compacts and the rights and obligations of those who came to be party to them, so much so that several historians of the period have suggested that Jewish thought on these matters follows along the same lines as that of Hobbes, Locke and other seventeenth-century social compact theorists (in this writer's opinion, a correct observation on their part, particularly since both schools flowed from a common source).25
With the breakdown of the medieval community, diaspora Jewry had to reorganize itself once again. As the Jewish people ceased to be regarded as a nation among the nations, their polity ceased to be a state within a state. The reorganization was partly forced upon the Jews by the governing authorities of the new nation-states that emerged in the seventeenth century and subsequently, and partly followed internal Jewish initiatives seeking to adjust to the situation. It resulted in the creation of quasi-voluntary communities in the sense that Jews could now choose more easily to cease to be Jews but, if they chose to remain within the Jewish fold, they had to be members of a Jewish community. Legally, these communities were religious associations organized on a membership basis in keeping with the associational or contractual character of modern liberal society. In the Germanies and other Central European countries under Germanic influence, local communities were further federated into country-wide bodies. In France, the centralistic pattern characteristic of modern French society was imposed upon the Jewish community as well, while the Jewries of Great Britain were united just as was the United Kingdom. In short, the tendency for the local Jewish community to take on the organizational characteristics of its host environment was continued, at least in externals. In this case, however, the organizational forms of modern society served to strengthen the contractual character of the communities more often than not. Whatever the formal framework, the associative and increasingly voluntary character of the community maintained the by now traditionally Jewish covenantal base in the forefront, even if the community itself functioned on a reduced basis.26
In the New World, the voluntary character of the Jewish community was total from the very first. Even where Jews were not fully admitted into the larger society, they were never required to be members of a Jewish community. While kinship propelled them toward membership, affiliation came only on the basis of active consent. As a result, Jewish institutions were built on an entirely voluntary or associative basis. The initial affiliation of Jews was voluntary and the subsequent linkage among Jewish organizations was even more so.
The Jewish response to New World conditions was to adapt the covenant principle through federative arrangements, generally without any awareness that they were continuing the Jewish political tradition. In the United States, the Jews developed federations of Jewish social service agencies, on the one hand, and federations of congregations on the other.27 In Canada, they developed a country-wide federation of local communities compounded out of community relations and Zionist bodies.28 In Latin America, country-of-origin groups formed their own communities which, over time, confederated with one another create city-wide or country-wide bodies for limited purposes.29 Whatever the particular form, characteristic of the whole was the contractual relationship and the institutional structures and processes which flowed from it.
To no small extent, the foundations of the reconstituted Jewish polity in Israel also reflect a continuation of the covenant tradition, although, after 1949, a state structure of the nineteenth-century European model was superimposed on what started as a continuation of older Jewish practice along new lines.30 The beginnings of modern Jewish resettlement in the land followed the patterns of Jewish "colonization" that existed since the earliest days of the Diaspora, adapted to local circumstances. That is to say, Jewish householders banded together to establish pioneering societies to accomplish specific or general tasks, whether construction of new neighborhoods outside the walls of Jerusalem, establishment of agricultural settlements, or the organization of cooperative enterprises. In doing so, the householders compacted together by drawing up articles of agreement reminiscent of those establishing medieval communities or societies were organized abroad on the same basis, as pioneering nuclei, as fund-raising instrumentalities, or political action groups, finally coming together as the World Zionist Organization which began as a federation of Zionist societies and rapidly became a federation of ideological movements.
The Zionist experience is a classic example of the Jewish use of federative arrangements. Zionism as a whole quickly came to represent the common messianic movement at the cutting edge of modern Jewry. However, in the Jewish fashion, agreement as to general messianic goals was accompanied by sharp disagreement as to the precise character of the goals to be achieved, which led in turn to the development of movements within the Zionist framework that were not only highly competitive on one level, but essentially hostile to one another, since they represented sharply different approaches to solving the Jewish and human problems to which Zionism was directed. Nevertheless, the movements quickly came to recognize the necessity for common action in order to advance both the common and specific elements in their respective goals. The solution was a federation based upon inter and cross-movement compacts for the sharing of power within the overall Zionist organization -- and the division of resources within it. The coalition politics based on the party key which became characteristic of the World Zionist Organization and, later, the State of Israel are the principal manifestations of this federative arrangement, the building blocks for all Zionist endeavors.
Parallel to the federation of parties, the Yishuv in Israel constructed federations of settlements and institutions, principally through the Histadrut -- General Federation of Labor, which together comprised the "state on the way" of the inter-war period.31 In the process, movements developed that offered their members a comprehensive environment providing them with educational facilities, social services, sports and recreational opportunities, and even military units. The network of charters and compacts forming both provided a constitutional basis for the rebuilding of the land which culminated in the Declaration of Independence proclaiming the new State of Israel. The content of the Declaration, known as the Scroll of Independence in Hebrew, is in itself of constitutional significance in the traditional way, that is to say, as a founding covenant that sets forth the guidelines within which a constitution can be developed and a regime established, without specifying either.32
While the Zionist pioneers relied upon Jewish political tradition, implicitly at least, in nation-building, when it came to state-building, they turned to the European models that they knew, superimposing upon the network of compacts and charters a centralized and highly bureaucratic model of parliamentary democracy. In this respect at least, it is ironic that the communal structure of the Diaspora remains closer to the Jewish political tradition than the new Jewish state. The end result
was not a replacement of a covenantal orientation with a bureaucratic one, but a great dysfunctionality between the formal structure and the ways of doing public business rooted in Jewish political culture. The transfer of functions from the parties to the state transformed the former from comprehensive movements -- states within a state-in-the-making -- into competitors for the rewards that only the state could offer. This led to a network of compacts for the division of those rewards to limit competition and give each party its due share. Interparty compacts also survived in the various electoral blocks formed and reformed in the years since 1948 and in governmental coalition-making. The latter actually rest upon signed documents hammered out among the partners. The formal federative framework, as such, continued to persist only in the rural areas through the sectorial and territorial settlement federations such as the several kibbutz and moshav movements and the regional councils. There the gap between structure and practice has been much smaller, with notable results. In sum, where pre-state developments have survived, so too have federative arrangements. Where they have been replaced by post-1948 modes of organization or where such modes of organization have been instituted and have become dominant, only echoes of covenantal arrangements are to be found, by and large in the semi-formal substructure that has grown up within the centralized state to make the latter work.
