MISHPATIM: Jewish Society – An Exalted Democracy!

According to the majority shall the matter be decided  (Exod. 23:2)

I once heard a prominent Jewish judge and communal leader assert that “democracy is not a feature of the Judaeo-Christian ethic”.

I shall leave Christianity to the Christians. As far as Judaism is concerned, “not so, your Honour!”

Yet one must concede that the good judge’s perception is shared by many Jews.

The definition of democracy according to Webster’s is “the rule of the majority”   Social and political philosopher Sir Karl Popper defines it, in contrast to dictatorship or tyranny, as a state of affairs whereby the populace has the opportunity to control the election of its leaders (and hence the ideological direction of its society) without the need for revolution.

True enough, Israel’s first leader, Moses, was Divinely chosen. But at Sinai, the nation of Israel under that leader was given an historic choice – to accept G-D’s Torah or reject it. In last week’s sidra we glimpsed Moses’ shuttle-diplomacy as he commuted between the foot of the mountain and its summit, bringing the words of the people to G-D and vice-versa. The endgame was the passionate  eve-of-revelation national avowal na’aseh ve-nishma. “We accept it all without preconditions, prior to understanding all its details” (Exod. 24:7).

The assent of the populace was crucial. However, once the Torah of the Eternal One had been accepted nationally, it became constitutionally binding.. As individuals we would continue to have free choice – “Behold I have set before you today life/good and death/evil …that you may choose life!” (Deut 30:15, 19) . But as a nation we are blessedly privileged to be bound by a sacred constitution.

This is similar in essence to secular societies today.  Witness the veneration in which the First Amendment in today’s USA is held with the personal liberties it espouses being widely regarded as unjettisonable. If America would undermine these fundamentals it would cease to be America, “land of the free”..

Similarly if, post-Sinai, the nation of Israel would vote to abrogate the Torah it would be destroying the very constitution by dint of which it became a nation. In so doing we would cease to be the nation of Israel.

There are limits to any democracy. No Australian government would honour the will of the people to abolish income tax or council rates because without them the economic infrastructure of Australian society could not be maintained.. Similarly, absent the upholding of Torah in all its facets, Jewish society loses its raison d’etre.

Two vignettes from the Talmud aptly illustrate the strength of democracy in Judaism. In the first (recorded in Berachot 27b), Rabban Gamaliel, the rich and influential nasi (president) of the Sanhedrin, treats a senior rabbi of his “cabinet” disparagingly and is deposed by the people, reinstated only after he expresses sincere remorse.. (Parliaments of the free world please note!)

In the second, which always sends a tremor through me when I encounter it (Bava Metsi’a 59b), R’ Eliezer passionately argues his view about the ritual status of a type of oven with his colleagues and ends up honing his knowledge of esoteric wisdom to marshal certain supernatural phenomena in his support. Eventually he summons a bat kol, a Heavenly voice, which proclaims “What issue do you rabbis have with R’ Eliezer whom the Halacha follows in all places?”  At which R’ Yehoshua rises and thunders: Lo ba-shamayim hi (Deut. 30:12). “The Torah is no longer in Heaven! We no longer pay attention to heavenly voices which fly in the face of the words of that very Torah given to man on Sinai which declares acharei rabim le-hatot,, after the majority shall a matter of judgement be decided!”

Even a bat kol, a heavenly voice, cannot be allowed to undermine the democratic principles upon which Torah legislation is built.

Indeed Jewish society isn’t just any democracy – it is an exalted one