9
Judaism and Cosmopolitanism
DAVID NOVAK
Theology and Contemporary Political Discourse
Before one can intelligently present a theological perspective on any matter of contemporary political discourse, he or she must first indicate how any theology, which stems from the perspective of a singularly constituted faith community, can possibly contribute to discussing any normative issue defined largely by those who do not share this faith or any faith. I think the answer to this question depends on how one views the role of religious tradition or traditions (the distinction will soon become evident) in post-Enlightenment secular societies. Here there seem to be four possibilities.
One, any religious tradition could be regarded as a historically limited, hopelessly particularistic, point of view, based on the irrational acceptance of an authority. In terms of the topic of this essay dealing as it does with “international” society, it would seem that reason and not revelation is what we should be seeking since the universalism of reason is more appropriate to what pertains between particular nations. We can assume a universal operation of reason, whereas such an assumption about any revelation cannot be made. That would mean that discussion here of teachings from any of these traditions is at best superfluous and at worst dangerously distracting. This is the most predominant “secularist” view at work in secular societies. It is a common enough view among many intellectuals today to warrant mentioning it at the outset since it is one that any religious public intellectual, that is, any public intellectual whose religious commitments are integral to his or her intellectual opinions, must be prepared to counter.
Two, it can be maintained that the division between universal reason and particular traditions, which fundamentally becomes the division between reason and revelation, is one of degree rather than one of kind. In other words, religious traditions can be seen as cultural matrices out of which reason slowly develops. If this is the case, then these traditions can be taken as historical sources that cannot be ignored because all rational attempts, in the case at hand the rational attempt to constitute an international society, are themselves historically located and do not, therefore, spring up de novo. In this recognition of the cultural factor in reason itself, the religious character of traditional cultures (the very word “culture” comes from cultus) cannot be ignored.1 This could be seen as a “conservative” Enlightenment position, “secular” but not strictly “secularist” like the more radical position mentioned previously. The question is, however, whether the religious themselves should be contributing to this secondary, supporting role for their own traditions. After all, adherents of living religious traditions are, by definition, living in the present not the past. Their respective traditions must be more than footnotes.
Three, one could reject the Enlightenment altogether, opting for the medievals over the moderns, and return to a position that regards a (one’s own, of course) theology to be once again “queen of the sciences.” Adherents of this view could show that the preference for rea-son over revelation has been that reason seemed to unify people whereas revelation divided them. That is, there are always many revelations without there being a universally valid transcendental criterion by which to judge critically which is true and which is false. During the seventeenth century, with its interminable “wars of religion” that seemed perpetually to threaten peace, such an aversion to all revelations seemed to be politically wise. However, our historical experience since that time has shown us that secular points of view, ideologies claiming to be rational not revealed, present just as many incommensurable political options, and that they have been every bit as divisive and bellicose as those of the religious traditions. Furthermore, as Alasdair MacIntyre more than anyone else has brilliantly shown of late, even the viewpoints of “universal” reason themselves come out of quite particularistic traditions.2 With the historical evidence now being at least equal, so to speak, the adherent of a theology can now claim that he or she has the advantage of providing the certitude of a faith that cannot be matched by mere human knowledge.
Nevertheless, just which faith perspective is to be adopted as authoritative cannot be established by simply arguing that a general faith per-spective is preferable to secularist alternatives. For authority is always the function of a particular authority; and just as there is no rationality in general but only rationalities, so is there no faith in general (what the French would call “la religion même”) but only faiths. Adherence to any faith perspective seems necessarily to presuppose some sort of actual conversion or personal confirmation. To assume that one is argued into faith as one is argued into an intellectual opinion is to con-fuse faith with philosophy, which does a great injustice to both.
Finally, a theologian can present what he or she thinks is the most coherent view of international society coming from his or her reli-gious tradition, and then see which aspects of various secular political philosophies are compatible with that vision and which are not. This hopefully has the effect of showing that traditions based on revelation can and should take seriously philosophical points of view dealing with issues facing all people who live in the world. Religious traditions—like Judaism, Christianity, and Islam—themselves have constituted more general horizons of concern and are thus not only concerned with their own singular communities. In other words, although not of the world, they are still in it and for it.3
This is different from the previous approach, which could be termed “triumphalist,” because it does not attempt to convince anybody who is not already convinced of its superiority. It is more an attempt to interact with someone else than to act upon someone else. If the various philosophical viewpoints can do the same thing with the teachings of religious traditions—each accepting the fact that the others will not and should not be dismissed or conquered—then a volume like this can be an occasion for true dialogue, a model of mutuality that itself is appropriate in seeking some sort of international society. In other words, just as the religious can and should acknowledge the rightful presence of the secular in public discourse, so the secular should be able to do likewise as regards the religious. Without that, however, we are only left with subservience on one side and dominance on the other. Transcending this impasse is itself a necessary precondition for any international society that is not based on force exerted by any one group over all the others. For, after all, any attempt to reorder international society must counter the claim that the most powerful efforts in this direction, especially in this century, have been made by totalitarian regimes.
