WOULD A JEWISH CONSTITUTION
BE THEOCRATIC?

By Prof. Paul Eidelberg

Given the increasing number of Israel's Arab citizens, Israel's present form of government is not viable and will not see much of the 21st century. Hence the present writer has drafted a Jewish Constitution which, if implemented, would enable Israel to pursue its national purpose with vigor and dignity.

Judging from various sociological studies, such a Constitution would win the support of a substantial majority of Israel's Jewish population. Spokesmen across the political and religious spectrum recognize that Israel's present system of government is a monstrosity. To increase support for a Jewish Constitution, it will be helpful to dispel the prejudice that government under such a Constitution would be theocratic. This is more a semantic than a substantive issue. If "theocracy" signifies a regime ruled by a church or by priests, Judaism is not theocratic. There is no church in Judaism, neither THEOLOGICALLY, since there is no mediation between G-d and the individual Jew, nor INSTITUTIONALLY, since there is no ecclesiastical hierarchy.

If, however, the word "theocracy" is construed literally as the "rule of G-d," then Judaism is theocratic, for G-d is the ultimate source of law and authority. But what does this mean OPERATIONALLY? In Judaism no priesthood BUT ONLY PUBLICLY TESTED SCHOLARSHIP CAN LAY CLAIM TO ANY VALIDITY REGARDING THE LAWS OF THE TORAH. This means that the Torah belongs to every Jew, whether he is a Kohane, Levite, or Israelite. Let us examine these three "classes."

The first thing to be noted is that they are hereditary but not closed. The daughter of an Israelite or Levite may marry a Kohane and her children will be Kohanes, since "class" status is patrilineal. Hence, even though Kohanes have distinct duties and privileges, there is no separation of "classes." Nor is there a ruling class. In a truly Jewish state, who rules is based, first and foremost, on intellectual and moral character. Indeed, the most authentic form of Jewish leadership is that of the teacher, whose power is not political but intellectual and moral.

Moreover, unlike the practice of any so-called aristocracy, education in Israel is open to, and even required of, all members of the community. Far from stratifying the three "classes," TORAH EDUCATION IS THE GREAT UNIFYING FORCE OF THE JEWISH PEOPLE, A PEOPLE THAT HONORS SCHOLARS MORE THAN KINGS.

In a mature Jewish community the center of gravity lies not in any ruling class but in the body of the people. In fact, it is hardly an exaggeration to say that the leaders of a Jewish community act consistently with the Torah when they make themselves superfluous! In such a community, writes Rabbi Samson Raphael Hirsch, "let a Rabbi try to give one decision in opposition to the Torah, and the humblest Jewish apprentice will refuse obedience and rebuke the Rabbi for his error or forgetfulness of his duty, and remind him that among Jews it is not the clerical robe nor government decrees that confer authority, that the word of the most celebrated Rabbi carries weight only so long as it accords with the law, and is null and void if it conflicts with the law sanctioned in Israel."

Because the Torah belongs to the people as a whole, no hierarchical power can impose any regulations or any officials on a Jewish community without first obtaining its consent. As the Sages themselves teach:

"We must not appoint a leader over the community without first consulting it" (Berachot 55a). They also teach that every regulation made by a Beit Din which has not been accepted by the majority has no binding force.

This should not be construed in terms of contemporary democratic thought. There is no unqualified majoritarianism in the Torah. Under Judaic law the minority can compel the majority to carry out everything which is a legal obligation of the community. (Contrast the American Constitution whereby an individual can bring a suit to the Supreme Court which in turn can declare a law enacted by Congress unconstitutional, hence null and void.)

The above analysis should dispel the prejudice that a Torah government would be a "theocracy," a state ruled by a priestly caste. Incidentally, back in the 18th century, Harvard president Samuel Langdon considered the government embodied in the Torah to be a "perfect republic."

Without a Jewish Constitution Israel will drift from crisis to crisis, the plaything of forces beyond its control. Zionist organizations should therefore emulate the Foundation for Constitutional Democracy and place the idea of a Jewish Constitution on the agenda of public affairs. If Prime Minister Binyamin Netanyahu is reelected for a second (and last term), and were he then to take up this cause and bring it to fruition, his would be an illustrious place in Jewish history.

Classical versus Contemporary Democracy

The success of these Plans will ultimately depend on the restoration of Classical Democracy and its assimilation to Judaism. Classical Democracy must first be distinguished from Contemporary Democracy. Judging from the prevailing ideas and behavior of Western democratic societies, Contemporary Democracy is little more than a random aggregation of individuals and groups pursuing their own aims and interests. The result is nihilism and multiculturalism (fortified by the doctrine of moral and cultural relativism that dominates every level of education in the West). Lacking in Contemporary Democracy are not only unifying norms of human conduct, but any rational basis for national loyalty. Contemporary Democracy denies the existence of universally valid standards by which to determine whether the way of life of one individual, group, or nation is intrinsically superior to that of another or more conducive to human excellence.

