Yehuda Cohen

Table of Contents:

Preliminary:

Logic and Emotion (An Anthropological Perspective):

Debunking Myths (A View of the West):

Who is Supreme?

Chapter 1: The Basis of Rights
Sie'yes’ Theory:

Choosing Between Rights and Benefits:

Man’s Natural Tendencies

Eradicating Emotion:

Emotion and Logic:

Man’s Inclination to Devise Underlying Principles:

Geertz and Anthropological Studies:

Chapter 2. Three Periods in the Development of Morality
The Primitive Age:

The Age of Religion:

The Age of Secularism:

Chapter 3: The Moral Helm is Transferred From God to Man

Utilitarianism and Law:

Liberal Individualism:

Modern Communitarians and Their Criticism of Rawls

Ascendancy of the Community and the Social Contract vs. Ascendancy of the Individual and Liberal Individualism:

Chapter 4: Jewish Morality
An Edifying Jewish World View and the Laws of the State of Israel
An In Depth Examination of the Jewish Perspective:

Western views vs. Jewish Views:

Chapter 5: Synopsis

Chapter 6: A General Perspective


Preliminary:

Logic and Emotion (An Anthropological Perspective):

The philosophical ideas presented in this part of the book are the fruits of reflection and contemplation. These ideas were omitted by anthropological science as is reflected in the words of Clifford Geertz,[1] a well-known anthropologist who wrote, regarding the anthropological subjects he had studied, “I never successfully got to the bottom of anything I ever wrote about, neither in my essays here nor elsewhere.”

In contrast to Geertz’s approach, this book seeks to construct a theoretical understanding of human group behavior within the framework of broader human societies. There are many questions that have yet to be asked and some that have been asked but yet to be answered in philosophical literature, such as: What characteristics are shared by all modern Western moral theories and what distinguishes them from moral codes that are based on belief in God? Why did human beings look towards worlds beyond the reality they knew for forces that ruled and could rule over their societies? Why did modern man, after usurping God’s reins over moral and social behavior, base new rules of social and moral behavior on reason rather than on emotion? What differences are there between moral codes predicated on logic and those predicated on emotion, and what is at the root of their differences? Does man need to believe in something that is beyond his reality and that is not verifiable, and how does he acquire such faith? Can man exist without such faith (defined in the previous section as belief in God)? What connection is there between all these questions and the question that has engaged the attentions of the legal world and political circles in Israel regarding the Jewishness of the State of Israel? These basic questions receive short shrift in academic scholarship of the 20th century. Geertz, in his book (p.44), concedes that the prevalent view during the Enlightenment according to which man’s civilized behavior is a consequence of his fundamental inherent nature – is accepted also today. Nevertheless, he notes (p.45) that, “There do not exist people who are not molded by customs of particular places…It is particularly difficult to differentiate between what is natural, universal, and fixed in man’s nature, and what is conventional, particular, and variable.” Geertz offers the example of trance states that are common in some societies and rare in others as proof that all people do not have the same fundamental traits. This is a specious argument, however, since it is not man’s nature that hampers certain societies’ success in achieving these trance states, but rather their ignorance of the proper technique and the absence of a conducive atmosphere. Additionally, Geertz’s opinion regarding the difficulty of differentiating between what is natural, universal and fixed in human nature to what is specific, conventional, and variable among different cultures does not negate our contention that there are in fact basic universal traits common to all humanity. On page 46 of his book, Geertz speaks of the danger of abandoning man as a force behind his culture – and his consequent fall into one of two traps – the relativism that perceives man as a captive of his time, and the historic determinism that began with Hegel that leads to the idea of cultural evolution. The approach taken here avoids both of these traps, and seems to be the golden mean, the only path without obstacles. Geertz (in his book pp. 48-52) challenges Kluckhohn’s theory of universal forces that determine certain common perspectives to all cultures, and suggests alternatively that there are three preconditions for a fundamentally uniform culture. These conditions are not relevant to this part of our book, as our theory which is reasonably consistent with Kluckhonhn’s, does not relate to the uniformity of the products of various cultures but rather to the uniformity of the physical and emotional factors that affect the fundamental direction every human society takes in its cultural developments. Similar sources of influence can produce different cultures or different religions.

