Regarding religious coercion in general and taxation for
tzedaqa specifically, the following question has occurred to me. While I doubt any prior Jewish authorities ever thought about this issue, it still seems valid to me. After all, a
sevara is
d'oraita. (Clear logic has legal authority as if it were written explicitly in the Torah.)
My question, my analysis and investigation into it, and my ultimate answer to it, are all offered from the perspective of Orthodox Judaism, and it should be read as such. In other words: for me to disagree with the Talmud or Rambam is not an option. I take it for granted that their opinions are non-negotiable, and so rather than disagreeing with them, I must instead navigate my way through them and reconcile myself with them.
Also, being that I am a right-wing West Bank "settler" type of Orthodox Jew, libertarianism and the thinking of Western liberal democracy will be very important in my analysis. Israeli Leftist grant very little credence to democracy in general and John Locke in particular, but Religious-Zionist Jews tend to value democracy far more than the ultra-secular Israeli Left does.
I. The Question
We know that historically, Jewish communities (
kehillot) would assess
tzedaqa like a tax. At the very least, they'd coerce misers to give
tzedaqa. I.e., even if they didn't they didn't assess
tzedaqa as a tax as a matter of course, rather leaving it up to individual conscience, they'd still compel individual misers when the situation arose. As Rambam says (
Hilkhot Matnot `Aniyim 7:9),
Whoever does not want to give tzedaqa, or gives less than what befits him, the court forces him, and beat him, until he will give as much as [the court] establish he should give. And [the court may authorize for its designated agents to] go into his domain and take whatever it befits him to give.
The question is, how could the Jewish authorities do this? Granted that everyone has an individual obligation to give
tzedaqa, but who gave the
kehilla the right to assess
tzedaqa as a tax and/or to compel misers to give
tzedaqa? Who made the
kehilla boss?
II. John Locke on Taxation
If you carefully read things like John Locke,
Cato's Letters, and the other examples of democratic thought (anything that Thomas Jefferson would have read), one constantly recurring principle is that the government has only those powers which the people grant it. Social contract theory would dictate that the government is only the people's proxy. Thomas Paine's
Common Sense (written to advocate the Revolutionary War against Britain) gives a brief overview of Locke-ian theory (specifically in the sections "Of the Origin and Design of Government in General" and "Of Monarchy and Hereditary Succession"), and Ralph Waldo Emerson's
Politics is excellent as well.
(Emerson's piece really is extraordinary. He combines the best of Locke-ian social contract theory and democracy (will of the people, consent of the governed) in general, along with the theory of civil disobedience to morally unjust law, as exemplified by Henry David Thoreau (
On the Duty of Civil Disobedience), Martin Luther King Jr. (
Letter from the Birmingham Jail), and Mohandas Ghandi.)
The issue, however, is that if the government is only the people's proxy, then it cannot have any powers which the people themselves do not have. All the people can do is surrender their own powers to something more capable and powerful, to execute those powers on their behalf.
Now, I cannot go to my neighbor's house and take his money to feed the poor. Therefore, I cannot grant the government that power either. The entire concept of taxation for the sake of social welfare is anathema to the Framers of the United States
Constitution.
Everyone has a right to his own "life, liberty, and the pursuit of happiness" (or "property" in place of happiness), and everyone has the concomitant obligation to honor others' rights to "life, liberty, and the pursuit of happiness". So the liberty and rights are very negative; everyone has the right to sit under his own vine in content, but no one has a positive right to anything which he can demand from others. Therefore, the government's task is only to police society and make sure that everyone's rights are honored by everyone else. According to
Cato's Letters,
The two great laws of human society, from whence all the rest derive their course and obligation, are those of equity and self-preservation: By the first all men are bound alike not to hurt one another; by the second all men have a right alike to defend themselves.
...
Government therefore can have no power, but such as men can give...no man can give to another what is none of his own...
...
Nor has any man in the state of nature power...to take away the life of another, unless to defend his own, or what is as much his own, namely, his property. This power therefore, which no man has, no man can transfer to another.
...
Nor could any man in the state of nature have a right to violate the property of another...as long as he himself was not injured by that industry and those enjoyments. No man therefore could transfer to the magistrate that right which he had not himself.
...
No man in his senses was ever so wild as to give an unlimited power to another to take away his life, or the means of living... But if any man restrained himself from any part of his pleasures, or parted with any portion of his acquisitions, he did it with the honest purpose of enjoying the rest with greater security, and always in subservience to his own happiness, which no man will or can willingly and intentionally give away to any other whatsoever.
As I said, all this is utterly opposed to the concept of welfare, taxation, etc. A good explanation of this fact is found in
"The Rise of Government and the Decline of Morality" by James A. Dorn. As Dorn shows, Locke-ian thought and the United States
Constitution would both regard the concept of the modern welfare state as anathema. Locke's thought in general, as well as the
Constitution properly understood, forbid coercion in this area.
(Dorn also shows that on purely pragmatic and utilitarian grounds, the welfare state is ill-conceived. I.e., even from a utilitarian perspective of doing that which will benefit the poor the most, without regard to its cost or justice from the perspective of the taxpayers, even from this perspective, the welfare state is ill-advised and ill-conceived. Jews committed to social justice will likely be appalled. But regarding Dorn's pragmatic arguments, that even from a utilitarian perspective, the welfare state is simply ineffective and inefficient - even from a Jewish perspective, this is a valid argument; Judaism wants its
tzedaqa to do good, and if the welfare state doesn't work, then why should Jews support it? Second, even according to Judaism and
tiqun olam, the government as such does
not have an obligation in Judaism to perform welfare;
people do. Even if we make a legal fiction and say the government is one "person", nevertheless, all other people are people as well. The obligation is that justice be done, and if justice can be better done by free-willed individuals than by the government, then even Judaism would agree that the welfare state should be eschewed. That is, Judaism is more concerned with the practical outcome than with the acts along the way (see Rabbi Dr. Eliezer Berkovits), and so if Dorn's pragmatic/utilitarian argument is correct, then Judaism would agree with libertarians, without our even having to address the theoretical arguments of Locke-ian morality, on which Judaism and libertarianism might disagree. Additionally,
sevara is
d'oraita, and so if the pragmatic/utilitarian argument is correct, that is enough. That "do no harm" comes before "do good" is a valid
sevara (logical argument), and if welfare does more harm than good, that is a legitimate halakhic argument in Judaism. But all this - viz. pragmatism and utilitarianism and practical considersations - all this is another subject; we are concerned here with theory, not with practice; we are concerned with pure morality and justice, and not with utilitarianism or pragmatism. All this was was by way of aside.)
One important clarification, for which I am indebted to Rabbi Dr. Alan Brill, for forcing me to clarify the following: my analysis assumes that John Locke was a libertarian, his thinking being in correspondence with such libertarian thinkers and writings as
Cato's Letters and the United States
Constitution. But this correspondence between Locke and the others is not entirely clear. Locke was a liberal, which Wiktionary
defines as,
Any political movement founded on the autonomy and personal freedom of the individual, progress and reform, and government by law with the consent of the governed.
By contrast, the later thinkers who followed Locke were libertarians, which Wiktionary
defines as,
(US) a political philosophy maintaining that all persons are the absolute owners of their own lives, and should be free to do whatever they wish with their persons or property, provided they allow others the same liberty.
