Dear Knesset Members, Rabbanim, Media and Fellow Activists for Eretz Yisroel, Torah and Am Yisroel amv"sh
The following articles by Prof. Paul Eidelberg are extremely enlightening and I hope that Knesset Members, Rabbanim, Media and Activists for Eretz Yisroel, Torah and Am Yisroel will take Prof. Eidelberg's work very seriously and dutifully reflect as per how it can affect Modern Day Israel! Thank you for reading!
On Sun, Jul 22, 2012 at 8:21 AM, Paul Eidelberg
<paul@i-ari.org> wrote:
Hebraic Origins of the American Constitution: Separation of Powers*
Prof. Paul Eidelberg
*An excerpt from the author's "The Metapolitial Foundations of American Exceptionalism."
According to Maimonides, "A king may only be appointed—ab initio—by a Sanhedrin of 71 Elders, together with a prophet; as Joshua was appointed by Moses and his court; and as Saul and David were appointed by Samuel."[1] We have already seen, however, that Moses' leadership, to be legitimate, required the acceptance of the people. Much controversy has therefore arisen over the Prophet Samuel's harsh disapproval of the people's demand for a king, even though it is sanctioned by the Torah. Why was Samuel so distraught, and why did he famously portray Israel's future monarch as a despot?
According to Rabbi Eliyahu Benamozegh [Israel and Humanity[2]], Samuel's grim portrayal merely reflected the legal conventions governing monarchy at the time, when there was a confusion of executive and judicial power (which inevitably involved law-making). But when the disadvantages of this arrangement became clear, the system gave way to a separation of powers (291) [comparable to that of the American Constitution]. However, there may still remain some doubt as to the Torah's attitude toward monarchy and the extent of a king's powers. Benamozegh addresses this issue: "The very text that anticipates monarchical government describes most explicitly the nature of the monarchy. There is no authority above the Law, which must govern the king as well as the humblest citizen … for Judaism affirms the equality of all before the Law" (291). Moreover, "with respect to form of government, as for all other matters of civil and political law, the people remained entirely free to choose the constitution which best suited them"—words that remind us of Locke's Second Treatise of Civil Government! Rabbi Benamozegh adds, however, that the Torah rejects the Oriental idea of a single man having absolute power. "The sovereign Moses seems to expect is, in effect, a public servant or an executor of the Law, a constitutional monarch" (292).
This is apparent in the Hebrew name given to the king, melekh, a word that implies a chief "counselor" or a president who's intellectual and moral qualities warrant his elevation and authority. Accordingly, the king's paramount purpose is to win the hearts and minds of the people to the Torah by his own sterling example of a man whose every word and deed is inspired by the Law of which he is nothing more than a faithful servant. Despite their differences, a King of Israel has much in common with a President of the United States. Both are servants of the Law, and neither is invested with law-making powers.
Notice, moreover, that the principle of popular sovereignty is confirmed in 1 Samuel 8:7, for despite the prophet's initial opposition to the people's demand for a king, he finally complied with their will. Benamozegh explains: "In shouldering the responsibility of installing a king and extending to him the protection of his own authority, Samuel, as a member of the Sanhedrin, shows that the monarchical wishes of his fellow-citizens were reconcilable with the Law of Israel. But in this case, why was he so unenthusiastic when the first overtures were made to him on the subject?" As Benamozegh suggests, "perhaps it was because Moses seems to make the introduction of monarchy contingent on the solemn expression of the popular will, thus introducing a drastic distinction between this manifestation of the socio-political order and the other commandments [e.g., the Ten Commandments] which are never subject to such conditions [i.e., the will of the people]. The text in the Torah, dealing with monarchy, can then be interpreted not as a command at all but as a prediction, and it implies acknowledgment of complete freedom of choice with respect to form of government" (292).
It should be stressed, however, that the people's "complete freedom of choice with respect to form of government" does not extend to the laws enacted by their government. The form of government, even if it were democratic, is not free to violate the Ten Commandments. The government may not enact laws that negate ethical and intellectual monotheism or, in the language of the American Declaration of Independence, that violate "the Laws of Nature and of Nature's God." Hence, it is a grievous mistake to sever the principle of popular sovereignty from theological constraints, or to equate popular sovereignty with a secular or morally neutral democracy.