Applying the Covenant Idea
The foregoing all-too-brief historical survey suggests that the covenant idea has been manifested in the world of action in a variety of ways, reflecting the variety of circumstances to which it has had to be adapted. In addition, the covenant idea has manifested itself through a variety of dimensions. The exploration of these ways and dimensions has hardly begun, and remains a major task in the recovery of the Jewish political tradition. Nevertheless, it is possible to suggest some ways in which the covenant idea has been applied in practice. Here we shall attempt to do so in a suggestive rather than exhaustive way, through the perspective of some of the standard concerns of political science.
Jewish Political Institutions and their Organization
We have already suggested how communities, congregations and federations all reflect the covenant idea in operation. Figure 1 summarizes the various forms of organization which have predominated within the Jewish edah since the Exodus and their particular internal character. The overwhelming majority of them were created by compact and many were federal. Even the ones that were not, were essentially unions compounded of local communities and/or congregations.33 In addition, the small congregations and hevrot which represented the first step beyond the family as an organizational unit reflect the same covenantal base. Traditionally, the Jewish people has consisted of a group of families rather than individuals bound together by covenant, thereby accommodating the realms of both kinship and consent.
Systemic of the Covenant Idea
|Tribal Confederacy||Confederation of tribes|
|Southern Kingdom (Judah) ||Monarchy overlaying union of local communities|
|Northern Kingdom (Israel) ||Monarchy overlaying federation of tribes |
|Ezra's Covenantal Community|
|Union of local community-congregations|
|Babylonian-Near Eastern Exilarchate/Gaonate||Loose league of diaspora communities (each the product of a local compact) and Israel|
|Spanish and Rhenish Communities||Centralized polity with local home rule and internal division into "camps" based on local links to different authoritative yeshivot |
|East European Lands||Communities organized locally by compact which occasionally federated with one another on a regional basis|
|Near Eastern-North African Lands ||Federated (e.g., Vaad Arba Aratzot) unless prevented from doing so by the non-Jewish authorities|
|Modern Diaspora||Separated congregation-communities linked locally through leagues Federations or confederations of congregations, camps and/or functional agencies|
|State of Israel||Centralized parliamentary state superimposed on network of cooperative associations
Of the eleven general patterns of communal organization shown in the figure, only one, the Babylonian-Near Eastern diaspora was formally organized on a hierarchical basis and only two others, the southern kingdom of Judah after the division of the tribes and contemporary Israel, were centralized arrangements imposed upon an earlier covenantal base in such a way as to formally supersede it. In all the rest, the covenantal framework was carried through from first to last, either directly or in one permutation or another. The Babylonian case (along with that of modern France) represents the hard case in the scheme. The fact that the Talmud was created in Babylonia under the hierarchical conditions that prevailed requires us to consider the implications of that case. What is significant about it is the way in which Jews tried to reintroduce the familiar and by then traditional framework through the back door. Thus the Talmud discusses appointments to the district courts which, under the hierarchical system, were made by the Exilarch and how the Jewish communities insisted on parallel local appointees as well as local veto powers over the Exilarch's appointees after they appeared on the local scene.
When he (the Exilarch-appointed judge) reaches his destination (a particular community), he chooses two of the important men of the town to sit with him.
Moreover, the establishment of the great Babylonian academies and the struggle between the leaders of those academies and the Exilarch may itself be a reflection of the conflict of traditions, at least with regard to the separation of powers within any particular arena. The Bereshit Rabbah, the Midrashic commentary on the Book of Genesis, comments on the verse:
The scepter shall not depart from Judah, nor the ruler's staff from between his legs.
According to the Midrash, "The scepter..." is interpreted as the Exilarchs in Babylon, who rule the people, Israel, with the stick, while "the ruler's staff..." are the patriarchs of the family of Rav, who teach the Torah to the populace in the land of Israel. Another explanation of the verse is offered:
The scepter is the Messiah, son of David (Mashiach ben David), who will rule over the kingdom, that is to say, Rome, with a stick. And the ruler's staff are those who teach halakhah to Israel.
Even after the Messiah comes, there will have to be a separation of powers, for even the Mashiach is not to be trusted with all the powers alone. Even if he can rule over Rome, there still must be the great Sanhedrin to teach halakhah to Israel.
As a partnership, the Jewish community is clearly republican in its orientation; it is a partnership that is based on the principle that the community is a res publica, a public thing, not the private preserve of any man or group, whose leaders are drawn from and are penultimately responsible to the people. Penultimately, not ultimately. Ultimately, all are responsible to God; but penultimately, for matters of this world, leaders are responsible to the people in some way. In fact, much of the internal political history of the Jewish people revolves around the balancing of power among those who are seen as representatives of God's will and those whose authority stems from the people. This fundamental division of powers is crucial to any Jewish polity and is even reflected in modern Israel in the deference shown those recognized as representatives of normative Judaism which goes beyond the demands of coalition politics.
The Jewish community is republican but it is republican in an aristocratic as much as a democratic way. It must be carefully noted that, although the Jewish community has generally attempted to be democratic in its involvement of the people in covenants crucial to its formation and governance, it was not meant to be simply democratic, in the sense that we talk about any person acquiring leadership simply by virtue of some kind of public acclamation. It also seeks to embody the aristocratic ideal because leadership in the Jewish community was and is invariably invested in those able to claim legitimacy on the basis of some authoritative source that stands external to the members of the community, per se. Ideally, the source of authority of the communal leadership is God. According to tradition, it is He who determines what the earthly forms of legitimacy will be, through His covenant with the people and its expression in the Torah. After the days of the Judges, God Himself no longer directly anointed leaders. Consequently, even when Jews were God-fearing, they did not expect God to anoint their leaders, but they did recognize their ultimate responsibility to Him.
