Is There a Practical Way to Bridge the Gap
between
Traditional Jewish and Modern
Expectations
of Rights and Obligations?
Daniel J. Elazar
In looking for a bridge between traditional Jewish and modern
views of obligations and rights, we find the tradition of federal
liberty -- the liberty to live according to the covenant to which
one has consented -- as developed in the seventeenth century by
Reformed Protestant theo-political revolutionaries. Taking the
biblical paradigm as the starting point, it is possible to
suggest reconstruction of the modern rights model in line with
ideas of federal liberty as follows: All human beings are created
equal and endowed by their Creator with certain inalienable
rights -- e.g., life, liberty, property and the pursuit of
happiness. All human beings are also created as social beings
and as such must form communities and polities. The basic right
of all humans connecting these two aspects of humanity is the
right to covenant, which is both right and obligation. The
exercise of all rights is through the covenants freely entered
into by humans. Every individual human and every human community
and polity lives within this network of covenants and only can
find expression for rights within a network of covenants.
Humanity is the sum of its obligations and rights, not to the
state but to a transcendent and mutually accepted morality.
Humans are free because only the free can be obligated to be
moral and just and only by being obligated to strive to be moral
and just do they find expression of their inalienable rights.
A History of Contrasts and Convergences
Is there a way to bridge between traditional Jewish and modern
views of obligations and rights? This is a question that we need
to confront.
The biblical and subsequent Jewish tradition begins with the idea
of the consenting community as manifested through covenants;
initially covenants with God and then subsidiary covenants among
humans for organizing authority and power. Those covenants
established a system of obligations that included implied or
stated rights, protections and liberties (using the English
terminology, not Hebrew). Those who accepted the obligations
accordingly were entitled to certain rights, protections and
liberties, in the biblical terminology, tzedakah u'mishpat. This
view, or some variant of it, animated Jewish and, later,
enlightened Christian views of obligations and rights until
modern times.
In Western Europe in the sixteenth through eighteenth centuries
there was a revolution in the prevailing conception of rights and
obligations, whose turning point came in the seventeenth century.
The revolution began with the sixteenth century Reformed
Protestant emphasis on covenant which opened the door. The
seventeenth century natural rights philosophers' emphasis on
political compact, a secularized version of the Reformed
Protestant covenant, established a new basis for human rights and
gave them precedence over obligations. Their theories were the
basis of the great eighteenth century revolutions that emphasized
the primacy of "natural rights" or "the rights of man." The
eighteenth century revolutionaries' emphasis on the social
contract which spread the idea of the political contract in
continental Europe (other than covenantal Switzerland) became the
dominant form of covenantal thinking on the continent.
Recall the differences between the three forms. Covenant
involves a public act linking the human parties through or with a
transcendent power. Political compact involves a public act
based on mutual promises among human parties without any
necessity for invoking a transcendent power. It might still be
invoked -- for decoration or even because there are those who see
it as important in some way to do so, but mutuality rendered it
unnecessary to make the pact a binding one. The social contract,
nominally a public act, really involves more narrow agreements
among human parties freed of other constraints.
This secularization led to a system whereby rights came to take
precedence over obligations or, as they came to be called,
responsibilities; indeed, a situation in which rights were real
and necessary and responsibilities were voluntary. In the early
stages of this transformation, it was assumed that for every
right there was a correlative responsibility. But, unlike
rights, the responsibilities were not graven in stone. At most
they might be written down in constitutions as a way to base a
civil society on an individual rights-based system.
In the by-now-disestablished Jewish polity, obligation continued
to be at the basis of Jewish organization but it became voluntary
obligation, with rights flowing from it, not just protections and
liberties. As one took on the obligations, one gained rights.
The Jews also became a consensual rather than a consenting
community.
For the new democratic polities, the voluntary dimension -- the
consensual dimension -- was also very important. That is one of
the reasons why the United States has always insisted, for
example, on the right of emigration. The right of emigration is
one of the critical American rights, although it is nowhere
stated in the Bill of Rights or any similar document, because in
order for people to be free to consent, they have to be free to
leave. This is a right that the American government has defended
for Jews and others at least since the nineteenth century.
In the late modern epoch, a dissatisfaction with this libertarian
model in some quarters led to what Eric Fromm termed the escape
from freedom, based on a new system of deference. In the modern
world, this led to totalitarianism. The closest Jewish example
of this is the haredi (ultra-orthodox) community whose embrace is
well nigh total and where hierarchical deference takes the place
of either the traditional form of obligations and protectons or
the modern form of rights and obligations.
