Rabbi Who Has No Knife

May 9, 202414 min read

The Needs of the Public - On Historic Jewish Republicanism

I: The Error

It is often argued that Israeli politics maintains a delicate balance between Israel’s Jewish identity and its Democratic commitment - indeed, Israel’s founding document, the Scroll of Independence, declares the new state to be a “Jewish and Democratic State’.

The juxtaposition of the two is based on the idea that one contradicts and balances the other - that a perfectly democratic Israel could not be “Jewish” and that a fully “Jewish” Israel would be undemocratic. This assumption is false and is based on nothing except the general sense that nothing traditionally Jewish could be modern and good and that modern values are inherently contradictory to Jewish tradition.

Two seemingly opposing groups embrace this assumption.

Those who despise the Jewish tradition - whose ideal Israel is “Medinah Normalit” “A Normal Country.” Underlying this common phrase in Israeli discourse is the idea that Jewishness is more abnormal than Frenchness and that Judaism as a publicly practiced religion is abnormal - as opposed to, let’s say, Catholicism. While no serious thinker would dare deny that Catholic thought - in particular those of Scholastics such as Cardinal Francisco Suarez - contributed to the modern notions of Natural Human rights, there is just an assumption on this side that nothing as profound and good could come from traditional Jewish scholarship. In a way, it is an extension of the phenomenon that the great Labor Zionist Berl Katznelson bemoaned:

היש עם בעמים אשר מבניו הגיעו לידי סילוף כזה, שכלי ונפשי, שכל מה שעושה עמם, כל יצירתו וכל ייסוריו הם בזויים ושנואים, וכל מה שעושה אויב עמם, כל שוד וכל רצח וכל אונס ממלא את לבם רגש הערצה והתמכרות?

Is there another nation among the nations that have reached such perversion that everything their People did, all their creations and sufferings, are (considered) contemptible and hateful, and everything their enemies do, every robbery, murder, and rape, fill their hearts with adoration and addiction?

Those who view Modernity with suspicion - suspicion which was born out of the tragedy of the Holocaust, which Modernity failed to stop or even restrain - but also from the prosecution of the 19th century, in which Jews were persecuted and defamed as primitive, premodern, benighted people requiring the firm hand of the Russian, Austrian and German States to modernize and make them fit to be citizens in this modern countries - an excuse to delay the extension of Civil rights to Jews until further notice. While, besides the Russian Empire, most major European powers had done away with these projects and granted full civil rights by the time of the American Civil War, antisemites continued to harp on that theme - and portray Jews as inherently unmodern, incapable of integrating honestly into the European Society - a line of thinking which the Nazis eventually embraced and embedded in their racial theory - which they have seen as the height and end-point of scientific progress. During the days of the Soviet Union, all traditional Jewish practices - religious as well as cultural - were denigrated as benighted and regressive, unfit for the new Soviet Man. Faced with a choice between our 3 millennia of glorious, vivid, and beautiful civilization and what was presented to them as Modernity - the repression of Russian autocracy, the mindless coggery of Prussian militarism, the murderous frenzy of Nazi racialism and the ignorant slouch of Soviet Communism - many Jews chose the former - and they have proved by this more loyalty, spirit and good taste than those who had made the opposite choice.

Nevertheless, both camps are wrong. Jews have existed in the West since the days of the Roman Empire. Jewish life in France preceded the Franks, The Lombards in Italy, and the Goths and the Moors in Spain. The isolation of the Jews has been wildly exaggerated—the Ghetto Walls were not sealed until the age of the Crusades and were never hermetic. Jews were in constant interaction with their neighbors and evolved together with them.

II: A Republic, If We Can Define It.

What makes a country a republic- further, a democracy?

The oldest definition is res publica, “the public business.” Republics are pragmatic things that exist to administer some vital interest common to all the members of the public. It differs, therefore, from sacral states (such as most ancient monarchies). The business of defending the City, enforcing the Law, and protecting the property and autonomy of the citizenry from external and internal predation are the actual goals of the State. Religious functions, such as maintaining local temples and sects, are treated as another interest requiring a pragmatic arrangement among many or as a social adhesive to hold the State together rather than the actual raison d'être of the State.