This apparent rejection of simple democracy in favor of a kind of federal republicanism is perhaps difficult to appreciate in a democratic era that increasingly equates true democracy with its Jacobin version. Nevertheless, Jews came to the conclusion that the maintenance of the special purpose of the Jewish people necessitated such a stance. While all power must be subject to checks by the people, ultimately the nature of the community is determined by something higher than the people; there is a vision that stands above the simple counting of heads. In practice, this has not always prevented the development of a rabbinic oligarchy supported by claims to Divine favor, but most of the time it has created a framework for power-sharing that has prevented autocracy, even in the most autocratic periods of the history of the nations.
The Covenant Idea in Jewish Political Thought
Classical Jewish sources do not clearly separate political and other teachings. Indeed, the methodological problem of uncovering the Jewish political tradition from within those sources is deserving of extensive treatment in its own right. By and large, standard exegetical techniques (the midrashic method) serve to identify the political ideas contained in those texts and relate them to one another so as to uncover a systematic teaching (see chapter three).
The covenant idea can be seen to be significant in shaping at least five themes of Jewish political thought: 1) man's stewardship on earth, 2) the special role of Israel among the nations in God's scheme for redemption, 3) the appropriate political regime for the Jewish people, 4) the Jewish conception of the polity as such, and 5) the ideal polity of the messianic age and the political character of the age itself.
The Jewish worldview suggests that man and God are partners in the management of the world. This partnership began when God delegated to Adam the right to name the creatures. Adam, however, was entirely dependent upon God's good will. With Noah, the partnership is regularized through a covenant which is interpreted by the sages as having a political component in the requirement to establish courts of justice, or government, in the world. The Talmudic discussion of the seven Noahide mitzvot is very revealing in that it suggests that six of the seven mitzvot were already demanded of Adam, but in effect, the sages teach us, they were not put together into coherent doctrine based upon a formalized relationship between man and God until God covenanted with Noah.34 The basis of man's relationship with God, the world and his fellowmen remains rooted in the covenant-created partnership.
The special role of Israel among the nations was established by the covenants with Abraham and at Sinai. Through the latter, God assumes direct responsibility for governing His people, a major aspect of their special position as a people set apart (made holy) for exemplary purposes. By and large, this issue is treated by contemporary Jewish thinkers as a theological problem. Yet Moses and the prophets treated it as a political problem first and foremost and there are even echoes of its political character in the Talmud, despite the very real efforts on the part of the Jewish leadership in those centuries to de-emphasize the strictly political dimension of Jewish life in an effort to adjust to the new conditions of exile and relative powerlessness. How does one deal with the problem of "entangling alliances" that were such anathema to the prophets, or with sharing the land with another people so strongly opposed in the Torah and the Book of Joshua except from a perspective that emphasizes the resolution of the political problems involved as a necessary precondition to the attainment of what we term theological goals.
At least as early as the Jews' encounter with Hellenism, the issue of Israel's special role became closely entwined with the question of whether the Jewish people existed simply by virtue of kinship, that is common descent, or also by virtue of consent, an argument which has carried over into our own times. For those who believe the former, a Jew is set apart from all other men by virtue of his very biology and, even if he strays, is more open to redemption than any non-Jew because of an inherited "Divine spark." This seems to have been the view of Judah Halevi, the Maharal of Prague, and the late Rabbi Kook, among others. On the other hand, there have been those who argued that consent was at least as important as kinship, if not more so in that every Jew has to accept the covenant to be truly part of Israel. This seems to have been the view of Philo and Maimonides, among others. Philo discusses the admission of proselytes on equal terms with those born Jews into the Jewish polity and suggests that the basis of that polity is not common descent but the common heritage of the Torah, i.e., common consenting to the commandments of the Torah. Thus, in De Specialibus Legibus, Philo says, "The native born Jews obtain the approval of God not because they are members of the God loving polity from birth but because they were not false to the nobility of their birth," while the proselytes obtain God's approval "because they have thought fit to make the passage to piety" (Spec. 1, 9, 51). Philo terms such relationships as "kinships of greater dignity and sanctity" (Spec. 1, 58, 317).
The latter view is that of most modern Jewish theologians and thinkers, reinforced by the realities of the open society and the general commitment of the moderns to voluntarism. On the other hand, the former view remains strongly that of groups like the Habad Hassidim, which helps explain why, on one hand, they pursue every Jew with equal vigor and, on the other, have an extremely negative attitude toward conversions to Judaism. While one must approach the Talmud cautiously in such matters, in at least one place it suggests that it is the covenant between God and Israel that makes "All Israel responsible for one another." In the larger context, this seems to represent a synthesis between kinship and consent. Certainly the Hebrew term for responsible used in the passage, arevim, has strong contractual connotations.
The discussion of the appropriate political regime for the Jewish people has been linked with the covenant idea from the first, as illustrated in Parashat Yithro (Exodus). As that parashah indicates, while the covenant establishes the constitutional grounding of the Jewish people, it does not establish any particular form of government. The Torah itself presents two options -- a nomocratic tribal federation ruled by God and led by prophets and judges or one under the leadership of kings. These two options -- the first based upon a highly non-centralized regime of locally rooted leaders and the second based upon a court with a bureaucratic -- with some variations, remain the principle choices before the Jewish people throughout the biblical period, and may even be seen as prototypes of the choices confronting the Jews as a polity ever since. Subsequently, other variations of those options were developed and instituted through various local compacts (or by outside powers where the Jews were unable to determine their own forms of government).
