In this paper, I analyze the thought of David Novak and Emil Fackenheim on the relationship between Judaism and the social order. This paper will be grounded, primarily, in a theological rather than strictly halachic point of view. Or, to put it in the terms of one of the thinkers I will be treating, the discussion will be in the realm of haggadah rather than Halacha (Novak 1974, 1–14). Before I begin, I need to raise two points about my methodology. The first relates to the scope of this paper. In the case of both thinkers, the analysis is related to the question of the relationship between Jews and Christians. For Fackenheim, the broader relationship between Jews and Christians is premised on mending (tikkun) that is required for both faiths, which is why any exhaustive study of the status of Jews in predominantly Christian societies or organizations in Fackenheim’s thought must take the components of the respective tikkunim into consideration. For Novak, on his part, Jewish dialogue with Christians and Judaism’s relation to the state are linked with each other, because the theological basis for dialogue is identical to the halakhic ground that allows Jews to participate in the state. However, the question of how Novak and Fackenheim relate to Christians is one that can only be answered by an analysis of a few decades’ worth of volumes from both thinkers, and it is therefore well beyond the scope of our conference. Thus I avoid this broader discussion in the interest of brevity, first and foremost. Moreover, for Fackenheim, the broader issue cannot be understood without reference to his Hegelian thought, which again is beyond the scope of this study. Instead, I focus on the narrower question of the interaction between Jewish law or values and the social order in modern society.
The other methodological point relates to the Canadian element of the subject of this conference. On the face of it, that component is challenging, the reason being that if we are looking either for religious principles or universal ideas on which Jews or Christians base their decision to engage in promoting social order, there should be no reason why Canada should be different from any other place, or even be mentioned at all. That is truer, I believe, from a halachic or legal perspective, according to which location should be irrelevant, other than serving as a useful example. Further, even if Canada meets specific halachic criteria, how would it differ from any other place that meets those criteria? What makes it unique? What we can suggest is that, although halacha does not change, the circumstances that necessitate a halachic response do. And certainly those that make halachic decisions are faced with new information, which is sometimes a product of time or the environment, and that data affects their output. This is true philosophically as well, since we cannot see ourselves independently of the changes that occur to us, and as Henri Bergson shows, we literally bring our memory and our past with us to the identity we have today; that is to say, we are constantly in the state of change (Bergson 1911, 178). Thus we could ask about the Canadian experience in the context of which we arrive at the halachic and philosophical positions we explore. With this in mind, I will touch on the Canadian angle, if you will, in the case of both these thinkers, so as to assess whether their respective experiences in Canada or their thoughts about this country interact with, or in any way shape, their view.
First, I will provide some background. David Novak was born in 1941. He earned his undergraduate degree from the University of Chicago, where he studied with Leo Strauss. He then earned a masters in Hebrew literature from the Jewish Theological Seminary (JTS), under the tutelage of Abraham Joshua Heschel. Novak was ordained a rabbi, also from JTS, in 1966. While serving as a pulpit rabbi, he earned a PhD from Georgetown University in 1971. His thesis, which, as I argued in my thesis, was indicative of the type of philosophical approach he would later take, was on the negative impact of suicide in the thought of Plato, Aquinas, and Kant. After taking rabbinical positions in a number of cities, including Oklahoma City and Baltimore, Novak became the Edgar M. Bronfman Professor in Modern Jewish Studies at the University of Virginia. In 1997, he became the J. Richard and Dorothy Shiff Chair of Jewish Studies at the University of Toronto, a prestigious position that he still holds (Hughes 2013, 4–5). The relevant material for our purposes comes from his books The Jewish Social Contract and In Defense of Religious Liberty.