It is very difficult to find a difference between the two, but there might be a very tiny but meaningful one. According to the Stanford Encyclopedia of Philosophy,
Locke's Political Philosophy,
It seems clear that at the very least Locke allows taxation to take place by the consent of the majority rather than requiring unanimous consent (2.140). Nozick takes Locke to be a libertarian, with the government having no right to take property to use for the common good without the consent of the property owner.
In other words, the difference is: does taxation require majority or unanimous consent of the governed? I will be assuming the latter, the libertarian interpretation of Locke, that universal consent is required. But this is taking a side in a dispute about the intent of Locke himself. It might be better for me to say instead that I am simply following the libertarian consensus of Locke's followers, especially of the Framers of the United States
Constitution and the authors of the
Federalist Papers. So my views generally follow Locke, but here and their, they might diverge very slightly.
And as I said, I'm sure that everything I've said so far is utterly foreign to the
Tanakh,
Gemara, Rambam, etc. If I started speaking about social contract theory to them, and my right to revolt against the government when I am not pleased with it, they'd think I'm crazy. Nevertheless, the
Tanakh tells us that the
people choose a king. I feel quite confident that the basic roots of democracy are in the
Tanakh, and indeed, it is from the
Tanakh that John Locke derived his ideas. See:
- Yoram Hazony, "The Jewish Origins of the Western Disobedience Tradition", Azure No. 4 Summer 5758 / 1998, here
- Yoram Hazony, "Judaism and the Modern State", Azure No. 21 Summer 5765 / 2005, here
- Fania Oz-Salzberger, "The Jewish Roots of Western Freedom", Azure Summer 5762 / 2002, here
And as I said, a
sevara is
d'oraita. Everything I've said so far, sounds perfectly logical on paper.
III. Repetition of My Question
So again, my question is: given that we know that historically, the Jewish communities would assess
tzedaqa like a tax, how could they do this? Granted that everyone has an individual obligation to give
tzedaqa (even Locke himself acknowledged this), but who gave the
kehilla the right to assess
tzedaqa? Who made the
kehilla boss?
IV. Possible Answer #1
Now, then, one might argue that the people made the
kehilla the boss. But even according to this, any one individual could (according to social contract theory) still withdraw his individual democratic consent to be governed under the social contract, and thus deny the
kehilla the right to assess taxes from him - democracy encompasses civil disobedience (whether draft-dodging or tax-evasion) no less than voting. As Professor Peter Suber says (
Civil Disobedience):
Objection: We must obey the law under a contract with other members of our society. We have tacitly consented to the laws by residing in the state and enjoying its benefits. Reply: ... But even for Locke ... the theory permits disobedience, even revolution, if the state breaches its side of the contract. ...
V. Possible Answer #2
Others will argue based on the fact that Judaism in general permits (or mandates) punishment of sin and coercion to do good. This is part of the general principle of
kol yisrael `areivim ze le-ze, all Jews are responsible for each other. If your neighbor sins, it is your responsibility to coerce him to do good. This would be positive liberty, forcing another to do what he really ought to do (even against his will) rather than Locke-ian negative liberty, live and let live. R' Zev Sero gave me a good response in this vein, saying (
here),
As for your question: how, if this [Locke-ian social contract] theory is true, the gemara can say "me'asin al hatzedakah", that one can be forced to give tzedakah, and if someone is assessed for tzedakah and doesn't give it his property can be confiscated and sold at auction to pay it, the answer is simple: the beis din can make a Jew give tzedakah under exactly the same power with which it can make him wear tefillin. ... And He [viz. G-d] has made each of us responsible for our fellow Jews, and authorised us to use force if necessary to make each other keep halacha. That authority rests with the beis din. When they lawfully order him [viz. a recalcitrant husband] to give [to his wife] a get [writ of divorce], and he refuses, he is violating "lo tasur" ["don't deviate from the words of the rabbis"], and they may beat him to make him comply. Under the exact same power they may also make him do any other mitzvah, such as wearing tefillin, and even mitzvot derabanan [Rabbinic commandments]; hence "makat mardus" [lashes of rebelliousness, given to those who violate Rabbinic commandments]. And under the same power they can make him give the tzedakah that they have estimated a person of his financial standing ought to give.
But this answer is not valid for our specific case of assessing
tzedaqa as a tax. There area few reasons for this:
First, we are entitled to fiddle and tinker around with Locke a bit. There's a difference between a liberal and a communal democracy, with the latter being less individualistic and more societal. America is mostly liberal, but even things like the Civil Rights Act are communal. According to pure Locke-ian liberalism, if I want to keep blacks out of my store, that's my prerogative. If I hate people in wheelchairs and don't want to build them ramps, hey, that's my right! So a communal democracy would take a broader outlook, and look at things from the standpoint of the society at large. It'll tend towards more positive liberty (i.e. coercion), but it's still closer to negative liberty ("live and let live") than to positive liberty. You could still say the black and disabled people have a right not to be discriminated against (negative liberty), and you're enforcing their negative liberty. You're using positive liberty and infringing my right to keep out anyone I don't like, but you're also using negative liberty and upholding their right to be respected as equal human beings. It's a little bit of violence against Locke, but not too terribly much. It's still more libertarian than not.
Based on that, we can still, according to Locke and libertarianism, execute Shabbat violators, for example. If Shabbat expresses G-d's existence, and if G-d's existence is the basis for all morality, then anyone who violates Shabbat is liable to violate all morality. It used to be that if you violated Shabbat today, that you'd murder tomorrow. In fact, the 13th century Provencal halakhist, Rabbi Menahem ha-Meiri, assumed that belief in G-d was required to be moral. In a famous theory of his, called
gedurot be-darkhei ha-datot, "nations restricted by the ways of religion", he said that non-Jews who followed religions like Christianity and Islam were to be treated like Jews in many ways, because they were moral and G-d-fearing individuals. But even the Meiri assumed that atheists were immoral and couldn't be trusted, and should be treated harshly. Now, as Rabbi Yaakov Ettlinger of Germany (the Arukh la-Ner) said (in a theory called
tinok she-nishba, "taken captive as infants", i.e. Jews taken captive (physically or metaphorically) by non-Jews as infants and thus not liable for ignorance of Judaism), this is no longer true. Rabbi Ettlinger saw that in his day, in Reform-Jewish Germany, Shabbat violators were otherwise ethically-sound individuals. He saw that it was no longer true that Shabbat violators were ethically-challenged. But back in the time of the Tanakh, Gemara, and Meiri, before the time of Rabbi Ettlinger, executing Shabbat violators was perfectly libertarian. A Shabbat-violators was a threat to the safety and morality of society.