The struggle between the two options is generally couched in covenantal terms, namely what were the demands of the original covenant at Sinai which established God's direct rule over His people and did God modify those demands by His covenant with David and his house. This debate is one of the great debates in Jewish political thought, manifested in the Talmud, in the medieval world (for example, Maimonides versus Abravanel) and down through modern times (viz. Chaim Herschenson's Malchi Bakodesh and Martin Buber's Kingship of God).35 It has also operated on an immediate level in matters regarding the forms of governance, the organization of authority, and the distribution of powers within particular Jewish communities. The responsa literature is replete with references to these two options and seeks to apply them to local situations.36
If the Jewish sources do not mandate a particular form of government, they do have a great deal to say about what component elements are necessary for the construction of a good regime. These include both institutions and processes involving such things as the separation of powers and responsibilities, expectations of standards of behavior of political officeholders, and requirements for the protection of individual rights, or, more correctly, privileges, responsibilities and obligations. In short, an appropriate political structure within the covenantal framework is one that secures both the position of the Torah in the Jewish polity and the liberties (in the classic sense) of the Jewish people.
The lack of emphasis on a particular governmental form is a reflection of the emphasis of the covenantal approach on particular kinds of political relationships -- between governors and governed, between components of the polity (or between polities), between God and man. Covenants, after all, are designed to create relationships which are then given form rather than creating forms which are then given content. This emphasis on relationships has been a distinguishing characteristic of the Jewish political tradition from the first, and helps explain why a variety of regimes have proved acceptable to the interpreters of Jewish tradition and also why some forms of regime are simply unacceptable, no matter what.
Every polity is built around certain basic tensions which play a major role in giving it form and in defining its continuing concerns as a polity. Those tensions come on the scene in the course of the very founding of the polity in the first place and are, in all likelihood, inherent in the act of founding, representing unresolved conflicts leading up to the founding or tensions that necessarily result from the founding synthesis. Every generation must grapple with these tensions and work out some modus vivendi to manage them so that they are not so exacerbated as to cause the dissolution of the polity in question. At the same time, the tensions are never completely resolved as long as the polity exists. In fact they can be resolved only upon the demise of the polity. Thus, part of the dynamic of every polity is its particular set of tensions and the interaction that occurs between them.
The principal tensions within the Jewish polity are derived from or closely related to the covenant idea. One such tension evolves around the problem of reconciling Divine and popular authority. On one hand, God is the sovereign of the Jewish people and His authority is ultimate and unchallengeable. On the other, for day-to-day matters and even for matters of interpreting Jewish law, authority is vested in humans and, for many such matters, in human majorities. For example, the powers of legal interpretation were entrusted to the Sanhedrin as the ultimate human agency for interpreting the law, and, according to the famous midrash, their decisions are by majority rule even when God Himself gives a sign as to the rightness of the minority view. The covenant is perhaps the principal bridge between the two authoritative forces, since it is through the covenant that God has invested human institutions with authoritative roles. Moreover, it is through the various sub-covenants that humans have organized their institutions to exercise these roles.
Closely tied in with the question of the appropriate political regime for the Jewish people is the appropriate conception of the polity. Here the covenant idea plays an especially important role. If the Jewish political tradition conveys a clear sense of the existence of polities and their importance, it does not, in its authentic form, have any conception of the state in the modern sense of the term (see chapter six). The word medina appears in the Bible (as do almost all the words which we now take for granted in the Jewish language of politics), where it is used to describe a territorial unit possessing its own political or administrative institutions but clearly not an independent one, in other words, a jurisdiction, whether an administrative district (the usage in Kings) or a province (as used in Esther). The Bible does not refer to sovereign states because, for it and the Jewish political tradition generally, sovereignty rests only in Heaven. All powers possessed by humans are subsidiary ones, delegated by God to the people or their representatives as variously defined.
In the Jewish political tradition, polities come in all forms, peoples, nations, cities, tribes, kingdoms, empires, and modern states as well. None is considered to be the generic form. The Bible suggests that nations and peoples are generic in the form of polity they choose. As time went on and the Jews experienced a wider variety of political systems, this principle became refined with a new dimension added, namely that a good polity is in significant ways a partnership of its members. This was a natural outgrowth of the covenant idea.
The elimination of the problem of human sovereignty and absence of any generic form of polity helped reinforce a strong predisposition in Jewish political thought toward the view that all government is a matter of delegated powers. The term reshut, which first appears in the Talmud, probably comes closest to encapsulating this concept, reflecting as it does an authority whose powers have been granted by another source. The principle of reshut has been institutionalized in Jewish liturgy and ritual as a sign of the equal sharing of God's covenant-granted authority among all Jews. Thus in the Siddur, the hosts of heaven grant reshut to one another to praise God and the leader of the birkat hamazon (blessing after the meal) requests reshut from his peers (literally stated, his teachers, with the implication that those present are more knowledgeable than he) to lead them in the prayer.
The principle of reshut is politically operationalized through reshuyot (authorities, as in the sense of the New York Port Authority), among other things, this makes possible overlapping political jurisdictions and structures, each with its own powers or competences, a phenomenon which we already encounter in biblical times as a feature of Jewish governments and which has been a continuing reality of Jewish political life ever since. This theoretical perspective was further reinforced by the long diaspora experience of the Jews, where, in effect, the Jews had obligations to more than one polity simultaneously.
Finally, Jewish political though has concerned itself with the messianic age and the ideal polity that is to come into existence with the coming of the messiah. Jewish tradition is rather clear on this point. The messianic age will be the age of the realization of God's kingdom upon this earth with all the political implications contained in that phrase. Consequently, a political order will be necessary, but of course it will be the ideal political order. By and large, Jewish equivalents of utopias are directed toward discussion of the messianic polity. Both Isaiah and Ezekiel bring their versions of that polity and talmudic and post-talmudic literature has other such visions.37 In almost every case, they involve the fulfillment of God's covenant with Israel and the restoration of the tribal federation. All other aspects flow from those two starting points.
