The Jewish Social Contract

An Essay in Political Theology

David Novak

• Publisher: Princeton University Press
• Year: 2009
• ISBN:
  9781400824397
• Topic: Theology & Religion
• Subtopic: Jewish Theology

The Jewish Social Contract begins by asking how a traditional Jew can participate politically and socially and in good faith in a modern democratic society, and ends by proposing a broad, inclusive notion of secularity.
David Novak takes issue with the view--held by the late philosopher John Rawls and his followers--that citizens of a liberal state must, in effect, check their religion at the door when discussing politics in a public forum. Novak argues that in a "liberal democratic state, members of faith-based communities--such as tradition-minded Jews and Christians--ought to be able to adhere to the broad political framework wholly in terms of their own religious tradition and convictions, and without setting their religion aside in the public sphere.
Novak shows how social contracts emerged, rooted in biblical notions of covenant, and how they developed in the rabbinic, medieval, and "modern periods. He offers suggestions as to how Jews today can best negotiate the modern social contract while calling upon non-Jewish allies to aid them in the process. The Jewish Social Contract will prove an enlightening and innovative contribution to the ongoing debate about the role of religion in liberal democracies.

Chapter One

Formulating the Jewish Social Contract

The Democratic Contract

To argue intelligently for the idea of the Jewish social contract today, one must situate the argument within current discussion of social contract theory in general. One must then take a stand on what an authentic social contract is and how sources for it can be activated from out of the Jewish tradition.

The original justification of a society as an agreement between its equal members has long been known as the idea of the social contract. It is a highly attractive idea as evidenced by the amount of discussion it has evoked for at least the past four hundred years, and especially during the past thirty years or so.¹ Many contemporary political thinkers in democratic societies, who are loyal to their societies in principle, believe that this idea best explains how a democracy—especially their democracy—can cogently respect and defend the human rights of each of its citizens. These rights are the claims persons are justified in making before these societies can subsequently make their own claims on these persons as citizens. Moreover, even these subsequent claims are all essentially redistributive, that is, they are justified by being given an instrumental status. As such, the claims democratic society makes upon its members, to which they are to dutifully respond, are ultimately for the sake of the respect and defense of the prior human rights of the citizens of that society.² Therefore, posterior social claims cannot contradict or overcome these prior human claims on society without losing their own derivative justification.

Respect and protection of human rights are considered the hallmark of a modern democracy. Respect and protection of these rights are what differentiates a modern constitutional democracy from democracy per se, for without the recognition of the prior rights of its citizens, a democracy could easily become nothing more than the dictatorship of the majority, whether that dictatorship be more spontaneously exercised by a mob

or more systematically exercised by some authority

acting in the name of a mob. Such majority dictatorship is always conducted at the expense of the minorities who have no rights against it, no prior claims to make upon it.³

As the basis of a democracy, a social contract presupposes that its parties come to it with rights that are theirs already.⁴ The contract itself is specifically designed to respect, defend, and even enhance these prior rights. Any attempt to rescind these rights puts the society in violation of its founding mandate, even if only a small minority might actually object to such rescission. Conversely, in any secular society not based on the idea of a social contract, even where human rights are acknowledged, these rights are at best conceived to be entitlements from the society rather than claims made to the society. In such societies, human rights are a matter of social largesse or tolerance rather than the duty of a society to ever respect and defend. This is why in societies that do not recognize anything prior to themselves, whatever human rights they do recognize are only entitlements granted by the society at will. As such, these rights can just as easily be rescinded from the citizens as they were granted to them by the society; and that can be done without the society contradicting its founding mandate. This type of a society can just as easily decide that these rights are useless for its projects as it can decide that they are useful, whenever any such perceived need arises. For this reason, it is inadequate to the human need for inalienable rights to argue, as one prominent liberal legal theorist has, that “the assumption of natural rights” is not “a metaphysically ambitious one,” that it is no more than a “hypothesis,” or a “programmatic decision.”⁵ It would seem that if human rights in a democracy are to “have teeth,” and not be vague, hypothetical claims made by rootless persons, then a real and sufficient foundation for these rights should be found and explicated. And, this requires substantial historical research and ontological reflection in order to be rationally persuasive.⁶

Because the social contract stems from the rights of persons even prior to their becoming citizens of a democracy, a society based on a social contract can also respect and defend the human rights of all human beings everywhere or anywhere. By virtue of simply being human, those other persons who are not now democratic citizens could in principle become citizens of this or any democracy later. Rights-based democracy, then, affirms an idea of human nature, and it is potentially global therefore. The social contract presupposes that humans are by nature rational beings capable of making contracts and keeping them. That view of human nature has huge political consequences everywhere. The question remaining, nonetheless, is whether we need to see human nature as more than the mere capacity of humans to make and keep contracts between themselves.

This emphasis on human rights is what makes modern constitutional democracy so attractive in theory, especially to Jews, who have greatly benefited from it in practice. Thus very few Jews today would want to live in anything but such a democracy. The other modern political alternatives (namely fascism, communism, and clerical oligarchy) have proven disastrous for any society that has adopted them, and especially disastrous for Jews (and many other minorities), who, unfortunately, have found themselves having to live in such societies. For this reason alone, Jews first need to think out a democratic theory by themselves for themselves, especially a democratic social contract theory, inasmuch as social contract theory seems to be the best explanation of a rights-based democratic order. Only in this way can Jews be participants in a contractually based democratic social order in good faith, and not regard the benefits that have accrued for them from such a social order as some sort of historical accident. But that must first be done in traditional Jewish terms, and only thereafter in terms that could appeal to rational persons who are taken to be actual or potential citizens of a democracy.

