Ein Shaliah L-Davar `Averah: Politicians are Not Greater than Rabbis When It Comes to Government and Law

In "A New Biography of Rabbi Yehuda Amital" (http://www.jewishideas.org/articles/new-biography-rabbi-yehuda-amital), by Rabbi Dr. Israel Drazin, reviewing By Faith Alone, by Elyashiv Reichner, trans. Eli Fischer (Maggid Books, 2011), a new biography of Rabbi Yehuda Amital, we read, "Despite his strong feelings about the importance of Torah study and the need for Jews to observe the Torah commands, Rabbi Amital was opposed to rabbis setting public policy. Rabbis can advise politicians if the politicians want to hear their ideas, but it must be understood that the rabbi’s opinion carries no halakhic (religious or legal) force."

Now, Drazin is of course merely reporting Amital's view, so I cannot complain about Drazin. As for Amital, I have not yet read this book, nor do I have more than a very general, cursory knowledge of Amital. He is certainly someone I wish to learn about, but in the meantime, I really have no basis to speak about someone I know little about.

Nevertheless, the thought expressed here, is a relatively common, that I have heard from many different people, so I wish to respond to the general opinion, at least as I understand that opinion, beyond Amital himself.

There is certainly a great deal of validity and importance in the fact that we are to be m'kabel et ha-emet mi-mi she-amrah, "accepting of the truth from whomsoever states it". Maimonides (Rambam) and Rabbi S. R. Hirsch both constantly repeated the fact that there is only Truth. The natural world and logic and reason, when properly interpreted so as to yield truth, are just as true as the Torah. It may be that the Torah is more reliable and more easily interpreted, but the fact remains that truth is truth is truth. Scientific fact can always be disproven, but that just means that that science wasn't really science. If and when a given scientific fact is truly accurate, then that fact is just as surely true as anything in the Torah. Therefore, we must realize that a secular politician can be right just as surely as a rabbi can be wrong. Taking "science" in the broadest sense of all non-divinely-revealed truth, then secular or non-Jewish individuals can discover the truth just as surely as rabbis can, for truth and truth cannot contradict.

But if we are to avoid a false dichotomy, and avoid falsely elevating the Torah's truth over scientific truth, then we must avoid the opposite error of elevating scientific truth over the Torah's truth. I find it very perverse to say that rabbis can only advise politicians, and that politicians ultimately have the final say on the matter. It is very true that the rabbi can be wrong and the politician right, but is not the opposite also the case? Is it not possible that the politician is in error and the rabbi correct? If, as religious Jews, we are to realize that truth and truth cannot contradict, and that therefore, it may be that secular and non-Jewish individuals can be right, then, by the same token, rabbis can also be right!

In the end, if we believe in Pirkei Avot's statement to hafokh bah v'hafokh bah d'kula bah, "turn it (the Torah) over and over, for everything is contained within it", then the fact is the Torah has something to say about *everything*, including politics. If the Torah has something to say about politics, then it is criminal for us to ignore what the Torah says due to some perverted belief that politicians are ipso facto superior to rabbis. Yes, we must realize that rabbis are not prophets, but then again, neither are politicians. Both are humans and both can err. We must realize that rabbis are not omniscient, but we must avoid assuming that therefore, politicians are omniscient.

A real tragedy, I believe, is that few Americans realize how important religion was to American politics during the Founding era. According to Edmund Burke in the English House of Commons, in his "Speech on Conciliation with the Colonies", delivered on 22 March 1775, "The [American] people are Protestants; and of that kind which is the most adverse to all implicit submission of mind and opinion. This is a persuasion not only favourable to liberty, but built upon it. ... All Protestantism, even the most cold and passive, is a sort of dissent. But the religion most prevalent in our northern colonies is a refinement on the principle of resistance; it is the dissidence of dissent, and the Protestantism of the Protestant religion. This religion, under a variety of denominations agreeing in nothing but in the communion of the spirit of liberty, is predominant in most of the northern provinces." English Prime Minister Horace Walpole said at the same time, during the American Revolution, that "Cousin America has run off with a Presbyterian parson", most likely intending the Reverend John Witherspoon, a key figure in the revolution. Other English observers would name the war the "Presbyterian Rebellion" or refer harshly to the "Black Regiment" of Calvinist church ministers who were largely responsible for instigating the war. Cf., for example, some collections of their sermons, such as Ellis Sandoz, ed. Political Sermons of the American Founding Era: 1730-1805, 2 vols, (2nd ed. Indianapolis: Liberty Fund, 1998) and John Wingate Thornton, ed. The Pulpit of the American Revolution, or The Political Sermons of the Period of 1776 (Boston, 1860, many facsimile reprints).

