Talmudic sages gave lessons in equality for all citizens

25 August 2023, The Australian.

Speaking this week at the celebration of law firm Arnold Bloch Leibler’s 70th anniversary, Mark Leibler rightly pointed to the importance in Judaism of attachment to land, and especially to the land of Israel.

Unobjectionable too was the parallel he drew between that attachment and the “land-based” traditions of Indigenous Australians.

But suggesting that a line could be drawn from Judaism to support for the proposed voice to parliament was unwise. And Leibler’s earlier anathematisation of the No campaign as “sabotage” starkly contradicts the Jewish tradition.

here are, in effect, few traditions, religious or secular, that are as tolerant of disagreement. Indeed, Midrash Tehillim (the commentary on Psalms) teaches us that controversies about the meaning and implications of halakhah (the laws regulating Jewish life) are not a misfortune but a blessing.

They arise, the commentary explains, because God made the laws open to contrasting interpretations, thereby preserving the vitality and richness that springs from humanity’s agonistic, always open-ended, quest for truth in a constantly changing world.

It is therefore no accident that “the heavenly voice”, in reviewing the controversy that raged for three years between Bet Hillel (broadly, the school of Hillel) and Bet Shammai, proclaimed that “these and those” – that is, both schools’ contentions – were “the words of the living God” (Eruvin 13b:10-14), despite the contradictions between them.

Yet the Jewish political tradition’s openness to interpretation doesn’t mean it casts no light on the voice. Obviously, that tradition was shaped by circumstances vastly different from our own. But if there is a constant in the sages’ writings, especially as they responded to exile, it is the condemnation of laws that give a preference to one group over others.

Underpinning those writings was Jeremiah’s injunction to the Babylonian exiles to ‘‘seek the peace of the city to which I have exiled you and pray to the Lord in its behalf; for in the peace thereof you shall have peace” – an injunction reflected in the ruling that ‘‘the law of the kingdom is law”.

But discriminatory dictates, it was repeatedly held, were not laws: they were merely arbitrary commands. “The king”, said the medieval commentator Hayyim Or Zaru’a, “has no authority to grant an arrangement” that favours some and disfavours others, a view endorsed by the pre-eminent Talmudic sage, Moses Maimonides.

Mirroring the sages’ rejection of discrimination was the demand, advanced by generation after generation of Jews, for political equality. Throughout the centuries of dispersion and persecution, the community’s attachment to its heritage remained unwavering; but the politics of Judaism was never a politics of difference. Rather, drawing on Genesis’s teaching that “in His image did God create man”, it prefigured liberal democracy’s politics of equal dignity, and hence of equal rights, for all citizens.

It was on that basis France’s Jews celebrated Count Stanislas de Clermont Tonnerre’s famous address to the National Assembly, on December 23, 1789, in which he recommended granting Jews “everything as individuals, nothing as a nation”.

Jews were, in other words, to have exactly the same rights as other citizens, with no additional advantages or burdens.

And it was precisely because of the overwhelming importance the Jewish community placed on political equality that Napoleon’s attempt to create a Jewish political body evoked its fierce condemnation.

Savaged by Karl Marx in his vilely anti-Semitic pamphlet on The Jewish Question (1844), the Jewish community’s commitment to political equality was not a repudiation of its distinctive heritage; rather, it reflected the conviction, which became increasingly pronounced in subsequent decades, that political equality was indispensable if diverse cultural traditions were to peaceably coexist.

Nothing more strongly confirmed that conviction among Jewish thinkers than the experience, in the First World War’s aftermath, with the “Minorities Treaties”. Imposed through the Versailles treaty system, those treaties required the “successor states” that emerged from the European land empires’ collapse to provide ethnic minorities with collective rights of political organisation and representation.

Everywhere, the effects were disastrous. The problem was not that the treaties were ineffective; it was that they all too effectively crystallised, entrenched and sharpened the differences they were intended to overcome. By elevating descent into a primary, highly visible source of political cleavage – and encouraging aggressive minorities, notably central Europe’s ethnic Germans, to make ever escalating demands – they eliminated any scope for mutual accommodation.

Originally, some Jewish leaders supported the treaties, although Turkey’s Jewish community famously rejected the privileges they offered, insisting that “as Turkey is now a free Republic, guaranteeing equal citizenship to all, special minority rights (serve) no purpose”.

But by the end of World War II, all the major Jewish thinkers – from Hannah Arendt to René Cassin (the brilliant French jurist who largely drafted the UN’s Universal Declaration of Human Rights) – recognised the immense damage special political privileges caused to liberal democracy’s fabric. The “peace of the city”, which it was Jews’ duty to promote, lay in steadily expanding the circle of equal citizenship, not in contracting it through special privileges, no matter how well-intentioned they might be.

It is true that many Jewish liberals, particularly in the English-speaking countries, endorsed “affirmative action” as a temporary measure aimed at righting the legacy of historical wrongs.

But it was always apparent that there was an unbridgeable gulf between those measures and creating political privileges whose goal was not to bring polities back to an eventual “difference-blind” space but to cement political separateness – not just now but forever.

All that could do, as Michael Walzer, a leading contemporary scholar of the Jewish political tradition, put it, was fracture the sense of a “common moral standpoint” on which every society must, in the end, rest.

It is a pity so many of Australia’s most prominent Jewish leaders have entirely forgotten that lesson. After all, no one could sensibly deny that the voice would grant one group of Australian citizens, and one group alone, a constitutionally guaranteed political entitlement; that it would do so on the basis of race should make it even more unacceptable for those of us whose families have borne racism’s horrors at such devastating cost.

But there is another lesson those leaders forget. If Bet Hillel’s views finally prevailed, it was not because they were more penetrating: as we know from Yevamot (a key tractate in the Babylonian Talmud), Bet Shammai’s were superior.

It was because Bet Hillel’s sages actually listened to Bet Shammai’s arguments and addressed them – not with ad hominem attacks or emotive appeals but through reason.

That Bet Hillel frequently adjusted its views, taking credible objections on board, did not indicate its logic couldn’t be trusted; to the contrary, the sages emphasised, it proved its logic was ultimately more dependable. Had Mark Leibler, and the entire Yes camp, heeded our sages’ advice, they might not be in such a mess.

Henry Ergas