If the Administration is either chosen from amongst the People or by the consent of the People and is dependent on the affirmation of the will of the majority (rather than a privileged minority), then we may, with confidence, call this Republic a Democracy. If the Administrators’ powers are strictly bound to their stated function and limited by law, they cannot themselves change without overwhelming support by the majority (or at all), we may call it a Constitutional Democracy. In the latter kind, the role of Judges is expanded from merely settling private disputes to adjudicating the limits of the Administrators’ power under the Law. This creates a conundrum in a Democracy since the majority is not usually qualified for the office of judges but is in danger of being administered by them instead of by their chosen administrators.

The possible solutions are education, restraint, or election.

The first option calls for high-level mandatory training of the common citizen in the Law before they enter the electorate. This way, the citizenry will consist of people who are qualified to assess the rightness of judicial decisions and participate in them. The Law becomes a subject of the Democracy of a scholarly People, and the most popular opinion prevails.

The other option calls for the Judges to show restraint and couch their rulings in clear and well-known principles that the majority either consented to already or is in wide agreement about. They should not attempt to dictate Policy but merely declare the boundaries of power afforded to the Administrators.

The last option is that judges should be elected by the people, just like the Administrators. If the pool from which they must come is restricted to a special class, the least the People deserve is the choice from amongst the members of that class.

III: The Jewish Republics

A: The Extinct Aristocracies

First, we must determine which social forces did not enjoy such longevity. The Priesthood dissolved as a class with the destruction of the Temple and became a matter of Halachic personal status, not social standing. Indeed, we have reason to believe that the status of the Priesthood as a nobility described by Josephus, to the degree that it was ever true, was a purely Jerusalemite and Temple-centered phenomenon. We have even textual evidence that country priests were often bullied out of their share of the priestly gifts by those of the great priestly houses of Jerusalem, which have drawn their power not from Law or popular consent but from ties to the Hasmonean, Herodian, and then Roman rulers, all of which were widely considered illegitimate usurpers.

The office of regional archons or Nesi’im (sometimes translated as princes) was also tied to foreign rule but enjoyed broader support.

The presidency of the Sanhedrin was, while remaining officially elective and serving at the pleasure of the Court (as is evident from the incidence of Raban Gamliel II’s censure), monopolized by the Hillelite family (who claimed Davidic descent) by the late decades of the 2nd Temple era. The Pharisee Sanhedrin was considered for a very long time a subversive element, which the Romans attempted to extinguish or replace (the wild deviations from Pharisee procedure described in Matthew 26:46-74, 26:11-55 may point to one instance of a Roman-set, collaborationist replacement at work).

The Exilarchs of Babylonia have been of older vintage, existing since the times of the Achaemenid Empire and surviving well into the Abbasid Caliphate. The Exilarch was a political hybrid - half a successor to the Davidic monarchy and half a Persian nobleman. The Reish Galuta (as was his Judeo-Aramaic title) was revered throughout the Jewish world. Still, his actual authority shifted, especially outside the few provinces the Empire granted him as his fief. The attempts to mimic this institution in the West were either short-lived or never managed to gather more than local influence. Most of them existed in the Muslim realm, but the descendants of Rabbi Machir b. Habibai had allegedly enjoyed the title of Nasi in Narbonne from the reign of Pepin the Short to 1364 (albeit the sources on this institution are sparse and under great controversy).

B: The Crowd and its Implements (HaQahal VeKelav)

I: The Officers (Parnassim)

From a Roman Catacombe: "Here lies Salo the daughter of Gad, archisynagogue of the Jews. She [lived] 41 years. May she rest in peace."

Epigraphic and documentary evidence shows that many Western synagogues had an Archon or a Parnas during the Roman period, who held great personal authority and responsibility. From the writings of John Chrysostom, we find evidence that they were elected yearly on the Jewish New Year. Under him served the Archisynagogue (Rosh HaKnesset), the community's spiritual leader, as well as other lower officials.

The Talmudic sages saw evidence of the need for the public's consent to such appointments in the Torah. They also had a complete theory of the need for public delegation of authority to their officers—the officers had only authority granted to them as representatives of the Public, or rather of the Majority. Therefore, such authority must be delegated explicitly since no person can become an agent to another without such delegation, where legal burdens may arise from the agent’s decision.