The issues examined in this part of the book are well-known. They are basic ideas that logically follow the first part of this book – ‘Why religion,’ and that focus on human nature. The heart of this section challenges the approach that man is a predominately intellectual creature within whom emotion plays a secondary or negligible role, arguing instead that man is by nature a logical and emotional creature. Man is a social creature by nature, blessed with a desire to comprehend the details he observes by finding links that connect them. This inclination is a gift that was given only to man and it has enabled man to achieve greater heights than any other creature. Man not only seeks to grasp how the natural phenomenon he observes interconnect to form the laws of nature, but also the technological details of these laws. He then employs this knowledge to accomplish his own technological feats. This inclination to categorize and classify led man, in the social realm, to establish rules of behavior, and to deduce from them appropriate behavior in every specific case.

Man is ‘programmed’ by his Creator with traits that precede him, so that he can succeed in the grandest of endeavors, as he in fact does. Despite all his ‘technical’ achievements, man could not have risen to a level qualitatively different from all other of God’s creations, if not for his emotions. Without his intellect, man would be incapable of action, but without emotion, man would be unmotivated to act. The combination of these two forces enabled man to contribute to this world. It is emotion, and not intellect that is man’s compass. When the emotional position is defined and clear, then emotion will always prevail. Reason arbitrates between options only when emotion is ambivalent or apathetic. A person who allows his child to drown after rationally assessing that if he attempts to save him, he will also drown, is acting based on reason, because his emotions are torn between his will to live and his love for his child. Reason only steps in when there is an emotional void.

Whoever lacks these two components of reason and emotion is not human.

Whoever possesses these two components – is God’s helper and agent – the only helper God has in this world.

This book calls for a revolution, that is in fact a counter-revolution, for it comes to counter and rectify the results of the revolution described in this author’s book about the Jewish State,[2] a revolution carried out by the Israeli Supreme Court. This book advocates the adaptation of a certain philosophical social approach specifically with regard to Israeli society, an approach that differs from all Western ones that are common in Western democracies including Israel. Yes, Israel, is in many respects part of the West; its norms as well as its secular-liberal Supreme Court rulings are typically Western. This reality, however, is intolerable, and problematic from both a moral standpoint, as well as from the legal one that is binding today in the State of Israel though not implemented. This book, however, in contrast to the one mentioned above,[3] will not deal with the legal issues involved, but rather with the moral and national ones.

The goal of this work, both in presenting the religious view and in attacking accepted Western theories, is not to prove the superiority of the religious viewpoint, but rather to divest secularists of their smug attitude toward the religious whom they consider primitive and ignorant. Once the religious position is at least no longer viewed as inferior – it will be possible to conduct an evaluation and discussion without being hampered by preconceived notions.

One of the main subjects this section will discuss is that of ‘Moreshet Yisrael’, Jewish heritage, a tradition whose roots are in a divinely based morality, which according to the “1980 Basic Law” is the basis for Israeli law.

Debunking Myths (A View of the West):