The sophistication of the covenant idea in Jewish political thought is perhaps best revealed in the relationship between brit and hesed. Brit represents the structural manifestation of the covenant idea, while hesed is its dynamic component. If a brit creates a partnership, then hesed is what makes the partnership work.38
Hesed has been variously translated as "loving-kindness" or "grace." In fact, there is no equivalent term in English which conveys its true meaning (one of the signs of the originality of the idea). Norman Snaith has translated it as "covenant love," but that translation is too theological.39 Hesed really means the obligation of a partner to a covenant to go beyond the narrowly construed contractual demands of the partnership in order to make the relationship between them a truly viable one. It is the Jewish answer to the problem of "narrow legalism." A covenant is, after all, a contract and the tendency in contractual systems is for people to act like lawyers, that is to say, to try to construe the contract as narrowly as possible when defining their obligations and as broadly as possible when defining the obligations of the other parties. That is what narrow legalism is all about. What hesed does is to insert into the relationship a more extended dynamic. Through it, Jewish tradition interprets one's contractual obligations broadly rather than narrowly, the broader the better. Thus, hassidim have traditionally been those who have defined their obligations vis-a-vis god and their fellow men to include a dimension above and beyond that which is normally required. Jewish history has known three hassidic movements identified by that name: the hassidim of the Second Temple, those of medieval Ashkenaz, and those who emerged in eighteenth-century Eastern Europe. Each was a unique movement in many ways, but what was common to them all was this sense on the part of the movements' adherents that they were accepting a more broadly construed obligation than that which Israel's covenant with God ordinarily demanded. In essence, they were attempting to fulfill the Talmudic dictum that lifnim meshurat hadin din hu, going beyond the law is the law, in their own lives. A brit without hesed is indeed a narrow thing and, according to Jewish tradition, God himself provides the model of the extension of hesed by maintaining His relationship with Israel despite the Jews' repeated violations of the terms of the covenant. That is the finest example of taking the extra step.
Political Culture and Behavior
The precisely proper combination of brit and hesed is left to theoretical speculation and the end of days. In the interim, however, the concepts have entered the political culture of the Jewish people to exercise a pronounced, if partial and necessarily flawed, influence on a regular basis. Even in the absence of systematic studies, a reasoned assessment of the evidence can lead us to a certain understanding of the matter. So, for example, as befits a people who see themselves as partners of the Almighty, Jews are not prone to relate to each other (or to others) hierarchically. Quite to the contrary, even the authority of particular leaders is accepted voluntarily on the basis of equality. For most Jews, not even the religious leadership is able to form a permanent elite. Every Jew feels free to recognize his own authoritative interpreters of the Torah. Acceptance of authority in other spheres may involve the recognition of sociological realities -- e.g., that in a voluntaristic community the wealthy will have more power since they contribute a larger share of the budget -- but does not endow the leadership with any special status per se. The status exists by consent of the community in both cases.
Melvin Urofsky describes Louis Dembitz Brandeis' reaction to his first serious encounter with still-unassimilated Eastern European Jewish immigrants to the United States as the mediator of the great New York garment workers' strike of 1910.40
While going through the lofts, he heard numerous quarrels between workers and their bosses, and was amazed that they treated each other more like equals than as inferiors and superiors. In one argument an employee shouted at the owner, "Ihr darft sich shemen! Past dos far a Yid?" ("You should be ashamed! Is this worthy of a Jew?"). While another time a machine operator lectured his employer with a quotation from Isaiah: "It is you who have devoured the vineyard, the spoil of the poor is in your houses. What do you mean by crushing My people, by grinding the face of the poor? says the Lord God of hosts.
Brandeis' experience is matched in Israel (or any other Jewish environment) every day. Jews do not "obey orders." They can be brought to act in a certain way either on the basis of understanding or trade-offs, but not on the basis of commands. Even in the military framework, where there is no problem of obeying immediate commands, the Israel Defense Forces (IDF) has found that it must first inculcate understanding so that it can succeed in commanding. This, indeed, has been IDF doctrine from the first. Behaviorally, this manifests itself in a Jewish conception of leadership which involves leaders actually going first, what in the Israeli army is known as the acharai or follow me principle. It is no accident that the IDF gains its greatest strength following this principle, just as on a very different level the most influential Jewish leaders in the United States are the big contributors to the annual campaigns -- the only American Jewish leaders, who lead by going first and setting the pace.
The operation of this principle can be seen throughout Jewish history. Successful leaders were those who accepted the heavier burdens in whatever direction they desired to lead, else they had no significant influence. It is highly significant that classical Hebrew has no word for obey (there is a modern word created for use in the IDF). Classical Hebrew uses shamoa, a term which embraces hearing before acting and implicitly involves the principle of consent. That is to say, an individual -- as befits a partner to God's covenant whose integrity and autonomy are established -- hears, considers and decides. He cannot be ordered to do something, but must consent to it. Even the midrash which stands in greatest conflict with the covenant idea, the one describing Israel's acceptance of the Sinai covenant only after God held a mountain over them, still reflects this perspective. According to that midrash, God put Israel in a most untenable position, by holding the mountain over them and giving them the choice of agreeing to the covenant or being buried under it, virtually forcing them to consent, but they still had to consent. He did not simply force them to obey, and that is probably that most extreme example (and by no means to be taken as the mainstream view) of a master-servant relationship in classical Jewish thought. Thus a kind of partnership attitude is a basic datum of Jewish existence. Anyone who attempts to lead, govern or even work with Jews comes up against it every day in every way.
The covenantal solution to the problems of Jewish unity can also be seen as cultural and behavioral manifestations of brit and hesed. Jewish political thought and culture are characterized by a strong messianic dimension, again as part of the sense that man works in partnership with God to reconstruct or redeem the world. An equally pronounced element in Jewish political culture and behavior has been the conceptualization of the messianic task in different ways, creating a kind of pluralism within Jewish life that manifests itself in the division of Jewry into various movements or camps. It seems that a camp comes into existence when its adherents compact among themselves -- implicitly or explicitly -- to follow a certain form of Jewish discipline, in effect becoming congregations or covenantal societies within the overall framework of the Jewish people. So it was with the Sadducees, Pharisees and Essenes in the days of the Second Temple; so it is with contemporary Orthodox, Conservative and Liberal religious movements; and so it has been with the Zionist parties.
