FIRST THINGS FIRST
by Michael Wyschogrod – May 2010
Israel is a Jewish state but has not succeeded in defining just what that means in a national constitution. Although the 1948 Declaration of Independence called for the enactment of a constitution within months of the state’s inception, nothing has been achieved beyond a fragmentary “Basic Law.” Israel finds itself in the uncomfortable position of fighting for its status as a Jewish state without a clear vision of what that entails.
There appears to be an unbridgeable gap between three millennia of Jewish religious thought and the exigencies of modern governance. Yet Judaism’s defining concept, the covenant, is inherently political, and a proper understanding of biblical and rabbinic theology might identify a solution to Israel’s constitutional vacuum.
To discuss theological criteria for the constitution of a secular republic runs against the grain of modern political thought, even though constitutional restrictions on popular sovereignty imply reliance on an authority that is greater than human. In a republic the people are sovereign, yet the purpose of a constitution is precisely to restrict the power of any future majority. If popular sovereignty is absolute, what right has a constitution to frustrate a future majority by, for example, imposing some form of supermajority? In the extreme case, suppose a majority of the delegates to a constitutional convention enacts a constitution that forbids any change forever, or requires a 98 percent majority of the future legislature to enact any constitutional change.
This is no different in principle from the two-thirds supermajority that the United States requires for constitutional amendments. The only basis for a polity to accept severe restrictions on popular majority rule is the conviction that the founding constitution derives its power from a higher form of sovereignty than the voters in any given legislative session. Without such a theological foundation, a republic cannot feel bound by the rules laid down by its founders. A purely secular republic would self-destruct because it could not protect its constitution from constant amendment.
To propose a constitution, in other words, is to ask the question: What form of sovereignty is higher than that of the present voters? America’s Founders appealed to “nature and nature’s God.” Judaism has an answer to this question, elaborated in the oral and written Torah—however remote they appear, at first consideration, from the practical requirements of the state of Israel.
Judaism is founded on a covenant between God and Israel. Instead of unilaterally imposing his will on Israel, God enters into a relation of mutual obligations with a people. This relation is, in content, not only religious but political and legal, and it is understood in this fashion in the Bible and rabbinic literature, where God is called “the King of all Kings” perhaps more often than by any other appellation.
God, moreover, exercises his kingship through proxies. There are three religious institutions and persons in the biblical polity who are divinely sanctioned: the king, the prophet, and the high priest. But of these three offices, only the term king is routinely applied to human beings as well as to God. This is noteworthy because, of the three, the prophet and high priest hold religious functions while the office of king is largely secular. In the presence of a human king, the following blessing is recited: “Blessed are You, Hashem, our God, King of the Universe, Who has given of His glory to flesh and blood.” A human king thus participates in the glory of God. To see a human king is, in a sense, to see a proxy for God.
A world without God is a world in which nothing is hereditary but all glory is temporary and republican, elected for a period of time on the strength of the policy agreements of the day. God’s election of Israel—which is, in a sense, a royal election—is based on none of these fleeting considerations but is as permanent as the throne of David, the most permanent of all the earthly thrones sanctioned by God. It is probably for this reason that monarchy is so repugnant to secularists. Jewish sovereignty existed in full measure only during the rule of the kings of ancient Israel. Saul was chosen by God in response to the demand addressed by the people to Samuel to “appoint for us a king to govern us, like other nations.” This is a request that did not please God, who informed Samuel that “they have not rejected you, but they have rejected me from being king over them.” Only after Samuel has outlined all the disadvantages of rule by a human king, and the people persist in demanding a king, does God reluctantly instruct Samuel to anoint a human king.
From the way Israel’s monarchy was founded we can infer several things. First, human monarchy is not God’s first choice for the governance of Israel. His first choice is the Kingship of God, who, because he does not speak to the people directly, uses a prophet to transmit the word of God to the people. In this form of rule, exemplified by Moses’ rule over Israel, God employs the prophet to communicate not only generalities to the people but also concrete legal judgments, for example the request of the daughters of Zelophehad (Num. 27:1-11) for a portion of the inheritance in the absence of direct male heirs. Moses presents the case to God, who rules that the daughters are to inherit on the same footing as their father’s brothers.
A more concrete form of divine monarchical rule can hardly be imagined. While direct divine rule did not last very long, the fact that the First Book of Samuel explicitly raises the option serves, among other things, to refute the view that with the giving of the Torah, direct divine intervention is no longer possible or desirable. Whatever subsequent forms of rule are depicted in the Bible, nothing can match direct divine rule, which rules out the possibility of error.
This form of government can be termed Mosaic kingship: a form of monarchy in which God himself is the monarch who speaks through the prophet. The Mosaic monarch thus combines in himself two characteristics, that, in a way, are contradictory. On the one hand, Moses is the greatest prophet Israel has known because he speaks with God “face to face.” On the other hand, this proximity to God diminishes Moses’ personal authority because, when in doubt, he consults God and receives a direct answer. Moses, it seems, does not need to acquire the art of legal reasoning. His questions are answered by the Holy One. This may explain why Moses is not generally referred to as a king. Although he acts as a sovereign, God is the sovereign king and Moses, his spokesman.
The title of king is thus not an honorific for God, as if the title of God were insufficient. God is called king because he actually is the king, the ruler from whom all decisions emanate and whom human kings imperfectly resemble. The blessing of God “who has given of his glory to flesh and blood” encapsulates biblical and rabbinic political thinking: The human king is created in the image of the divine king—a statement we would not dare to make did it not mirror the statement that human beings were created in the image of God.