One should never presume the truth of conventional ideas, and this includes Western ones. In critiquing Western theories, attention must be directed to the principles they are based on. This work reveals their structural flaws and undermines this foundation in order to make room for a new one. Before beginning the actual critique, this work surveys the historical development of the sources of social moral codes in human society and offer a new perspective on historical facts. It divides the history of the evolution of human societies into three periods: primitive, religious, and secular, according to changes in the source of moral guidance. The roots of the Jewish tradition are fixed in the religious period. There are many flaws in the traditional analysis of the motives behind the transition from the religious to the secular period that everyone seems to ignore. The arrogance involved in transferring the source of societal behavioral norms from God to man has caused the instability of the entire Western moral structure. Even if one assumes the secularist position that also in the religious period, it was not God who charged man with ethical norms but rather human beings masquerading as divine messengers, secular man still exhibited greater conceit when he proclaimed himself as the source of morality than did religious man who attributed his ideas to a higher being. This book discusses the weaknesses and pretensions of Western thought in its evolution from the rule of God to the rule of man, evaluating and critiquing the ideas of Kant and Rawls among others. Part V of this book demonstrates the injustice of Rawls’ theories. It argues that the democratic system, which allows a nation to turn whatever it chooses into incontrovertible law, was a wild offshoot of secularism that began with Rousseau in the eighteenth century in France, followed by Sieyes during the period of the French Revolution. The philosophical connection between “human desire” and “human right” should rightly be viewed as the beginning of the fall and the source of the deviations that sprung up in society. These wild offshoots resulted from the translation of the sanctity of the general human will (according to democratic principles) to the plane of the individual’s will; the individual, like the general public wishes to see his will followed. The individual reckons: If the general public can legislate whatever it desires, why can’t I also find justification for my personal desires? Why can’t I say that since what I want is proper in my own eyes – it should also be respected and considered legitimate by others? This perspective ultimately develops into a belief that ‘it is coming to me,’ a view strengthened by the individual’s sense that it is fitting that he should get what he wants as compensation for something positive he has done. This is the transition from general will to personal will, both very human feelings. This belief of ‘it is coming to me’ has developed in modern days within the framework of liberal individualist thinking, which favors the individual’s legitimate interest over the interests of the general public, and even condones certain deviant behavior for certain individuals. A father may be of the opinion that ‘it is coming to him’ that he should be obeyed. Use of violent means to achieve what ‘is coming to him’ is often the next obvious step.

Who is Supreme?

This section presents the bird’s eye view of human social development, not only in the plane of ethical norms, but also regarding human progress in the realms of science and technology and social behavior. Man is portrayed as driven by his inherent nature, by the way he was programmed, a nature to which he owes thanks for enabling him to surpass all other creatures. Presenting the development of humanity in this manner emphasizes the true inferiority of man, and demonstrates to all Western secularists who scorn ‘primitive religious people’ that there must indeed exist ‘something’ greater than man. It forces them to recognize that man acts and achieves only because a greater ‘force’ ‘programmed’ him with these capabilities, and that we are indebted to that same greater force that programmed us all for all of our achievements including our ability to engage in debates such as this one. This understanding will impart a bit of humility and proportion to the discussion.

This discussion begins with the topic of “human rights’ since this is a key factor in the field of societal behavior in the modern world.

Chapter 1: The Basis of Rights

Sie'yes’ Theory:

The term “right” seems self-explanatory until one attempts to define it or to examine its development and its relationship to other concepts. The concept of rights is one of the legs upon which the normative social structure stands. It is a key player, in Western societies, in both the ethical and legal realms. Sieyes’, a theoretician of the French Revolution, and one of the first French philosophers to discuss the realm of jurisprudence,[4] deals with the question of who has the right to establish law. He posits that the very existence of the national wills warrants it being made into law. All other wills, in contrast, do not turn into binding norms, except within the framework of what the national will and law have established. Only the national will and the nation can establish law;[5] one’s personal will can become a legal right only and on condition that it is consistent with the national will (constitution) and all statutory law. The individual’s will, according to Sieyes, differs in this way from the general will. According to Sieyes’ approach, the will of the national government (which is to be differentiated from the national will of the nation) can become normative only if it is consistent with the nation’s constitution, which should be remembered is determined according to the national will. National rule or government is not synonymous with the ‘national will’ of the nation, even though the specific persons ruling in a democratic country must be elected in accordance with the nation’s will.

