Democracy and Halakha: Uneasy bedfellows?? Berakhot 37 and 38

In another example of the fractious relations amongst the early Tannaim, we find Rabbi Akiva getting himself into trouble today, over the correct bracha to say after eating dates:

Once R. Gamaliel and the elders were reclining in an upper chamber in Jericho, and dates  were brought in and they ate, and R. Gamaliel gave permission to R. Akiva to say grace. R. Akiva said quickly the one blessing which includes three [as opposed to the full Grace after Meals, which would have been Rabban Gamliel’s prescription].

Said R. Gamaliel to him: Akiva, how long will you poke your head into quarrels?

He replied: Master, although you say this way and your colleagues say the other way, you have taught us, master, that where an individual joins issue with the majority, the halakha is determined by the majority.

The halakha is determined by the majority.  This is an important principle, not least because it seems to suggest that there is a democratic core in the foundations of halakhic development.

This sounds very promising, we cherish democracy as one of our highest values.  It very much accords with our sensibility to imagine that the halakha shares these values.

But is it really that straightforward?  The halakha is supposed to represent some sort of higher, Divine authority; how can that be squared with a democratic mindset wherein the will of the people, of the sometimes deeply uneducated masses, is the ultimate voice?

It’s a tricky one.

There are problems with democracy, and we would do well not to fall into what Raymond Geuss in History and Illusion in Politics calls the ‘narcissistically adulatory self-description’ (p123) that democracies are vulnerable to.  The mere utterance of the word ‘democratic’ is sometimes thought to sway an argument, and we should not be susceptible to such superficial thinking.  If democracy is great, we need to know why: what is it about the system that makes it so desirable?

The oft cited problem with democracy is that it appears to place all opinions on an equal footing.  Experts are given the same vote as the simple minded, the virtuous are given the same vote as the rogue.  It seems to lack any moral or pragmatic guiding principle; it seems to grant self-determination and self expression domineering priority over what might be right and just.

But no sooner do we state the problem in these terms than we quickly realise that this objection itself raises some thorny problems.  On occasion it might be easy to say who is the expert and who the fool, who the saint and who the sinner.  But can we really be sure to always detect these things, and to be right about them?  And who are the ‘we’ that is doing this detecting?  Haven’t we slipped in, via the backdoor,  some kind of ‘reliable ruling body’ who will take it upon themselves to ensure that the good is always fairly and justly selected?

There is no way around this, we might like to think that some of the time we can easily call upon the experts, but there is no surefire way to ensure that their expertise, their knowledge, does not become a form of oppressive tyranny.

No, we soon arrive at the ultimate defence of democracy, at the sense in which, for all its flaws, it is better than the alternatives.  In a democracy, the will of the people emerges, the truth of their desire becomes manifest.

To watch a democracy unfold is to watch a society organically grow, to see a culture find its roots, to see a people find themselves through the values and aspirations they endorse.

Democracy, as John Dewey point out, embodies the spirit of experimentation, it allows a community to work things out for itself, even if that means sometimes getting things wrong.

We may still find ourselves bothered by the idea that the masses sometimes get whipped up into hysteria, that they may succumb to the temptations of evil, that they may elect a Hitler.  Why are these risks worth taking?  Why should we have so much faith in humanity?

Why indeed.

It is never easy to say why having faith in humanity is a good idea, but we should be clear that when we endorse democracy, especially its liberal varieties, that we are doing precisely that.  We are expressing faith in the ultimate goodness and wisdom of the people, we are saying that no one is better equipped to establish a just and good society than they are.

To value democracy is to make a huge leap of faith.

And, talking slightly differently, it is not just the people that we are expressing faith in, it is goodness itself.  We are saying that the good can only remain hidden and oppressed for so long, that the reign of darkness and indifference must ultimately exhaust itself and burn out.

Getting slightly Hegelian, we are saying that history is a grand narrative from which truth and beauty gradually emerge, that the world of brute actuality actually, over time,  discloses the ideals which were ultimately always driving it.

Democracy should never bore us, it should always be fascinating.  Human nature and human needs are always being re-imagined and reconsidered, and the democratic polity is the stage upon which this drama is played out.

Returning to our Tannaim, Rabban Gamliel, as we know, is the aristocratic who dares to think he knows better than the people.  He thinks they should spend more time praying in the evening and he believes they should more regularly enact the longer form of grace after meals.  There may be some truth to his opinions: in an ideal world, if we were men and women of leisure, these would doubtless be excellent recommendations.

But we do not yet inhabit that Messianic ideal, we are not as free from the worries of the world as we might like to be, and we must with difficulty and regret tailor a more limited framework for our spiritual sustenance.

As a visionary, Rabban Gamliel may have a lot to teach us.  As a legislator, however,  his noble intentions threaten to become tyrannical.  Removed from the soil of the people, from the hierarchy of priorities which they actually can and do endorse, his prescriptions lose sight of that balanced golden mean, they become a source of unnecessary guilt and oppression.