Another look at 1 Samuel 8:7 is necessary. The constitutional significance of this verse has been overlooked: "Listen to the voice of the people in all that they say to you, for it is not you whom they have rejected, but it is Me whom they have rejected from reigning over them." This verse affirms not only the principle of popular sovereignty—even though it reproves the people for demanding a king. In addition, Samuel's opposition to kingship should be construed as his opposition to an Executive invested with the judicial-legislative powers which the Torah prescribes for the Sanhedrin. Samuel's opposition therefore anticipates the separation of powers doctrine evident in the American Constitution (but ironically lacking in the government of present day Israel, which prescribes not the unitary executive of a Hebraic Republic, but a pluralistic or multiparty executive consisting of members drawn from rival parties in the Legislature, the Knesset!). [3]
The consequences of endowing the king with judicial-legislative power as craved by the people are enormous. The king would then enjoy unlimited power unforeseen by Moses. Benamozegh observes that if the king's authority were to extend over legislation, even though this might be limited to civil (as opposed to ecclesiastical) law, it must inevitably encroach on the domain of conscience, and in any case it would interfere with the freedom, dignity, and interests of the citizens. When Moses speaks of the future king, he makes no reference to judicial functions, whereas the Israelites appear to be demanding precisely this authority for their monarch, which would lead to the exercise of oppressive legislative power itself (291-292).[4] Clearly, the Hebraic Republic incorporated separation of powers or the institutional checks and balances comparable to those of the American Republic.
(To be continued.)
[1] Mishneh Torah (Laws of Kings and Their Wars), I, 3.
[2] Pagination in the text.
[3] Contradictory conclusions regarding the issue of kingship in a Jewish polity appear in Nelson, 35-41, 51-53.
[4] See ibid., 34, where Nelson fails to see that the people's error consisted in asking for a king "who can judge us," which would negate the role of the Sanhedrin. Perhaps Nelson's misunderstanding stems from his erroneous classification of the Jewish policy as a theocracy, a view refuted by Benamozegh and Hirsch. Indeed, Nelson contradicts himself by citing, with approval, the position of James Harrington, according to whom "Ordination in the commonwealth of Israel, being nothing else but election of magistrates, was performed by the suffrage of the people." For Harrington, Nelson continues, "All ordination of magistrates or of the senators or elders of the Sanhedrin … of the king, of the priests, of the Levites, whether with the ballot or viva voce, was performed by the chirotonia or suffrage of the people" (118).
Citizenship in Israel and the Ger Toshav
Prof. Paul Eidelberg
Israel's Supreme Court ruled that the Proclamation of the State of Israel of 1948 carries no constitutional authority and cannot serve as a foundation for any actual legal right. Nevertheless, the Proclamation prescribes the convening of an "Elected Constituent Assembly" to adopt a Constitution. Israel's Provisional Government arranged for the election of such an Assembly. A committee consisting of various party spokesmen was elected. A draft constitution was submitted to the committee by Dr. Leo Kohn. The draft was supported by spokesmen of Agudat Israel, Mizrachi, and Ha-Poel Mizrachi—the religious parties.
However, the committee's majority, representing Mapai and Mapam, the secular parties, rejected the proposed constitution, which prescribed political equality for all inhabitants of the State except that the President had to be Jewish. Secularists feared that such a provision would be deemed "racist" by the international community, even though the Proclamation repeatedly refers to Israel as a Jewish State. This fear, I believe, very much explains why the authors of the Proclamation as well as those who later drafted the Nationality Law—also called the "Citizenship Law"—granted equal political rights to Israel's Arab inhabitants. Underlying this fear, however, was the secular orientation or diminished national pride and purpose on the part of the founders of the State.
National pride, rooted in a people's sense of a venerable past, of shared triumphs and tragedies, of cherished ideas and values, of noble and timeless aspirations—this is the core of national consciousness and of the dignity that should attach to citizenship. Israel's Nationality Law makes nonsense of nationality by endowing Arabs with equal political rights in a supposed-to-be Jewish State.
Contrast Jordan. Under the Jordanian Nationality law of February 4, 1954, a person became a Jordanian national if, "not being Jewish, he possessed Palestine nationality before May 14, 1948 and at the date of publication of this law was ordinarily resident in the Hashemite Kingdom of Jordan." This is less a manifestation of racism than of national pride and political prudence.
Making Muslims citizens of a Jewish state is even more foolish than making Jews citizens of any Muslim state, considering only the disparity in their respective populations in the Middle East. Just as only Jews are qualified to make the laws of a Jewish state––think of the knowledge and reverence required to preserve the Jewish tradition, its religious precepts and practices, its methods of education, the memory of its great teachers and leaders––so only Muslims are qualified to make the laws of any Muslim state.
