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.