Many of Locke's arguments for religious toleration (in his
Letter on Toleration) are not relevant to Judaism. Locke took Christianity for granted, in which belief is paramount. Thus, Locke argued that everyone has a right to his own salvation, and that it ought not be the government's concern whether one wishes to believe orthodoxy or heresy and go to heaven or hell. Second, Locke argued that coercion cannot change one's beliefs anyway. But Judaism focuses on deed and not creed, and this renders both of Locke's arguments null. Regarding Locke's argument that everyone has a right to his own inner belief, the the problem is that in Judaism, the deed is a public act. One may have the right to choose whether to believe in the historicity of Sinai or not, but for him to drive a car on Shabbat might be an act of disturbing the peace, of disrupting the religious atmosphere. Regarding Locke's argument that coercion cannot affect belief, this is indeed true, but Judaism focuses on the deed, and coercion
can affect the deed! So only Locke's third argument remains, viz. that we must be humble and admit that we have no way of knowing which religion is the true one. Nowadays, the Orthodox recognize (according to the accepted
tinok she-nishba thesis of Rabbi Yaakov Ettlinger) that the non-Orthodox Jews are not to blame for their lack of belief and observance, for they were raised in their non-Orthodoxy, and do not know better. This thesis was first put forth by Rambam, who said that the Medieval Qaraites, who rejected the Talmud, were simply following the beliefs of their parents who also rejected the Talmud, and that they didn't know any better. (However, the very first original Qaraites, says Rambam, were in fact quite blameworthy.) Rabbi Samson Raphael Hirsch, the leader of 19th-century German Neo-Orthodoxy, and the student of Rabbi Ettlinger, held that Reform rabbis were blameworthy but that their congregants were not. Rambam and Rabbi Hirsch both recognized that we must analyze the individual's personal reasons for believing heresy, and determine whether or not he is personally to blame, or whether he is merely following a leader in good faith. (Toby Katz, the daughter of the late Rabbi Nachman Bulman, who was Hirschian in belief, said to me that in her opinion, non-Orthodox rabbis today are also not blameworthy for their beliefs, as they are merely following their rabbis, who are following their rabbis, etc., all the way back to the original heretical Reform rabbis.) Also, as Rav Kook, the late leader of Israeli Religious-Zionism said, the non-Orthodox taken are taken captive, as it were, by the secular
zeitgeist. They are, through no fault of their own, convinced by modern Western philosophy that Orthodoxy is false. They mean no evil; they are simply following what they believe is the scientific and proven truth. In fact, they mean quite well. In the 16th century, Rabbi David ibn Abi Zimra (Radbaz) said that if anyone believes heresy not because he seeks a pretext for non-observance, but rather, because he truly and honestly believes that reason and intellect dictate that heresy, then, says the Radbaz, this individual is not truly a heretic. According to all these, it is a quite simple matter to for the Orthodox to tolerate heretical belief. However, heretical deed remains a serious question, because, as said, non-observance can disrupt the social fabric and the religious atmosphere. This essay in large aims to investigate whether religious coercion in matters of deed is legitimate.
As my friend David Rosenberg (who learned in the same
baal teshuva yeshiva as me, viz. Machon Meir, and who is a follower of Rav Meir Kahane like me) said,
This halacha [viz. tzedaqa] is, in its origin, a personal one [i.e. binding on the individual only]. However, like many personal individual mitzvot, it was placed upon the local authorities to enforce observance. This was not unique to tzedaka, et al, rather it was part and parcel of all observance, for both deorita [Torah-based] and derabanan [Rabbinic] mitzvot.
The essence of my point is that the coercion there [in tzedaqa], as stated by the Rambam, was akin to the coercion of all mitzvot, because in those days coercion was an important tool in maintaining a healthy community, where a few "bad weeds" wouldn't spoil the otherwise strongly religious population. [Emphasis added.]
...
I don't think the distinction was made between Shabbath and tzedeka; compulsion was employed by the shotrim [religious police] for all mitzvot. Its clear from the beginning of Hilchot Sanhedrin in the Rambam that the officers maintained a certain "atmosphere" if you will on all issues and in all places and enforced the performance of all mitzvoth.
...
Today, however, when coercion for mitzvot isn't relevant, there would be no governmental involvement in enforcing any commandments, including tzedaka. Taxation, which is to pay for those things which the taxpayer benefits, is not included in this concept of tzedaka, obviously. And a person must still give tzedaka, just as he must still keep shabbat, but just as the government wont send agents to force him to keep shabbat at home, it wont force him to give tzedaka.
Luckily, according to Rabbis Akiva, Tarfon, and Shimon ben Gamliel in
Gemara Makkot, we don't have to execute Shabbat violators anymore. Rabbis Akiva and Tarfon said they wouldn't execute murderers (they'd cross-examine the witnesses so thoroughly that no one would ever have enough evidence to be executed), and all the more so they wouldn't execute Shabbat violators either. As for Rabbi Shimon ben Gamliel, he argued against Rabbis Akiva and Tarfon that they'd cause murder to proliferate and bloodshed to increase. Ergo, he had no problem with their failure to execute Shabbat violators. Based on this, I'll tell people, with a completely straight face, that a theocracy in Israel would not necessarily entail any coercion to keep Shabbat, or to keep anything else in
halakhah for that matter. That's what's great about Judaism -
lo bashamaim hi ("it is not in heaven", i.e. it is here on earth for us to do what we think is right based on the Torah, and not what G-d commands us anymore). To paraphrase Jackson's statement to Marshall, if G-d wants Shabbat violators dead, then let Him do it.
Something similar is said by Rabbi Dr. David Zvi Hoffman (one the foremost authorities in 19th-century German Neo-Orthodoxy) in his
Problems of the Diaspora in the Shulchan Aruch:
There can be no doubt that a number of rules in the Shulchan Aruch, the practice of which would be be frowned upon today as a possible defamation of the Divine name, were welcomed by the non-Jewish world of medieval times. As an example we refer to a ruling of the Sh. A. which must have found critical acclaim in the 16th century but which today this same Sh. A. would surely consider a step in the direction of a Chillul Hashem. Shortly before the destruction of the second Temple, the leaders who were responsible for the edition of the Jewish law saw fit to abolish the death penalty. Since then no Jewish court as a rule had the power to decree a sentence of death even if the state indicated its approval. An exception are heretics and apostates. Their crimes, according to the Sh. A., are still punishable by death.
The Sh. A. was codified at a time when heretics and apostates were most cruelly persecuted by the Christians. Thus, the Jewish attitude towards heretics must have found the wholehearted approval of the non-Jewish world. On the contrary, a more conciliatory treatment of the heretics would have been branded as being godless and irreligious, unworthy of the Jewish rabbis.
We are firmly convinced that the Sh. A. would have strictly prohibited the persecution of heretics and apostates because of a possible Chillul Hashem, were it not for the fact that the principles of tolerance and religious freedom found few followers in medieval times. Nowadays, when a majority of the civilized countries upholds the principle of tolerance as a basic concept of democracy, the execution of the Sh. A.-paragraph concerning the heretics and apostates would constitute a major injury to the Jewish religion, a veritable Chillul Hashem.
In short: the general intellectual and social and cultural climate cannot but influence the execution of religious law. In an age when tolerance and religious freedom were not yet even on the horizon, an age when belief in G-d and religious observance were inextricably intertwined with morality and ethical interpersonal behavior, heretics and apostates were damaging to the basic fabric of society, and had to be dealt with harshly. Today, things are of course entirely different.
There is a story I once saw somewhere, about an Eastern European rabbi - he may have been Polish or Lithuanian or Russian; it matters not - giving advice to another. Now, remember, this rabbi was from a time when pogroms in the name of Christianity were the norm; Jews were burned at the stake for their crime of murdering G-d. So this rabbi, as might be expected, didn't exactly think very highly of Christianity. And yet his advice was this: if you ever find yourself riding on a Christian's carriage, and the carriage passes a church without the Christian driver crossing himself, get off the carriage immediately! This is amazing: countless pogroms against Jews were committed in the name of Christianity, and yet this rabbi tells others to avoid riding with a Christian who fails to show sufficient reverence for a church! In that time, Christians may have been prone to a horrifying and at times murderous lack of religious tolerance, but atheists were feared even more. Thus, even Locke-ian libertarianism and negative liberty could justify religious coercion, once upon a time, given the conditions we have described.