This is all very well, but are we really saying that the Divine will, the Halakha, is expressed and articulated through the will of the people, that God is somehow bound by democracy?

In a word, yes.

As the heavenly voice famously says in closing the story of the Oven of Akhnai, (Bava Metzia 59b), ‘Nitzchuni Banai’, ‘My sons have defeated Me’.  God himself does not have the final word in halakha, the people do.

Everything we said above about democracy should help us to better understand this, we essentially portrayed democracy as a form of ongoing revelation, an everyday continuation of the events that transpired in the Exodus from Egypt and which culminated at Sinai.  In Avot 6:2 we have the idea that a heavenly voice continues to speak forth every day from Sinai; perhaps it is in democracy that it is nowadays making itself heard.

Again, it will stumble and fall, there will be mistakes.  But, importantly, we have faith that it will get there, that something Divine and Beautiful will ultimately be revealed.

Rabbi Akiva was right to ‘stick his head into quarrels’, the humble shepherd was right to challenge the Prince.  In doing so he was reminding us that there is something delicate and alive in the unfolding of halakha, that for the Divine to be truly realised in this world, the voice of the majority must be given its due heed.

This is not to say that we must take the results of democracy uncritically: we must be constantly weighing them up against what we already know of the good and the true, we must be trying to educate and influence from that which moves and inspires us.  But the book of knowledge can never be closed, the written Torah can never prosper without its living, unfolding, oral counterpart.  We may be required to teach, but we must also retain the humility to learn.  As Ben Zoma points out, to be wise is to learn from every man, not just from the experts (Avot 4:1).

May the democratic impulse in halakha act to strengthen our faith in humanity, and may it also help us retain humility in our quest for knowledge, to remind us that truth is always emerging, that it is never just there for the taking.

When the Rabbis turned Marxist… Berakhot 27 and 28a

There’s a phenomenal story today about the deposing of Rabban Gamliel II, the successor of Rabbi Johanan ben Zakkai at Yavneh.

The story begins prosaically enough, there is a debate as to whether the evening service, Ma’ariv, is obligatory or optional.  Rabban Gamliel holds it is obligatory, Rabbi Yehoshua believes that it is optional.  We are not yet given any insight into what lies behind this debate, we are left to ponder its significance.

A certain student asks Rabban Gamliel about this dispute, and receives the following response:

Wait until the shield bearers enter the Bet Midrash and we will see.

It’s a striking comment, describing the process of study in language both military and combative, hinting at an aggression and exclusivity in his approach to the Academy.

Now, one of Gamliel’s achievements was to bring some harmony between the schools of Hillel and Shammai, and it may well have been his forceful approach which made this possible.  But perhaps that approach had run out of steam, perhaps the balance between openness and intolerance had tilted too far by now.

This seems to have been the feeling of the Rabbis of the time.  After Rabban Gamliel humiliates Rabbi Yehoshua by making him stand for an extended period, there is an outbreak of protest.  It is too much, the scholars say, this is the third time he has humiliated Rabbi Yehoshua, and it is no longer acceptable.  This man cannot be our leader, he cannot dictate the tone of the Torah,  the flavour of the culture which must sustain the Jews in exile.

The Torah, they seem to say, is not about victor and defeated, it is not about the exercising of power.  Perhaps in bringing harmony between the schools of Hillel and Shammai, too much of Hillel’s basic humanitarian sensitivity has been lost.  If we detect that the institution of learning is being guided by people out of touch with its spirit, then how are we to maintain faith in the Divine power of the Law?  The Law can easily be corrupted, it can become an outlet for the expression of tyranny.

So they depose him.

They discuss who should take over, ruling out Rabbi Yehoshua on account of his involvement, and Rabbi Akiva because his lack of lineage might enable Rabban Gamliel to smear his reputation.  We get from this a feel of quite how fraught the political atmosphere is, Rabban Gamliel had his Josh Lyman waiting in the wings, there would be no holds barred when it was time to attack.

They opt to give the position to Rabbi Elazar ben Azaryah, on account of his wisdom, his lineage and his wealth.  Again, we are dealing with realpolitik here, we are not quite in the business of canonizing saints.

He consults with his wife, who suggests that it may be something of a poisoned chalice, that tomorrow they may turn their outrage towards him.  It may not be the prudent choice.

I love his response:

Let a man use an expensive cup for one day even if it be broken the next.

He’s saying that sometimes we just have to make the most of the opportunities in front of us, to enjoy them, and not to worry too much about the possibility that we may lose them.

Then, famously, his hair turns white before its time.

We then get a feel for the revolution that is taking place in the aftermath of Rabban Gamliel’s ejection:

They dismissed the guard at the door and permission was granted to the students to enter.