After World War II, the world entered the postmodern epoch. As
part of the climax of its first generation in the 1960s, there
developed a popular neo-contractarian spirit that soon was
embodied in an intellectual school. John Rawls and Ronald
Dworkin are good examples of that school. It has led to new
conceptions of rights without corresponding obligations or
responsibilities. Their thought was widely echoed in popular
behavior. Marriage, for example, was transformed from a covenant
into a contract.
This is an enormously important transition fraught with all kinds
of meaning. For the Jewish community, for example, the synagogue
becomes essentially a contractarian institution. Rights become
totally detached from responsibilities or obligations except as
an individual may or may not choose to contract and so then has
to observe the terms of the contract.
Jewish life has had to conform to these new directions. Modern
Jews developed a tradition combining rights and responsibilities.
In that respect the Jewish experience was like that of every
other premodern tradition which had provided protections for
individuals. The modern project replaced those traditions with a
conception of rights as a preeminent aspect of individualism.
Even if there is an argument among postmoderns as to whether
rights should be linked with responsibilities or emphasized
exclusively with only the most minimal individual self-limitation
on a fully free and voluntary basis, all conceptions of rights
must be within the framework of the modern project.
The paradox is that there was an extraordinary biblical influence
on the development of modern rights theory. Whereas the biblical
and classical traditions shared a sense of community and
obligation, that is to say, both emphasized the primacy of the
community, and the importance of individual obligations to the
community because it was so primary, the biblical tradition
diverges from the classical tradition and is more closely aligned
with the modern one on the issue of equality.
The classical tradition is essentially a tradition of inequality.
In the biblical tradition, human obligation is ultimately to God
and all humans are equally obligated in fundamental ways to God.
Even though the community becomes important, in this sense it is
still a mediating institution between the individual and God.
Therefore the biblical sense of equality is closer to the modern
sense than it is to the classical tradition of the community of
unequals, which is why Hobbes, Spinoza, Locke, and the other
seventeenth century philosophic revolutionaries who broke with
the classical theory all drew on biblical sources.
Not only did they draw on biblical sources, but part of their
revolution was to go back literally to the biblical texts
themselves following the text-oriented tradition established in
the Protestant Reformation in the previous century. They looked
at the biblical text "straight," not through the traditions which
they inherited respectively. They were influenced by their direct
reading of the Bible, unmediated in any conscious way. Indeed,
they made an effort not to have their reading mediated through
the traditions from which they came. Philosophically, they
continued the classical enterprise, but they rejected the central
ideas of the classical enterprise and went to the biblical
enterprise when it came to the question of anthropology. As we
look for a bridge, we have to go back to the seventeenth century
and seek clues as to where it might be possible to build bridges.
Federal Liberty
There was an effort to build a bridge at that time, not a Jewish
effort, but there was a non-Jewish effort that was shared by the
theo-political revolutionaries at the time that was part of the
political theology that grew out of Reformed Protestantism that
may have something to say to our problem. And that is the
tradition of federal liberty; the liberty to live according to
the covenant to which one has consented.
When John Winthrop, who was probably the foremost Puritan
articulator of the idea of federal liberty, talked about it in
seventeenth century Massachusetts, he talked about both belief
and practice together:
There is a twofold liberty, natural (I mean as our nature is
now corrupt) and civil or federal. The first is common to
man with beasts and other creatures. By this, man, as he
stands in relation to man simply, hath liberty to do what he
lists; it is a liberty to evil as well as to good. This
liberty is incompatible and inconsistent with authority and
cannot endure the least restraint of the most just authority.
The exercise and maintaining of this liberty makes men grow
more evil and in time to be worse than brute beasts: omnes
sumus licentia deteriores. This is that great enemy of truth
and peace, that wild best, which all of the ordinances of God
are bent against, to restrain and subdue it. The other kind
of liberty I call civil or federal; it may also be termed
moral, in reference to the covenant between God and man, in
the moral law and the politic covenants and constitutions
amongst men themselves. This liberty is the proper end and
object of authority and cannot subsist without it; and it is
a liberty to that only which is good, just and honest.
In Jewish tradition there is much more room for freedom of
belief, as against freedom of practice. In that sense, the
original formulations of federal liberty were quite draconian.