Choosing Between Rights and Benefits:

In the moral realm, consider the following perspective regarding the development of social norms before there were established countries in the world, and then later once there were national entities: Man was endowed with certain traits. One of them is his inclination to live within a social framework. Man does not seek the company of others in order to enjoy the benefits of societal living but rather because he is by nature a social being. The advantages of societal living were not the cause but rather the consequence.

In modern days, as a result of the development of Western ethical social thought, much of the clarity and sharpness which characterized these ideas during Sieyes’ lifetime, has been lost. The consequent muddle and ambiguity are apparent in the ideas of Avishai Margalit, a professor at Hebrew University and student of these schools of thought. Margalit[6] claims that rights are matters that are in one’s self interest, a claim that is problematic for two reasons:

Does the mere fact that I am an interested party (that it will be beneficial for me) confer rights regarding the object of my interest? Does my interest in getting a 90 on an exam entitle me to that mark? Of course not, and certainly Margalit did not mean to imply otherwise.
Could it be that I have a right to speak, even if I have no interest in doing so? The answer of course is yes. It is possible that I have the right to the empty seat on the bus, but that does not imply that I have any interest or desire to exercise that right. I many inherit something I never wanted and am indifferent to. I may bear a child not to my liking, and through this merited the right to participate in his education, though I have no interest in doing so.

Margalit defines a benefit or self-interest as that which it is fitting for a man to desire. Its existence (a potential will) does not imply that man will necessarily make it real (a will in practice). Yet this definition still leaves cause for wonder: is the mere fact that it is fitting that I should desire something sufficient or requisite basis for my right to that thing. From where did Margalit draw the connection that in his opinion exists between rights and self-interest? It seems likely that this stemmed from Western thought’s placement of man, his interests and rights, in the center, in place of the dominant conception during the religious period that viewed God and his commandments as the source of behavioral norms. In the context of this discussion, which is more expansive than the question that prompted it, the concept of rights in Western vs. Jewish thought will be analyzed, preceded by an anthropological perspective. “Rights” will be examined, not only vis-?-vis the more narrow question of the connection between it and self-interest (as Margalit contends), but also with regard to the general roots and sources of the concept of rights. This section will grapple with the question of what preceded both rights and self-interests and in what order they developed, first examining the beginning of the development of morality and then addressing the moral distinctiveness of the State of Israel.

Man’s Natural Tendencies

Man is programmed not only with the desire for social living, but also with the characteristics required to establish a society,[7] and thus certain basic ethical principals are common to all human societies and communities, as if they were all patterned after a single prototype. In a primitive society, these will simply be moral rules, while in a national alliance, these rules will be legislated laws. Thus, all human societies show concern for the weaker members of their society. This trait is common also among dolphins and even among far less developed creatures. Pigeons take turns watching over their eggs and they feed their fledglings until they learn how to fly. All human societies forbid murder and theft and expect their members to honor their promises. Man’s right to life and to having promises made to him honored are universal rights, rights which by definition obligate all people not to murder and to keep their promises.

Eradicating Emotion:

Almost all modern Western philosophers rejected emotion as a correct or possible element of the moral systems they hoped to build. Warnuk rejected the notion of the centrality of emotion that is basic to the emotive movement in philosophy.[8] Kant, similarly, seeks to purge morality of all natural inclinations and to deny man’s emotions, establishing rational tools by which man can design moral principles. Since man is a ‘rational creature, his actions have value, according to Kant, only if they are the product of his ‘pure intelligence’ and not of his personal inclinations and emotions. Thus instinctive behavior is virtually worthless. Behavior motivated by one’s emotions similarly has no moral value, even if it is consistent with the principles of ‘pure rationality’.[9] Only pure rationality stripped of any hint of instincts and emotions will enable man to design moral principles that as products of man’s autonomy, will be equal to laws of nature and as binding upon man.[10] Rawls[11] set up a similar system by which a society establishes principles of justice and morality through neutralizing all actual existing individual interests and all acquired differences of knowledge and skills, thereby creating a state of absolute impartiality regarding every individual or sectoral interest. Both Kant and Rawls, therefore, seek to create moral codes in a (unnatural) state untainted by “real” life.

