Religion and the Legitimate State

The idea of a social contract first makes its appearance in Plato’s Republic . Men are naturally prone to commit injustice, and thus injustice is naturally good, Glaucon, one of Socrates’ interlocutors, suggests. They would like to commit injustice constantly toward one another and not have to pay a price for it. But because they typically do have to pay a price, they decide “to set down a compact among themselves neither to do injustice nor to suffer it.”

The social contract on which justice, law, and political society are based begins, on this account, in what the poet William Butler Yeats called “the foul rag and bone shop of the heart.” Men, who are naturally evil, jointly decide to curb their barbarity in order to minimize their own risk. Plato, of course, does not accept this explanation of the nature of justice or of the origins of political society. He rejects the low view of justice that it assumes, as well as the sufficiency of contractarianism as an account of political origins.

There is, however, another source for the idea of a social contract, and this one has had far more influence on the development of the idea in the West. That source is the Bible. One of the Bible’s central concepts is covenant, which has both theological and political ramifications. God enters into covenant with all of mankind after the flood, with Abraham and his descendants, and with the ‘adat bnei yisrael , the assembly of Israel, at Sinai. The covenant”an eternal, binding pact”is initiated by God and assented to by humans. God offers his providence and fidelity, while his human covenant partner consents to love and be loyal to the Lord.

The covenant, particularly the Sinai covenant, founds an enduring “vertical” relationship with the divine”and it initiates a proper “horizontal” human political society as well. All of the Israelites who enter into covenant with God retain their fundamental equality vis- -vis one another as bnei brit , covenant partners. Their relations are founded on consent. The goal of their community is liberty: the liberty to worship God and implement his law as the law of their res publica . Even when kingship emerges, the king is drawn into a covenantal relation with God but also chosen by the people and rules as a constitutional monarch, his powers delimited by the covenantal agreement, the Torah.

Biblical covenantalism retained great power among the Jews, who often conceived of their diaspora communities as founded on the agreement and consent of their members. Covenantalism resurfaced among Christians in the Reformation, when Calvinists and other Reformed groups adopted covenanting as the preferred means of founding and legitimating political communities (think, for example, of the Mayflower Compact, or Plymouth Combination as it was originally called). The secularization of the Reformed Protestant concept of covenanting led to social-contract theory among such philosophers as Hobbes, Locke, and Spinoza, where it served purely immanent political ends. The theological-political nexus of biblical covenantalism was severed in favor of a secular, political account of the founding of the ideal form of regime and the philosophical derivation of its moral and political norms.

In his ambitious new book, The Jewish Social Contract , David Novak restores the nexus between theology and politics implicit in covenantalism and social contract theory. As in his earlier study of Jewish political theology, Covenantal Rights , Novak writes both descriptively and normatively. In Covenantal Rights , he provided a comprehensive descriptive account of Jewish social ethics within a ramified framework of rights. In The Jewish Social Contract , he describes how Jewish political experience and legal tradition can be understood in terms of coven anting”and subsequently in terms of social contracts with other communities.

In both instances, he does not merely transpose modern, secular interpretive frameworks onto Jewish, especially rabbinic, texts. Rather”and here is the ambitious part of his project”he argues for the inadequacy of the prevailing secular frameworks and for their reconstitution along theologically informed lines. In Covenantal Rights , he argued that the modern narrowing of rights-claims”first to individuals and then to groups”provides no sure way to reconcile conflicts of rights, so construed. Only a larger context involving God as a holder and guarantor of rights opens a horizon where reconciliation of conflicting claims, true justice, is conceivable. Now in The Jewish Social Contract , he argues that the aspirations of modern democratic republics, founded on social contracts, can only be secured when those contracts originate from agreements between more primal communities founded on covenant. That is, Jews and Christians, the two communities whose origins lie in covenant with the God of Israel, unlike others have experienced what genuine social trust is like”and thus have a genuine foretaste of the Kingdom of God. Their experience of trust, as well as of moral accountability to a power beyond the state, is the necessary warrant for the social trust required to establish a social contract and to sustain the moral responsibility required for its maintenance.

The nub of Novak’s argument is that Glaucon and Hobbes are wrong: Contracting cannot be based on fretful calculation alone. Humans need to have experiences of trust in primary communities before they can feel that it is reasonable to trust the strangers with whom they would enter into a social contract. For Novak, such trust can only be experienced in a community founded on revelation, for that is where promise-keeping reaches its telos: God’s promises of providence and ultimate justice, already experienced proleptically in the Jewish community and the Church, can be trusted.

The modern democratic state should thus be understood as a community of communities, a limited, properly secular enterprise electively stitched together by the primary, revelatory communities that compose it. Those primary communities, the Jewish people and the Church, with their transcendent origins and metaphysical norms of justice, know themselves to be in covenant with God. For their members, belonging to these communities far outweighs the value of belonging to the state, a mere human, contractual artifact. Only because Jews and Christians know themselves to be citizens of the Kingdom of God first, and national citizens second, can modern democracies really protect the rights”the first of which is religious liberty”of their citizens.