The Jewish social contract is the means by which a Jew can actively and honestly—as a Jew—engage the democratic society in which he or she lives. This engagement is what is “Jewish, ” not the social contract itself, which operates among Jews and non-Jews and must, therefore, function in neutral secular space. This engagement is not located in a singular event like that of Exodus-Sinai, which for Jews has cosmic significance and is regularly celebrated whenever Jews faithfully practice the commandments of the Torah. Rather, that engagement is an ongoing process of negotiation and renegotiation among human beings coming from different cultural backgrounds. It is not a real covenant, as we shall see in the next chapter. Nevertheless, the social contract is more than the hypothetical construct of some philosophers. It is marked by such real events as voting in an election according to Jewish criteria (which does not necessarily require voting for Jewish candidates), and proposing public policies according to Jewish criteria (which need not always involve issues of special Jewish self-interest).⁷

The two tasks for Jewish political theorists—the theological and the philosophical justification of democracy—are not at odds with each other. In fact, they can be correlated. Accordingly, this book should be taken as an implicit polemic against those who theologically reject democracy due to their view of Judaism. It should also be taken as an implicit polemic against those who philosophically reject Judaism due to their view of democracy. Nevertheless, Judaism and democracy are by no means placed on an equal footing here. Instead, the historical and theological priority of Judaism over democracy, for Jews, shall be affirmed. Then it will be shown how Jews can be parties to a democratic social contract in good faith because of their Judaism, not in spite of it. Indeed, this book attempts to show how Jews can cogently formulate an idea of the social contract out of their own traditional sources. Thereafter members of other cultural traditions can appropriate by and for themselves whatever intersections with these representations of Judaism they find at home. This can be done when these representations of Judaism are philosophically attractive and can be argued for in a secular, democratic society.

Unfortunately, though, most modern arguments for democracy have been based on basically secularist, liberal ideologies, whether formulated by Jews or adopted by Jews from non-Jewish thinkers. As such, they have not been formulated with much perspicacity, either theological or philosophical. Theologically, they have not shown how the Jewish tradition can allow Jews to participate in a social contract as Jews. Philosophically, these modern arguments have been dependent on views of human nature that do not give a reason why any rational person should enter into a relationship of trust, like a contract, with any other rational person, even though these arguments have frequently recognized the social benefits of relations of trust among the members of a society.⁸ Nevertheless, secularist admiration for interhuman trust has been more phenomenological than ethical, that is, most secularists only describe how trust benefits society rather than why anyone ought to trust anyone else or be trusted by anyone else.

In fact, most of these modern secularist arguments for democracy have called for mistrust by their claims, both implicit and explicit, that persons coming from traditional cultures like Judaism need to break faith—that is, mistrust and thus overcome—their cultural origins in order to fully participate in civil society. Accordingly, most of these modern arguments for democracy have been, in fact, recipes for the public disappearance of Judaism and the traditional Jewish community. But without a defense of Judaism’s public participation in civil society, which is theologically and philosophically cogent, individual Jews do not have enough cultural capital to maintain their Jewish identity even in private. For these privatized Jews, a democratic commitment turns out to be the sale of their very souls as Jews. This is why this book shall argue for a Jewish religious justification of a secular democratic order. It is an argument for a finite secularity, but it is against any secularist ideology that claims to be a sufficient foundation of that secularity. Because of this, this book shall not engage in the type of apologetics (with its hidden secularist premises) that looks to a secular democratic order to justify the Judaism lived by Jews who participate in that order.

This prior affirmation of Judaism does not mean, though, that one should argue that Judaism is the sufficient foundation for a democratic order. That would very much imply that one ought to convert to Judaism for the sake of having the best reason to be a citizen of a democracy. But were that argument to be made, as some Christian social theorists have tried to do for Christianity from time to time, the very secularity of the democratic social order would be threatened and one’s theological commitments would become ultimately mundane.⁹ Indeed, when such political theology is applied, the secular social order for which this occurs inevitably takes on messianic pretensions. One should not argue that Judaism (or any religious tradition) is either the one necessary source or the one desired end (telos) of democracy. The fact that Judaism can enable Jews to participate in a democratic social order does not necessarily mean that Judaism entails democracy or that democracy should be regarded as the ultimate fulfillment Judaism anticipates. Democracy does not emerge directly from Jewish (or any other) revelation nor does it preview the kingdom of God. So the most this book can do is to attempt to show that Judaism can authorize a democratic commitment from faithful Jews for Judaism’s own sake. Therefore, I shall only argue why Jews can be active partic...

Table of contents

• Table of Contents
• Preface
• Chapter One Formulating the Jewish Social Contract
• Chapter Two The Covenant
• Chapter Three The Covenant Reaffirmed
• Chapter Four The Law of the State
• Chapter FiveKingship and Secularity
• Chapter Six Modern Secularity
• Chapter Seven The Social Contract and Jewish-Christian Relations
• Chapter Eight The Jewish Social Contract in Secular Public Policy
• Bibliography