Nonetheless there is something to be learned from going back to
the foundations of federal liberty as Winthrop and his peers
understood them, namely that civil society is based on the
covenants to which the people have consented and by which they
are bound. They determine one's obligations, but they also
determine one's liberties or rights.
Thomas Hobbes formulated a secularized and far more limited
version of this doctrine in Leviathan, listing fifteen necessary
articles of agreement or covenant to which all must consent in
order to constitute civil society:
- To seek peace, and follow it.
- By all means we can, to defend ourselves.
- That men perform their covenants made.
- That a man which receiveth benefit from another of mere
grace, endeavor that he which giveth it, have no reasonable
cause to repent him of his good will.
- That every man strive to accommodate himself to the rest.
- That upon caution of the future time, a man ought to pardon
the offences past of them that repenting, desire it.
- That in revenges, men look not at the greatness of the evil
past, but the greatness of the good to follow.
- That no man by deed, work, countenance, or gesture, declare
hatred, or contempt of another.
- That every man acknowledge another for his equal by
nature.
- That at the entrances into conditions of peace, no man require to
reserve to himself any right which he is not content should be
reserved to every one of the rest.
- If a man be trusted to judge between man and man, that he deal equally
between them.
- That such things as cannot be divided, be enjoyed in common, if it can
be; and if the quality of the thing permit, without stint; otherwise
proportionably to the number of them that have right.
- That the entire right; or else, making the use alternate, the first
possession be determined by lot.
- That all men that mediate peace, be allowed safe conduct.
- That they that are at controversy, submit their right to the judgement
of an arbitrator.
The phrase itself was secularized when James Wilson, a Scots
Presbyterian who settled in America and became a political leader
in the new United States, used it in connection with the U.S.
Constitution of 1787. He talked about federal liberty in
completely secular terms, but it was still the same premise that
one consents to covenants and one is then free within the terms
of the covenant -- the obligations of the covenant -- to which
one has consented and one derives one's rights from that.
Rights, then, are derived from covenantal obligations, which is a
continuation of the Jewish tradition. But the precedence of
obligations to rights does not diminish rights, it simply does
not allow them to go off and become entirely independent.
Here we may have the beginnings of a bridge. So far, this is not
a worked out doctrine. Strictly speaking, it is thinking out
loud as to where reading through this material seems to be
leading.
With this approach, rights are fully present. They are as much a
part of the covenant as the obligations, but they cannot detach
themselves from the obligations, which is what has happened with
modern rights theory in the postmodern epoch where rights have
become detached from responsibilities or obligations except,
perhaps, in the most narrow, contractual sense. And there are
practical reasons even to be worried about that.
Jewish Applications
Looking at contemporary Jewish institutions, where being Jewish
plays some role in determining one's obligations, one can say
that all those who accept the covenant -- whatever it is, let us
say it is a covenant for the moment, and we will consider whether
it is or it is not -- all those who take on certain obligations
gain certain rights which flow from them. Those Jews who do not
accept the binding character of halakhah will have accepted a
somewhat different set of obligations from those who do. Those
who are leaders will probably have still another or additional
sets.
This last is a strand that runs through Jewish tradition back to
Moses, who after all is punished for what would otherwise be very
minor infractions, but, if one is a leader, one has to set a
higher example. That position may be watered down today but it
is a characteristic dimension of differential obligation in
Jewish tradition. In any case one has a set of obligations,
depending on the covenants to which one has consented.
The Bible goes beyond the obligations and rights of Jews,
beginning as it does with humanity as a whole. Those who have
consented to the Noahide covenant have one set of obligations.
Those who have consented to the Sinai covenant have even a more
detailed set of obligations. In essence, the Bible and its
tradition assume that humans live in commonwealth. It does not
deal with the problem of civil society as marketplace. On the
other hand, a major part of the modern project was to make the
marketplace the basis of human organization and to build
commonwealths only within the context of the marketplace.
In Jewish life, on the most practical level, that is one of the
reasons why the kehilla of yesterday often has been replaced by
the service center synagogue in which a member can say, "For my
purposes I am willing to enter a contract with this institution
that will provide me with certain services. It won't make any
demands on me other than that I pay my dues (and building fund),
maybe one or two more that I am willing to accept, and I will
know that I have a seat there when I want it, that my family and
I can use its services for the rites of passage. That is really
all I want."