The guard??  Again, the Academy has ceased to be a democratic institution for furthering the wisdom of the people, for answering their needs with the Divine spirit.  It has become an exclusive club, a gentlemen’s refuge, the preserve of an aristocratic elite.

And what were his criteria for rejecting people:

Rabban Gamliel would proclaim and say: Any student whose inside, his thoughts and feelings, are not like his outside, i.e., his conduct and his character traits are lacking, will not enter the study hall.

Now this relation between the inner and the outer is a huge topic on its own; we touched on it somewhat yesterday.  In the context of this story, however, it seems that it’s a classic expression of upper class snobbery, ‘His manners aren’t terribly well polished, he can’t possibly have anything interesting to say’.  Here in England, there is a wonderful tradition of this subtle and disguised cruelty, of the ability to maintain power with the most delicate insults and refined barbs.

And what was the upshot of this opening up, did the masses indeed feel they wanted to contribute to the growth of this new culture of learning?

Yes, yes and yes:

On that day several benches were added to the study hall to accommodate the numerous students. Rabbi Yoĥanan said: Abba Yosef ben Dostai and the Rabbis disputed this matter. One said: Four hundred benches were added to the study hall. And one said: Seven hundred benches were added to the study hall.

Rabban Gamliel, rightly, felt bad about this, and the dream which eased his mind was nothing but illusory wish fulfilment, as the Talmud dryly observes.

After Rabbi Yehoshua outwits him in another debate, this time, fittingly, about the extent to which we should be open to converts, Rabban Gamliel decides he must visit Rabbi Yehoshua’s home and apologise.

This is where it gets really interesting.

When he reached Rabbi Yehoshua’s house, he saw that the walls of his house were black. Rabban Gamliel said to Rabbi Yehoshua in wonderment: From the walls of your house it is apparent that you are a blacksmith, [as until then he had no idea that Rabbi Yehoshua was forced to engage in that arduous trade in order to make a living].

Rabbi Yehoshua said to him: Woe unto this generation that you are its leader!  For you are unaware of the difficulties of Torah scholars, of what they must do to make a living and how they struggle just to feed themselves.

Woe unto this generation indeed!  What an indictment this is:  “You Rabban Gamliel have not got the faintest idea of what it really means to live as a Torah scholar, to balance the challenges of working in the real world and finding wisdom and practice to get you through the day.  The Torah you profess to teach is not hard won wisdom, it is not insight drawn out of the burning crucible of real life.  It is mendacious and decadent ideology, it is a culture born of the luxury of the aristocracy, of people who do not get their hands dirty.”

And now we get the meaning of the dispute about Ma’ariv.  We can hear Rabbi Yehoshua continuing:

You profess to tell me that the Ma’ariv prayer is an obligation!  Perhaps in your easy life you need further obligation, perhaps you need to restrain your energies and instincts.  I am a working man, and when I come home from work and take care of all my other responsibilities, there is simply not always the time nor energy left to say Ma’ariv.  I understand that it is a ‘reshut’, a permission, a privilege, and for the most part I manage to use that privilege, I endeavour to commune with my Maker.  But on the occasions when I cannot manage it, and more than that, on the occasions when the honest working people amongst the Jews cannot manage it, they do not need you, Gamliel, making them feel bad, adding extra guilt into their already burdensome lives.  You have gone too far Gamliel, you have lost touch with reality, you have turned from leader into oppressor, the guilt of your privilege has soured your love for your people.”

Rabban Gamliel accepts the rebuke.  He realises that he had lost his way, and that he must make some serious changes if he is to return.  He begs Rabbi Yehoshua’s forgiveness, who finally gives it, albeit, ironically, only on the merit of Rabban Gamliel’s father.

The study hall is reluctant to return Rabban Gamliel to his position, particularly Rabbi Akiva, but eventually, at Rabbi Yehoshua’s insistence, they do so.  We can only assume that he genuinely did have the mark of greatness, otherwise it’s hard to see why they would give him another chance.

So the debate, once again, is about the spirit of the Law, of the dangers in it become alienated and oppressive, of it losing contact with the honest soil in which it must grow.  Rabbi Yeshoshua is its defendant, arguing for its democratic character in much the same way as when he tells the Bat Kol  ‘Lo Bashamayim Hi’, ‘It is no longer for the Heavens to decide’ (Bava Metzia 59b).

That said, we might have thought there was something crass about opening up this debate, about reducing the arguments of the Tannaim to Marxist considerations about class and integrity, about raising the concerns of the workers.  Not so, the Talmud tells us as a postscript, the student who initiated this debate was also the founder of the mystical tradition in Judaism, Rabbi Shimon bar Yohai.  I read into this that even the most esoteric mysticism must always grow out of honest proletarian soil, that when it becomes yeasty and indulgent it loses its power to talk to us.

May our Torah always be grounded, and may we never rush to judge the practice of those who do an honest day’s work.