Suffice it to say for now, then, many Orthodox Jews would oppose coercion to contribute to
tzedaqa for the same reason that they oppose coercing non-religious Jews to keep the Shabbat. The reason is the same libertarian one, viz. free will and freedom of conscience.
There remains a question regarding a famous ruling of the Rambam. Rambam describes coercing the recalcitrant husband in terms of positive liberty, saying (
Hilkhot Gerushin 20:20, translated in Rabbi Dr. Eugene Korn, "Tradition Meets Modernity: On the Conflict of Halakhah and Political Liberty",
Tradition 25:4, Summer 1991),
And why is this get not null and void seeing that it is the product of duress, whether exerted by the heathens or by the Israelites? Because duress applies only to him who is compelled and pressed to do something which the Torah does not obligate him to do, for example, one who is lashed until he consents to sell something or give it away as a gift. On the other hand, he whose evil inclination induces him to violate a commandment or commit a transgression, and who is lashed until he does what he is obligated to do, or refrains from what he is forbidden to do, cannot be regarded as a victim of duress; rather he has brought duress upon himself by submitting to his evil intention. Therefore this man who refuses to divorce his wife, inasmuch ashe desires to be of the Israelites, he wils to abide by all the commandments and to keep away from transgressions-it is only his evil inclination that has oveiwhelmed him. Once he is lashed until his inclination is weakened and he says, "I consent," it is the same as if he had given the get voluntarily.
In other words, since the recalcitrant husband has a G-dly soul and really wants to be a good person, therefore, we can beat him until he consents to divorce his wife as he really wants to, deep down inside. That is, we force him to do what he really wants to do, which is positive liberty. But even this is not a challenge to libertarianism. What Rambam is really explaining is why this act of coercion does not render the
get invalid as a coerced
get; the husband, to divorce his wife, must do so willingly. The question for Rambam is, why does compelling him here not render the
get invalid? The answer is that the husband is being compelled to do what he really wants to do, and so the
get is not invalidated as a coerced
get. But the very reason for coercing him in the first place is not for his own sake, but rather, for that of his wife. The original reason for this whole affair is one of negative liberty, of the wife's right to be divorced. In fact, Rambam and the Babylonian
Gaonim (the heads of the Babylonian
yeshivot) took the woman's liberty so seriously, that they held that if a woman wanted a divorce just because she doesn't want to be married anymore, period, in that case, the husband could be compelled to divorce her, even against his will. As Rambam said (
Hilkhot Ishut 14:8),
She is not like a captive woman that she should submit to one she dislikes.
If she wants a divorce, the man is obligated to give her one; he cannot hold her captive. So Rambam's coercing the recalcitrant husband is still acceptable to a libertarian. (Unfortunately, many halakhic authorities rejected Rambam's view, holding that a man could be compelled only if he committed an objective violation of marital law against his wife; see
Professor David R. Blumenthal's review of Michael J. Broyde, Marriage, Divorce, and the Abandoned Wife in Jewish Law. Rambam held what Broyde and Blumenthal call "unilateral no fault", while other authorities, regarding an objective infraction on the part of the husband to justify compelling him to divorce, demanded "legal fault".)
So far, we've explained how Judaism could coerce observance of
mitzvot in general, such as Shabbat and
gittin (divorce) and
tefillin, etc. Even according to Locke-ian libertarianism, all this coercion can be condoned.
But collecting
tzedaqa as a tax is something different. At least with Shabbat and
tefillin and
gittin, there are definite objects of my observance. I have to put tefillin on
me. I have to avoid lighting
that fire, and I have to divorce
that woman. But with
tzedaqa, there are a million different possible recipients of my money. How can you force me to give money to this poor guy, when maybe, I want to give it to that other poor guy?
With murder or Shabbat violation or
tefillin, my violation is definite, and my punishment is definite. If I have to be killed for Shabbat violation, it doesn't matter to me which
beit din kills me, assuming the verdict is indeed correct and not a miscarriage of justice. Whether or not the
beit din is one I accept, either way, I'm dead. After I had already written this, I saw that according to Garth Kemerling,
Locke: Social Order (I thank Rabbi Dr. Alan Brill for pointing me to this source),
[T]he state of nature vests each reasonable individual with an independent right and responsibility to enforce the natural law by punishing those few who irrationally choose to violate it. Because all are equal in the state of nature, the proportional punishment of criminals is a task anyone may undertake.
In other words: since every individual is equal, everyone has an equal prerogative (or perhaps duty) to punish those who violate others' rights and the natural law. Indeed, the same is apparent if we work in reverse: if we assume (following Locke) that the government can have only those rights which the people themselves already had and delegated to the government as their proxy, then if the government may execute murderers, then obviously, individual people also have this right too, until they surrender it to the government. So again, with many laws, even if I don't personally accept the
beit din punishing me, this is of no consequence, for even individuals absent a government could also punish me just as well. My punishment remains the same in any case, regardless of who - whether government or vigilante - executes it.
But with
tzedaqa, when the
beit din takes my money, they'll give it to the social cause
they like themselves. So now, it really
does matter to me which
beit din takes my money. So who is this
beit din to tell me I have to give
tzedaqa? Maybe I'd prefer it if the other
beit din took my money, and gave it to the cause they like rather than the one the other
beit din likes.
A second distinction: it's been a while since I studied it, and I forget the exact details, but there's the whole discussion in
Gemara Mesekhet (Tractate)
Makkot about giving lashes for a sin that can be corrected and undone, such as theft. Do we lash you when you fail to correct your transgression immediately, or only when you render it impossible to ever correct it in the future? I think it was something like: regarding the prohibition of taking eggs from a nest with the mother bird around, if you do sin and take the mother with the eggs around, you can always put the eggs back. So do we lash you the moment you fail to put the eggs back immediately, or do we lash you when you eat the eggs and make it impossible to ever put them back? I forget exactly, but I think that's the gist of the discussion in
Makkot.
Tzedaqa is like that discussion in
Makkot. Yes, I have to give 10% of my income to charity. But maybe I'll wait until I'm on my deathbed and I'll give 10% of everything I've ever earned in my entire life! So until the day I die, you cannot be sure I haven't done the
mitzvah of
tzedaqa. With Shabbat, you know I violated it the moment I light a match. With
tefillin, you know I violated it the moment the sun goes down. But with
tzedaqa, how can you be sure I violated it?
So even under libertarianism, it's relatively easy to justify punishing for Shabbat or
tefillin, as long as you feel free to fiddle with Locke a little bit. But
tzedaqa remains a huge question.