In this respect the synagogue is only a microcosm for a whole set
of marketplace relationships which fit in very nicely with the
contractarian and especially the neo-contractarian view of the
world. The neo-contractarians, even if they suggest what we
normally call welfare-state results, are basically arguing for a
marketplace basis for society. Many are quite frank about it;
others less so. But what they are really arguing for is the
completion of the modern project by extending the marketplace
into every aspect of life.
Contra to this is the conception of commonwealth which is
preserved both in the biblical and in the classical traditions.
The commonwealth ideal has had to find new ways of expression
within the context of the modern marketplace. Therefore many of
its proponents often have been prone to reject the marketplace
altogether in favor of some form of Utopianism or
totalitarianism. The latter ceases to be commonwealth, as we
know, and also does not work, not from the right and not from the
left. In other cases, some kind of synthesis has been sought as
in Puritan and later Yankee New England, which lasted for much
longer.
Some sense of obligation is required for there to be a
commonwealth. There cannot be a res publica unless there is a
public and a public exists only through a shared sense of common
obligations on the part of its members. Every individual can
exist in terms of his rights, but a public can only exist by
virtue of a sense of shared obligations. That is why the
enterprise of trying to develop a relationship between covenants,
obligations and rights is a vitally important project for Jews
and Jewish survival, because it is important for all humans as
part of our efforts to come to grips with the present human
condition.
Covenant, Compact, and Contract in a Secular Age
There are three terms to be considered here: covenant, compact,
and contract. Some have suggested the possibility of a secular
covenant in our secular age. I am not sure whether you can have
a strictly secular covenant because a covenant has to have a
public purpose, a moral dimension, and some kind of transcendant
power that is considered to be either a partner or a witness, a
guarantor. In one sense one could argue that the transcendent
power would be embodied in the natural laws of the universe in
some way, but that is a little too deistic for covenant.
Contract is private; it does not have any moral dimension other
than the fact that, in order to make contracts work, there is a
utilitarian morality involved and if you do not live up to your
commitments, no one will enter into contracts with you again. Its
morality is at most of limited utilitarian character. It
requires no guarantors. That is the most extreme formulation.
Between covenant and contract there is compact. Like covenant,
it is public. Like contract, a compact is a secular device. It
does have a moral dimension which is reinforced by mutual
promises. The seventeenth century philosophers and the secular
constitutionalists who followed them in the eighteenth century
tried to establish a world based on compacts.
Every conception of covenant comes with some parallel conception
of hesed, e.g., comity in the English-speaking world; treu in
German. Every civil society that has its roots in a political
compact, a secularized version of covenant, has some similar
term; e.g., mateship in Australia or partnership in the United
States, which suggests how one relates to one's neighbors -- a
secular hesed. Just about every federal system that is truly
federal has to have such a value concept in jurisprudence and in
ordinary discourse. This becomes the value term that is designed
to give the covenant or compact more than a narrow contractual
meaning.
Contracts are narrowly interpreted because each side goes into a
contract essentially to get the most out of it for himself and to
give only what he has to to the other side in order to make the
contract work. That is why it is a strictly utilitarian
morality. This does not mean that people cannot do a lot of good
for each other through contracts because a lot of people
understand that by being a little more generous on their side of
the contract, they can bring the other party to be a little more
generous in return so that all will live a little better. I am
not trying to suggest that such enlightened self-interest does
not exist, but it is not necessary for contracting. It is not a
condition of the contract. It is only good sense that would lead
one to think that that is a better way to live than not. It is
not a moral commitment.
Is it possible to maintain contracts without a belief in the
Divine? Looking at the world around me, I have my doubts. At one
time I was more confident that it was possible than I am now. It
is no accident that in courts one takes an oath or affirms before
God, why the one thing that was not permitted until very recently
in any polity was atheism. Why was it not permitted? For
strictly utilitarian reasons. If one did not believe in the
possibility of Divine retribution, how could that person's oath
or promise be trusted? That is basically the objection to atheism
by people who are not so much believers any more themselves. They
may have been right.
It is not that the promise gives rise to the moral dimension. One
starts with the moral dimension. The promises are an effort to
give effect to the moral dimension, to reaffirm the moral
dimension and to give it due recognition. That is just shared
morality. A compact in that respect is like a covenant. People
who share the same moral aspirations come together to organize
and to accept obligations and to build institutions on the basis
of those shared moral aspirations. Empirically, compacts tend to
involve people who have come out of a shared religious tradition
but are only partly connected to that tradition, who do not
necessarily see that being part of the religious tradition is
critical to their enterprise. However, in the last analysis, it
is the morality they have gotten from that religious tradition
that undergirds their common enterprise. This is what Marquis
Childs, talking about the crisis of democracy in the late 1930s,
described as living off the spiritual capital of our forefathers.
