Yehuda Halper
Professor of Jewish Philosophy at Bar Ilan University

Orthodox Judaism and the Attack on Regulation

Maimonides and Montesquieu

In today’s Orthodox Judaism, all regulation is self-regulation, and all review is self-review.

Israel’s New Right, now in power for nine months, has revealed itself to have two clear agendas: one is to support orthodox Judaism, in its varied political forms, and the other is to get rid of any kind of institutional regulation and review, from judicial review to the Israel Medicine Association and the internal review process of Yad Vashem. While the religious agenda is unique to Israel, the latter agenda is echoed in rising worldwide movements we find, e.g., in Hungary, Poland, Italy, Finland, Le Pen’s France, and Trump’s America. I am old enough to remember when the big political debate in the US was whether regulation and review should be through private organizations or government agencies – and no one would dare question the principle of judicial review. Now, the question seems to be whether any industry or sector should be regulated at all and whether any checks at all – including judicial review – should be placed on a ruling coalition. The European examples have clearly shown that among the first groups to lose their protections are the Jews. Why, then, would orthodox Jews tie their fate to this movement? Does orthodoxy clash with regulation and review?

In fact, since the Middle Ages, Judaism has never incorporated the kinds of institutional checks and balances that we formed the basis of regulations and review. Since the rise of Moses Maimonides’ Mishneh Torah in 1177 CE, Judaism has enshrined self-regulation and self-review as the basis of Jewish religious practice, generally in opposition to institutionalized checks and balances. Eleven years earlier, the then 30-year old Maimonides described the importance of achieving balance among different ethical tendencies and character traits in his Commentary on Avot. This tendency was modeled on medieval medical practice which encouraged a patient to seek balance in diet, exercise, sex, and defecation to avoid sickness (once the patient got sick, medieval medicine was famously limited). Patients could consult doctors, but were primarily responsible for their own health. Maimonides’ Mishneh Torah described Jewish law in a similar vein, only with the view that it was not only the body that needed a regimen of health, but also the soul. People could consult a Sage for advice on how to maintain this regimen, but it was ultimately up to them to do so. As for the Sages themselves, they had to regulate themselves constantly. Indeed, besides the Sage’s  knowledge of Jewish Law, it is his exemplary ability to regulate his body and soul that allows him to judge others and take a leadership role in the Jewish community. Maimonides notes that criticism of the Sage (except for argument about the Law) is expressly forbidden; indeed any criticism of others can be considered lashon hara’ or vindictiveness, both of which are forbidden. What emerges from Maimonides’ Mishneh Torah, then, is a communal system – emphatically not a full political system – which is entirely based on self-regulation, and which inspires trust through the exemplary character of that self regulation on the part of the Sage.

Two generations after Maimonides’ Mishneh Torah began to make inroads into Southern Europe, the Holy Roman Emperor Frederick II introduced another kind of revolution to Southern Italy through his legal code, Liber Augustalis. Among the many reforms introduced by this code were new requirements for medical doctors. These requirements included 8 years of University level study, 3 of which were dedicated to Aristotelian logic, before taking an examination of medical knowledge administered by both medical masters and officials and judges. This added two checks on medicine. One was that doctors were now required to have non-medical knowledge of logic, thereby demonstrating their ability to think scientifically. The other was that the University system was checked by an independent board. The first check also guaranteed that the University had sufficient resources to teach scientific reasoning as such, and the second meant that they and the University itself had to adhere to a standard set outside of the University.

Thus began the system of internal and external, independent and government reviews and regulations that came to characterize modern institutions. These regulations increased over time and spread to an increasingly large number of fields. They undoubtedly had a major impact on John Locke, himself a doctor who first wrote medical and scientific treatises before turning to the political treatises, in which he outlined his notion of the separation of powers (Second Treatise of Government 12-13). These notions of regulations and checks do not assume that the leaders of institutions are bad or incapable of self-regulation; they just admit the possibility that such a person could arise in such a situation or that a leadership role could itself be corrupting.

As early as 1232, we have evidence of Jews planning their educational curricula so as to conform to the requirements of the Liber Augustalis. Yet, we have no evidence of internal or cross-institutional regulation of such learning. In general, there is dearth of internal checks and balances in Jewish communal organization. What we find instead is reliance on the character of the communal leaders, usually Rabbis, that is reliance on their ability to self-regulate in accordance with the Jewish tradition. To this day, this method of determining value is still evident among orthodox Jews, as they recommend high schools and Yeshibot to each other based on the reputed quality of their leading Rabbis, and denigrate the ability of any outside regulating agency to review those schools.

It was the advent of Zionism that brought the first regulating boards and true review processes to Jewish institutions. This has been one of the greatest benefits of Zionism and what has truly made Israel a modern nation. I do not mean to denigrate the idea that self-regulation according to Jewish law as self-improvement. However, it should not substitute for real checks and balances provided by Montesquieu’s tripartite division of government into legislative, executive, and judicial branches that operate independently.

About the Author
Yehuda Halper is associate professor in the department of Jewish Philosophy at Bar Ilan University. He directs the Israel Science Foundation, Research Grant: "Samuel Ibn Tibbon's Explanation of Foreign Terms and the Foundations of Philosophy in Hebrew." His 2021 book, Jewish Socratic Questions in an Age without Plato won the Goldstein-Goren book award for best book in Jewish Thought 2019-2021.
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