II: The Scholars (Talmidei Hachamim)

At the end of the Great Revolt, the only source of authority left standing with any legitimacy in the eyes of the Jews was the Pharisaic Sages.

They could have preserved this advantage and become a true ruling aristocracy if they were so inclined. But their entire course of action from then on to the Middle Ages created a trend that transferred whatever authority they had to the Public.

By the Middle Ages, Jewish society was highly literate. Rabbis did not exist as a class (as did the Christian Clergy and the Islamic Ulema) but as the most respected scholars in a field that most Jews had at least a working knowledge of and could have an educated opinion about—namely, Jewish Law and theology.

In his Guide to the Perplexed, Maimonides often complains of the witless crowd which cannot be safely initiated into the deeper mysteries of the faith - a position that was typical of Iberia, where a real scholarly class was emerging - but even he expected the average male Jew to be not only literate but also familiar with Tanaitic and Talmudic literature - as he makes it clear in his introduction the Mishneh Torah -his legal Code - which he always considered to be his magnum opus.

This high level of popular familiarity with the Law was rooted in the understanding of education as a public duty - a Jewish principle dating to the High Priesthood of Yehoshua ben Gamla (64-65 BC, Josephus testified of his death in the Great Revolt) - as well as by the private duty of each Jew to study the Torah each day and of fathers to teach their sons - as well as encouragement for scholars to both teach as wide a circle as possible and to seek learning as far afield and from as many sources as possible. Parallel to the medieval phenomenon of Christian pilgrimage to visit holy sites and relics was the travel of Jews, who, like the Christian pilgrims, included the poor and the rich alike, seeking to give or receive a better understanding of the Law.

This environment meant that even officially appointed rabbis and rabbinical courts did not have a monopoly on the Law, and therefore, their power was greatly limited. Rabbis were appointed, dismissed, admired, and opposed based on their widespread reputation - a reputation they had to maintain by exhibiting their learning and contributing to spreading knowledge. The Law was universally known, beloved, and powerful - but only select rabbis were all three.

The democratizing effect of Torah learning had its consequences in eliminating the possibility of emerging plutocratic aristocracy. Since even the poor could access learning, being supported in their basic needs by the community and educated, like everyone else, at public expense, they could rise to prominence as scholars - and overshadow the influence of the rich. In France and Germany in particular, where, unlike in Iberia and Italy, Jews were granted privileges and charters allowing them to conduct business and maintain their communities as a matter of general legislation or in community collective rather than to individuals favored by the Crown, the other avenue, that of an externally appointed aristocracy to rise was closed.

III: The Public (Tzibur)

While the Officers and Scholars were servants of the community or rather institutions that the Qahal raised to order its life and staffed with its members, the Qahal was the Public (Tzibur) in a corporate form.

We find powers that used to belong to the Courts - such as settling taxation disputes, designating persons exempt from taxation, and even creating new legislation migrate to the authority of the Qahal the more we progress towards and through the Middle Ages.

The responsa literature of the Middle Ages paints us a vivid picture of the life of the Qahal, of the kind of disputes that have arisen within it and between different Jewish communities. The main problem of the Medieval Qahal was to fend off external forces, the powers of the Feudal Order, attempting to impose their will on the Jewish republican order, to appoint officers, exempt favorites from taxation or make law outside of their authority. As legal experts, Rabbis responded by asserting the power of the Qahal’s self-determination and that of officers duly elected by them - and forbidding collaboration with outside interference.

IV: The Case for Jewish Republicanism

A: The Law of the Realm

It is very common for Observant Jews to frame their relationship with the law of their respective countries according to the principles of “The Law of the Kingdom is Law'' (Dina D'Malchuta Dina). Often, especially in the case of the United States, it is buttressed with the idea that the government in question is a “graceful kingdom” (Malchuth shel Hessed) - that is, that the Jew can trust the good intention of the government. Therefore, it is assumed that as long as the government does not intervene in the Jew’s religious life, he has no reason to disobey it.