Novak’s discussion begins with a crucial distinction between contracts and covenants. Novak’s conception of the former includes two components. The first is that both parties are equal; the second is that, even if both parties are still in existence, the agreement itself is subject to termination. Novak’s conception of the latter also includes two components: there is an implicit inequality between the parties, and, assuming both parties are in existence, the agreement cannot be nullified. Based on this distinction, Novak writes that any covenant that is made with another entity must build atop of the preexisting covenant with God. One example of this is that of the Jews living in Babylon. The nature of the relationship is not described in detail, but from the fact that Israel is castigated by the prophet Daniel for disloyalty, Novak learns that the Jews had a covenant with the Babylonian monarch (Novak 2005, 92–93).
However, the Jews are only able to live in Babylonia if their covenant with God is not thereby undermined. As Novak puts it, “The Jews could accept political subordination in good faith as long as their religious right to serve God above all others was respected” (Novak 2005, 93). The nature of the relationship with the state changes somewhat, Novak says, and that is reflected in a talmudic teaching about three oaths that Jews took, which Novak understands to be in reference to their Roman oppressors. The first was that they would not “scale the wall,” the second is that they should not rebel against the nations of the world, and the third is that the nations should not subordinate Israel to an unreasonable extent (b. Ketubot 111a). The first two are an indication that the rabbis in the third century subscribe to the belief in an apocalyptic (rather than what Novak calls extensive) messianism, inasmuch as they believe that the redemption is solely in God’s hands. From the fact that the word for covenant does not appear here, Novak shows that this has a contractual nature and is therefore subject to termination. Among the other differences Novak finds between this and earlier arrangements is that there is a sense of reciprocity in this agreement, which is not true of the pact with Babylon, and the third is the emphasis against treason, which in this case would be an alliance with Egypt (Novak 2005, 95–96).
However, it is important to remember here that the three vows only relate to political, rather than religious, subordination, meaning that the relationship was not recognized on a religious, de jure basis. But Novak shows that, as the Talmud continues, there is a theological-religious component as well. Novak sees this in the statement that there were three other oaths: those were against revealing the date for the end of exile, forcing that end, and divulging a “secret.” The last of these is a reference to the rabbinic practice of adding a month to the lunar calendar. By relinquishing this right, Novak says, the Sanhedrin was acknowledging the “loss of its own public authority in the life of the Jewish people” (Novak 2005, 97). The connection to messianism, however, is also significant, and that is because the fact that God will bring about the redemption rather than human beings is what makes the social contract with non- Jews possible. The reason is that every arrangement would now be temporary; it would change when God redeemed the world. Thus, unlike a covenant that is atemporal, this apocalyptic view makes the arrangement a temporary one. Thus a social contract could be put in place.
We note here that Novak is quite cognizant of the political factors that create the setting for these agreements. Those same factors enable him to make a distinction between Jews living in the first few centuries of the common era under the shadow of their failed rebellion and thus having an uneasy, tenuous relationship with Rome, on the one hand, and Jews living in Babylon, where “the Jews were voluntarily living in another land (even though many of them had originally gone there as captives from Judea), with political power and under a legal system that was consistent and in which there were definite civil rights” (Novak 2005, 105). In other words, the arrangement is informed by the type of relationship Jews have with the state.
Nevertheless, even if Jews accept the political and semi-religious authority of non-Jews, they cannot accept their legitimacy for legal and civil matters. Novak supports this point with a statement by Rabbi Tarfon that removes the Jewish “permission” to go to gentile courts (b. Berahot 61b). The grounds for this ruling are that, since Sinai, the law of God has to come through and be administered by the successors of Moses, namely, the rabbis. There are, however, two exceptions to this statement by Rabbi Tarfon. The first is that, with the exclusion of divorce documents and the manumission of slaves, documents from gentile courts are recognized by Jewish courts. The second is that a Jewish divorce document that is coerced by a gentile court is accepted by the Jewish courts. Novak notes, however, that all of this was in the context of the Roman administration of Palestine. Although preferable to no law at all, this administration was under no “coherent system of law.” This differed from what the Jews experienced under Babylonian rule, where they had “definitive civil rights” that they shared with “other members of the realm” (Novak 2005, 105).