Where to Locate the Jewish Vision of International Society
It has been the opinion of many modern Jewish thinkers that the place to locate a Jewish vision of international society is in Jewish eschatology, particularly in the messianic doctrine of Judaism. This is a result of the Jewish entrance into a larger political world that has come about because of the emancipation of the Jews from the medieval ghetto. For although so much of the actual teaching of Judaism, past and present, seems to be specifically constituted for the Jews alone, the messianic doctrine about the future clearly involves all humankind, whose members are minimally the subjects of any international society. A number of modern Jewish thinkers have been quite proud to point out that Judaism seems to have introduced the notion of genuine futurity into the world. This Hebraic idea is seen as having a vision of the ultimate union of all humankind that is unlike any comparable idea from any other culture about humankind and its ultimate unity.4
The link between the Jewish past and present and the universal future, in this modern Jewish view anyway, seems to be the idea of progress. Greatly encouraged by what appear to be secular acknowledgments of this Hebraic idea, most prominently by Hegel and Marx, it is assumed that the ongoing upward development of Judaism, especially its social ethics, sets a trajectory that can be followed by all humankind in its quest for a universal order of justice and peace.5 Although many Jews who have been involved with progressivist, let alone utopian, social and political movements have simultaneously divorced themselves from their Jewish backgrounds, regarding their old Judaism as an impediment to their universalist dreams, other Jews have assumed that these new involvements themselves are an authentic part of Judaism.
Although it is not to be denied that there are aspects of Jewish messianic doctrine that do lend themselves to this type of modernist appropriation, a very good case can be made that the preponderance of Jewish teaching of this doctrine is in truth antiprogressivist.6 For what most of the modern Jewish progressives seem to miss altogether is that most of Jewish eschatology is decidedly apocalyptic. The progressivist constitution of the relation of the past, present, and future is fundamentally different from the way Jewish apocalypticism constitutes that relation. As such, the question of the constitution of international society coming out of these two competing visions is as fundamentally different as they themselves are.
In the progressivist view, the past contributes to the present, which in turn contributes to the future. Thus the present can judge the past as to how much it has contributed to the present that is valuable for it, and then the present determines where its activities are to be directed for their final and valuable consummation. The present determines both its background and its foreground. The future is the directed ex-tension of the present; it is its project.
Jewish apocalypticism, conversely, can be seen as rejecting this progressivist view for two reasons. One, progressivist messianism seems to overlook the mysterious role of divine judgment, assuming that once the world has been created it is totally turned over to the authority of humans. Two, it seems to overlook the tentativeness of all human judgments, and how so much of what humans project into the future is evil and destructive precisely because of its totalizing arrogance.7 Certainly, the events of the twentieth century alone have convinced many thoughtful persons of the pretentious dangers of progressivist messianism, even if few of them have been able to embrace the positive alterna-tive of apocalypticism itself and the faith it presupposes.
Whereas for the progressivist faith, the present determines both the past behind it and the future before it, for apocalypticism, the future is not an extension or project of the present. Instead, the future invades the present precisely because it is the judgment on all that has transpired and is still transpiring, and it is a judgment, a final judgment, coming from a totally transcendent perspective. The faith that this messianic culmination of history stands over all of human efforts in the past and the present means that these efforts must regard themselves as partial, tentative efforts to comply with God’s ultimate plan for the world he has created.
This apocalyptic messianism in turn requires a more major emphasis of the present necessity of revelation for those who are waiting for God’s kingdom to finally come. For if humans cannot by their own efforts predict, much less realize, the universal realm of justice and peace for which they long, then they need direction from God in the present to teach them how to live so that their lives will be consistent with that kingdom, and how they can live with hope for it. Indeed, the very human effort to constitute a sufficient human society here and now and by progressive projection into the future is essentially at loggerheads with the notion that the present needs revealed direction here and now and a hidden horizon of future redemption in order to be worthy of the kingship of God. For this reason, then, Jewish eschatology, even in its most political aspect, which is its messianism, cannot be invoked to equate any human effort at international society with its intended re-demption. It can only function as a negative limit on the suggestion that the establishment of any such international society can itself be the solution to the human predicament in this world. That predicament seems to me to be that humans are still not fully at home in this world as evidenced by their essential restlessness, however much at ease they might be in certain specific areas of their existence.