The exceptions to this school of thought in the modern Western world were philosophers from the Romantic period at the end of the 18th and beginning of the 19th centuries, adherents of the emotive movement of the 20th century, as well as three psychologists: -Sigmund Freud, Richard Lazarus, and Victor Frankel and the anthropologist Clifford Geertz.

In their book, Emotion and Logic, Richard and Bernice Lazarus describe the deviation from logic’s domination of Western philosophy that took place during the Age of Romanticism at the end of the 18th and beginning of the 19th centuries. The Lazarus couple, following in the footsteps of Spinoza who preferred that man’s emotions, rather than his intellect guide him, denies the supremacy of logic over emotion and advocates instead a synthesis of the two. Geertz, too, in his anthropological perspective (in his book cited in footnote 1, pp. 82-84), views emotion as the key to human behavior, saying in accordance with Hobbes and Thomson, “Man is not only the most rational being but also the most emotional…man is incapable of functioning effectively, in the absence of a constant significant emotional force…mental activity is the primary force that determines the nature of our encounter with the world around us…our concern is no longer resolution of problems but rather clarification of emotions.” This work will not examine the effect of the mind on emotions, as it seems clear that intuitive emotional responses that guide man – are emotions and should be related to as such.

Emotion and Logic:

The synthesis of logic and emotion, both of which are inherent to man, create human morality. When logic and emotion clash, then it is emotion that rules. For example: Can one logically persuade a mother that she should kill her child and eat his flesh, thus providing herself with meat, as well as saving herself the irrational burden of raising him? Conversely, can a person’s love for his children impel him to give them all his possessions when they become adults, leaving nothing for himself? If that person does hold himself back from distributing his wealth, is it because logic dictates that it is unwise that he put himself in the position of needing to rely on his children’s generosity in supporting him when he is old. It is logical to retain whatever one will need in old age so as not to become dependent on others, including his children. If his wealth runs out in old age, then he won’t will any to his children. The view taken here, however, is that it is not logic that competes with his love for his children but rather an opposing emotion – his will for self survival, self sufficiency, and self dependence. In this situation when two emotions are in conflict, then logic will prevail. Consequently, despite the dominance of emotion, most of man’s behavior is ultimately guided by reason since logic determines which of two conflicting emotions will triumph. For example, man has an emotional interest in making a living that goes beyond his practical-physical interest. The question of what is the most effective way of achieving this emotional goal will be determined by man’s reason, assuming that several means of providing for his livelihood are compatible with his emotional desires. Logic will only select, however, an option that is in the running emotionally. Thus, if a certain means of making a living is emotionally oppressive to man, it is unlikely that he will choose it, even if logically it seems ideal.

