Yehuda Brandes- Judaism and Human Rights

Yesterday was human rights day. How should Torah deal with moral issues in the social political realm? How should halakhah integrate new realms such as democracy, feminism, or enhanced ideas of human dignity? There is a new book that seeks to answer these questions by Rabbi Yehuda Brandes, head of the beit midrash at Beit Morasha, called Human Rights: The Dialectic between “Image of God” and “Holy Nation. יהודה ברנדס, יהדות וזכויות אדם – בין צלם אלוהים לגוי קדוש

Rabbi Brandes is noted for his treating aggadah as normative and part of the holistic study of the Talmud. His multi-volume work Aggadâh Lĕ-Maaśeh shows how he looks for the meaning (mashmaut) for our lives in the text without being didactic or moralistic. His two volume set on Ketuvot shows how he integrates his quest for meaning into a halakhic tractate. Now, he turns to the problem of integrating human rights and halakhah. (A more general more by Yuval Cherlow, Betzalmo came out in 2010.)

The book has three parts: The universal theme of the image of God, the particular theme of holy nation and a third part explaining his theory of halakhah as dealing with these opposite poles.

The first part is Biblical theology of the universal ideas of Genesis. His casts his net widely for sources. First, Yair Lorberbaum’s important work on image of God showing that on this topic the aggadah influences the halakhah of Maimonides and Nahmanides. He also uses Judge Hayim Cohen, Nachum Rackover, Moshe Greenberg, and Ruth Gavison. He also uses Emmanuel Levinas’ universalism and his moral reading of Rav Hayyim of Volozhin. He also was influenced by the Shalem Center’s view of political Hebraism that many of the great liberals and humanists of Western culture used and based themselves on the Bible.

The second part is theology of the particular holiness and specialness of the Jewish people given at Sinai. Here he starts from Yehudah Halevi, Ibn Ezra, Daniel Elazar, and the Biblical studies of Moshe Weinfled and moves to the universalism of Levinas and French Rabbi Leon Ashkenazi, known as Manitou.

For those who never read, Manitou, Rabbi Ashkenazi was active in interreligious encounter and was a perennialist who saw a common primordial core of monotheism and morals to all religions, based on Abraham of monotheism and morals. “The Bible of the Jews and the Christians is the same Bible. . . It is not the Jewish and Christian Bibles that oppose one another but rather the Talmudist and the Evangelist.” The chapter concludes with a review of the sweeping uses of the Meiri on other faiths.

The third part his theory of halakhah of how to resolve the tension between universalism and particularism, modern social ideas and halakhah. Brandes expects the halakhah and only the halakhah to resolve these tensions. The halakhah express both sides of these tensions as a dialectic, as complexity, and even indeterminacy, but the halakhic decider resolves the tension by deciding the law based on values.

This is the most original part of the book when Brandes claims that even if you think the halakhah is a formal discipline based on texts, the decision making process behind the pesak is always values based, aggadah and mahshavah based.

Yet, Brandes is against the concept of meta-halakhah (as used by many including Eliezer Goldman, Walter Wurzburger, or Isidore Twersky) where an outside theology not part of the halakhah, such as philosophy, kabbalah or humanism, influence the worldview of the rabbi. Rather, the philosophy, kabbalah or the humanism are internal values to the halakhah. (He is relying on Yair Lorberbaum who showed on Maimonides read the aggadah as philosophy and Nahmanides read it as Kabbalah, but both were valid reading of the text.)

Judaism is not about rights but about values, and deciding between values. Hence both poles in the tension are part of the law – universal and particular, feminist and non-feminist, democratic and anti-democratic. Yes, humanism, human rights, feminism are in the halakhic texts as well as their opposites. This is the principle of Elu veElu.

Halakhah itself is a value (and aggadah) driven enterprise. One chooses to respect the universal human rights or one feels that in this instance one does not. In some ways, Brandes reminds the reader of Rabbi Eliezer Berkovits- Biblical theology, defense of Jewish particularism, and value driven halakhah- but without the sense of inevitable historical progress.

