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Jewish Political Studies Review Abstracts
Volume 3, Numbers 3-4 (Fall 5752/1991)
"Obligations and Rights in the Jewish Political Tradition"
In the modern concept of rights developed in the seventeenth
and eighteenth centuries, variously formulated as "life, liberty
and property" or "life, liberty, and the pursuit of happiness,"
rights transcend civil society, which then translates them into
constitutional, civil, criminal, and property rights. In
contrast, the traditional Jewish view on rights is derived from
the biblical sense of the obligation of all humans to God as
their creator, sovereign, and covenant partner. Fundamental to
the Jewish conception is the principle that God is the creator
and sovereign of the universe, all of which ultimately belongs to
Him including all life within it. What emerges out of the
biblical approach are a series of protections and limitations
which can roughly be translated into rights and obligations.
While humans have nothing other than what God grants or covenants
with them, as God's possessions no human instrumentality,
certainly no state, can legitimately interfere with their God-
given rights, liberties, protections, or obligations. While
these may not be natural rights, there are fundamental rights in
the sense that all humans are bound by covenant with God, at
least through the Noahide covenant. These fundamental rights are
in that sense constitutional or federal rather than inherent. A
different agenda for the studying of obligations, rights,
liberties, and protections must be developed to deal with
classical Jewish thought and the subsequent Jewish experience.
The Book of Deuteronomy can be read and interpreted as a
text with profound political implications. This essay attempts
to read this text from the perspective of political theory,
generally, and the Jewish political tradition, specifically. The
approach followed is to examine the Book of Deuteronomy as it has
been redacted, with little attention paid to its date of origin
and deuteronomic scholarship, which sees the text through a
theological prism.
This essay looks at two texts in Jewish philosophy -- one
medieval and the other modern -- and summarizes the logical
connections between schematic beliefs about the universe in terms
of the physical sciences, ethics in terms of the human sciences,
and the dynamically determined nature of Jewish faith. More
fully discussed is the logical status of dogma in Judaism with
respect to the right of the individual within the community to
sincere belief. It is argued that, contrary to what is commonly
believed by modern Jews, doxis has as central a role in defining
Judaism as does praxis.
This essay examines the relevance of the responsa literature
to the investigation of the issue of "individual and community"
in modern times. It does so through an analysis of two
nineteenth century Hungarian responsa, written by Rabbis Moses
Sofer and Moses Schick. The analysis indicates that extra-halakhic considerations were introduced into the halakhic
discourse in both cases. The ultimate decision in both responsa
was largely determined by these extra-halakhic factors.
In their speeches and articles, Orthodox politicians and
pubicists in Eastern Europe devoted scant attention to the issue
of individual rights. The author theorizes that, beyond a
predilection in Jewish tradition for obligations rather than
rights, the specific historical context of East European Jewry
placed the major role in shaping Orthodox concepts of oligarchic
rabbinic leadership. Long-term institutional factors, such as
the nature of the Jewish communal structure and the strong
influience of Hasidism in Eastern Europe, plus more immediate
historical factors, such as the rise of secularist Jewish
political parties, led to the development of the ideology of daat
Torah. This doctrine posited a special kind of Divine
inspiration with which great Torah scholars were endowed, which
enabled them to find the correct solutions for political and
social problems of the day. In such a dangerous era Orthodox
voters should exercise their franchise to place into office those
politicians willing to follow the directives of the rabbinic
sages. The author notes that this doctrine, rather than
disappear with the destruction of the large Orthodox communities
of Eastern Europe in the Holocaust, has actually solidified into
a functioning political myth which has much influence on the
political scene in contemporary Israel.
Modern theories of rights assume the existence of autonomous
individual persons who possess rights by the mere force of their
personhood alone. Orthodox Jewish thinkers Sol Roth and Isaac
Breuer contest the primitive original character of personhood in
this sense. They assert that neither rights nor persons precede
a social reality constituted by duties and obligations seeking to
ground personhood in moral relationality rather than autonomy.
Both thereby negate the modern project of ascribing rights.
In looking for a bridge between traditional Jewish and
modern views of obligations and rights, we can turn to the
tradition of federal liberty -- the liberty to live in accordance
with the covenant to which one has consented -- as developed in
the sixteenth and seventeenth centuries 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.
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