The existence of the driving forces of reason and emotion within every person, as well as the regular dominance of emotion are proof that these are not the products merely of nurture and education, but rather inherent forces within man, which came into being when he did. Further on, this book will examine other innate tendencies such as familial loyalty, a propensity for communal life, and a desire to organize details within the framework of general principles both in what man encounters in the reality about him, in nature, and within his family life and society, in his behavior within these frameworks. This section, however, will focus on the roles reason and emotion play. Man was blessed with these two guiding forces, as well as the inclination to use these forces in a ‘humane’ manner, and thus emotion will generally prevail over logic.[12] Thus when man establishes moral principles, obligations and rights, emotion determines the guiding principles, while logic fills in the details. Emotion will resolve that it is imperative to help the weaker members of society; reason will determine what percentage of one’s income one should contribute to this cause. Social communities and nations function in this respect just like the individual: dominant sentiments which reverberate within the nation will determine the nation’s fundamental goals and positions. A country will organize as a social democratic state in accordance with their feelings, while reason will determine the details, how to reconcile social democratic principles with sometimes conflicting economic considerations. Moral principles are primarily the product of emotions, of a perspective that sees the forest more than the trees, while specific laws passed in a certain country’s legislature are a product of reason and cold calculation. Basically, laws are rules of social behavior that come into existence over a relatively short period of time through a formal process. Moral principles, on the other hand, evolve through an informal prolonged process. Principles of law can be divided into two categories: rules of conduct and legal rights, and law enforcement, which include sanctions for infractions of the first category. Most laws will include both types, sometimes in separate sections, sometimes in one, with the legal sanctions generally enforced by or via the state. Moral principles, in contrast, are imposed through social rather than legal sanctions.[13] The common denominator between moral and legal principles is that both seem to advance a higher cause. Yet there is a wide range of views on what defines a higher cause. Liberals who consider man’s individual rights more important than the common interest will claim that these rights promote each individual’s self fulfillment, the highest of values. Those who support social values and the interests of general society will describe communal goals as higher than narrow-individual ones. They will claim that since man is a social being he has no business protecting individual rights, without concern for their affect on the general interests, which ultimately serve also the individual. Religious people who consider their deity the supreme value, will speak about advancing the will of their God, or alternatively about developing man’s spirit so that he will better comprehend his creator and the will of his creator, and be more capable of emulating his attributes.[14]

Man’s Inclination to Devise Underlying Principles:

Man’s inclination both in the scientific as well as normative-societal behavior realms is to formulate overarching principles. In the scientific realm, scientists tie each natural phenomenon into the laws of nature.[15] Through discovery of the underlying laws, man establishes scientific laws that facilitate technological advancement. In the normative realm, man establishes principles of behavior, normative principles, which help him organize social-national life. Man’s natural tendency to search for principles in both these fields promotes human progress, enriches man (physically and spiritually), and naturally creates rights and self-interests. These are self-interests that are linked to rights that were in practice acquired in the way depicted above, and rights – in potential – that man dreams of and achieves with the help of an imagination that is not possessed by other creatures. Therefore, rights, and benefits – are the products of the natural qualities with which man is programmed. It is not his interests which produce the principles, but the reverse. Geertz describes man’s tendency to devise principles. He explains that man by nature cannot tolerate chaos. This was religion’s hold on man – it offered him a system that explained the mysterious, that made sense and order out of his universe, and that offered him answers that gave meaning and reason to his life.[16]

Geertz and Anthropological Studies:

Geertz[17] claims that “man so desperately seeks symbolic sources of inspiration such as these (systems of cultural checks such as principles and directives, as he explains on p. 53 of his book – Y.C.) in order to find his way in this world. Among lower primates than man, patterns of behavior are part of their physical makeup, at least far more so than they are for man. They act according to genetic instincts. Man, in contrast, inherently possesses only the most basic reactions, which allow far more flexibility and complexity, and in those rare cases that everything is running as it should – also far better results. They do not, however, precisely regulate his behavior… Without the direction of cultural norms, the system of meaningful symbols, human behavior would be absolutely ungoverned. It would turn into chaos and pandemonium of meaningless actions and emotional outbursts. Culture, in its cumulative totality of patterns of this type, is not a mere adornment of humanity’s existence, but an essential condition, and as such the basis of its uniqueness.”

