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The Progressive Middle Ages

By Prof. Paul Eidelberg

Some secularists believe that if Israel were to adopt a Constitution based on Jewish principles and values, the country would succumb to theocracy or revert to the Middle Ages. They regard the Middle Ages as the "Dark Ages," even though that period of European history can boast of some of the greatest intellectual luminaries. Suffice to mention Saadia Gaon, Rashi, Alfasi, Maimonides, Nachmanides, Judah Halevy.

Despite pogroms, expulsions, and Inquisitions, Jewish philosophy thrived in the Middle Ages, and seldom has there been such creativity in Jewish law. Jewish communities throughout Europe governed themselves by their own civil and criminal laws. Indeed, there are recorded cases of gentiles applying to Jewish courts to resolve their own disputes! Even in the midst of poverty, the vast majority of Jews were literate, more or less educated in the Law, able to reason with logical acumen hardly to be found nowadays in secular schools. Respect for learning, deference to the sage, illuminated the age, which is not to minimize the unspeakable cruelties which the gentile world perpetrated against the Jewish people.

Until the Emancipation in the 18th century, Jewish communities were content to enjoy juridical autonomy. Jews did not seek political equality, for that would have impaired their spiritual independence. In any event, these communities were not at all "theocratic," a concept foreign to Judaism. In S. W. Baron's monumental work, A Social and Religious History of the Jews, we read:

"[G]overnment [in these communities] was generally democratic. Although through the ages Jewish communities had all sorts of constitutions, there was never any approach to monarchy ... The sovereignty of the people ... was never contested; its only alternative was the sovereignty of God, whose power, however, was exercised through the people. Not even the rabbinical office ... had any charismatic character. The rabbi was subject to the general laws, as much as any layman. His rights and duties were those of every Jew. What superiority of position he might gain, was due to his personal eminence and the voluntary submission of others to his judgment. We even find extreme cases of 'immediate democracy,' when all communal officials were elected by lot."

Of course we are not to confuse Jewish democracy with contemporary democracy, whose libertarianism leads to moral laxity, and whose egalitarianism undermines deference. This is not to suggest that a Constitution based on Jewish principles and values should deal with moral subjects. In no way should a Constitution for the State of Israel encroach upon the Torah. Rather, the political institutions prescribed by a Constitution should facilitate what is so lacking in Israel today, namely, rational deliberation, resolute national leadership, and political accountability.

Such a Constitution would promote Jewish principles, such as: "No decree is to be made upon the community unless the majority is able to abide by it" (Avoda Zara 36a). "The minority view is recorded [in the Mishnah] along with the majority view so that it is available to become the applicable law whenever the circumstances are appropriate" (Tosefta Eduyyot 11:2; Sanhedrin 86b.) And let's not forget the "rebellious elder," who can continue to teach his opinion (in opposition to the decision of the Supreme Court) so long as he does not rule that his view should be applied in deciding actual controversies.

It may surprise secularists to learn that Protestant social revolutionaries invoked the "Old Testament" in support of republican ideas. Samuel Langdon, president of Harvard College, stated in an election sermon in 1775 that "the Jewish government, according to the original Constitution that was divinely established, if considered merely in a civil view, was a perfect republic."

The Talmud states: "We must not appoint a leader over a Community without first consulting it" (Berachot 55a). Therein is the original source for the democratic principle of "government by the consent of the governed." Nor is this all.

Jewish government in the Middle Ages included the general idea of checks and balances! Although the rule of a majority of the townspeople was an accepted principle of governance (affirmed by such halachic giants as Alfasi and Asheri), it was also understood (following Maimonides and Ribash) that the enactments of the community required the concurrence of the community leaders, persons known for wisdom and virtue.

Since the community leaders usually included a scholar, one may say that communal enactments were subject to "judicial review." (This recalls the 18th century New York State Constitution which prescribed a "revisionary counsel" for acts of the legislature, which counsel included members of the judiciary.)

Finally, direct popular election of representatives conforms to Jewish principles. (See Kiddushin 59a and Meiri, Beit ha-Behira, 42:2, 58:2 on the law of agency.) It is precisely to facilitate adherence to these principles -- ignored in Israel -- that the present writer has drafted a Constitution for this chaotic "Jewish" state.

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