The relationship among camps has been more problematic. Either some linkage has been achieved among them on a federative basis or there has been hostility even to the point of civil war. In the days of the Second Temple, the latter condition prevailed with disastrous consequences for the Jewish people. Since then, there have been moments when a similar result seemed to be in the offing, as in the struggle between Karaites and Rabbanites and later between the Orthodox and the Reformers, but the diaspora situation of the Jewish people in effect prevented them from such suicidal behavior. Twentieth-century Jewry, with all its problems, has implicitly (if not always happily) recognized that the camps are inevitable as long as Jews are free to pursue their respective messianic visions, but has also recognized the necessity for national unity. Thus in both Israel and the United States, in particular, federative arrangements have been applied to create sufficient unity to undertake common action to protect common interests or advance common goals without interfering with the basic integrity of the camps themselves. Obviously, this involves a continuing process and has left certain continuing problems as well, not the least of which is one inherent in the pursuit of any messianic vision, namely that there is a limit to the ability of one camp to tolerate another, particularly when they involve grossly contradictory visions and ways of life.
In this respect, twentieth-century Jewry has managed to devise methods that flow out of the Jewish political tradition, even if unawares (one indicator of existence of a Jewish political culture is that such things can happen unawares), that have more or less satisfactorily dealt with a major flash point in Jewish life, one which has brought Jews great grief in the past. Thus the self-restraint of the overwhelming majority of the various Jewish camps of our times can be looked upon as a signal accomplishment, even if it leads to a certain amount of impatience on the part of those who see their particular messianic vision somehow compromised by the acceptance of various status quo arrangements.
Contractual behavior, if one may so term it, that seems to be endemic to Jewish political culture, is manifested through the series of partnerships that comprise the Jewish community, each of which combines the fundamental autonomy of its members within a bargaining relationship. We have already suggested that leadership under such circumstances has to take on a different character. So, too, decision-making becomes principally a matter of negotiation among equals.
At various times in Jewish history, these partnerships have included such phenomena as shutafim in the study of Talmud, the kinds of partnerships that S.D. Goitein describes as coming in place of employer-employee relationships in the Egypt of the Geniza, and the cooperative building of contemporary Israel.41
It is likely that every society has some kinds of cooperative relationships within it, so that the discovery of such relationships is not definitive, per se. It is the prevalence and salience of such relationships that count. In that regard, the Jewish people is one of those societies that stand out in their utilization of partnership devices, all of which also have their roots in the covenant idea.
Political life in Jewish communities and polities has usually involved the following factors: (1) the initial consent of the members to the community's authority and to the authoritative structures and processes of governance within it; (2) a commitment toward participation in communal affairs on the part of a relatively substantial percentage of the citizenry; (3) the utilization of various forms of representation (usually pre-modern, and only recently modern ones) where direct participation was not feasible; and (4) a system of dispersed decision-making with different tasks assigned to different bodies often involving the same individuals wearing many different hats, moving from body to body in their leadership capacities. It is within this framework that links between the covenant idea and the practice of governance in Jewish polities are made.
It is obvious that the sweep of the covenant idea is broad indeed. This writer is not the first to suggest either its sweep or importance. The many references cited here attest to that. Precisely because of its breadth, the concept requires as much specification as possible. Perhaps the best way to emphasize its specificity is by indicating what would be inconsistent with covenantal relationships, i.e., what is not covenanted. We can begin by excluding the relationship between master and slave (in any form, including political slavery). In that sense, any relationship that denies the fundamental freedom of any of the parties to it is not covenantal. In relation to polities, non-republican (in the classic sense of the term: a polity as a res publica, a public thing rather than the private preserve of its rulers) relationships are not covenantal.42
To suggest that the covenant idea informs a political tradition is not to suggest that it answers all questions, any more than the idea of natural law does in the tradition it informs. What it does do is set the parameters of the debate.
It is always a mistake to underestimate the continuity of culture. Individuals are formed early in their lives by the cultures into which they are born. So, too, is a people. The seeds of whatever Jews are today were planted at the very birth of the Jewish people -- when God decided, in His infinite wisdom, to take the Jews in harness, and the Jews, whether because they were foolish or desperate, decided to accept His offer. In sum, when the Jews were formed as a people, they acquired (or already had) certain characteristics that have persisted over time. Despite all the differences, the similarities and elements dating back to or deriving from those original conditions have had an amazing persistence. Jewish culture is permeated with contractual manifestations, symbols and images. Hardly a page of Jewish text exists without at least one.43 In the political as well as other realms, the better part of those elements are derived from the covenant.
The question remains, given the political character of the covenant, is a covenantal basis for the Jewish political tradition still valid or even possible given the present secularization of the Jewish and other peoples. The answer to that question can be developed theoretically or empirically. Theoretically it seems neither possible nor valid under such conditions. Empirically, however, the evidence is mixed. Even secular Jews often seem to be striving for just such a relationship within their tradition and few Jews react to it in fully secular ways. The covenant flourishes as a figure of speech and, it would seem, as the bond which has generated the sense of responsibility Jews have for one another. The behavior of committed Jews of all persuasions in our times would seem to confirm the behavioral reality of the covenant relationship even if the theory behind it needs new clarification.
1. A somewhat different version of the present paper appeared in the Jewish Journal of Sociology, Vol. XX No. 1 (June 1978):5-37.