I asked my own rabbi, Rabbi Marc Angel what he thought about this, and he responded that,
You are assuming that taxes/tzedaqah are imposed based on the individual's ceding these rights to the kahal/government. I don't think halakha is based on this assumption. Rather, it's based on the notion that no one "owns" his property, but that the property is "on loan" from G-d. Thus, G-d has a voice in how that property is to be utilized. The halakha, reflecting the "will of G-d", tells us that 10 percent of our income (for the average individual) is not "ours", but is in trust to help the poor and or tzedaqah in general. The kahal/government has the right to coerce us to pay this "tax"; but the kahal/government does not have the right to force us to give lifnim mi-shurat ha-din [beyond the letter of the law].
I responded that his point is a very good one. In fact, I said, the entire principle of
hefker beit din hefker ("anything the
beit din declares ownerless for reallocation, is indeed so") emphasizes this fact that our property is on loan from G-d. As Rabbi Emanuel Rackman notes in
One Man's Judaism, what
hefker beit din hefker really proclaims is that property is a means, not an end, and that ultimately, the rabbis can reapportion it for the greater good. But I told my rabbi, I'm not trying to argue against the
halakhah, only against its execution and enforcement. I agree that (according to G-d and the
halakhah) everyone must give
tzedaqa. In fact, John Locke also held by a commandment to give tzedaqa to the poor, based on the
Tanakh. But my objection is against the enforcement of this obligation, i.e. positive liberty, forcing another to do what he is obligated or ought to do. what gives an individual
beit din (Jewish court) or
dayan (judge) the right to enforce my obligation? Who gave him authority? Maybe I'm my own
dayan. My contention is that we are accountable to G-d, not to other humans, for our obligation to pay
tzedaqa. Indeed, the
kahal is forcing you to pay your obligation to pay 10%, but what if I have a different halakhic view, that something less than 10% is mandatory? Or what if I want to choose where my 10% goes, to these poor and not to those poor? Who put the
kahal in charge? What gives them the right to impose a certain halakhic view on me, or to choose where my 10% goes? This is why Locke and others said the legal system should content itself with
negative liberty, i.e. indisputable rights and everyone's right to freely practice them. For example, everyone has a right to life and no one has a right to murder, so there's no real infringement of your rights if even a court whose authority you reject holds you accountable for murder. With such things, it's very difficult for one to cry foul and say his rights were infringed, assuming the trial was fair and impartial. But in terms of
positive liberty, i.e. someone else forcing you to do what you really ought to do, there's a real question. Yes, I have an obligation to give
tzedaqa, but who gave the
beit din the right to force me to do this?
Indeed, as Rabbi Emanuel Rackman notes again in
One Man's Judaism, the obligation to separate
terumah and
ma'aser (tithes for the
kohanim,
levi'im, and poor) absolutely does
not imply an obligation to actually hand it over to its intended recipients. One must separate the tithe in order to render his food kosher, but following that, he may let the tithe rot in his cupboard. G-d may hold you accountable, but no human will. Thus, personal autonomy is retained as against government coercion. Moreover, it ensures that the
kohanim and
levi'im, who (as priests and their assistants respectively) were the rabbis of the day, will be solicitous for your welfare. If they want to get paid (unlike the Egyptian and Mesopotamian priesthood, the
kohanim were not landed), they had to cultivate a warm relationship with you. You were required to give them their tithes, but they could not force you; your compliance with the law was between you and G-d.
(As an aside, Rabbi Emanuel Rackman's One Man's Judaism is a masterpiece of the combination of left-wing enlightened Orthodox Judaism and libertarian politics. Upon recent reflection, I finally make sense to myself! I've always wondered why I'm left-wing on issues of religion and Jewish Orthodoxy but right-wing on issues of politics. Now I understand: I'm a libertarian on everything! That's why I love Rabbi Dr. Eliezer Berkovits and Rabbi Haim David Halevy and yet also Rabbi Meir Kahane and Moshe Feiglin. It all makes so much sense now! As I said, Rabbi Rackman is both a left-wing enlightened Orthodox individual and a libertarian. One of Rabbi Rackman's most celebrated crusades was on behalf of agunot (women held captive by their recalcitrant husbands), but I just recently discovered that as well, he was close to Rabbi Kahane; see my Assassination of Rabin, Massacre by Goldstein. I finally make sense! I'm finally coherent and consistent with something outside myself!)
Rabbi Angel further said,
I believe the "Torah view" takes it for granted that we can't rely on individuals to do the right thing with their tsedaka money. Since we need to have synagogues, schools, hospitals, welfare funds etc., we need a structured way of maintaining these things. If we leave it to individuals to support just what/who they want, a lot of things and people will be left behind. ... People don't always live up to the ideal. If I say: I will give my money only to my community where I know the people involved, then what are smaller, endangered communities to do for help? If all American Jews said they'd only give money in their own neighborhoods, what about the interests of Israel, Soviet Jewry, Ethiopian Jewrry etc. We need to look at the macro picture, and realize that tsedaka isn't a local issue, but a world wide issue; we need some sort of mechanism so that people who have a broad vision of the needs outside of our immediate communities can channel our tsedakah where it's needed. i.e. when we send in contributions to UJA--part goes to local needs, part to Israel, part to the JDC for international needs etc. No one individual has the time or expertise to learn how to prioritize tsedaka gifts.
I agree with Rabbi Angel that people cannot be trusted on their own. There's a wonderful quote from neo-conservative Jewish radio talk-show host Dennis Prager that I love, something like, "The Torah would love for you to give
tzedaqa out of the goodness of your heart. But if knows that if it leaves it to the heart, then the poor will be waiting an awfully long time. So the Torah says, 'Give 10%', and if your heart catches up, great. If not, good has been done anyway." This goes very well with Rabbi Dr. Eliezer Berkovits's claim that the Torah emphasizes the practical result of the deed and cares very little about the intention along the way. Now, I'm not as optimistic about human nature as Ralph Waldo Emerson is in "Politics", but there's something to his argument that there's an inverse proportion between individual activism and government activism. That is, the more the government does, the less the people do. If the government takes care of the poor, then the people will forget about the poor. In Emerson's words,
No forms [of government] can have any dangerous importance, whilst we are befriended by the laws of things. It makes no difference how many tons weight of atmosphere presses on our heads, so long as the same pressure resists it within the lungs. Augment the mass a thousandfold, it cannot begin to crush us, as long as reaction is equal to action. The fact of two poles, of two forces, centripetal and centrifugal, is universal, and each force by its own activity develops the other. Wild liberty develops iron conscience. Want of liberty, by strengthening law and decorum, stupefies conscience.
Alexis de Tocqueville says that when he came to America, he saw that when a poor man stretched out his hand, everyone around him rushed to give him charity. In his words (quoted in Dorn),
When an American asks for the cooperation of his fellow citizens it is seldom refused, and I have often seen it afforded spontaneously and with great good will. ... If some great and sudden calamity befalls a family, the purses of a thousand strangers are at once willingly opened, and small but numerous donations pour in to relieve their distress.
There's a reason why that's no longer true in America. We need to have smaller government.
Rabbi Angel, as quoted above, also was afraid that without enlightened educated guidance, people wouldn't know where to send their
tzedaqa. As he said,
We need to look at the macro picture, and realize that tsedaka isn't a local issue, but a world wide issue; we need some sort of mechanism so that people who have a broad vision of the needs outside of our immediate communities can channel our tsedakah where it's needed. ... No one individual has the time or expertise to learn how to prioritize tsedaka gifts.