Nevertheless, this does not mean that the Jewish tradition has nothing to say about international society. The only provision seems to be that this society recognize the present pluralism of the human condition, especially in its political manifestations, and that it be recognized as both necessary and tentatively desirable short of the true culmination of this world by the apocalyptic act of God and God alone.
Because of this, it seems that the best place to look for Jewish sources to contribute to this vision is in the Jewish doctrine of creation, especially as it intersects with the Jewish doctrine of revelation. For Jewish tradition has been quite adamant that although the Torah is the word of God, its function in the world is determined by human criteria of judgment.8 Now human criteria of judgment are both singular and general. The singular criteria of judgment are those concerns in the interpretation of the Torah that come from the unique history of the Jewish people. However, there are other criteria of judgment that are more general because they are concerned with the situation of the Jewish people in relation to other human communities. These criteria are taken to be more natural than historical in the sense that they are seen as dealing with aspects of the human condition itself that are permanent and ubiquitous in any humanly significant situation. This is the realm of what the ancient rabbis called sidrei bere’sheet, “the orders of creation,” that is, the nature of the world created by God.9 In the traditional Jewish discussion of this order, one can find material of interest to those concerned with international society, which does not attempt to usurp the essential mystery of the final and complete redemption of humankind and the world. This should lead one to distinguish between the desirability of a more closely interrelated world society and the undesirability of an overarching and all-powerful world state. There is certainly an essential difference between an international society and a supernational state. The latter would seem necessarily to entail the sin of the builders of the Tower of Babel, who according to rabbinic interpretation, subordinated the rights of all humans to their end of universal power, and attempted to wage war against God himself.10
It is now appropriate to begin to examine some of the issues raised by the various philosophical positions that are usually invoked when there is discursive speculation about the international order. Unlike the religious doctrines of revelation and redemption, which are the do-main of religious tradition per se and thus whose questions must be originally theological, the doctrine of creation is about the world in general. As such, its questions must be originally philosophical. That is, it is concerned with the realm of ordinary human experience and wisdom which, even for many religious believers, is something that is constituted prior to revelation in and for the present and redemption in and for the future. Creation is the past inasmuch as it represents that which is already there for all humans to understand and appropriate as best they can. And regarding essential questions of human polity, among which the question of international society is certainly para-mount, even theologians can assume with full integrity that the various options are best presented by political philosophy. That is, when one understands the word “philosophy” to designate the most pro-found and systematic effort to understand the most basic structures of the world in which humans are now consigned to live and work.
The Primacy of Law
The first point that anyone committed to the Jewish tradition would have to make in terms of suggestions for the proper ordering of world society is the primacy of law in any ordering of human life, either locally, nationally, or internationally. Indeed, the worst thing that can be said about anyone, according to the rabbis, is that he or she assumes “there is no law (leyt din) and there is no judge.”11
Because of the primacy of law in the Jewish tradition, many Jewish scholars are partial to what might loosely be called legal positivism.12 This is because so much of Judaism developed without a state of its own, but always with a law of its own. Therefore for Judaism especially, the rare discussions of anything resembling what we today might mean by international society must often take place in a decidedly legal context.
In an essay on this subject, Terry Nardin explicitly mentions the Jewish concept of Noahide law, which contains those norms that Judaism sees as binding on all human beings and which are to be enforced by all human societies.13 For many this is the opening for Jews to speak to the normative issues facing the world outside its own particular community, that is, from a formal definition of law per se.
The “Seven Commandments of the Noahides” is a term that appears regularly in rabbinic literature.14 It designates seven basic laws (actually, seven groupings of laws) that the rabbis assumed are binding on all human beings (who, after the Flood, are the descendants of Noah). These laws pertain to three areas of human relationships: those with other humans, those with God, and those with other sentient beings. They are: (1) the requirement to appoint judges, that is, establish a regular system of adjudication; (2) the prohibition of blasphemy; (3) the prohibition of idolatry; (4) the prohibition of incest, homosexuality, adultery, and bestiality; (5) the prohibition of murder (including abortion15); (6) the prohibition of robbery; (7) the prohibition of tearing a limb from a living animal for food (apparently a common practice in the ancient Near East).
This body of law, however theoretical its origins might have been, has become the standard in the Jewish tradition for dealing with non-Jewish individuals and societies. By extension, it is the only cogent standard for dealing with the question of international society. This is important at a point in history when we Jews now have a state of our own, Israel, and when we are equal and active participants in states that have international interests and involvements.