Halakhah is not a formal reading of responsa as common law but reading the basic texts with values and working through the dialectic. Brandes claims that just as the Chofetz Chaim didn’t invent lashon hara but he expanded its realm by saying that “prior ages did not have all the material collected.” So too Brandes, claims he is just collecting the material.

In the Hebrew book reviews, Isaac Geiger write a positive review and Hillel Gershuni is more ambivalent about the murkiness and seeming cherry picking. Also where is this checklist of Jewish values, some of things discussed do not seem internal to the system.

The second part concludes with a discussion that despite the humanistic sides of the halakhah that nevertheless to maintain our particular faith a heretic or sectarian can be put to death. My question is that when speaking of human rights and liberties one’s system either accepts religious liberty or it does not; it is an absolute monarchy or a democracy, it is a theocracy or it isn’t. Despite his citing Locke, Mendelsohn, and Kant – on tolerance, religious liberty and democracy- these authors saw tolerance as all or nothing, not situational. However, in the introduction Brandes states that the anti-liberal, particualrist Rabbi Eliezer Melemad and one of his students approvingly read over the book. This may prove his point that despite Locke whether to be democratic or not in Religious Zionism is a matter of values of the halakhic decider.

From the Abstract
What is the relationship between Judaism and modern discourse on human rights? The short answer to this question is that the humanistic and liberal values that underlie modern human rights discourse are not foreign to Judaism. Quite the contrary: they exist within it and emanate from it, in the Bible, halakhic literature, and modern religious philosophy.

The book of Genesis, especially the story of the Creation, is the wellspring of fundamental human principles. The creation of human beings in the image of God serves as the starting point from which primary values are derived. These include human life, human dignity, property, equality and freedom, and the family. Many precepts originate from these fundamental values. The value of life, first mentioned in the Bible in the verse “Whoever sheds the blood of man, by man shall his blood be shed” (Gen. 9:6), leads to injunctions such as “You shall not murder” (Exod. 20:13) and “Do not stand idly by when your neighbor’s life is threatened” (Lev. 19:16).

The values of equality and freedom stem not only from the fact that all human beings were created in the divine image but also from the fact that they are all descendants of Adam and Eve; the corollaries of these values include the laws of labor relations, which mandated fair and equal treatment of workers by employers even in societies that practiced slavery, and are all the more applicable in our own day and age.

The family is a value that derives from the simultaneous creation of the two sexes—“male and female He created them” (Gen. 1:27); from the description of marital partnership in the second Creation narrative—“Hence a man leaves his father and mother and clings to his wife, so that they become one flesh” (Gen. 2:24); and from the commandment
and blessing, “Be fruitful and multiply, and fill the earth” (Gen. 1:28, 9:1). These are the underpinnings of many laws related to domestic and family law.

The terms “values” or “principles” should be preferred to “rights,” because the Torah outlook includes precepts and obligations. The right to life and dignity comes with a concurrent obligation to defend and respect the lives and dignity of others. In some cases, the point of departure is one person’s right; in some cases, the other person’s obligation. To put it another way, the term “values” is better because it includes both rights and obligations, without specifying a fixed and absolute primacy of one or the other. Values require limits when the rights of one individual collide with the rights of another, or when one value clashes with another value.

The Bible is not naïve or innocent; or, in the formulation of the philosopher Emanuel Levinas, Judaism is “a religion for adults.” The Bible recognizes the existence of human needs and impulses that lead to failures to maintain these values and to guarantee rights for all. What is more, there is an essential difficulty here, which stems not from sin and evil but from the natural and inevitable confrontations between the values and rights themselves. Dealing with the contest between competing rights and values of individuals and human societies, requires the application of tools for rendering decisions in situations that are questionable.

The characteristic instrument developed by the Oral Law for his purpose is Halakhah. Halakhah is supposed to provide the rulings when values collide.

The universal dimension of the Torah is found in the book of Genesis, which contains ethics that were given to all human beings descended from Adam and Noah. This constitutes the ground floor, the basic values of the Torah and Judaism, parallel to the modern system of human rights and hardly different from it in any essential way. The next level, designated “a kingdom of priests and a holy nation” (Ex. 19:6), represents the dimension of the selection of Israel to bear a special divine mission.
Before the Israelites received the Torah at Sinai, we learn that the purpose of this gift was to make them into “a kingdom of priests and a holy nation.”