This attitude is just as incorrect on the grounds of Jewish Law as of republican principle.

The entire political theory underlying the American Constitution is that public officials are not graceful and require constant vigilance. They are pitted against other officials and rivals to their seats and then limited by a written constitution adjudicated by an independent court of appeals. While outright viciousness is not assumed to be inherent in the system, corruption of individual officers is taken to be inevitable and requires a constant struggle.

Jewish Law never had such a wide understanding of “The Law of the Kingdom” - or at least such an interpretation has been in the minority since the Middle Ages. We have seen how R. Mordechai ben Hillel proclaimed that the Qahal could not impose uncustomary taxes without the general assembly's consent. A similar teaching appears in R. Shlomoh ibn Aderet’s response:

And in what is said “The Law of the Kingdom is Law” I have toiled much...

And this is what I have concluded: that this is not said but by what is done by the laws of kingship, that every nation has its own well known laws regarding the matters of kingship. And while they have said “the Law of the Kingdom” they have not said “the Law of the King”. And everything that is not of the laws of kingship, even as the King shall decree it, is no Law, and the ancient scholars, of blessed memory, had agreed on that matter.

R. Sholomoh ib Aderet’s Responsa, Vol.VI #254

R. Meir of Rothenburg asserts the limitation on kingly power in sharper terms:

Since it is the custom of all the Jews to be partners in the tax, the townsfolk are allowed to burthen each other and to impose penalties on their regulations. Therefore, it is not in the power of the lord (-king) to separate them from each other, to alter a custom that was established for the Jews in his lands, and this is no “Law of the Kingdom” but rather a “robbery of the Kingdom” as a publican without limit etc.

R. Meir of Rotheburg’s Responsa, Cremona edition, #222

R. Hayme Eliezer ben Ytzhak of Vienna (13th century AD) had decreed that the authority empowered by the “Law of the Kingdom” goes only so far as to govern the things which are the king’s concern, such as the use of his land and the payment of taxes, that this is only when the King’s decree treats all of his subjects equally and that the authority of the king stems from:

This is why: he (the king) owns the land and no man is allowed to dwell in it but by his leave. But if he burdens a land which he conquered by force… or if one says ‘I do not wish (to dwell) in his land’ he has no authority to rob him.

R. Hayme of Vienna’s Ohr Zaruah Responsa #110

R. Hayme then proceeds to make it clear that while the Law of Israelite kingship does not grant the King ultimate ownership, and therefore the principle ‘the Law of the Kingdom” does not apply to them since such royal ownership was the basis of the entire Feudal system, the Jew has no choice but to accept it. At the same time, he chooses to leave under it - but no king can force him to stay. He remains a free man - who merely obeys the house rules in his tenement.

B: The Great Partnership

This last teaching, which is well supported by the opinions of R. Hayme’s contemporaries as well as predecessors and which was accepted as the rational basis of the principle “the Law of the Kingdom” by subsequent generations of scholars, destroys the idea that we can derive the authority of the United States government from here - the very Constitution of the United States forbids the arbitrary exile of a citizen who has not found guilty of a crime and secures to him the right of his property.

The same constitution, as well as the various state constitutions, declares “We, the People” to be the constituents of the government. This leads us to a tremendous fact - the United States government is a gigantic Qahal,operating under the principles of common partnership of needs and interests.

Jewish Law does not limit a Qahal to one made up exclusively of Jews. Theoretically, if the Gentiles of the City are inclined, a joint council can oversee the partners' temporal concerns. At the same time, religious duties could be handled by the Jews internally.

But that would also mean that Jews should approach their participation in democracy not as a gray affair shunted away from the Law of God but as the fulfillment of a great and holy duty—to be good partners and neighbors and sanctify God’s name.

Final Note:

The topic above is one of the richest and widest-ranging in Jewish Law. Here, I have attempted to scratch its surface and show the long and enduring tradition of Jewish democracy.

Until the American Revolution, all states—monarchies and republics alike—were theocracies without division between public temporal and religious duties. The Jewish Qahals were no different. But just as we can learn and evolve our ideas of Freedom and Democracy from the English, Florentine, or even the pre-revolutionary American states, we should learn from the Qahal.