Our Social Contract…is Breaking

February 10, 2023 –  י״ט שְׁבָט תשפ”ג

 The world as we know it exists on a social contract. This ancient philosophy was developed by early Enlightenment philosophers such as Thomas Hobbes, John Locke, and Jean-Jacque Rousseau. A social contract posits that to live together, people must agree to live peacefully, respect one another’s rights, and obey the laws of the country and community in which they exist.

A social contract exists to instill the idea that political power is a property entrusted in the hands of government officeholders for the sake of the public.  Accordingly, there are conditions that must exist so that the use of government power is legitimate, the most important of which is a concern for the rights of the individual regardless of one’s political affiliation or ideology. A social contract posits that it’s preferable to live in a civil society based on a social contract.  As long as the state respects the social contract, citizens are morally obligated to obey the law and respect those institutions that protect the law.

Social contracts can be explicit as determined by laws, or implicit such as raising one’s hand in class to speak. The U.S. Constitution is an explicit example of America’s social contract in that it sets what the government can and cannot do. People who choose to live in America agree to be governed by the moral and political obligations outlined in the Constitution’s social contract.

Regardless of whether social contracts are explicit or implicit, they provide a valuable framework for the establishment of harmony in society.

The Knesset’s radical judicial reforms are an attempt to overturn Israel’s democratic framework and crumble Israel’s social contract.

In this week’s Torah portion, we experience that moment of revelation when we receive Torah – our People’s social contract:

The Maharal of Prague (1520-1609) reminds us of the Midrash that, at the time of the giving of the Torah, the “Holy One, Blessed be God, overturned the mountain above the Jews like a tub, and said to them: ‘If you accept the Torah, excellent, and if not, there will be your burial.’” (Shabbat 88a) He explained that it was necessary to hold this over their heads in case some decided to deny the covenant and relieve themselves of accountability to the Torah. Despite their initial desire to live by this social contract, they must be constantly reminded that they are bound by it.[1]

Torah has always been more than a religious document. It is a social contract,   the constitution for the united tribes of the Israelite nation that outlines an economic and political system emphasizing the centrality of the State along with a concern for the life and well-being of every individual. As Jews, we have lived according to this dynamic social contract for 3000 years, updating, amending, and interpreting its codes to adapt to new challenges of modernity and shifting paradigms.

The state of Israel today is a fascinating case study of a society that is in radical conflict over the very fundamentals of the social contract. Israel is today engaged in an internal struggle over fundamentals such as the legitimacy of the court system, the authority of the Knesset, the entitlement of the government to legislate in favor of the concerns of special interest groups, the right of the government to determine an economic policy that serves the state but not necessarily the interests of the citizens, the status quo between ultra-Orthodox and Progressive Jews and the fight over the boundaries of what are considered legitimate public expressions of religious freedom in the streets,  “universal” human rights, the status of non-Jewish citizens, attacks against the LGBTQ+ community, the independence of the press, and more.

It is astonishing to note how many of these concerns are at the core of the Israeli social contract and how that contract is being currently threatened.

In a 112-page analysis, Attorney General Adv. Gali Baharav-Miara dismantles every assertion and justification put forward by the new government in support of its radical judicial overhaul and articulates the principle at the heart of the social contract:

“Democracy is not only ‘majority rules.’ True democracy also requires the protection of human rights, the rule of law, the separation of powers, and an independent judiciary that can serve as an effective check on the other government branches. The so-called reform says nothing about these principles.”

Baharav-Miara focuses on the citizen’s rights and how the proposed changes would be harmful:

“Citizens would no longer have a remedy to prevent harm to themselves and to their rights as the result of an extremely unreasonable decision … if the proposal is enacted, we will have an unlimited executive branch, and it will no longer be possible to come to citizens’ rescue in the event of an abuse of governmental power.”

President Biden used Torah principles in his State of the Union speech this week when he said: “A nation based on an idea. All people are created equal. All created בצלם אלוהים – in the image of God.” On a state level, all people are created equal in the eyes of the Supreme Court. The new government threatens this principle and it is this that we stand to lose in Israel as legislation is presented this week to overhaul Israel’s justice system.

In an attempt to convey the severity of the moment, MK Rabbi Gilad Kariv called for significant action to prevent the government’s drastic measures including worker strikes and mass protests against the rapid advancement of the legislation:

“We are coming to the movement of truth. The coalition of destruction and corruption will bring the legislation on appointing judges to a first reading [in the Knesset plenum] in the coming days. This is the time to go from protests to strikes. In schools, in businesses, and at cultural events. This is the time for demonstrations of a million citizens. This is the time for tens of thousands of people to come and demonstrate outside the Knesset on the day of the vote.”

In fact, hundreds of thousands of Israelis will be striking this Monday to protest the legislation moving quickly through the Knesset attempting to slow down the economy in protest of these extreme and dangerous measures.

Former Minister, Jewish Agency head, Soviet dissident, and human rights activist Natan Sharansky warned against shattering our social contract this week as well:

“Who will protect human rights and how? The claim ‘we were elected, we will protect’ is demagoguery. Democracy is two things simultaneously — majority rule and undeniable rights of the person which any majority cannot deny…The Knesset must have the last word on political decisions. And the Court [must make the]  decisions related to human rights…an override with 61 votes is simply an absurdity.”

As we read the story of the revelation at Sinai, we recall that Torah society established a constitutional monarchy where the king held absolute power but was obligated to observe and uphold the laws and precepts of the Torah like every other citizen and was never above the law. History records that whenever a king acted above the law, or in ways not dictated by the Torah and against the will of the people, the people rose up and replaced the king.

President John F. Kennedy, in his Inaugural address (January 20, 1961) said:

“In your hands, my fellow citizens, more than mine, will rest the final success or failure of our course. Since this country was founded, each generation … has been summoned to give testimony to its national loyalty.
…
Now the trumpet summons us again-not as a call to bear arms, though arms we need–not as a call to battle, though embattled we are–but a call to bear the burden of a long twilight struggle, year in and year out, ‘rejoicing in hope, patient in tribulation’ – a struggle against the common enemies of man: tyranny, poverty, disease, and war itself.… The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it–and the glow from that fire can truly light the world.”

Shabbat Shalom.

[1] המהר”ל מסביר שהיה צורך לכפות הר כגיגית על ישראל כדי שמתן תורה לא יהיה תלוי אך ורק ברצונם של ישראל. אם התורה תלויה ברצון ישראל יכול להיות מצב, ח”ו, שהם יתחרטו לאחר זמן ואז כבר לא יהיו חייבים בקיומה. ולכן אחרי שהתגלה הרצון הפנימי שלהם לקבל את התורה כפה עליהם הקב”ה הר כגיגית כדי שיהיו מחוייבים לתורה.