I responded that all those organizations for
tzedaqa can still exist, only they'd be privatized and not coerced. Nothing stops the rabbi from getting up and giving a
drasha about the importance of giving money to starving Somalis. (Somalia is where all the starving children lived for whom I ate all leftovers on my plate. As Feivel (the mouse) says, every Jewish mother has her own country of starving children with which to compel her children to finish their plates.) So, all the various
tzedaqa organizations can still exist and market themselves. They just won't coerce you. As Ralph Waldo Emerson says in "Politics",
The power of love, as the basis of a State, has never been tried. We must not imagine that all things are lapsing into confusion, if every tender protestant be not compelled to bear his part in certain social conventions: nor doubt that roads can be built, letters carried, and the fruit of labour secured, when the government of force is at an end.
My brother even advocates that the garbage company be privatized. Now, I'm not so optimistic as Emerson or my brother, but they have a point. Just because the government isn't forcing you, doesn't mean it won't get done. Educate people enough, give them autonomy and freedom, and they might just do the right thing. But when you coerce people, there's a pretty good chance you're forcing them to give to a cause against their conscience. And let's face it, the government is usually inefficient and clumsy. As Thoreau says in "On the Duty of Civil Disobedience",
The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way.
Rabbi Angel, regarding my specific fears of coercion in taxation, said
The public has "freedom" in the sense that it elects its Trustees, government officials etc., who are thereby empowered to make decisions. If we don't like those decisions, we can vote them out next time around.
With all due respect, Rabbi Angel's statement is false from a Locke-ian standpoint. That is, while the public indeed can elect its trustees, it is false to claim that the minority must go along with the majority. As it says in
Cato's Letters,
It is a mistaken notion of government, that the interest of the majority is only to be consulted...otherwise the greater number may sell the lesser, and divide their estates among themselves; and so, instead of a society, where all peaceable men are protected, become a conspiracy of the many against the minority...
Or as Henry David Thoreau said in "On the Duty of Civil Disobedience",
After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But government in which the majority rule in all cases can not be based on justice, even as far as men understand it.
Alexis de Tocqueville argued stridently against what he called the "tyranny of the majority" in a democracy, saying (
Democracy in America, chapter 15,
Unlimited Power of the Majority in the United States, and its Consequences),
A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength. For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them.
...
In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. An individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.
The Framers of the United States
Constitution, in the
Federalist Papers also expressed those fears voiced by Tocqueville, and they tried to protect against the majority "selling" the minority away. Finally, Ralph Waldo Emerson gave a wonderful argument against the tyranny of the majority, specifically in the area of taxation, saying,
Every man's nature is a sufficient advertisement to him of the character of his fellows. My right and my wrong, is their right and their wrong. Whilst I do what is fit for me, and abstain from what is unfit, my neighbour and I shall often agree in our means, and work together for a time to one end. But whenever I find my dominion over myself not sufficient for me, and undertake the direction of him also, I overstep the truth, and come into false relations to him. I may have so much more skill or strength than he, that he cannot express adequately his sense of wrong, but it is a lie, and hurts like a lie both him and me. Love and nature cannot maintain the assumption: it must be executed by a practical lie, namely, by force. This undertaking for another, is the blunder which stands in colossal ugliness in the governments of the world. It is the same thing in numbers, as in a pair, only not quite so intelligible. I can see well enough a great difference between my setting myself down to a self-control, and my going to make somebody else act after my views: but when a quarter of the human race assume to tell me what I must do, I may be too much disturbed by the circumstances to see so clearly the absurdity of their command. Therefore, all public ends look vague and quixotic beside private ones. For, any laws but those which men make for themselves, are laughable. If I put myself in the place of my child, and we stand in one thought, and see that things are thus or thus, that perception is law for him and me. We are both there, both act. But if, without carrying him into the thought, I look over into his plot, and, guessing how it is with him, ordain this or that, he will never obey me. This is the history of governments, - one man does something which is to bind another. A man who cannot be acquainted with me, taxes me; looking from afar at me, ordains that a part of my labour shall go to this or that whimsical end, not as I, but as he happens to fancy. Behold the consequence. Of all debts, men are least willing to pay the taxes. What a satire is this on government! Everywhere they think they get their money's worth, except for these.
In fact, Locke-ian social-contract theory does not require voting at all! All it requires is the consent of the governed, which may be granted in ways other than by voting. For example, Locke considered a tacit granting of legitimacy to the government, such as using its coinage or its highways, to be a form of consent to the social contract, even if no elections were held. Thus, according to Garth Kemerling (op. cit.),
The structure or form of the government so established is a matter of relatively less importance, on Locke's view. What matters is that legislative power....is provided for in ways to which everyone consents.
Similarly, according to the
Stanford Encyclopedia of Philosophy,
John Locke,
It is entirely possible for the majority to confer the rule of the community on a king and his heirs, or a group of oligarchs or on a democratic assembly. Thus, the social contract is not inextricably linked to democracy. Still, a government of any kind must perform the legitimate function of a civil government.
Steven Schroeder (
All Things New: On Civil Disobedience Now) makes the most far-reaching argument. He first notes what Kemerling and the
Stanford Encyclopedia of Philosophy just have, viz. that Locke-ian social-contract theory can operate even absent elections. But then, following Thoreau, he says that in fact, elections can even subvert democracy; by voting, one assumes that he has done his duty, and that he need do no more. One votes, and then lays down his hands, content that he has done all he can. Following this, one continues to obey the government, and this obedience grants more consent and legitimacy than one's voting against the offending measure or candidate ever denied, for actions speak louder than words. If one votes against slavery or supporters of slavery, but then continues to stand by slavery without protest, then one's actions in support of slavery did more to uphold the government's authority (and concomitantly, slavery) than one's vote ever denied it. In Schroeder's words,
All government derives its authority from the consent of the governed. While this may appear more explicit in the case of “democratic” governments than in the case of authoritarian governments, the process is the same in both. Consent is measured by obedience (even if obedience is undertaken under protest). As Henry David Thoreau noted and Emma Goldman reiterated, voting is, at best, largely irrelevant to this process. At worst, it is an illusion of action that partly facilitates consent by diverting attention from the action that matters--obedience, disobedience, or disregard. In the final analysis, it matters less who is elected or how particular faces of civil power in particular places came to occupy their positions than whether their directives are obeyed by publics on which they are imposed. If yes, the civil power has consent; if no, it has no authority.
So to say that taxes are legitimate because the citizens voted for the legislators who passed the tax laws, is illegitimate not only because this view denies the citizenry its democratic right to revoke -
at any time it desires - the consent to be governed under the social contract, but also, because this view assumes that voting is the only means of expressing one's consent to be governed, whereas, in reality, voting is only one of many means of expressing or revoking one's consent.
So to repeat our difficulty: even under libertarianism, it's relatively easy to justify punishing for Shabbat or
tefillin, as long as you feel free to fiddle with Locke a little bit, and slightly blur the distinction between positive and negative liberty. But
tzedaqa remains a huge question - how can we coerce in this area?
VI. My Answer to this Quandary
So here's what I'm thinking: in a small, self-contained community, where everything is intertwined and mutually-related, living in the community and eating kosher food and using the
mikvah are all parts of living there, and so is paying taxes to finance
tzedaqa. If one doesn't want to pay
tzedaqa, then fine, leave the community and live with the Christians or Muslims. At the very least, stop eating the community's kosher food, using its
mikvah, etc. Also, in a small community, the lay-people and the rabbis and judges are intimately associated; they know each other, communicate with each other, and can hold each other accountable.