2. See, for example, Arnold Jacob Wolf, ed., Rediscovering Judaism (Chicago: Quadrangle Books, 1965) which includes essays by several of the principal North American exponents of this covenant theology, and Jakob J. Petuchowski, Ever Since Sinai (New York, 1961). Martin Buber emphasizes the covenant in all of his works. See also Harold Fisch, Jerusalem and Albion (New York: Schocken Books, 1964) for an examination of the modern secularization of the covenant idea and John F.A. Taylor, The Masks of Society, An Inquiry into the Covenants of Civilization (New York: Appleton-Century-Crofts, 1966) for a contemporary American covenantal perspective. While this article seeks to expound and even shift our understanding of the covenant idea to include and emphasize its political dimension, it also uses theological terminology throughout because the Jewish political tradition of necessity has a theological base just as the European political tradition has a philosophic base. Political theology has declined in importance in the West in recent generations, hence the usages may be somewhat unfamiliar to the reader, but it is nonetheless an old element in political science and legitimate in every respect.
3. See especially Hans Kohn, "Nationalism in Israel and Hellas," in The Idea of Nationalism (New York: Macmillan, 1961). From the perspective of the Jewish political tradition, the Bible must be read as a whole work, regardless of the various theories of biblical criticism. What is significant about it is not the extent to which the text in our possession is an edited amalgam but that, as a whole, it presents -- and represents -- a comprehensive tradition. (See my discussion in the introduction to this volume.) For a fuller discussion of this problem, see Leo Strauss, What is Political Philosophy (Glencoe, Ill.: Free Press, 1959). Strauss applies his perspective in An Interpretation of Genesis (Jerusalem and Philadelphia: Center for Jewish Community Studies, 1975).
4. See George Mendenhall, "Covenant Forms in Israelite Tradition," Biblical Archeologist, XVII (1959):50-76. For an interesting gloss on Mendenhall, see Moshe Weinfeld, "Berit-Covenant vs. Obligation" in Biblical, Vol. 56, Fasc. 1 (1975):120-128.
5. The question as to whether or not the choice of regimes is open has been much debated in Jewish tradition. That is to say, is monarchy mandated by the Torah or a matter of choice? For our purposes here we need not determine which view is correct (although this writer believes that the choice is given). The very fact that the question is a perennial one with such distinguished figures as Don Isaac Abravanel opting for the latter view is sufficiently significant to demonstrate the point made here. For a summary of the sources, see Chaim Herschensohn. Eleh Divrei HaBrit (Hoboken, N.J., 1918-1921), 3 vols., and Malchi Bakodesh (Hoboken, N.J., 1923-1928), 6 vols.
6. For a fuller discussion of the political institutions of ancient Israel, see Roland de Vaux, Ancient Israel (New York: McGraw-Hill, 1965), 2 vols., especially Vol. 1 Social Institutions.
7. All biblical usages of the term brit have been assembled and classified in HaMunach "Brit" BaTanach [The Term "Covenant" in the Bible], a guide published by the Workshop in the Covenant Idea and the Jewish Political Tradition co-sponsored by the Center for Jewish Community Studies, and the Department of Political Studies of Bar-Ilan University.
8. See Perry Miller, The New England Mind (Boston: Beacon Press, 1961), 2 vols., particularly Vol. 1, Book IV and Appendix B, "The Federal School of Theology."
9. Moshe Weinfeld, "Covenant" in Encyclopedia Judaica, 5:1012-1022. See also Delbert Hillers, Covenant: The History of a Biblical Idea (Baltimore: Johns Hopkins Press, 1969) and Ruth Gil, "Brit -- HaMunach v'HaMusag" ["Covenant -- The Term and the Concept"], an unpublished paper prepared for the Workshop for the Study of the Political Implications of the Covenant Idea. The Hebrew terminology of the Jewish political tradition is especially rich in covenant-related terms, ranging from at least three terms for covenant in the Bible itself to the terminology of contemporary Israeli political life with its emphasis on "compounding" (rather than forming) governments and polities; "consenting" to the conclusions of meetings, etc. Even words like shalom which have other manifest meanings have been demonstrated by philologists to contain strong covenantal connotations. The Covenant Workshop has examined these terms in some depth and documentation of their covenantal character can be found in the workshop files.
10. No comprehensive study of the covenant idea as a political concept, comparable to the several such works on a parallel concept, natural law, presently exists. The Workshop in Israel and a parallel Workshop in Covenant and Politics sponsored by the Center for the Study of Federalism at Temple University in Philadelphia are now at work laying the foundations for such a work. There are, however, studies of various political applications of the covenant idea such as those of Kohn, Hiller, Miller and Taylor cited above.
11. Rabbi J.D. Soloveichik, among others, treats the two passages as referring to separate covenants, at least for homiletic purposes, in "Lonely Man of Faith," Tradition, Vol. 14, No. 3 (Summer 1974). Since he takes the covenant and basis of Jewish peoplehood seriously, his discussion deserved particular notice even if it is only tangentially political in orientation.
12. See Daniel J. Elazar, "Kinship and Consent in the Jewish Community: Patterns of Continuity in Jewish Communal Life," Tradition, Vol. 14, No. 4 (Fall 1974):63-79.
13. See Martin Noth, The History of Israel (New York: Harper and Row, 1958).
14. The idea that the Torah should be understood as the constitution of the Jewish people is old and oft-recurring, expressed by traditional and modern thinkers, as diverse as Spinoza, who understood the Torah as a political constitution first and foremost, and Mendelsohn, who viewed the political dimension as utterly dispensable. See Benedict Spinoza, Politico-Theologico Tractate; Moses Mendelsohn, Jerusalem, and Eliezer Schweid, Chapter 6 of this volume.
15. See, for example, Martin A. Cohen, "The Role of the Shilonite Priesthood in the United Monarchy of Ancient Israel" in Hebrew Union College Annual (Cincinnati: Hebrew Union College, 1965), Vol. XXXVI; Josephus's Antiquities of the Jews; Abravanel's commentary on Deuteronomy and Samuel; and Buber's Kingship of God (New York: Harper and Row, 1967). Elijah has traditionally been considered an anti-monarchist; the biblical portrayal of him shows him to have a more complex position, supporting Ahab as King but seeking to keep the monarchy tied to the Torah as mediated through the prophets. The reference here is to the tradition rather than to the more complex reality.