Without a universally accepted literary source as the permanent promulgation of these laws, one comparable in function to the Bible and the Talmud for the Jews and their laws, the question arises as to how the gentiles are supposed to know what God requires of them. Three answers have been provided by Jewish thinkers. The first answer points to common normative experience (akin to the later meaning of ius gentium in Roman jurisprudence), namely the very generality of the Noahide laws suggests that they denote some international normative commonalities.16 The second answer points to a political institution, namely that the Jews are to teach and, if they have the power, even enforce these laws among the gentiles they reach (akin to the original meaning of ius gentium in Roman jurisprudence).17 The last answer points to human reason, namely these are norms that humans as rational-social beings should affirm and practice as minimal conditions for their allegiance to any society worthy of it.
This last answer is the most attractive, especially when arguing for the validity of these norms to and for the present world.18 Surely, the notion of any common normative tradition among all the nations is less and less valid as the world becomes more and more pluralistic and multicultural. And the notion of instruction, let alone the enforcement of morality basically validated by political power, should make anyone committed to contemporary democracy in the world very nervous, especially considering our overall experience with the tyrannies and totalitarianisms in the now concluded twentieth century.
For the legal positivism described by Terry Nardin, law is justified, not by the command of someone with political power, but by its own internal coherence. As is the case with other legal positivists, like H.L.A. Hart, this criterion of internal coherence is offered as sufficient to answer the charge leveled against legal positivism by such critics as Leo Strauss (specifically against Hans Kelsen) that it could ultimately be used to justify any totalitarian regime that was not erratic in its commands. 19 But as Lon Fuller argued, legal incoherence, as one inevitably sees it in the commands of any tyrant, just as inevitably leads to political collapse.20 In other words, tyranny and a coherent system of law are, ultimately, mutually exclusive. Thus it is the concept of law itself (to borrow the title of Hart’s most important book), embedded in normative experience that can be seen as international as well as just national. As such, a world society would have to be primarily a legally constituted order.
There is support for this view of the self-sufficiency of law itself in the usual order of the Noahide laws, where the requirement of adjudication seems to be foundational. The first Noahide law is the requirement that adjudication (dinim) be institutionalized in permanent courts of law. This seems to base the authority of the law on the concept of law itself, not on any of the other three alternative foundations just noted above. In this notion, there is precedent, especially in the treatment of the concept of Noahide law as a Jewish expression of the concept of law per se by the Neo-Kantian Jewish philosopher and theologian Hermann Cohen (d. 1918). Cohen saw Noahide law as a prototype for the modern secular state where citizens function as part of a legal order (Rechtstaat) irrespective of their religious beliefs or practices. Cohen also saw this concept of the state entailing the concept of a world state.21 Indeed, he saw a world state as being in essence the realization of the classical Jewish hope for the Messianic Age (a problematic point as we have already seen above).
As for the two religious requirements (the prohibitions of blasphemy and idolatry), Cohen noted that they are both negative and, therefore, not requirements of any positive affirmation of religious belief or practice. Moreover, they can be seen at most as requirements to respect the religious-cultural climate of monotheism in which the concept of law has received its most consistent and powerful encouragement.22
However, there is another ordering of the Noahide laws that reflects a different view of their essential meaning. In this ordering, the prohibition of idolatry, not the prescription of adjudication, is the first and thereby foundational law.23 Just as Hermann Cohen’s more secular notion of Noahide law relies on one textual presentation of these commandments, so does the more religious notion of Noahide law, whose foremost advocate was Maimonides, rely on another textual presentation of them. But what is the difference in principle?
This latter version emphasizes the assumption that all law, whether for Jews or for humankind at large, is in essence divine law. All law is thus divine command in one form or another. The prohibition of idolatry is the first manifestation of God’s command because it outlaws anyone or anything else from in any way competing with the absolute authority of God and hence confusing the humans who are to give their primal allegiance to God’s will alone.24 For this reason, idolatry consists of either substituting any creature for the Creator, or even giving any creature parity with the Creator. The acknowledgment of that fundamental truth is prior to the moral judgment of what is good and the legal judgment of what is lawful. Its acknowledgment is negative, I think, because one has to know what the word God does not mean be-fore one can identify God if and when God reveals himself. Minimally, God is not identifiable with any finite entity in the world. To make any such erroneous identification is idolatry.25
If all law is divine law, and if the difference between the Mosaic law for Israel and the Noahide law for humankind is one of degree rather than one of kind, then one cannot speak of any system of law as being conceptually self-sufficient as legal positivism seems to assert. The fact is that the strength of the system of Jewish law for those Jews who have always been faithful to it (often despite tremendous threats or temptations) has not been because of its systematic legality. It has been because we observant Jews believe this is what God requires of us and that we are doomed if we disobey God. Furthermore, the doctrine of Noahide law has taught that Jews cannot claim to be the sole recipients of God’s law in the world. Thus Jewish law is quite different from the other two types of “decentralized legal orders” Nardin mentions, common law and international law. To miss this difference is to lose sight of the very evident theological foundations of Jewish law, an error into which secularist interpretations of Jewish law inevitably fall.26
Despite this, though, once one does not posit a foundational role to legal positivism, there is much of what its adherents say about it that those of us in the Jewish tradition can find resonance with, and even resonance with its application to the question of international society. For Jewish legal literature, beginning with the Talmud itself, recognizes that the Jewish legal order, as a real legal order operating in the world, does not function alone in the world. Thus there are numerous occasions where legal overlappings and even more essential commonalities are affirmed and built upon. In this area, there has often been a recognition of a secondary role for the realm of the secular. Let me give one good example of this recognition of the secondary function of the secular realm.
