Tired of Illiberal Modern Orthodox Rabbis

I really don't understand it; of all people, I'd expect Modern Orthodox individuals to be liberal, non-statist, and advocates of morality over the prerogatives of abused power and "might makes right". But alas...

The following are some brief comments of mine to The Jewish State, Religious Zionism, And The Limits Of Dissent by Rabbi Nathaniel Helfgot:

(Quotations of Rabbi Helfgot's begin ">>>".)

>>>This thought comes to mind as one considers the troubling instances (so far, thankfully, few in number) of religious soldiers in the IDF who have expressed public political statements while in uniform indicating that they will refuse orders issued by their commanders and the government to evacuate any Jewish communities in Judea and Samaria.

So now we’re criticizing IDF soldiers who both (1) hold by a democratic political theory, and (2) keep ein shaliah b’davar `averah? (Ein shaliah b’davar `averah is the Talmud's phrase for the command to disobey illegal orders, literally "there is no proxy in the case of sin", meaning you cannot say, "I was only a messenger (proxy) who was following orders", if those orders were the commission of a sin.) They’re obeying both the Torah and modern Western democracy, and this you bemoan?

As Benjamin Franklin and Thomas Jefferson both said,

Rebellion to tyrants is obedience to G-d.

As Martin Luther King, Jr. said,

One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

And here, of course, the Talmud – saying ein shaliah b’davar `averah – agrees with the democratic concept of the rule-of-law, the idea that the government is accountable to the same moral laws as its citizens are, and that the citizens may call the government to account. But no, Rabbi Helfgot would have Jewish soldiers disobey both Judaism AND democracy together at once. For shame!

>>>These [situations where the IDF code of ethics mandates disobedience] refer to "blatantly illegal orders" such as a command to wantonly murder unarmed civilians. The situations that are being discussed in our context are clearly not such a case.

Speak for yourself. For yourself, expulsions from the West Bank are clearly not equivalent to murder, but for religious soldiers, this is not the case. For a religious soldier who believes in G-d, the same G-d who commanded not to murder an innocent Arab also commanded him not to steal land from a Jew. If you command the Jewish soldier to disobey G-d in one case, he will not understand why he cannot therefore disobey G-d in other cases as well. In Biblical times, the man who violated Shabbat – which testified to G-d’s having created the world – was liable to murder as well, for the same G-d who commanded Shabbat also commanded not to murder, and anyone who is liable to violate one is liable to violate the other (especially since Shabbat was a memorial to G-d Himself, and violation of Shabbat was itself nearly tantamount to committing idolatry, as Rabbis Immanuel Jakobovits and Shalom Carmy have noted). So too, the religious soldier who is told to disobey G-d today and evict Jews from their homes, will reason that similarly, he may disobey G-d tomorrow and murder innocent Arab civilians.

The Torah is one and indivisible. If you may obey the government and disobey G-d today, then why not tomorrow as well? As Rabbi S. R. Hirsch wryly notes, if you violate the fourth commandment (to keep Shabbat), then your son will violate the fifth (to honor his parents).

>>> ... that in the absence of a formal king, the power of kingship and sovereignty devolves back to the Jewish people as a whole.

So let us quote the Rambam, Hilkhot Melakhim 3:9:

...And it goes without saying that if the king decrees that a mitzvah should be violated, that his words should not be heeded.

>>> ... one would hope that rule of law would prevail.

Actually, the rule-of-law means that the government is accountable to uphold the law. The rule-of-law is the concept that lex, rex, that the law is king, instead of rex, lex, that the king is law. The rule-of-law is what empowers citizens to call their government to account when it fails to uphold the law. The rule-of-law empowers citizens and hamstrings the government, not the other way around.To quote Thomas Paine’s "Common Sense", one of the most influential political tracts in colonial America, expressing the best of federal and social-contract thinking:

But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

In other words, the rule-of-law limits the government and empowers the people, not vice versa. As Henry David Thoreau’s “Civil Disobedience” (which both Martin Luther King, Jr. and Mahatma Ghandi alike paid great homage to),

Witness the present Mexican war, the work of comparatively a few individuals using the standing government as their tool; for in the outset, the people would not have consented to this measure.

>>> Ultimately, however it is the democratically elected Israeli government that is the legal sovereign with the authority to make these difficult and wrenching calls.

Yes, the government is duly-elected, and yes, it was democratically-chosen by the people. But as Samuel Adams says in "The Rights of the Colonists", following John Locke,

All men have a right to remain in a state of nature [ = absence of government] as long as they please; and in case of intolerable oppression, civil or religious, to leave the society [ = government] they belong to, and enter into another. When men enter into society [ = government], it is by voluntary consent; and they have a right to demand and insist upon the performance of such conditions and previous limitations as form an equitable original compact [ = constitution, contract]. Every natural right not expressly given up, or, from the nature of a social compact [ = constitution, contract], necessarily ceded, remains.

In other words: men freely enter into a government, and they can stipulate the terms of that government’s rule. When the people are not satisfied with that government, they may leave it. The "Declaration of Independence" declares about as much, saying,

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends [the end being the securing of the right, this being the purpose for which the people instituted that government in the first place and gave it their consent and allegiance], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Rabbi Helfgot's views are thus fundamentally illiberal, and are opposed not only to Jewish tradition, but even to modern Western democratic theory. For some more Jewish and democratic views on civil disobedience, see
Dr. Yoram Hazony, "The Jewish Origins of the Western Disobedience Tradition" Azure No. 4 Summer 5758 / 1998, here.
Rabbi Professor David Golinkin, "The Jewish Attitude Towards Non-Violent Protest and Civil Disobedience", here.

Regarding Rabbi Helfgot's words on democratic election ("Ultimately, however it is the democratically elected Israeli government that is the legal sovereign with the authority..."), Hazony makes an especially poignant point:

What is the Jewish disobedience teaching which has had such a fantastic impact on the ideas of the Western democracies? It is my intention here to review those most fundamental things which many have apparently forgotten: That unqualified obedience to the state is the fundamentally pagan idea, the essential political teaching of the great idolatries of antiquity; that freedom of conscience and disobedience to unjust law are the core of the biblical political teaching, which arose as a rejection of pagan statism; and that the adoption of the Jewish disobedience teaching by the West—and the victory of the biblical principle of obedience to right over the pagan principle of obedience to the state—represents the highest triumph of the Jewish political idea in history, a triumph which allowed the West, the great bearer of this idea before humanity, to defeat the pagan Nazi state, not only militarily, but on the battlefield of ideas as well.

...

Mankind has seen no end of attempts to render human laws inviolable in principle, usually on the grounds that one process or another has produced them: There have been those who claimed that the laws of the state were legitimate and binding because the earthly ruler was a god; those who claimed that the laws of the state were legitimate and binding because the ruler was appointed by God; and those who claimed that the laws of the state were legitimate and binding because the ruler was a hereditary monarch. Today it is the fashion to claim that the laws of the state are legitimate and binding because its leaders were chosen in democratic elections. And while democratic governments may indeed be the best steward of right that men have yet devised, this fact no more makes them the final arbiter of right than did the similar popularity of now outmoded political regimes in ages past. Even in a democratic age, it remains the case that right action cannot be deduced solely from the decisions of the state. All governments are, after all, composed of men. And as such, they are bound to err, and sometimes terribly so.