The concept of a “kingdom of priests and a holy nation” obligates the Jewish people to observe an additional and much broader set of precepts than the basic and universal code constituted by the “Seven Noahide Commandments”; even though this code actually encompasses much more than seven precepts, the Torah imposes on the Jewish people an extremely comprehensive canon of statutes that are not incumbent on other nations.

The notion of the added sanctity of the Jewish people, which accompanies the supplementary precepts, rights, and obligations that apply only to them, undermines the principle of equality—not only by creating a distinction between Israel and the nations, but also by introducing gradations within the Jewish people, as, for example, between the kohanim of the priestly caste and other Jews (“Israelites”), or between men and women.

The bloody history of anti- Semitism over the ages has left its mark on Jewish thought and Halakhah and has deeply impaired the Jews’ trust in the humanity of the descendants of Noah. Many of the conceptual and halakhic positions that distinguish and limit the Jews to their own domain, while expressing fierce antipathy to the nations around them, are the result of the bitter historical experience and not of the ideal theory propounded by the Torah

The value of dignity is set aside for a number of precepts:
The value attached to intimate relationships and marriage must give way to the prohibitions related to forbidden unions and holiness: the ban on a kohen’s marrying a divorcee and the problematic status of agunot (wives whose husbands have disappeared), mamzerim (the children of forbidden relationships), and mesoravot get (women whose husbands refuse to give them a divorce) are examples of situations in which the notion of the sanctity of marriage takes precedence over the discourse of the right to participate in an intimate relationship.

The two tracks are presented not as merging but as colliding—the track of the “image of God,” which is the basis of human rights, and the track of “a kingdom of priests and holy nation,” which constrains and limits universal human values.

How do the Torah and Halakhah deal with the tension between these two tracks or two opposing systems for living? The fundamental axiom is that we are not dealing with tension and contradiction between the Torah and some external and alien culture, but with an internal tension that stems from the existence of two principles that coexist within the Torah itself. Dealing with and resolving these two opposing poles is the very soul of talmudic thought. It is based on the notion that “both these and those are the words of the living God” (BT Eruvin 13b): both of these contradictory positions are valid and true, and no final and absolute decision can be rendered in favor of one or the other.

The disagreement will persist and any decisions will apply only to particular cases, as a function of the circumstances. Some are one-time rulings, while others remain in force for generations. This is the art of halakhic ruling as practiced by the rabbis, who have at their disposal a set of substantive and procedural tools for determining the practical Halakhah in cases of disagreement, doubt, and conflict.

A typical example of this is the tension between humanity and nationalism, which can be found in philosophy, Halakhah, and even the liturgy. For example, Jewish prayers and blessings are full of references to the unique status of the Jewish people— “Who selected us from among all the nations” (the blessing on the Torah)—alongside abundant hopes and prayers for all humankind—“when all humanity will call on Your name” (from the daily prayer Aleinu).

The dialectic of values is manifested in specific halakhic issues: it is forbidden to steal from non-Jews, but one need not return lost property to them—although in certain circumstances the injunction to restore lost property to non-Jews is given greater weight than the command to restore such property to a Jew. Distinctions are drawn between “repulsive idolaters” and “nations who live according to ethical laws.” The nature of the relationship between Jews and these types of people fluctuates in response to historical and cultural circumstances.

The dialectic approach does not support the idea that humanistic values are meta-halakhic principles that influence halakhic decision-making, as is sometimes stated in works on the philosophy of Halakhah.

In my view, universal humanistic values are part and parcel of authentic and original Jewish thought and Halakhah. Their fruitful and challenging encounter with the principle of the holiness and uniqueness of the Jewish people is worked out through the practical, concrete, and detailed efforts that are typical of halakhic discourse from the talmudic age to the present.

As in every generation, contemporary Jewish and Israeli society is called upon to find anew the appropriate equilibrium between the universal and the particular, between the human race and the nation. The establishment of the State of Israel and its definition as a Jewish and democratic state place the challenge of dealing with the dialectic of “holy nation” and “the image of God” at the center of discourse about Israeli and Jewish identity today.