Jewish Institutionalization of Covenantal Relations
The Jewish people has been able to keep its continuity by being
very flexible about institutions, not placing its emphasis on
particular institutions, but on relationships. Jews start with a
set of expected relationships: partnership with God, covenant,
mitzvot ben adam l'havero (between humans as covenant partners)
which are an extension of the mitzvot ben adam l'makom (between
humans and God). Then they ask, how do we build institutions
that promote those relationships. Both religiously and
politically, Jewish institutions have been quite flexible under
different circumstances but they are institutions for sure. The
first thing Jews do is to build institutions -- to create
frameworks for themselves; Jews are phenomenal institution
builders.
Empirically, history determines what succeeds and what fails in
institution-building. There is a lot of falling away. Take the
Sadducees and Pharisees. The Sadducees bet on the institutions
of temple and state. When those two institutions were destroyed,
the Sadducees became easy game for the Pharisees. Maybe the
Pharisees would have won anyhow. We cannot know. But it was
clear, after the destruction of the Temple and the loss of
political independence or any hope for political independence,
that the successful way to remain Jewish was to internalize what
became halakhah, so every person and every family carried
everything necessary to be Jewish with them. A kind of portable
Judaism was, in the Darwinian sense, the most successful
adaptation for exile and therefore Pharisaic Judaism won.
In the diaspora, Pharisaic Judaism survived without any real
rivals. The rivals that emerged -- Karaism, Sabbateanism,
Frankism -- all failed until the radical changes of modernity.
Now, in the postmodern epoch, as a result of the reestablishment
of the Jewish state, a neo-Sadducean Judaism has emerged, which
again is betting on the political order of the state and the
different political institutions of the diaspora as the
guarantors of Judaism. Right now they are the strongest. Will
they be the successful ones in this new epoch? Will something
else emerge? They will be subject to the empirical test of
history, willy-nilly.
Both neo-Pharisianism and neo-Sadduceanism are based on
obligations voluntarily accepted or continued in the classic way.
Reform Judaism, on the other hand, is modern, even postmodern,
liberal, demanding no binding obligations on the part of its
members, even with regard to who is a Jew or intermarriage. What
will that mean for the Jewish people? Today we are dealing with
the first generation of mass intermarriage before the children of
such marriages have made their own private decisions about being
Jewish. We all know some people of our age or older whose
parents intermarried back in the 1920s or the 1930s, some of whom
are Jewish, some of whom are not, many of whom are just American
without any religious ties, but they had no direct impact on the
community qua community. What is going to happen when the people
who were born in the 1970s and 1980s within intermarriages grow
up? The first signs are very bad indeed for Jewish survival but
we will only know in another 10-20 years.
We will probably develop a whole set of constitutional
adaptations to this new situation, perhaps in the same way that
the Puritans did. Puritanism insisted that everybody had to be a
member of the congregation to be a citizen and, to be able to
covenant with the congregation, had to have a vision, a faith.
To that end, they developed the halfway covenant so that those of
their children who accepted Puritan religious principles but
could not say that they had undergone the necessary religious
experience could still become citizens. In the end, even that
did not maintain Puritanism or even Puritan unity. The Puritans
became Yankees and what Ellsworth Huntington termed a "kith," a
kinship group with a common culture but no more. The New England
Yankees and their descendents are an identifiable kith to this
day but they have no common covenant to make them a people.
At least until recently, the keter malkhut leadership of American
Jewry, whatever they observe personally, would have been very
happy to have halakhic criteria for who is a Jew clearly
established. They simply did not want all of the power to do so
in the hands of a narrowly defining Orthodox or ultra-Orthodox
rabbinate. In other words, if they could have achieved a
situation in which any rabbi whom they recognized, which means
Conservative and Reform, could perform recognized halakhic
conversions, they would have been more than willing to establish
clear rules of what constitutes halakhic conversion and do it in
a halakhic way. Anybody who met an agreed upon set of halakhic
criteria -- and they are prepared for the Orthodox set, the set
that appears in the halakhah as we have it -- would be able to
become a Jew. They would have been happy to establish clear
halakhic rules in this case for the sake of stability and
conflict-resolution.