Further on, Geertz explains that according to earlier anthropological studies that were popular until the beginning of the twentieth century (his book was published in 1973), cultural development paralleled the physical development of man’s brain, a fact that leads us to conclude that man’s ability to learn, the fact that man can’t function without ‘an educational system’ advanced his genetic development, since “man is an imperfect incomplete creature, and the difference between him and sub-humans stems less from his ability to learn (as great as it is), and more from the quality and quantity of the things that he must learn in order to simply function…man’s physical existence came into being as a result of regular methods of genetic mutation and natural selection, until his anatomical structure reached approximately the level of perfection of its present state. At this point, cultural development began. An incidental genetic mutation of some form that occurred at a certain point in the development of the human race, endowed man with the ability to create a culture and to sustain it. From that point on, his genetic instincts became fundamentally and almost exclusively cultural responses. When man first spread out all over the world, he wore fur skins in cold climates, and a loincloth in warmer climates; but he didn’t change how his body reacted to different temperatures. He devised weapons in order to enhance his genetically inherited hunting skills and began to cook his food in order to make more foods potentially edible. Man became man, the story continues, when in crossing a certain mental Rubicon, he attained the ability to transmit to his descendants and neighbors through teaching and to acquire from his ancestors and neighbors through learning – knowledge, beliefs, laws, ethical principles, and customs (like Edward Taylor’s definition of classical culture). After this miracle occurred, the advancement of Homo sapiens almost completely stopped being dependent on cultural development, on the growth of conventional practices.”

According to the most current studies, he explains, “Evolution of Homo sapiens began approximately four million years ago...the beginning of culture preceded man by more than a million years…It was an overlapping period…the ice age – in which the initial steps of cultural history took place…Culture became a primary guiding force in the evolution [of man]…invention of tools, development of organized hunting and food gathering, beginnings of family units, discovery of the uses of fire…growing reliance on systems of meaningful symbols – language, art, myth, ritual – for purposes of orientation, communication, and self control – all these created a new environment that man needed to adapt to…the same creature who started out as a prehistoric Australopithecus with a diminutive brain became a large brained totally human Homo sapien… Man created himself in the simple sense of the word, even if he did it unconsciously…This is the period in which the human brain expanded, especially the forebrain, to its present incredible proportions…What happened in the Ice Age was…we had to rely on cultural resources – on the growing wealth of meaningful symbols…Symbols of this sort, then are not simply expressions, instruments…of our biological, psychological, and social existence, but preconditions. No doubt, without men there is no culture, but to the same extent and more significantly, without culture there are no men. The gist of the matter is that human beings are imperfect or unfinished creatures who perfect or complete themselves through culture…through very specific individual forms of culture, Dubai, Java or Italian culture, high or low culture, academic culture or business culture…people build dams and shelter, find food, organize their social groups, and find a mate according to directives hidden in flow charts and blue prints, in hunting traditions, in systems of morality and in esthetic judgment. We live in what is incisively described as an “information gap” – between what our bodies tell us and what we must know. And we fill it with information (or false information) provided by our culture. The line between innate and culturally learned behavioral limits is not well defined…we do not need cultural guidance in order to know how to breathe any more than does the fish. Our ability to speak English, however, is without a doubt cultural. To smile in response to a pleasant stimulus and to frown in response to an irritating one is definitely genetically rooted behavior to a certain extent…a cynical smile and a sneering frown, though are essentially cultural…”

This progression, as described by Geertz, relates to motivations – What led man (the term man also includes lower species from which man developed) to use skills other than biological ones, to fill voids essential for his existence? How did man’s brain develop as a result?

Geertz fails to address certain issues, let alone to solve them. He overlooks the source of the skills man acquired to compensate for the deficiencies that were inherent to him, and whether these skills developed out of paternal skills and motivations. He also ignores the source of the secondary skills, which created language –the inclination to connect, to make order, and to find underlying principles. He ignores the maternal-motivation, the emotional tendency that joined people together and caused them to cooperate and to communicate in a manner that would transmit information from generation to generation, traits that served man not only by linking different generations, but also different societies and ethnic groups. Diamond cut diamond. No matter how hard Geertz tries to elevate man to the level of self-creator, he cannot avoid the question of who and what trait enabled man ‘to create himself.’

