Thursday, January 27, 2011

God's Way -Halacha (Shariah) vs. democracy

Disclaimers: 1) Some people speak from a religious perspective with no authority and limited knowledge. They create false impressions of their faith. 2) Commentary is influenced by historical context, and may not be the prevailing view in another time.

The Match
Last Thursday night I listened to an unrepresentative and unqualified fellow named Ibrahim Conlon, an architect convert to Islam who decided to redesign Australia. He spoke for the affirmative in a debate at a town hall on whether democracy should be replaced by Shariah law[1]. “What basis is there for democracy?!” he asked repeatedly. “What if you had 100 Murderers or Homosexuals? he challenged his opponent (ignoring the difference between the two) “would you still follow the majority?”

The question of the death penalty for apostasy was raised. A young Palestinian-Aussie asked me how Jewish law would respond to some of these explosive issues. Indeed, 1) what is the relationship between God's revealed path[2] and democracy? 2) How does it apply to humanity generally and 3) specifically for adherents of the Torah?

Clash of world views?
It has been argued that the world views of Torah and western are profoundly different[3].  Consider the divergence between Torah’s focus on obligations vs. a society that emphasises rights. This divergence leads to two ways of seeing law.
A) As an intrusion in life that should be tolerated only to the degree that it prevents people’s rights being trampled, so “government is best when it governs least[4]”.
B) If life is about our obligations, than the more laws the better because these laws ennoble and refine us[5] help us achieve our purpose in life[6], to prepare the society of completed people[7] or a home for God on earth[8].

Freedom, while prized in both systems, means different things in each. In Torah it is about the freedom to obey God[9], while in the west it is the freedom to do as we please. Finally, the value of individualism and individual choice in the open society even extends to the approval of civil disobedience to break the law which is not tolerated in the Halacha.  

Compatible or Compartmentalized?
Roth concludes that the divergent approaches can be dealt with by thinking of them as operating within different terms of reference, in different parts of a person’s life. As someone raised is a very different school of thought (Chabad) to that of Rabbi Roth, my subjective and likely very unfair reaction to this resolution is to hear echoes of the idea of a being Jew in the home and a “man” in the street[10].

An attempt at synthesis is made Rabbi David Rosen[11], who argues that if we think of democracy as being about equality and dignity of the individual then it would be seen by Torah as a moral imperative. He points to the fact that in the Torah it is the people who appoint the king[12]. Moses recounts how he consulted the people in his appointment of judges, “bring from among yourselves men of wisdom and understanding, well known to your tribes and I will appoint them[13]”.

When great sages Hillel and Shamai introduced a law that the public did not accept initially, it is not considered valid until a generation later when the community accepted it[14].  In one of our dramatic stories, a sage was asked to violate his own conscience and was humiliated. This was one factor that led to the demotion of the lead scholar of the Jewish people[15]. “If you (despise another person), know whom you despise for in the image of God, He made man[16]” The human being is not seen as little cog in the great wheel of God will, but as one made in the image of God, whose dignity and will deserves great respect. Democracy affirms the dignity of the individuals.

Civil law is binding on believers
Man made law is seen as authoritative and subject to certain conditions is binding on Jews as expressed in the principle of “Dina Dmalchuta Dina”, the law of the kingdom has the status of law[17]. (I cannot speak for Islam, but if I remember correctly, my Muslim colleague had once explained that Shariah would arrive at the same practical conclusion as a matter of implied contract as part of citizenship. He also thinks that Australia is much more of an Islamic state than Iran or Saudi Arabia because of its social policies are consistent in his view with Islam.)

Civil law, fulfilment of Divine Law?
Judaism has a tradition of a set of divine laws for all mankind called the “Seven Noahide laws”, one of these is the requirement to establish of systems of laws and justice. There are two opinions about this commandment a) The content of the laws was also prescribed by God and is essentially the same as the civil laws in the Torah[18]. b) The meaning of a system of “laws” as required by the Noahide code is justice based on national customs and lawmaking[19]. According to the latter view God's law sees the laws of governments as the fulfilment of God's command.