The advantages of monarchy over a republican form of government can be debated at length. Since the French Revolution, monarchies have been on the wane and republics, on the rise. The reasons are many, but the secularization of the modern world must be one of them because the institution of monarchy is deeply tied to its religious roots, and the authority of the king is not derived from the governed. This is perhaps the aspect of monarchy that most offends the secular mind, for which nothing is more self-evident than the thesis that, ultimately, the people are sovereign, and rulers derive their legitimacy from those they rule. But this is not how Judaism understands the matter. God, not the people, is sovereign. Rulers are chosen by God, and it is only to God and his Torah that they are responsible.
In classical Jewish thought, the question was how to establish the closest possible approximation to God’s kingship. From the beginning of kingship in Israel, there was a deep ambivalence about monarchy. But the fact that a human king is accepted and serves as a substitute for the divine monarch bestows on the human king a political and religious weight that no democratically elected politician can ever achieve.
There is no question that Jewish tradition favors monarchy, and Jewish religious authorities, prominently including Maimonides, consistently argue that the appointment of a king, in the line of David, is obligatory. (For the same reason, the New Testament traces Jesus’ descent to David.) Jewish political thought seeks the political arrangement that most closely approximates the kingship of God, and, absent a ruler from the House of David, monarchy becomes a contingent affair—which is why Jewish religious authorities in antiquity rejected Jewish monarchies, such as the Hasmoneans, not founded on the House of David.
Of course, the question today is whether it is possible to reconcile the modern concept of a state with a religious concept of legitimacy more than three millennia old. I believe that it is indeed possible, and that such a reconciliation offers a practical solution to the longstanding constitutional dilemma of the state of Israel.
Israel must reconcile the requirements of its secular citizens, who wish to live in a modern parliamentary republic, and its religious citizens, who insist that religious and legal tradition must inform the Jewish state. The danger in secular rule is that modern Israel will fail to present itself unambiguously as a Jewish state and eventually lose the battle to remain a Jewish state. But the form of religious governance favored by the Haredi (ultra-Orthodox) segment of the Israeli public would put an end to Israel’s republican character. I suspect that the ultra-Orthodox would prefer a state governed by a self-appointed body of Torah scholars, similar to the Council of Torah Sages (Moezes Gedolei Hatorah) of Agudath Israel, the Haredi quasi-political organization.
There never has been a moment in Jewish history, though, when the sovereign Jewish people were ruled by rabbinic scholars. Whether in the Babylonian exile or in medieval Europe, rabbis played an important role in guiding the lives of Jews, but this was always in the context of Jewish subordination to non-Jewish rulers. Jewish sovereignty existed in full measure only with the rule of Jewish kings.
The crowning of an actual Davidic monarch today would require prophecy to select the proper person. In the absence of prophecy, this is impossible—and the sages of Israel declared almost two thousand years ago that prophecy was gone from Israel. Israel nonetheless can be declared a Davidic monarchy without a reigning king. This action would build into the self-understanding of the state of Israel the messianic hope of the Jewish people, while excluding a messianic interpretation of the present state of Israel.
The solution that I propose is by no means unusual for a constitutional monarchy. It is a common occurrence in monarchy that no king is present or that the present king cannot rule, for example, due to youth. In such situations, a regent is appointed as a placeholder for a king. Such a placeholder can either be appointed or elected. A regent safeguarding the Throne of David until such time that divine intervention identifies the rightful heir to the Davidic kingdom would thus assume the functions now performed by Israel’s president, the symbolic head of state.
It would be quite possible for Israel’s parliament to elect the regent who safeguards the throne just as it now elects Israel’s president. None of the other mechanisms of parliamentary democracy in Israel would need to change. What is important is not the specific mechanism by which the Israeli polity might choose a regent, but, rather, for Israel to understand itself as a monarchy, albeit one without a reigning king.
This would acknowledge God’s will that Israel be ruled by the House of David, and it would define the Jewish character of the Israeli state. If we concede that any constitutional constraints on popular sovereignty derive from an authority higher than the people, we must conclude that a constitution uniquely suited to a Jewish state should embody the political form through which this higher authority has been manifest in the Jewish concept of polity for the past three thousand years. To be a constitutionally Jewish state, Israel must understand itself as a monarchy temporarily without a king.
Such a constitutional monarchy is quite as compatible with modern parliamentary democracy as are the monarchies of Holland and England. But there would remain a fundamental difference between Israel and the European monarchies, which exist as a matter of historical happenstance. For Israel to establish its claim to be a Jewish state—the core issue of contention between Israel and many of its Muslim neighbors—it must do so in the unique way specified by the Bible and the undivided view of Jewish tradition.
Collateral benefits might ensue from such a declaration. For example, the fact that several Arab countries are monarchies (including Israel’s eastern neighbor) raises the prospect that a Davidic monarchy in Israel might elicit a certain degree of respect. The symbolic importance of acknowledging the House of David as Israel’s rightful ruler, moreover, would be a source of inspiration to many Christians who are favorably disposed towards the Jewish state.
The possible practical benefits, though, are incidental to the purpose of giving expression to the deep Jewish longing for Davidic restoration, expressed so frequently and with such deep emotion in the daily liturgy that Jews have recited for thousands of years, in which we beseech God to see a descendant of David on the throne of Israel.
Michael Wyschogrod is professor emeritus of philosophy at Baruch College of the City University of New York and the author of The Body of Faith .