In the Mishnah (which is the core text on and around which the discussions of the Talmud are arranged) we read: “All documents deposited in the courts of the gentiles (arka’ot shel goyyim) are Jewishly valid (kesherin) except for bills of divorcement for women and bills of manumission for slaves.”27 What is the difference between these two types of documents, and why are the latter type seen as requiring a different validation? The answer to these correlated questions that comes closest to legal positivism comes from the most important of the medieval exegetes of both the Bible and the Talmud, Rashi of Troyes. His answer is that when it comes to ordinary documents (shtarot) such as commercial documents, any system of law that on its own terms re-quires integrity in these matters of common concern can be trusted.28 In other words, one can recognize here a basis for a certain international jurisdiction even without formal political commonality. (It is important to remember that when Rashi wrote this interpretation, Jews were not citizens of Christian France. They were, rather, a tolerated alien community in France but not of it.) But in the case of bills of divorcement and bills of manumission, we are now dealing with matters of specifically religious significance. Both marriage and divorce are matters of religious covenant, not secular contract; and the manumission of slaves, that is gentile slaves owned by Jews, makes them full Jews with all the religious privileges and responsibilities this status entails.29
The ultimate question a Jewish thinker must pose to legal positivism is whether it requires the acceptance of the philosophical premises of positivism in order to operate cogently? That is, must one take it to be the primary political-legal order? Or can one take it on a secondary level only? If the latter, then legal positivism has much to say to and hear from the Jewish tradition, because we can both assume that most law is positive, that is, it is posited by those having legal authority most evidently derived from the law itself as a system. (This is true about Jewish law as well, because even though its foundation is divine law, most of the specific rulings are made by rabbis, who are authorized both by a general warrant in the divine law and popular acceptance of their authority.)30
Natural Law
Unlike legal positivists, advocates of the idea of natural law see law as having a translegal foundation apprehended by human reason. Natural law theory in our day is usually contrasted with legal positivism, although these two points of view about law are not the only two options for jurisprudence, hence they are not the only two options for ordering international society.
Positive law itself does not answer the fundamental question of obedience. In other words, it does not answer the question: Why should I obey what the law commands? If the legal positivist answers that I should obey what the law commands because I will be punished by the legal-political-penal authorities, then it is conceivable that my legal obligation could be in direct opposition to my moral obligation. For such an answer could justify obedience to the commands of the most evil authorities possible. How can I protest if these legal authorities derive their authority from Hitler, and construct a legal order based on that authority as the Nazis indeed did in Germany from 1933 until their military defeat in 1945? It is this fundamental question more than any other that has enabled a revival of natural law theory in the years since 1945 (a terminus ad quem in world history and even more so in Jewish history). Only the extreme type of legal positivism that denies the separate existence of morality at all could avoid this question. The old question quid sit juris? (“what is the law to be?”) is ultimately a moral question presupposed by the law itself.
And if one answers that obedience to the commands of a legal system is useful, what if that legal system commands me to do things that are contrary to my experienced benefit? For example, what if it commands me to pay in taxes the only money I have to save my business from bankruptcy? In other words, the utilitarian version of legal positivism does seem to operate from a moral base in the sense of being translegal and noncoercive. But being based in experienced human selfishness, it is hardly one that can make any unqualified demands, which seems to be a sine qua non for any such system. For these reasons, the challenge to legal positivism must come from morality, and the type of morality that coherently transcends merely procedural questions. For the question “why be legally obedient” cannot be satisfactorily answered by saying, circularly, “because the legal system re-quires obedient adherents.” For those who acknowledge it in the Jewish tradition (as opposed to those who vehemently deny it), natural law theory is constituted in the following way. God is seen as commanding both through nature and in history. God’s commands in history are seen as being direct and specific, and these commands are seen as be-ing addressed to the people of Israel singularly in the Torah. Torah means both the Bible and the ongoing tradition of the Jewish people, whose chief literary record lies in the Talmud. But God is also seen commanding more generally and less directly through nature, especially human nature as a rational-social permanent structure, coeval with all human existence in the world.31 This more general revelation is seen as being available to practical reason. Its affirmation seems to me to be most succinctly and cogently expressed in the rabbinic doctrine of Noahide law that we examined in the preceding section of this chapter. The distinction between this general Torah and the more specific and complete one of Israel is that Israel receives her Torah by a definite act of historical revelation whereas other humans have to discover their Torah from experience of their natural, created limits and by their rational reflection on what this means in terms of human action.