Jew stay out of court?
In spite of this, the courts of law established by non-Jews are not seen as the appropriate venue for Jews to seek justice[20], for various reasons. A) If their law is different to Torah law and money changes hands this would be considered theft[21]. B) The case of an idol-worshippers court even if in a particular law their laws would be identical to Jewish law because of a desecration of Gods name and honours the names of idols to praise them…when our enemies (are our) judges, this is a testimony to the superiority of their (object or religious) fear[22]. This would be the case even with a secular court, which by virtue of it replacing a Torah court would still be seen as denigrating Torah. An exception to this is when a Torah court gives permission to Jewish litigants to attend a civil court. From a legal perspective, my understanding is that in most cases, this should not be an issue if the litigants agree to appoint an arbitrator or mediator out of court.

Death Penalty for Unbelievers?
In practice Jewish law does not have the death penalty in spite of the fact that the law for executing an idol worshipper is still on the books. It is only because of the downgrading of rabbinic authority that we do not have the power to act on this. (Phew, how, very convenient).

Some of our ideals can be better realised in parallel with democracy, rather than within it. Still, democracy is one important and practical way to progress Torah’s vision of a just society. The Lubavitcher Rebbe referred to the United States as a “kingdom of kindness”. If a Jew argued for the destruction of democracy, he would be reminded that in theocracies, Jews were burned at the stake. A ‘Jewish Conlon’ would be told that as a democrat he had the right to say what he pleases, but as Jew he had an obligation to shut up and recognise the Torah case for democracy. Unless we knew for certain that he would not listen because he thinks he knows better, in which case the Mitzvah is to leave him alone. I would assume that in the actual case of Mr. Ibrahim Conlon, Australian Muslim religious leaders will counsel him in a similar way, if they think he is open to guidance. I hope with the additional information about our own tradition, we can respond more appropriately to the type of challenge I faced last Thursday night. 

With much appreciation to the scholars who have come before me, especially Rabbi Dr. Sol Roth and Rabbi David Rosen

[2] The Hebrew word for Jewish law is Halahca, which relates to the word “going”, or the ‘way to go’, the Muslim word is Shariah, which means the path.
[3] Roth Rabbi Dr. S (1990),
[4]  John Stuart Mill, cited in Roth
[5]  Mitzvot were not given (for any other reason but) to refine the creations/Israel, Vayikra Rabba 13.3, Beresheet Rabba 44, Midrash Shmuel 84, also central to approach of Sefer Hachinuch
[6]  Based on Pirkey Avot, everything God created, he created only for his glory
[7]  Derech Hashem, Rabbi Moshe Chayim Lutzato in the introduction
[8]  Midrash Tehilim, as explained in Chabad Chasidism  
[9] As expressed in Pirkey Avot 6:2, “there is no one who is free other than one who studies Torah”
[10] Jacobs, L, “As late as the mid­-nineteenth century the Russian maskil, Judah Leib Gordon, could still proclaim as the Haskalah ideal: “Be a Jew in your home and a man outside it,”,
[11]  Rosen, D, (2001), Democracy: a Moral Imperative in Judaism
[12] Deuteronomy 17:15
[13] Deuteronomy 1:13
[14] Talmud Shabbat 17a and Shulchan Aruch Choshen Mishpat chapter 2, cited in Rosen.
[15]  Mishna, Rosh Hashanah 2:8-9, story of Rabban Gamliel and Rabbi Yehoshua, where Rabbi Yehoshua calculated a different date for Yom Kippur and he was ordered to appear before Rabban Gamliel with his staff and wallet on the day he believed to be Yom Kippur.
[16] Beresheet Rabba 1:24
[17]  Talmud, Gittin 10a
[18]  Ramban Commentary on Beresheet, 34:13
[19] Rabbenu Yaakov Antoli (whose book has been used by the Orchot Chayim, Kol Bo and Meiri) in Melamed Hatalmidim, brought in Torah Shleima Miluim to Parsha Mishpatim p. 218
[20] Shulchan Aruch, Choshen Mishpat 26. (Quoted by Ira Yitzchak Kasdan -
[21] Chidushei R. Akivah Eiger, Shulchan Aruch, Choshen Mishpat 26:1 "Uv'arkaot shelahem."
[22]  Rashi on Exodus 21:1.

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