Alas, the window of opportunity to do so a few years ago has been
closed. Unfortunately, too many rabbis could not agree because
they cannot agree on what the obligations of being Jewish are.
Empirically, the reality is that we cannot get agreement and that
the possibility for agreement breaks down over the question of
obligations.
No Jews that I know of define them as being outside of the
covenant. That is why the differences between Jews are
interfering with the corresponding understanding of what the
obligations are. All Jews accept some obligations as being part
of the covenant. Jews will sit with one another in the
institutions of the keter malkhut, even when they differ on the
question of whether they accept the obligations of the covenant
defined by the keter torah.
What of Contemporary Israel?
Jewish tradition and political culture converge around the sense
that obligations are considered a very important dimension, but
both are now modified by the modern rights tradition. One of the
principal controversies in Israel today is whether or not the
Jewish state should introduce a bill of rights into its
constitution. The draft bills of rights that have been proposed
all come out of the strictly rights-oriented modern worldview.
(It should be noted, however, that they are totally deficient
from the American prospective because they all follow the
European model. In other words, instead of assuming the prior
existence of rights and specifying only their protection by
government, i.e., "Congress shall make no law," but they start by
specifying rights and then list exceptions when government can
limit them for reasons of state. I consider the European model to
provide very little protection.)
As far as obligtions are concerned, the critical political
cultural dimension here is that every Israeli (more or less) is
obliged to serve in the army and if one does not serve in the
army one are considered to be an inferior citizen except among
that group which has gained exemption and we know they are
anti-Zionist or non-Zionist in any case. As for the 90 plus
percent of the rest of Israel, even those who are willing to
grant the exemption for the reasons of keeping peace or nostalgia
or whatever else, really believe that every Israeli starts with
the obligation of serving in the army and that such service is
fundamental as a definition of citizenship. Even the Israeli
handicapped try to cope with the fact that they cannot serve in
the army and how that effects their whole sense of self-esteem.
Many try to compensate for it through other kinds of voluntary
public service.
For another example, culturally, voting in Israel is perceived to
be an obligation as much as a right. That is the only way we can
explain a situation in which there is effectively 100 percent
voting. (The formal figure is actually 80 percent but there are
at least 10 percent of those on the lists who are no longer
living in the country and, of the other 10 percent, 5 percent of
them are too old, they simply physically cannot get out, and 5
percent are too sick on election day to get out. 80 percent
voting the way this list is kept is just about 100 percent.) That
is already more than exercising a right. That reflects a sense of
obligation -- especially in light of the widespread cynicism
about politicians and the processes of politics in Israel.
Now these are not necessarily Jewish obligations in any direct
sense. There is no obligation, for example, to observe Shabbat or
to learn Hebrew, or to live in Israel -- not even Zionist Jewish
obligations in the sense that these are the Zionist mitzvot that
the World Zionist Organization tried to develop.
Back to Federal Liberty
Returning to the covenantal basis of rights and obligations, we
begin with the initial equality of humans by nature and then
their equality under law. Then we covenant with one another for
the rest.
Taking the biblical paradigm as the starting point, it is
possible to suggest reconstruction of the modern rights model in
line with ideas of federal liberty as follows: All human beings
are created equal and endowed by their Creator with certain
inalienable rights -- e.g., life, liberty, property and the
pursuit of happiness. All human beings are also created as
social beings and as such must form communities and polities.
The basic right of all humans connecting these two aspects of
humanity is the right to covenant, which is both right and
obligation. All humans have the right to form and enter into
covenants based on partnership with the transcendent and/or
mutual promises. The exercise of all rights is through the
covenants freely entered into by humans.
Covenants, indeed, demonstrate the humanity of humans, whether in
partnership with God whereby God limits himself to make humans
His partners in yishuv ha'aretz and tikkun olam (the settlement
of the earth and the reformation of the world) or through the
flowering of human potential through mutual promising involved in
covenanting. Thus humans must begin with covenants such as the
Noahide covenant, which unites all humanity and requires them to
assume a few simple but far-reaching obligations in order to
effectuate their rights, and move on to more specific covenants
such as the Sinai covenant with Israel describing a detailed way
of life, and the covenants with Moses and Aaron which provide for
even more specific behavior of leaders within the framework of
the Sinai covenant.