This of course falls apart in a larger community, like an entire country, with a capitalistic economy. In that case, one is more likely to belong to a synagogue, pay dues to the
mikvah, buy kosher food at a purely capitalistic market with no communal backing, etc. Everything is delocalized. Additionally, the laity and the leaders are too far-removed; the judges and rabbis are appointed by the government from afar, and have little relationship (and no accountability at all) to the people. For how Judaism and democracy interact in a modern society and nation, we'd have to study both the
halakhah and John Locke much more deeply, and study the words of Rabbis Haim Hirschensohn, Benzion Uziel, Yitzhak Herzog, and anyone else who's written on the subject.
Tzarikh `iyun gadol me'od.
In other words: in a small self-contained community, a greater amount of coercion is justifiable, because the community has more reality than a larger community, especially a nation. As the community grows larger, especially as it becomes an entire nation, it grows more and more abstract and disconnected from the people. At the same time, it becomes harder and harder to escape. To enforce religious practice in a small Jewish community is tolerable, because one could conceivably move away from the community to somewhere else. Additionally, he is an intimate part of the community and its services. The community is both concrete and immanent. But a nation is abstract and transcendent; it is neither immanent in his personal life, nor can he easily escape it if he is displeased with it.
Of course, nowadays, Israeli politics is even further from democracy than it is from the Torah. (See my article,
Why I Won't Serve in the IDF: Being Jailed For IDF Conscientious Objection.) Israelis care about John Locke even less than they care about
kashrut and Shabbat. In Israel, we're still struggling to ensure that the government is democratically-elected, as most of the power is in the hands of the judiciary, which is not elected and has no constitution to limit its powers. (See my post,
The Judge in a Fascist Dictatorship: A Review of Judge Aharon Barak.) So the question of how to reconcile mandatory
tzedaqa with John Locke is the least of our problems. But today's community's are something else. Right now, I just want to reconcile Medieval Jewish practice with John Locke. Anachronistic, yes, but it's a still a concern to me.
I just saw that interestingly, Moshe Feiglin (another Meir Kahane-type West Bank "settler" Religious-Zionist) advocates the revitalization of localized communities in Israel, precisely because he believes it will lead to a resurgence of Jewishness and Judaism in Israel. In his article (
Judaism and Democracy for Israel), he writes,
Israel's Jewish constitution must institute district elections, as is common practice in the vast majority of democracies in the world. In that way, Israel's communities will be revived. (They were all united into one large socialist collective when the state was born). Every community will decide on its Jewish public character. There is no doubt that the absolute majority of communities will choose to preserve their Jewish identity. Even the residents of predominantly secular Ramat Aviv preferred closing their local mall on Shabbat – once they were finally asked.
So perhaps indeed, localizing and de-nationalizing matters is the correct thing to do, both from a pragmatic standpoint (i.e. it will encourage people to themselves choose to be more Jewish) and from a philosophic standpoint (i.e. John Locke). We might note that Feiglin (a Meir Kahane-ist) quotes Alexis de Tocqueville and Ralph Waldo Emerson and Mohandas Ghandi perhaps more than anyone else in Israel.
And even more interestingly, it would appear that my libertarian concerns have been voiced by Jewish authorities before me. In Rabbi Dr. Marc D. Angel's
The Jews of Rhodes, we read (p. 26),
One of the persistent and complex problems associated with haskamoth [communal ordinances, passed for social reasons but with the binding nature of a religious law] was the question of whether the majority the right to pass an ordinance over the objection of a dissenting minority of the community. Does the majority rule, or is unanimity imperative? Over the centuries this question evoked considerable rabbinic discussion.
It seems the Jews of Rhodes resolved this dilemma by distinguishing between different types of haskamoth. In matters involving an improvement that was needed for the general community, a majority was sufficient to enact a haskamah. But in matters involving taxation, a unanimous decision was required in order to protect individuals from a barrage of levies imposed on them by the majority of the community. In the final analysis, the situation surrounding each haskamah had to be carefully evaluated before determining whether a majority or unanimity was required for its adoption.
Rabbinic law allowed for the institution of herem, excommunication, in order to give communities power to enforce their laws. Yet, herem was more a threat than an actual procedure.
As Rabbi Angel's larger discussion shows, many (if not most) of these
haskamoth were regarding
tzedaqa to the poor. So the community accepted that it could not pass a new
haskamah, even for the poor and for
tzedaqa, without unanimous approval by the community. In other words, the Jews of Rhodes were concerned with the tyranny of the majority no less than Alexis de Tocqueville and the
Federalist Papers were, even regarding the issue of
tzedaqa. The solution was different than mine, but the question was the same libertarian one.
What I would say, however, regarding Rhodes, is that perhaps
some degree of coercion is conscionable in a small self-contained community. A Jew who lives in the Jewish quarter of Rhodes and doesn't want to pay taxes, well, he can leave the Jewish quarter and live elsewhere, or he can accept excommunication and cease having social and religious relations with other Jews. In other words: he has the freedom to avoid paying taxes, and the community has the freedom to deny him access to communal services. And as I said, there is a vast difference between a community and a nation, in terms of the immanence and accountability of the rabbinic leadership. So if the Jewish community Rhodes were an entire vast nation (like Israel), rather than the small city quarter that it was, all this would be much less certain. One cannot so easily leave an entire country, or stop using the services offered by an entire country, and one cannot so easily hold a national rabbinate accountable to the people. It is one thing to move to a new neighborhood when you don't want to pay taxes, but it is something wholly else to move thousands of miles to a new land.
Everything I've written until now has been based only on my reading of Locke, and my own personal conjectural reconciliations of Locke and Judaism. I just saw that at least from a New England Puritan/Protestant perspective (which, along with Locke, was a very strong influence in New England in colonial America), it would appear that I am very much on the right track. According to Brian S. Brown,
Beyond the Liberal Myth (review of Barry Alan Shain's
The Myth of American Individualism: The Protestant Origins of American Political Thought),
Within each community, it was understood that individuals would obey the responsibilities and constraints placed on them by their superiors. Freedom came by membership in such an ordered community rather than outside or opposed to it. Family, friends, and religion all served as the means of structuring daily existence. That one should be free from the dictates of the local law, denominational elders, or even stigmatizing neighbors, was simply not a political good in the minds of these colonists. If one found oneself theologically or otherwise opposed to the clergy, civil government, or fellow members of the community, one freedom was guaranteed: freedom of exit. ... Shain's description of Protestant "communalism" as a political philosophy, with its emphasis on subsidiarity and localism, strikingly differs from the cosmopolitan communitarianism currently en vogue. The new communitarians seek community unbounded by locality. Exactly what the early colonists feared - constant intervention from outside the community, stripping corporate rights - Amitai Etzioni, et al. cherish. In the last chapter, "The Concept of Slavery," Shain shows that the idea of men and women, having the ability to "compact" and erect their own community, bound by place, was central to the reformed Protestant view of freedom. The denial of this ability was equated with slavery.