Natural law theory lies at the juncture between the doctrines of creation and revelation. So, even if some of the precepts of natural law are not deduced from creation theology, nonetheless they cannot be seen as intelligible without it. Any theological proponent of the idea of natural law must reject the famous statement of Hugo Grotius, considered to be the founder of modern natural law theory, namely, that one could constitute natural law “even if we say there is no God” (etiamsi daremus non esse deum).32 If Jews are to engage in natural law theory with authenticity, then it is going to have to be considered as a type of divine law. On this point, one could find a surprising amount of agreement between Maimonides, Aquinas, and Calvin.33 For all of them, all law comes from God, but not all law is specifically revealed to their respective faith communities in history.
Social Contract
The notion of a social contract, so attractive to Hobbes, Locke, Rousseau, Kant, and most recently John Rawls, poses serious difficulties for any adherent of Judaism. For it seems to be based on the primacy of human will to autonomously constitute local society and even international society.34
Just as for legal positivism, law itself is self-sufficient, so for advocates of the social contract it seems to affirm the fundamental self-sufficiency of humans to contract the basic norms that are to govern their lives. Social contract theory has immediate implications for an international society precisely because it is always imagined as if contract is or should be the basis of every form of human association. So, my question to advocates of this position is similar in its logic to my earlier question addressed to the legal positivists: Must one accept contractarianism as primary, or can one be more eclectic and accept some of its points on a secondary basis? If the latter, I can show how there is a contractarian strain in the Jewish tradition, which can be employed with religious integrity by Jews concerned with international society.
Let me return to the example from the Talmud that I used in dealing with legal positivism, namely, the one about the acceptance by Jewish authorities of civil documents that have been validated in non-Jewish courts. The commentator Rashi gave what seemed to me to be an ex-planation for this rule that is consistent with legal positivism, namely, one can respect a legal system that functions coherently with definite, systemic procedures. However, another reason is given by the Talmud itself: that “the law of the state is also the law for the Jews therein” (dina de-malkhuta dina). And Rashi’s grandson, the great exegete Rashbam, argued that the non-Jewish state enjoys secular authority because the state (particularly, the king as the head of state) has contracted with all its citizens, giving its protection in return for obedience to its laws (an argument as old as Plato’s Crito).35
Although the Jews were not citizens of the state (the kingdom of France) in which Rashbam lived, as a community they did have a contractual relationship with the state: that it would tolerate their presence in its midst and give that tolerance legal expression. Of course, Jews regard their primary moral and legal obligations as based on their covenant with God. The covenant is not a contract because although it involves mutual consent, it is not based on such consent but, rather, on God’s election of the community. The consent of the community is a confirmation of what has already been presented by God.36 Thus any contract they make with the secular state has to be viewed as secondary. It has to be first authorized at the primary level, even though the specifics of the contract need not (most often cannot) be deduced from that primary level. Minimally, these secondary secular contracts must not be inconsistent with what is viewed as the primary and indispensable covenantal reality.37
It has been this ability to engage in contracts on the secondary level that has historically enabled Jews to engage in international relations without having to subordinate ourselves ultimately to the rule of any-one but God. In this sense, we have the basis in our tradition for a partial pluralism, which by virtue of its being partial seems to have more realistic value in the international world in which we are increasingly finding ourselves. As the Talmud puts it: “One who grasps too much grasps nothing; one who grasps less grasps something.”38
Cosmopolitanism
Cosmopolitanism begins with an assumption bequeathed by the religious traditions of the West: the fundamental equality of all humans’ souls. In this view, elementary human equality seems to be essential to any international society having true moral claims on its members.
My question here is: Does the Jewish-Christian-Muslim doctrine of the equality of souls before God simply translate into the secularist version of the equality of rational human selves before each other, or is something essential lost in this translation, something that can speak to our present political reality and the ideals that are projected from it? The fundamental question is: Before whom are we claimed and do we make our claims in the world? Here is where the great difference be-tween a religious view (in this case, the common religious view of Judaism, Christianity, and Islam) and a secular view is most essentially manifest. There is a fundamental difference between saying that one is primarily claimed by God and claiming of God, and saying that one is primarily claimed by other humans and claiming of them.