John Locke (Thomas Jefferson's favorite) and Justice William Blackstone (the foremost authority on the English common law in the period) and the Baron de Montesquieu (one of the chief authorities for James Madison) were all quite explicit that a divine, Biblical natural law was authoritative over and beyond the laws of men, and that no law was valid which contradicted the Bible. James Otis, Jr., in a work celebrated by John Adams, his The Rights of British Colonies Asserted (Boston, 1763), wrote, "To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5; Omnipotency cannot do it. The supreme power in a state, is jus dicere [ = to declare what the law already is] only;—jus dare [ = to legislate new law], strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void." This was not an unusual opinion, and it was quite ordinary for the Revolutionary War period. Thomas Paine went even further in his groundbreaking and unbelievably popular Common Sense, and wrote, "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." The interesting thing is, Paine was an atheist, and yet Common Sense, easily the single most influential tract of the Revolutionary War, was written in the form of a Congregational (Calvinist) church sermon! Paine knew his audience, about which Alexis de Tocqueville said, "Moreover, almost all the sects of the United States are comprised within the great unity of Christianity, and Christian morality is everywhere the same. In the United States the sovereign authority is religious, and consequently hypocrisy must be common; but there is no country in the whole world in which the Christian religion retains a greater influence over the souls of men than in America, and there can be no greater proof of its utility, and of its conformity to human nature, than that its influence is most powerfully felt over the most enlightened and free nation of the earth. The Americans combine the notions of Christianity and of liberty so intimately in their minds, that it is impossible to make them conceive the one without the other; and with them this conviction does not spring from that barren traditionary faith which seems to vegetate in the soul rather than to live." And again, Tocqueville wrote, "Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions; for if it does not impart a taste for freedom, it facilitates the use of it. Indeed, it is in this same point of view that the inhabitants of the United States themselves look upon religious belief. I do not know whether all Americans have a sincere faith in their religion--for who can search the human heart?--but I am certain that they hold it to be indispensable to the maintenance of republican [what we today would call "democratic] institutions. This opinion is not peculiar to a class of citizens or to a party, but it belongs to the whole nation and to every rank of society."

When the debate came up what the seal of the United States should be, Benjamin Franklin, hardly the most orthodox individual religiously, designed a symbol depicting the Jews crossing the Sea of Reeds and Pharaoh drowning, with God (depicted as the pillar of fire) looking on in approval. The motto surrounding the illustration was, "Rebellion to Tyrants is Obedience to God". Thomas Jefferson, even less religiously orthodox than Franklin, thought the image too violent, and suggested instead a depiction of the Jews walking in the desert, protected by the pillars of fire and cloud. As for the motto, Jefferson adopted it for his own stationary. Neither proposal for the seal was accepted, but the fact that the two least religiously orthodox men in America suggested Biblical images as the symbols for America, speaks volumes.

The customary oath for serving in the Knesset, the Israeli parliament, specifies loyalty to the Israeli government and its laws. But when Rabbi Meir Kahane took his oath, he unilaterally added that his oath would be superseded by another oath, namely that he would only obey those laws which agreed with the Torah. Onlookers were aghast. After much controversy, it was finally decided that his oath was valid, but the controversy persisted. Media reporters asked him what on earth he was thinking, and he replied wryly (I am paraphrasing from memory, from the book The Wit and Wisdom of Rabbi Meir Kahane, by Lenny Goldberg, 2006), "What is a higher law above the Knesset? I think the Reverend Martin Luther King, Jr. was following one when he disobeyed American law." Yes, Rabbi Kahane cited King, so let us quote King himself, from his "A Letter from a Birmingham Jail": "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.' Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law." Now, that does not mean that every one of Rabbi Kahane's policy proposals was correct. I never said that his interpretation of the Torah was the same as my own. (By definition, I believe my own interpretation of the Torah is the correct one, and I assume that everyone reading this letter of mine believes his or her own interpretation of the Torah to be the correct one.) The point is that his elevating the Torah over the secular law is quite legitimate, going back through King right back to the Revolutionary War. His interpretation of the Torah might be justly disputed, but his elevating the Torah per se over the secular law comports with the most fundamental sources of American political philosophy.

The Shalem Center in Jerusalem is undertaking a certain project, a magnificent one, I believe, called Political Hebraism, focusing on the political thought of both Jews and Christian Hebraists. The object is to show that historically, for people like John Locke and others, the Torah was a perfectly legitimate and authoritative source of political philosophy. The Shalem Center's object is to show that a Jew need not believe that all politics must be secular, for the Christians who formed our modern political institutions never held such a belief. If Christians may bring God into the legislature, then so may Jews.