My friend David Rosenberg gave an interesting response as well, on Jewish antecedents for Locke's thought. He said,
The ideas that Locke promoted weren't his invention; they were deeply rooted in the origins of government and society. Also its worth mentioning that the Rambam also, albeit tangentially, discusses the concept of a Social Contract (Hilchot Geziela v'Aveida 5:18):In what case is this relevant (regarding the right of a ruler to collect taxes)? When his currency is accepted in those lands (because that indicates that) the residents of those areas accepted his governance and accepted him as their governor.
Though the Rambam was referring to a feudal system, as existed at the time, the essence of what he's saying is relevant. The basis of all governance and taxation is a social contract. The governing body is entrusted with running those affairs that individuals cannot deal with, and for that purpose allowed to charge citizens money for said services on their behalf, but no more.
Anyway, were I a
dayan (judge on a
beit din), I very might well myself not enforce this
halakhah of coercing
tzedaqa. For that matter, I probably wouldn't coerce any
mitzvot at all, such as Shabbat or
kashrut. As I show above, coercion is only justifiable in a certain type of religious environment, when non-observance threatens the very fabric of society. Moreover, it is conscionable especially when non-observance of ritual law gives rise to fears of of non-observance of moral law, as was the case in pre-modern societies. All of this is no longer true, and so religious coercion is much less necessary or justifiable than it once was. But I still wanted to somehow reconcile all this with Locke enough that Locke wouldn't vomit upon reading it. I'm doing the classic move (performed by many rabbis for centuries) of justifying a troubling
halakhah or interpretation of
halakhah, rationalizing it, and once I've rendered it reasonable, ultimately rejecting it anyway. I want to reject this view, but not until I've first rendered it at least sensible and agreeable. I might disagree with some aspects of Jewish tradition, but I don't want to spit in its face. As I said, I come from the perspective of Orthodox Judaism, and for me to disagree with the Talmud or Rambam is not an option. I take it for granted that their opinions are non-negotiable, and so rather than disagreeing with them, I must instead navigate my way through them and reconcile myself with them.
And in fact, the kinds of historical Jewish communities with the
Gemara and
Shulhan Arukh discussed were indeed small and self-contained. So who says I'm disagreeing with the
Gemara? Maybe
Hazal agree with me! Whenever the
Gemara and
Shulhan Arukh mandate religious coercion, they were always dealing with small, self-contained Jewish communities, because that's the only thing that existed in the days before urbanization and cars and telephones! When I offer my
oqimta (casuistric distinction in a given law), distinguishing between religious coercion in a small self-contained community versus in a nation, maybe I'm offering an
oqimta on the
Gemara which
Hazal themselves would agree with! So if I oppose religious coercion in Israel today, if I oppose religious coercion even in a hypothetical Israeli Torah-based theocracy, who says the rabbis of previous days would disagree with me?
VII. An Aside Intended for Myself
I really, really liked how my friend David Rosenberg responded to this whole issue. So I'm going to quote his entire response. The reader need not read the following, as nothing particularly novel or new is said in the following. I just want to preserve the following for the future, for
my own personal edification.
I don't understand what needs to be reconciled. John Locke correctly described the absolute right of a person to his own property and fruit of his labor (which I think is so obvious its sad that he needed to write it in the first place). The mitzvah of tzedaka has nothing to do with government, it is relevant to the individual. Government has a right to take taxes in order to pay for the services it provides to citizens (roads, military protection, courts, etc), but no more. The mitzvah of tzedaka and government are two unrelated things.
The ideas that Locke promoted weren't his invention; they were deeply rooted in the origins of government and society. Also its worth mentioning that the Rambam also, albeit tangentially, discusses the concept of a Social Contract (Hilchot Geziela v'Aveida 5:18):In what case is this relevant (regarding the right of a ruler to collect taxes)? When his currency is accepted in those lands (because that indicates that) the residents of those areas accepted his governance and accepted him as their governor.
Though the Rambam was referring to a feudal system, as existed at the time, the essence of what he's saying is relevant. The basis of all governance and taxation is a social contract. The governing body is entrusted with running those affairs that individuals cannot deal with, and for that purpose allowed to charge citizens money for said services on their behalf, but no more.
I don't think the commandments which obligate individuals regarding social issues (say, tzedaka) are relevant to the governing body, and therefore, there is nothing to reconcile. Locke discusses the rights and responsibilities of the government vis a vis individuals. The Torah, in discussing certain personal mitzvot like tzedaka, discusses the individual's responsibilities, responsibilities which are his own and not the governments.
[So far, we see that my friend David was completely dedicated to libertarianism, as am I. This thrilled me. But to his specific statements that halakhah never compels tzedaqa as a tax, I responded that Rambam writes about coercing misers to pay tzedaqa. David in turn responded,]
This halacha [viz. tzedaqa] is, in its origin, a personal [i.e. individual] one. However, like many personal individual mitzvot, it was placed upon the local authorities to enforce observance. This was not unique to tzedaka, et al, rather it was part and parcel of all observance, for both deorita and derabanan mitzvot.
The essence of my point is that the coercion there, as stated by the Rambam, was akin to the coercion of all mitzvot, because in those days coercion was an important tool in maintaining a healthy community, where a few "bad weeds" wouldn't spoil the otherwise strongly religious population.
[To this I completely agreed, responding based on the Meiri and Rabbi Ya'akov Ettlinger, as I show above.]
Today, however, when coercion for mitzvot isn't relevant, there would be no governmental involvement in enforcing any commandments, including tzedaka. Taxation, which is to pay for those things which the taxpayer benefits, is not included in this concept of tzedaka, obviously. And a person must still give tzedaka, just as he must still keep shabbat, but just as the government won't send agents to force him to keep shabbat at home, it won't force him to give tzedaka.
I think that the biggest proof that this is so is that this halacha, like others regarding coercion, has been set aside for ages, while others using coercion when it is more than just a means of maintaining general mitzva observance are still employed. The best example is forcing a husband to give his wife a get, where batei din will, to this day, employ goons to 'convince' him to do the right thing.
[To this, viz. coercing a recalcitrant husband, I responded based on positive and negative liberty, as I show above. However, I reiterated my specific concerns about coercion in tzedaqa. I.e., even if religious coercion can be justified even according to libertarianism and Locke, tzedaqa specifically remains a question. David responded,]
I don't think the distinction was made between Shabbath and tzedeka; compulsion was employed by the shotrim [police] for all mitzvot. Its clear from the beginning of Hilchot Sanhedrin in the Rambam that the officers maintained a certain "atmosphere" if you will on all issues and in all places and enforced the performance of all mitzvoth. You mention the idea that deviating from Shabbath observance is liable to lead to bloodshed or theft. That's one way of looking at it, but one can also see the general threat of violating laws, big or small, spreading and causing a deterioration in observance. Also, if the idea of tzedaka deteriorated, it could have (and especially in the time of Hazal, when it was more crucial to the survival of many poor) had enormous ramifications on society, particularly its weakest elements.
[I responded that these are all good points, and that I think we're quibbling. We mostly agree on libertarianism/Locke in general (awesome!), and we mostly agree on the purpose of coercion in general. I'm just saying that tzedaqa specifically has a few extra concerns not relevant to religious coercion in general, and so coercing requires a bit more justification with tzedaqa than with Shabbat. Religious coercion, such as regarding Shabbat, can be justified even according to libertarianism and Locke, but tzedaqa requires just a tad more justification than most other halakhot. But I agree with David 99.99%.]
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