David Novak- The Jewish Social Contract- Part I

I will be working through several of David Novak’s volumes. I will return to Fishbane afterwards.

David Novak- The Jewish Social Contract, Princeton UP 2005

The book asks the good question:
“How can a traditional Jew actively and intelligently participate in my democratic polities?”

I will divide his position into units. For the full answer to his good question, wait until the next post on Novak.

1] To provide a Jewish social theory he will use “Theological retrieval, philosophic imagination, and political prudence.” Theological retrieval “searches the classical Jewish literary sources for guidance, and in which historical description is always part of the essential normative thrust.” Anytime Jews need to act beyond the four cubits of halakhah “philosophical imagination must be employed since here speech and action need to be justified to more universal criteria.” We need to find enough democracy in the Jewish tradition and not just a form of superficial apologetics for some current ethnic agenda.”

2] Novak’s imagination envisions that the definition of human nature, human rights, and human society are not natural but God given. We enter social contract not as isolated but from community. We accept the Biblical covenants – the Noahite covenant and the Sinai covnant – both are unconditional and interminable.

3] Novak uses “the law of the kingdom is law” “dina demalkhuta dina” to say we need to crate a civil society, as a social contract.

The very creation of a secular realm was a chance for many cultures to participate. (In this he seems to use Charles Taylor, who is only briefly cited later) Religious liberty was not for tolerance and to keep it out of the public sphere, but to allow us to have our individual covenants. (He explains the establishment cause based on Hutchenson not Jefferson, and freedom of religion as a Baptist not as Locke and Hobbes)We accept civil society and civil society in order to respect our covenantal community.
Novak is against Rawls, we do not approach things based on fairness and rationality.
(He blames the naked public sphere entirely on the Spinoza tradition, rather than the private religion of Jonathan Edwards and the Protestant America.). Novak claims that civil society is made up of many religious groups and the founding fathers of America planned it that way. (not empirically or historically true for the US). Civil religion is from Rousseau and is against traditional faiths and their authority, Novak cites Richard Neuhaus as his source.

He thinks that religious people can argue better in a democracy for cultural autonomy than liberals.
He thinks that religious people will show more respect for other faiths than liberals since every religion knows it is in its best interest to not abuse its self-interested or totalizing demands.

4] Novak does not think he is creating a synthesis of social theory and Torah, there is no confrontation. Social theory is Torah with philosophic imagination.
Jews were multicultural in antiquity since they had to get along with Assyrians and others.
And from the Bible to today Jews are multicultural. Even Haredim choose to be a minority in a multicultural Israel because they know that if they claim hegemony over the secular it will destroy the social contact of Israel !!!

5] All of humanity is in the “Image of God”– defined as “a relational capacity for what pertains between God and all humans.” He bases this on Hermann Cohen and Psalms.
Judaism is a universal religion. Multiculturalism of Judaism is based on interreligious respect, and the respect for everyone’s image of God. As a contrast, Jonathan Sacks places the emphasis on Babel-there are no universals, all knowledge is limited. God chose one family, the Jews, to show that we need to celebrate diversity of families and religions. For Novak, we have a universal to follow and to argue for within the public sphere. For Sacks, absolute religions are the enemy of religion and public life. For Novak, liberalism that does not start with an absolute divine covenant does not allow a public sphere. For Novak, Jewish secularists are poor advocates of Jewish national claims on world!!! We need those with a covenantal certainty. It seems Novak has never heard of secular Zionism or any of many public advocates of Judaism.

6] The Bible shows us that we can only talk to covenantal partners who fear God. We can work with Malkizedek and not the king of Sodom. We can only make work with those who have the moral prerequisites. Therefore, Shimon and Levi could kill the men of Shechem since they are not moral, so we cannot enter into covenant with them. Does Novak notice what he is saying when he justifies killing them because we deem them immoral?

Covenant is n affirmation of creation for humans to make world inhabitable.. He cites as his proof Nahmanides’ introduction to the Torah – berit = bara – make the world inhabitable. But the original of Nahmanides was a praise of the mystery of God’s miraculous powers of creation. Novak transfers these powers man. Hermann Cohen’s universalism and man’s powers presented as Nahmanides.

7] Novak boldly states “Jewish and Christian ideas of human nature and community, which are most often identical” He thinks this is true even in medieval Europe.
Novak states that Jews lived in medieval Europe with integrity by knowing they shared values with the Christians. They had a social contract with medieval Christians based on trust His proof:
Tosafot states that a Jew can accept an oath from a Christian even though, the latter associates (shituf ) something else mentions with God. For Novak, this shows, that Jews share with Christians trust and social contract. They are not idolatrous, rather they are answerable to the same God so it is a social contract. Novak pictures the tosafot as conceiving the relationship as follows: “I have good reason to believe you will not change your word to me, I can trust you because of your Christian faithfulness. And Christians believe in God’s faithful covenant. I trust you because of your belief in God. This is unlike modern atheists and secularists whom we cannot truly trust.

I am not sure what to make of this. It is not halakhic – juridical reasoning from Shulkhan Arukh. It is not historic reasoning even though he cites Jacob Katz. (Katz saw the medieval situation as without trust and commonality, only exclusivism. These tosafot statements were only ad-hoc leniencies without theological power.)
This is Novak’s “theological imagination” using the tradition, having fidelity to halakhah but not to halakhic reasoning.

8] The bible is covenantal and rabbinical thought is all contractual. Rabbinic law is justified by Scripture and debated by scripture. – (All texts for Novak seem sibah ledavar velo siman ladavar). Rabbinic statements are mainly left as stalemate, continuous arguments. It is all open interpretation. (cf new book by Boyarin- I will get to later this season)Rabbinic law is contractual since it gives reasons (Novak assumes darshinan taama dekra) and since law can be repealed by a greater beth din

9] Babylonians were secular and not idolatrous> hence we respect their civil society. Novak uses “the law of the kingdom is law” “dina demalkhuta dina”  to say we need to crate a civil society, as a social contract.Rashba and Ran – right of kings to create secular law but since  we are not really into kings – today it means social contract.          [he damns with slight praise Lorberbaum on Ran, and his edited with Waltzer The Jewish Political Tradition. For Lorberbaum , Halbertal, Waltzer – these medieval texts show an opening to create a secular realm,  without the interference of Judaism and rabbis. A realm consisting of  kings, prime ministers, laity, populous] For Novak, these texts point to natural law and covenant Abarbanel’s critique of kingship is taken as the Jewish norm, cf rambam

10] Moses Mendelssohn  taught that religion is private and to be keep out of the social contract. There should be tolerance for religion. The secular state should tolerate religion because one’s transcendental warrant for one’s religion comes prior to the liberal state. One’s religion is one’s public persona. The secular state is a place to encourage multiple religions. The state is multicultural recognition of diverse religions.  Our Covenantal duties are stronger than Mendelssohn’s duties of conscience. Novak concludes that Mendelsohnn was wrong. We do not start as individuals and follow reason and conscience but we start as a covenantal community, which knows that the Noahite Laws are the natural law for society.  Mendelsohn not enough to bring religion into public sphere.

Novak does not seem to get that Mendelssohn had a very real fear of herem, seruv, beis din control of society and economics, rabbinical pronouncements on society, heresy trials, and an autonomous kehilah. Novak assumes that Mendelssohn’s rabbinical establishment would write op-eds and First Things articles, rather than put each other in herem.

To be continued and edited tomorrow night.
Galleys of my Book One are due tomorrow.