Again, rabbis are not always correct, but then again, neither are politicians. One has an obligation to follow what he believes is the truth, no matter what anyone else says. The Talmud declares, ein shaliah l'davar averah, "There is no proxy (or delegate, or power of attorney) in the case of sin", meaning one cannot delegate another to sin on his behalf, nor can one be another's delegate to sin. In other words, one cannot say, "I was only following orders". One must always personally due what he believes is right and eschew what he believes is wrong, whether his standard of right and wrong is the Torah or something else. In the leadup to the the 2005 expulsion from Gaza, some religious IDF soldiers asked whether they should obey orders they believed were unjust, some rabbis told them they must obey these orders, saying that the duly-elected democratic government is more authoritative than the Torah. But this is the Nuremberg Defense, and the Talmud rejects it. Rabbi Professor David Golinkin, President of the Schechter Institute of Jewish Studies in Jerusalem, has a more Jewish attitude on the subject than these supposedly-Orthodox Israeli rabbis who so casually rejected the words of the Talmud: in his essay, "The Jewish Attitude Towards Non-Violent Protest and Civil Disobedience" (http://www.schechter.edu/insightIsrael.aspx?ID=57), Golinkin writes, "The opponents of disengagement [from Gaza] believe that their fellow Jews are committing a sin. I disagree, but l'shitatam, according to their approach, they should protest. ... In conclusion, while I believe that disengagement is perfectly permissible according to Jewish law and tradition, I also believe that Jewish law and tradition permit non-violent protest and civil disobedience, provided that those who engage in these actions are willing to face the consequences of their actions."

In the Geneva Bible, the Bible of the Puritans, at Exodus 1:17, we read, "Notwithstanding, the midwives feared God, and did not as the King of Egypt commanded them, but preserved alive the men children." On verse 19, the commentary there (written by Calvinist ministers in 16th-century Geneva, mostly in exile from Mary Tudor in England, who was martyring Protestants) says, "Their disobedience herein was lawful." In other words, the Calvinist ministers declared that Shifra and Puah were correct in disobeying Pharaoh. King James I of England, by contrast, declared this to be seditious rebellion against the crown, and the King James Bible was produced with the express intention of doing away with this seditious commentary that was contrary to the king's political program. Whereas Rabbi Golinkin takes the side of God, many Israeli rabbis seem to take the side of King James I, and declare that obedience to the Bible is illegal. Whereas Franklin and Jefferson said, "Rebellion to Tyrants is Obedience to God", these rabbis rather say, "Obedience to God is Sedition and Treason Against the Divine Civil Government". Rather than reading Torat Moshe, the Torah delivered by God to Moshe at Sinai (Avot 1:1), these rabbis prefer the sanitized, purified, cleansed, government approved King James Bible, translated into Hebrew perhaps. Long ago, Rabbi S. R. Hirsch castigated these supposedly-Orthodox Israeli rabbis as heretics ("Judaism Up-to-Date" in Judaism Eternal, and "The Jew and His Time" in Collected Writings): "Let us be clear about one thing: To me Scriptures are the Word of God; Judaism and the Jewish law represent the revealed Will of God. Is it then conceivable that I should place myself at the crossroads of history and inquire of every passerby as to his views and opinions, illusory and otherwise, and seek his endorsement of the living Word of God? Or should I, perhaps, alter the living word of God to accomodate his shrug of the shoulders and then say: Look, here now is Judaism brought up-to-date, the living Word of God authenticated and revised by man! ... Should I be allowed to alter the Divine Word to fit my own weakness and then announce with pride: Here it is and here I am, in conformity with my time! Let us not deceive ourselves. The question is simply this: The 'and God spoke to Moses, as follows,' which precedes all the laws of the Jewish Bible - is it truth, do we really and faithfully believe that God, the Almighty, the All-holy, spoke thus to Moses?"

Yoram Hazony of the Shalem Center puts the final matter well, in his essay, "The Jewish Origins of the Western Disobedience Tradition" (Azure No. 4 Summer 5758 / 1998): "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."

Rabbis are not omniscient prophets, but neither are politicians. In the end, we are obligated to obey no one except he who expresses the truth. Kabel et ha-emet mi-mi she-amrah, "Accept the truth from whomsoever speaks it", say Hazal, whether rabbi or politician.

(Again, I do not know Rabbi Amital's view. I am merely using his words as a convenient preetext to respond to a view that I know others express. Nothing I have said here should be taken to indicate disagreement with Rabbi Amital himself.)