16. See, for example, George H. Sabine, A History of Political Theory (New York: Henry Holt and Co., 1950), rev. ed.
17. See Norman K. Gottwald, All the Kingdoms of the Earth (New York: Harper and Row, 1964). These constitutional and practical issues such as the relationship between the covenants underlying the tribal federation, God's covenant with David and his house and the division of powers under the monarchy are complex and involved ones that require detailed treatment in their own right. They are among the many subjects that deserve to be investigated in the study of the Jewish political tradition and cannot be treated in the space of this chapter.
18. For a description of those efforts, see Michael Avi-Yonah, The Jews of Palestine, A Political History from the Bar Kokhba War to the Arab Conquest (New York: Schocken Books, 1976).
19. For a study of power relationships in Babylonian Jewry, see Jacob Neusner, There They Sat Down (Nashville and New York: Abingdon Press, 1972).
20. Louis Finkelstein, Jewish Self-Government in the Middle Ages (New York: Philipp Feldheim, 1964).
21. Salo W. Baron, The Jewish Community (Philadelphia: Jewish Publication Society, 1938-1942), 3 vols.
22. Menachem Elon, Chapter 7 in this volume; Irving A. Agus, Urban Civilization in Pre-Crusade Europe (New York: Yeshiva University Press, 1968), 2 vols.; and Isidore Epstein, Studies in the Communal Life of the Jews of Spain (New York: Hermon Press, 1968). This writer follows Elon in the view that, more often than not, majority rule was the accepted standard, a position entirely consistent with the covenant principle. The more important point is that either position supports the thesis advanced here.
23. Thus the Workshop in the Covenant Idea and the Jewish Political Tradition, in cooperation with the responsa project at Bar-Ilan, has systematically identified hundreds of practical applications of the word brit in the selected responsa presently stored in the project's computer. They are now being classified and analyzed.
24. Gerald Blidstein, Chapter 4 in this volume, and Notes on Hefker Bet-Din in Talmudic and Medieval Law (Jerusalem: Center for Jewish Community Studies, 1975).
25. Ibid.; Elon, op. cit.; Agus, op. cit.; Epstein, op. cit.
26. Daniel J. Elazar, "The Reconstitution of Jewish Communities in the Postwar Period," in Jewish Journal of Sociology, vol. XI, no. 2 (December 1969):187-226.
27. Daniel J. Elazar, Community and Polity: The Organizational Dynamics of American Jewry (Philadelphia: Jewish Publication Society, 1976).
28. Moshe Davis, "Centres of Jewry in the Western Hemisphere: A Comparative Approach," reprinted in Five Lectures Delivered at the Third World Congress for Jewish Studies in Jerusalem (Jerusalem: Hebrew University Institute of Contemporary Jewry, 1964). See also the other lectures reprinted in that pamphlet.
30. See Emile Marmorstein, Heaven at Bay (London: Oxford University Press, 1969); and Daniel J. Elazar, Israel: From Ideological to Territorial Democracy (New York: General Learning Press, 1970). Eliezer Don-Yehiya of the Covenant Workshop is presently investigating the conscious use of covenant forms and symbols in the development of the Zionist enterprise in Israel. His preliminary findings strongly reinforce the point made in these paragraphs.
31. S.N. Eisenstadt describes this process in Israeli Society (New York: Basic Books, 1967).
32. Horace M. Kallen has examined the ideological implications of the Scroll in this way in Utopians at Bay (New York: Theodore Herzl Foundation, 1958), pp. 15-19. For a discussion of the scroll's quasi-constitutional character, see Amnon Rubenstein's work in Hebrew, The Constitutional Law of the State of Israel (Jerusalem and Tel Aviv: Schocken, 1969), Chapter 1.
33. For an understanding of the variety of federal arrangements, and the relationship of union as a constitutional form to those arrangements, see Daniel J. Elazar, The Ends of Federalism (Philadelphia: Temple University Center for the Study of Federalism, 1976).
34. See Saul Berman, "Noahide Laws," in Encyclopedia Judaica, 12:1189-91 for a good summary and references to the relevant texts.
35. See Gordon Freeman, Chapter 2 in this volume; also Chaim Herschenson, Malchi Bakodesh, op. cit., Chapter 11; and Buber, op. cit.
36. See the material of the Responsa Literature Information Storage and Retrieval of the Institute for Data Retrieval, Bar-Ilan University, and the files of the Covenant Workshop.
37. See, for example, Stephen Schwarszchild, "A Note on the Nature of the Ideal Society -- A Rabbinic Study," in Herbert A. Strauss and Hans G. Reissner, eds., Jubilee Volume Dedicated to Curt C. Silberman (New York: American Federation of Jews from Central Europe, 1969).
38. Nelson Glueck documents this in his Hesed in the Bible (Cincinnati: Hebrew Union College Press, 1967) without attempting to make the point.
39. Norman H. Snaith, "The Covenant-Love of God," in The Distinctive Ideas of the Old Testament (New York: Schocken Books, 1964), Chapter 5.
40. Melvin I. Urofsky, "On Louis D. Brandeis," in Midstream (January 1975):42-58.
41. S.D. Goitein, A Mediterranean Society (Berkeley and Los Angeles: University of California Press, 1971), Vol. 11: The Community; and Harry Viteles, A History of the Cooperative Movement in Israel (London: Vallentine Mitchell, 1966), 7 vols.
42. There are those who argue that non-voluntary political associations cannot be covenantal. This writer clearly rejects that position. A state association can be fully covenantal if it is internally constituted on the right principles, i.e., is compounded of free citizens and is linked with other state associations in a federal manner.
43. See, for example, Gordon Freeman, The Politics of Prayer (Ramat Gan: Workshop in the Covenant Idea and the Jewish Political Tradition, 1977).