Imagine Muslim Knesset Members voting on the issue of "Who is a Jew?"—as in fact they have! Or imagine Muslim MKs voting on any territorial issue—as indeed they have. What absurdity!
Afer all, it is well known that most Muslim citizens of Israel identify with Israel's enemies, and many have aided or participated in hundreds of terrorist attacks. This prompted former MK Michael Kleiner and, more recently, MK—now Foreign Minister—Avigdor Lieberman to propose a loyalty oath. Here is a version of a loyalty oath the present writer drafted for Mr. Kleiner:
(1) I do solemnly declare that I will faithfully abide by the laws of the State of Israel.
(2) I do further declare that I will neither aid nor abet any political or religious party, or any individual, group, nation, or foreign entity that advocates violence toward the State of Israel or its residents, Jewish or non-Jewish.
(3) I do further declare that I reject any political or religious precept that advocates violence toward the State of Israel or its residents, Jewish or non-Jewish.
The second and third provisions of this loyalty oath are perfectly consistent with the Universal Declaration of Human Rights which prescribes "tolerance and friendship among all nations, racial, or religious groups." Nevertheless, it will be said that such an oath, taken by a Muslim, would be tantamount to renouncing jihad, a basic tenet of Islam. Impossible as this may seem, it places the issue, for the first time, in broad daylight. Obscuring this issue has produced no good—certainly not to Jews.
It goes without saying that a loyalty oath does not make a person loyal: witness the loyalty oath taken by subversive Muslim Arab MKs. Nevertheless, a loyalty oath presupposes, in the person taking it, a moral or religious relationship to the community, his respect for its beliefs and values, a willingness to promote its good even when personally inconvenient.
Such an attitude is not to be expected of all but a few Muslim citizens. Indeed, it would demean Arabs to expect such loyalty to the State of Israel. After all, the State of Israel does not represent their most cherished, Islamic beliefs and values. This being the case, surely the proposed loyalty oath will appear not only futile but an insult to Arab pride.
However, the purpose of the loyalty oath is not to create a bond between Arabs and Jews in the State of Israel, but to expose the absurdity and injustice of endowing Jews and Arabs with equal political rights, as if they comprised a single people. It is the height of impudence, indeed of stupidity, to grant equal political rights to Muslims in the expectation that they will renounce their religion and 1,400 year-old heritage for a ballot box. But this smugness or obtuseness has become a syndrome in Israel. The mentality of Israel's political and intellectual elites has been rigidified by non-Jewish concepts or dogmas which prevent them from making ideological distinctions, even when life and death hang in the balance.
It's quite obvious that Muslim citizens of Israel do not regard themselves as part of the Jewish people nor as part of the Jewish nation. Ponder this verse from Scripture: "Behold a people (an Ahm) that dwells alone and shall not consider itself [as merely one] among the nations (Goyim) (Num. 23:9). As various commentators have noted, whereas an Ahm signifies a collectivity united by a religious heritage, Goy signifies a collectivity united only on the basis of a common territory or homeland. The Torah designates the Jews an Ahm as well as a Goy.
This distinction, in secular terms, corresponds to the difference between a people and a nation. A people is monocultural, united not only by language, but by endogamous patterns of marriage and by shared beliefs and values rooted in a common and immemorial past. Conversely, a nation can be multicultural as well as monocultural. For example, the Iraqi Kurds are Moslems but not Arabs. Like Iraq's Sunni Arab majority, they are citizens of the state. Nevertheless, the Kurds' singular ethnic loyalty is far more meaningful and stronger than their political loyalty. Moreover, their ethnic identity is also stronger than their religious identity, else they would not seek separate nationhood vis-a-vis the Arab Moslems of Iraq.
Having defined a Goy as a corporate entity whose members are not united by a distinctive way of life, it can be said that Israel's secular elites simply want to be like the Goyim—for example, multicultural America. Virtually anyone can be a citizen of that great democracy, where freedom existentially means "living as you like." Far from being an Ahm—it once was—America has become a normless democracy where citizenship has little moral or intellectual significance (evident in the many Hispanics who have not shed their Latin American identity). Indeed, the paucity of moral-intellectual standards in the naturalization process has stripped citizenship in America of any dignity. (Ponder the anti-American utterances and gestures of the current occupant of the White House.)