In the secular position, the claims made by and to humans are those of rational moral agents. However, what about those who are incapable of making a choice? Such a group would include the irreversibly comatose, the mentally retarded, the senile, the unborn.39 And what about those whose choices we might not consider to be rational? Such a group would include members of cultures who make their decisions based on such supernatural phenomena as revelations. In other words, the range of persons who can make moral claims is largely dependent on whether or not they are the kind of people those in power can and want to communicate with. The principle of exclusion at work here is often as powerful as the principle of inclusion. The very fact that human freedom in this worldview is inevitably constituted along economic lines of property suggests a criterion governed by those already possessing power in a bourgeois society and culture. How does that augur for the construction of some sort of world society in which mostly nonreligious Westerners will no longer be dominant?
It is, therefore, quite different to say that all humans have essentially equal claims on all other humans because both the claimants and those being claimed are claimed by the God in whose image they are all created and whom they can make a claim upon for justice in the world.40 Thus the first question posed to a human in the first case of human conflict in the Bible is the question God addresses to Cain: “Where is Abel your brother?”41 And the first claim made upon God by a human is made by a human whose voice is no longer audible to other humans, that of the murdered Abel. “The voice of your brother’s blood cries to Me from the ground.”42 That is why the pursuit of mercy and justice in the world is seen as being an act of imitation of the creating-revealing God, “to keep the way of the Lord, to do mercy and justice.”43Indeed, it is this vision of the way of the Lord that envisions a world society to be brought about in which “they will not do evil or harm in all my holy mountain for the knowledge of the Lord shall cover the earth as the water covers the sea.”44
Of course, secularists might well object to the introduction of biblical myth into a rational discussion of justice in the world. By “myth” I mean an assertion about the human condition that itself is not based on factors readily accessible to ubiquitous human experience, but one that locates itself in the transmission of a particular story. However, is not the position of those who advocate a hypothetical choosing situation (namely, contractarian adherents of cosmopolitanism) also not a matter of ubiquitous human experience (to which most natural law theorists refer)? It would seem to also be the presentation of a story.
It would seem that the value of either a hypothesis or an actual narrative in determining a moral course of action lies in its heuristic strengths. Furthermore, since those who believe a story to be true, even though they cannot demonstrate that truth by any neutral criterion, do have the advantage of seeing the political reality they are attempting to understand and direct to be part of a larger reality rather than what in essence is a fiction. And although every legal system does employ some sort of legal fiction from time to time, it stretches this privilege quite a bit to posit a generally fictitious situation, such as a “state of nature” or an “original position,” as actually foundational.
This last point impinges on the philosophical debate over the question of whether thought is prior to language or language to thought.45 If one follows the view that language is prior to thought, then a paradigmatic story like the biblical account of creation would seem to have normative priority over a mental construct like the social contract. For this story is the historical source for most of our Western notions of human equality. “For all souls are Mine.”46 Moreover, it is a story that still shapes the thought of many in the West and beyond. How can it not be included in speculation about a world society?
In conclusion, then, I reiterate a point I made at the beginning of this chapter about the need to include the perspectives of religious traditions in moral and political discourse without any special privileges or liabilities being placed on them at the outset. Only such an even play-ing field will enable both religious and secular voices to be heard in discussions like this one concerning international society. Indeed, such a society would hardly be international without simultaneously being intercultural. Thus my initial methodological concern about the conditions for real communication is very much germane to the substantive issues of international society that are the subject of this essay. In a real sense, as the late Marshall McLuhan became famous a generation ago for asserting, the medium is the message.
Notes
1. See Ernst Cassirer, An Essay on Man (New Haven: Yale University Press, 1944), 79ff.
2. See his Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988), esp. 389ff.
3. See David Novak, Jewish-Christian Dialogue: A Jewish Justification (New York: Oxford University Press, 1989), 114ff.
4. See Hermann Cohen, Religion of Reason Out of the Sources of Judaism, trans.S. Kaplan (New York: Frederick Ungar, 1972), 249ff.
5. The most interesting effort in this direction was made by the Jewish Marxist philosopher Ernst Bloch (d. 1977), especially in his three-volume mag-num opus, which he entitled Das Prinzip der Hoffnung. Note: “Men can want to be brothers even without believing in the father, but they cannot become broth-ers without believing in the utterly un-banal contents and dimensions which in religious terms were conceived through the kingdom. What a faith which, in its knowledge, as this knowledge, has destroyed are the illusions of mythical religion. . . . And the religion which is itself believed, i.e., religion as content, is also valid here, though in a highly corrected form, namely as the religion of knowledge of what is germinating, of what is still unfinished in the world.” The Principle of Hope, vol. 3, trans. N. Plaice, S. Plaice, and P. Knight (Cam-bridge, MA: MIT Press, 1986), 279f.