In terms of specificity, between the Noahide and Sinai covenants
we have covenants such as the U.S. Declaration of Independence
which provides a set of principles by which a particular people
is to live, to be followed up by constitutional covenants
establishing the relationships and institutions through which
those principles are to be implemented in practical ways. Thus
there are foundation covenants and subsidiary ones. Each
foundation covenant requires numerous subsidiary ones to
translate the principles of the first into practical expressions.
Every individual human and every human community and polity lives
within this network of covenants and only can find expression for
rights within a network of covenants. Each covenant in turn
forms a moral community. To associate in a covenant is to
associate with a covenantal community and to accept the moral
structure of that covenantal community. Those who do not
associate with the fundamental moral communities of humanity or
who violate the conditions of the covenant in effect declare
themselves outlaws and can be treated as such. Thus there is no
longer a possibility of claiming abstract rights to do as one
pleases. In a free society most covenants will be limited and
indeed those that go beyond the limitations of the founding
covenants may themselves be challenged. Still, there are limits
and rights do not adhere automatically but by virtue of the
covenants which establish obligations from which rights are
derived.
In other words, humanity is the sum of its obligations and
rights, not to the state but to a transcendent and mutually
accepted morality. Humans are free because only the free can be
obligated to be moral and just and only by being obligated to
strive to be moral and just do they find expression of their
inalienable rights.
It is obvious that very few of us today would want to be bound by
a maximal set of obligations that would govern every aspect of
life. That is where federal liberty is flexible since one's
obligations depend on the nature of the covenant to which one is
bound. This is a theory of association which goes beyond the
Jewish issue. There are different levels or different forms of
association. What is critical is that every association should
be by covenant or compact or contract. Some associations should
be no more than contracts. Other associations should involve
compacts and the highest associations should involve covenants.
Once we get beyond contracts what we are looking for is a
reasonable amount of shared moral commitment as the basis for
them.
For example, in a university a moral commitment to the academic
pursuit of truth with a respect for the others engaged in the
enterprise is the minimum moral commitment. If you cannot have
that, you cannot have a university. Now a college might go
beyond that. A college might be an institution that seeks a
higher level of moral commitment, even a college within a
university. For example, a college of law in a university may
then have certain commitments to the moral pursuit of justice as
well as truth that should bind the people within it. That is why
it is important to be able to have different kinds of
associations and to link them in appropriate ways without making
more demands than one should for any particular association. In
my opinion, a person can be denied the right to teach in a
university who is not prepared to make that moral commitment to
the pursuit of truth and I believe that is a reasonable sanction.
Civil society does not have to force people who reject a covenant
obligation into the desert or anything like that, but it can say
to them, to be part of this enterprise you have to accept its
covenants or compacts and that is our mutual promise to each
other. That is what makes this enterprise work. Otherwise this
enterprise is really not going to work because it is going to be
a cover for people to do other things. Anti-democrats in
democracy come and say, we are going to use the instrumentalities
of freedom against themselves. I believe that there are
reasonable grounds for saying to them, you have not made a moral
commitment to participate in this compact according to the terms
of the compact. Therefore we have reason for denying you the
right to use it.
The problem is that today moral opinion runs contrary to this
practical judgement. It is incumbent to have a moral basis for
such practical judgements, otherwise we get into the German
situation. We do anything that is practically justifiable even
if it goes against our nominal morality because it is practical.
That certainly is insufficient. The great thing about the modern
project and the American expression of it is the effort not to
divorce moral grounds from practical grounds. Our task is to
relink the two on right grounds.
A Final Note on Civil Society
The lessons of premodern history suggest that commonwealth alone
is not enough, that even the most well-meaning commonwealth has a
tendency to be corrupted by replacing consensus and cooperation
with coercion by elites for lack of competition, while the modern
experience suggests that marketplace is not enough. However great
its advantage is in economics, it has a tendency to degenerate
quickly into dog-eat-dog competition or to transform itself into
monopoly if there is no commonwealth dimension present by which
it can set its compass. It is the development of an appropriate
synthesis of marketplace and commonwealth that is the task of the
postmodern man -- in some cases, with commonwealth developing out
of the marketplace framework and in others where the marketplace
is developing within a commonwealth framework. The difference
will no doubt reflect antecedent developments of individualistic
or communitarian social orders. Commonwealths must be
democratized; marketplaces must be given their direction by
democratic commonwealths, and then must keep those commonwealths
competitive, open and honest.