From the Torah's perspective, a people is not a random or amorphous aggregation of individuals. The essence of peoplehood is particularism, not universalism—which is not to say that particularism precludes universal ideas and ideals such as intellectual and ethical monotheism. A living people must have a revered past and profound sense of collective purpose, embodied in national laws and literature and vivified by national holidays and customs. Such a people will experience similar joys and harbor familiar thoughts conducive to friendship. They will feel responsible for each other, and they will respond, in righteous indignation, to assaults on their national honor. Therein is the heart and soul of a people and the reason why their government will not bestow citizenship on foreign elements whose goals or way of life clashes with their own.
Strange as it may seem, the concept of citizenship is foreign to the Torah. Since the secular State is a product of human will, so too are its laws governing citizenship. Moreover, since a defined area of land is essential to a State's existence, its laws governing citizenship will apply only to that area (with exceptions of no relevance to our inquiry). But the people of Israel existed before they possessed a land. Indeed, it was only after receiving the Torah that they were given a land, and only for the sake of the Torah.
What also distinguishes the Torah is that any Jew who has converted to another religion will remain with all the obligations of a Jew until the end of time. In contrast, citizenship is a right or privilege which can be renounced or revoked. For example, a person immigrating to the United States from Switzerland may renounce his Swiss citizenship and become an American citizen (and vice-versa). In fact, these two sovereign states may agree to allow a number of their respective nationals to be citizens of both countries. Moreover, the two countries may limit dual citizenship to those who do not serve in the army or hold an elective office of government. Clearly, citizenship is an artificial concept extrinsic to the Torah.
However, while the Torah says nothing about "citizenship," it does posit the concept of the ger, a proselyte or convert to Judaism. Because Judaism is a unique philosophy and system of behavior, any person, regardless of race or ethnicity, can become a Jew by learning the Torah and living according to its precepts. For the ger and the born Jew there is but one law. The concept of the ger thus provides a moral foundation for the social and political equality of naturalized citizens in any democracy.
To be sure, it is reasonable and proper to require, say a President of the United States, to be a native-born American (as prescribed in the American Constitution). This qualification is anticipated in Jewish law: A convert to Judaism cannot be a king of Israel.
Although the concept of the ger provides a foundation for what is called a "naturalized citizen," conversion to Judaism is an infinitely more disciplined and exalting process, both intellectually and spiritually. The ger assumes all the obligations of a born Jew: to sanctify the Name of God by studying the Torah, serving His people, and setting an example to mankind by doing justice and kindness.
The convert to Judaism earns equality with the born Jew, and only then is he or she entitled to participate in making the laws of the Jewish community. This equality of status does not extend to non-Jewish residents of Israel.
The halakhic category of a non-Jewish resident of Israel is a "ger toshav." To qualify as a ger toshav, the non-Jew must abide by the Seven Noahide Laws of Universal Morality. Let us pause a moment and consider these laws.
Six prohibit idolatry, blasphemy, murder, robbery, sexual immorality, and eating flesh from a living animal, while the seventh requires the establishment of courts of justice. Such courts are obviously essential to any society based on the primacy of reason and persuasion rather than passion and intimidation. The Noahide laws may thus be deemed a "genial orthodoxy." The laws of this genial orthodoxy can of course be elaborated in various ways, which means that this concise code of laws, while applicable to all mankind, is compatible with great ethnic and political diversity.
Properly understood, therefore, Judaism denies any necessary contradiction between ethnic particularism and universalism or cosmopolitanism. Indeed, Jewish particularism is meant to serve universalism.
Another aspect of the Noahide laws is that it transcends the social and economic distinctions among men by holding all men equal before the law. By so doing, this genial orthodoxy places restraints on governors and governed alike and thereby habituates diverse individuals and groups to the rule of law.
Viewed in this light, the seven Noahide laws are a necessary precondition of any civilized society. Hence, it is not in the least exceptional to require a ger toshav to abide by those laws if he is to live in the Land of Israel, that is, in a Jewish commonwealth. At the same time, however, a ger toshav must also acknowledge the Torah as the supreme law of the land. Maimonides explains:
One who accepts the seven commandments and observes them carefully is one of the righteous of the nations of the world and has a portion in the world to come. This, provided that he acts so because the Holy One, Blessed be He, enjoined them in the Torah and informed us through Moses our teacher that the sons of Noah had been previously commanded to observe them. But if he observes them in pursuance of an intellectual decision, he is not a resident proselyte and is not one of the righteous of the nations of the world, but one of their wise men."
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Sincerely,
Robin Ticker
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