The presence of covenanted communities in the midst of the contractual state ensures that the state government will respect its bounds. When the modern state divinizes itself, as has often happened over the past two centuries, all restraint is lost. Jews and Christians can recognize the limited state, so understood, as a legitimate secular construct. They can be loyal and patriotic to it; they can even sacrifice their lives for it. But they will always, as faithful Jews and Christians, recognize its immanent and confected origins and therefore always deflate its pseudo-religious pretensions. Although they are not the only ones who can make good citizens”Novak has an ingenious argument for how atheists, at least in their public role as citizens, are functional believers”they, in a sense, make the best citizens because they, by their mere presence, remind the state of its origins and limits.

Novak’s view is reminiscent of the classic of Reformed Protestant political theory, Johannes Althusius’ Politica . Althusius held that all human associations, from the family to the Holy Roman Empire, were based on compacts ( pacta ). A true covenantal or federal (from foedus , “covenant”) thinker, he envisioned society, both in its pre-political and its fully political manifestations, as a product of negotiated agreements at all levels. Sovereignty was shared and distributed across multiple nodes; power was ground-up; rulers were basically administrators.

This comprehensive, biblical-republican grand design basically lost out in the seventeenth century to Jean Bodin’s statist model, only to be rediscovered in the twentieth century as a precursor to the political theory of European Union. For both Althusius and Novak, the political community is a community of communities; persons remain members of primary units or primordial groups, deriving their self-understanding and worth from their participation in other orders. Althusius also gets to his federal vision through drawing out the implications of biblical covenanting. Unlike Novak, however, he is also indebted to Aristotle. Humans are naturally political, which is to say that they need not learn trust through supernatural means. They learn to trust through their experience of family and friendship.

It is odd, to say the least, that a sixteenth-century Protestant thinker, working in a densely religious culture, should give more play to naturalism in politics than a twenty-first-century thinker. Althusius has no need to advert to revelation in his account of political origins; he references the gospels only in the context of how covenanters should treat one another morally. Novak, by contrast, deprives the secular-liberal project of any basis in natural human sociality: The state needs the ontology of covenant.

There has always been a question, in social-contract theory, as to whether the story of the contract is a descriptive, historical account of origins or a prescriptive, normative account of values. There is no question that in John Rawls, for example, it functions strictly as a normative model with no claims to historical factuality. It is less clear in John Locke, who, in his defense of the probable historicity of contract, cites the Bible as the only clear, factual case.

For David Novak, the matter seems confused. He sometimes writes as if he is describing, out of the wealth of Jewish sources, actual instances of contracting. Sometimes he is describing the propensity of historic Jewish thinkers to view relations in contractual terms. At other times he is clearly recommending the social contract as the optimal perspective on political reality. But is it? If nations have not really been founded by social contracts”if the historical claim is just a fiction”does the normative claim remain compelling? Certainly, if there was no historical social contract we can, as Rawls does, still use the contract model as a powerful normative tool. But is there any reason we have to? Novak seems to assume that, in a democracy, this is the best normative-conceptual framework we have. Surely more of an argument is required at this point.

Moreover, a legitimate state may not be as limited as Novak’s covenantal-contractual model stipulates. On his account, a state must always respect the integrity of pre-political, or at least of pre-state, institutions such as the family, which are grounded”in the case of Jewish or Christian marriage”on revealed law. But democratic states routinely and legitimately intervene to remove abused children from their parents’households or override the free-exercise rights of, for example, Christian Science parents on behalf of their children. Although we are inclined to draw the boundaries of religious liberty quite broadly, we recognize them to be limited by legitimate public interests, which the state represents. Althusius’ account made sense in his own time, an era of city republics, principalities, kingdoms and a thin imperial overlay. But in an era of the highly centralized welfare state, Novak’s account of power (if that is the word for it”he actually says very little about power) delegated by enduring primordial communities makes much less sense.

In early modern social-contract thought, the individuals (in the British tradition) or the groups (in the Althusian, German tradition) who were parties to the contract retained whatever rights or power they did not alienate to the state. Their retention of power effectively limited the state. In Novak’s view, the presence of Jews and Christians, or, more forcefully, their democratic activism on behalf of their abiding, divinely commissioned interests, limits the state. But this is putting the cart before the horse. The Framers, in the American case, were political men who constructed a limited, rights-respecting republic for political reasons. They accepted the imperative of religious liberty and eventually worked out a synthesis to protect it but they did so as political founders, not as religious contractarians. Furthermore, the groups that they knew would limit federal power and retain pre-contractual rights were the individual states, not the primordial religious communities, and these states are no less political than the national government. In short, the complex relation between religious communities and the state, both in historical and in normative terms, cannot be easily captured or definitively described by the ambiguous concept of social contract.

What David Novak’s account in The Jewish Social Contract provides is a rationale for how orthodox religious people might accept the legitimacy of the democratic, delimited secular orders in which they live. Whether it can move our reflection on the grounds of democratic order, the true ambition of the book, is more open to question.

Alan Mittleman is director of the Louis Finkelstein Institute for Religious and Social Studies and professor of Jewish philosophy at the Jewish Theological Seminary in New York.