In contrast, Classical Democracy is based on the idea of a Higher Law. The Higher Law doctrine of the American Declaration of Independence--there termed the "Laws of Nature and of Nature's God"--may be traced to the Bible of Israel, i.e. the Torah. The biblical foundation of American constitutional democracy is often overlooked. Strange as it may seem, the American Constitution is far more consistent with the Torah than Israel's present form of government. The Torah is itself a Written Constitution with institutional checks and balances.The executive and judicial-legislative functions of government are divided between a King and a Supreme Court also called the Great Sanhedrin. Just as the Sanhedrin is the final interpreter of Israel's fundamental law, the Torah, so the American Supreme Court is the final interpreter of America's fundamental law, the Constitution. As for the executive, a President of the United States may be impeached, as may (in effect) a King of Israel.

Eighteenth-century American educators saw in the "polity" of the Torah--apart from its ceremonial laws--a model for American government. Contrary to the British and European political tradition, which fixes sovereignty in the State, and not in the people, the Torah posits the sovereignty of the people, of course under God. This does not mean theocracy. The rule of a priestly class over a "laity" is foreign to Judaic jurisprudence. Because the Torah belongs to the people as a whole, no hierarchical power can impose any rules or regulations or any officials on a Jewish community without first obtaining its consent. Ironically, whereas the American government was originally based on the Jewish conception of sovereignty, Israel's present government is based on a non-Jewish conception of sovereignty!

Since the Torah (the Higher Law) limits the powers of government, it posits a most extensive ensemble of individual rights and reciprocal duties: the right to privacy; the presumption of innocence; the right to file suit against a King of Israel; the inadmissibility of confessions and circumstantial evidence in criminal cases; the requirement of virtuous witnesses; the right to a speedy trial; the prohibition against double jeopardy; the right to private enterprise, constrained by Jewish ethics, especially by the eight grades of charity, the highest being the provision of gainful employment to needy people. These are but a few aspects of Jewish Constitutional Law or of Jewish Constitutional Democracy.

Furthermore, and of crucial importance, the original understanding of the term "democracy" differs radically from contemporary democratic thought. Classically understood, democracy means the rule of an ethnically distinct people, a people united not only by language, but by endogamous patterns of marriage and by shared beliefs and values rooted in a common past--the basis of national loyalty. (This conception of a people is analogous to the Torah's distinction between an Am and a Goy. The latter is a corporate entity whose members are not united by a distinct way of life. The Foundation for Constitutional Democracy is committed to the restoration of Classical Democracy and its assimilation to Judaism.

NOTE

Please note that as a result of constructive criticism and further research on the Constitutions and electoral laws of many, many Gentile Constitutions, I have made significant changes in the first draft of our own proposed Constitution. I am still learning, and I welcome -- with all my heart -- the knowledge of others. Even now I am thinking of adding the following power to the lower branch of the legislature -- which is based on one adult/one vote but has only the function of administrative oversight -- namely, to allow the lower branch to propose legislation, but which the upper branch -- consisting solely of Jews -- can amend or simply reject.

Now if we use the contemporary standard of indiscriminate equality, this Jewish distinction is undemocratic. (It's also undemocratic to require a US President to be native-born.) The point to bear in mind is that democratic equality is only one principle, which, if you absolutize -- like giving the vote to 12 year-olds -- would destroy any democracy. Indiscriminate equality violates the very notion of nationhood or peoplehood. Athenian democracy required its citizens to be ethnic Athenians. Jewish democracy requires its citizens to be Jews, which means only Jews can make the laws of the country. Obviously this will be deemed racism as well as undemocratic -- but only because contemporary mentality is dominated by egalitarianism -- the ISM being totalitarian. Japan doesn't suffer from this cultural self-denial, yet it is a democracy -- in the classical sense.

What we have to do is modify the language of public discourse. We have to redefine basic concepts. As mentioned above, we have to assimilate democracy to Judaism, not the reverse.

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Professor Paul Eidelberg is president of the FOUNDATION FOR CONSTITUTIONAL DEMOCRACY:

244 Madison Avenue, Suite 427, New York, NY 10016
TEL: 212-372-3752, FAX: 212-982-1214
E-MAIL: constitution@usa.net

The Freeman Center urges you to support the work of Dr. Eidelberg.



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