6. See David Novak, The Election of Israel The Idea of the Chosen People (Cam-bridge: Cambridge University Press, 1995), 152ff.
7. See Reinhold Niebuhr, The Nature and Destiny of Man, vol. 1 (New York: Scribners, 1941), 186ff.
8. See, for example, Babylonian Talmud (hereafter B.): Baba Metsia 59b re Deut. 30:12; also David Novak, Halakhah in a Theological Dimension (Chico, CA: Scholars Press, 1985), chs. 1, 2, 9.
9. B. Shabbat 53b.
10. See Louis Ginzberg, Legends of the Jews, vol. 1 (Philadelphia: Jewish Publi-cation Society of America, 1909), 179ff.
11. See Targum Jonathan ben Uziel Gen. 4:8, where this phrase is put into the mouth of Cain, the first human criminal. See also Vayiqra Rabbah 28.1 re Ecclesiastes 11:9; B. Baba Batra 78b and Rashbam, s.v. “avad heshbono.”
12. The best example of this can be seen in the most comprehensive modern work on Jewish law, which is especially concerned with those aspects of Jewish law that could be normative in a modern, secular, nation-state, viz., Menachem Elon, Jewish Law: History, Sources, Principles, 4 vols., trans. B. Auerbach and M. J. Sykes (Philadelphia and Jerusalem: Jewish Publication Society, 1994). See esp. 1:93ff.
13. See T. Nardin, International Society (Princeton N.J.: Princeton University Press, 1998), ch.1.
14. The rabbinic loci classici of this doctrine are Tosefta: Avodah Zarah 8.4 and B. Sanhedrin 56a. For the most complete study of this doctrine, see David Novak, The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws (New York and Toronto: Edwin Mellen Press, 1983).
15. See B. Sanhedrin 57b re Gen. 9:6.
16. See A. P. d’Entrèves, Natural Law: An Historical Survey (New York: Harper, 1965), 17ff.
17. See David Daube, “The Peregrine Praetor,” Journal of Roman Studies 41 (1951): 66ff.
18. See David Novak, Jewish Social Ethics (New York: Oxford University Press, 1992), intro. and chs. 1–3.
19. See Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 4, n. 2.
20. See Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), 137ff.
21. See Religion of Reason, 236ff.
22. Ibid.
23. See Maimonides, Mishneh Torah: Melakhim, 9.1.
24. See B. Sanhedrin 56b re Gen. 2:16 (the opinion of R. Isaac).
25. See Maimonides, Mishneh Torah: Avodah Zarah, 1.1ff.
26. For the most cogent presentation of this a-theological view of Jewish law, see Haim H. Cohn, Human Rights in Jewish Law (New York: KTAV, 1984), intro.
27. Mishnah: Gittin 1.5.
28. B. Gittin 9b, s.v. “huts.”
29. See B. Gittin 38b.
30. See B. Shabbat 23a and B. Avodah Zarah 36a.
31. See Nahmanides, Commentary on the Torah: Gen. 6:2, 13.
32. De Jure Belli ac Pacis, prol. 11. See also Anton-Hermann Chroust, “Hugo Grotius and the Scholastic Natural Law Tradition,” New Scholasticism 17 (1943): 126ff.
33. See Maimonides, Mishneh Torah: Melakhim, 8.11; Thomas Aquinas, Summa Theologiae 2.1, q. 94, a. 4 ad 1; John Calvin, Institutes of the Christian Religion, 2.7.10 and 4.20.16.
34. Cf. Novak, Jewish-Christian Dialogue, 148ff., for a critique of the plausibility of any notion of primary autonomy for humans.
35. See B. Baba Batra 54b and Rashbam, s.v. “mi amar”; Crito, 50Aff. Also see supra, n. 27.
36. See Novak, The Election of Israel, 115ff.
37. See B. Kiddushin 19b.
38. See B. Rosh Hashanah 4b; also Mishnah: Avot 2.15–16.
39. See David Novak, Law and Theology in Judaism, vol. 2 (New York: KTAV, 1976), 108ff.
40. See Gen. 18:25
41. Gen. 4:9.
42. Gen. 4:10.
43. Gen. 18:19.
44. Isaiah 11:9.
45. See Ludwig Wittgenstein, Philosophical Investigations, 2nd ed., trans. G.E.M. Anscombe (New York: Macmillan, 1958), 1.18.
46. Ezekiel 18:4.