Man demonstrated an inclination to search for connections between individual facts, to attempt to link isolated events, to find the common denominator to different natural phenomenon, to establish a code of social behavior that doesn’t address every specific case but rather offers underlying principles, to not limit himself to solving each and every problem separately as it arises but to strive to find an all-encompassing solution. The social developments and relationships that developed that were predicated on feelings and on sympathy for the weak, traits lacking in other creatures must be viewed in light of these inherent tendencies. All these, according to the approach that Geertz develops, are paternal-influences that directed man on the path that he described. These influences will be examined in the next chapter.

Chapter 2. Three Periods in the Development of Morality

The Primitive Age:

>From the beginning of social living, the natural tendencies that guided man and his actions benefited him greatly. One can imagine that in a pre-society (organized society) period, family units were very small, composed most probably only of a couple and their offspring. These units were the expression of. man’s natural instinct to mate and to raise children, an instinct that is predicated on natural inherent feelings called love, with which man is blessed still today and which he continues to develop. Just like the inclination to establish underlying principles and to associate with others, feelings of love necessarily, naturally, and logically led the couple living without a wider social framework to establish certain rules of behavior to govern their relationship. Rules that applied to their children ostensibly followed from these. Here too then, is an example in which self-interest did not guide man – to find his mate, to establish mutual rights and responsibilities between himself and his mate and their children. Self interest was not at the root of these developments, it was not their cause, but rather a consequence of primary forces that stem from human nature. In this book, this historical period of man’s narrow societal structuring into couples and families will be called – ‘The primitive age.’

The Age of Religion:

The second period of human social development is one that falls between the ‘primitive age’ and modern time – a period that will be referred to here as ‘the Age of Secularism’ since during it a kind of ‘secular religion’ developed throughout the world. In this interim period – ‘the Age of Religion’, social frameworks developed and the dominant factor in the establishment of societal behavioral norms was religious belief. These norms were established in an environment of religious faith, even if this faith was not the sole influence. Since the issue this book wishes to address is Israel as a ‘Jewish State,’ the ‘Age of Religion’ will not be examined from a universal perspective, but rather from a Jewish viewpoint. The focus of the discussion will be the educational lessons of the uniquely Jewish way of life, a way of life in which until the modern era, Torah laws played a primary role. This Torah included an Oral Law that Jews believed God also gave to Moses at Sinai, as well as religious rulings and Jewish doctrine. It will be noted that religion and religious statutes played a central role in this period also among other nations.

The transition from the Age of Religion to the Age of Secularism was marked in England by a markedly new view of the role of Parliament. The English Parliament initially functioned as a law court that offered the king counsel regarding the law but did not legislate. In other words, just as a court must identify what the laws are in order to adjudicate according to them, the Parliament similarly identified the laws, just more broadly and not in relation to a particular case. This perception of the Parliament stemmed from a belief in a divine origin of the law - the king had no authority to establish law but only to interpret divine laws and to apply them to the needs and problems of his time.[18] Parliament was given authority to approve taxes that the king required to run his country or fight his wars. In England, a Common Law developed alongside the religious law. It was only with the spread of secularism that the Parliament began legislating changes in the Common Law, and Parliament gradually evolved into a legislative body in the modern sense of the word.

The one thing that distinguishes a religious ethic from a secular Western one is that the religious ethic is built on obligations while the Western one is built on rights alongside obligations. There are no rights, essentially, in the divinely based ethic, as it exists today (this include Hinduism, Buddhism, Confucius’ system, Judaism, Christianity, and Islam). An ethic whose source is from above, from a transcendental being who has influence over the world and who determines how man should behave, is a hierarchic system of principles imposed from above on man who exists down below. It is not man, but rather the transcendental being who imposes a binding ethic, who is supreme. Therefore, the Biblical injunction that a Hebrew slave goes free in the Sabbatical (seventh) year obligates the master to free his slave while granting the slave the right to go free only as a by product of the master’s obligation. The Torah commands the Jews to set Hebrew slaves free in the seventh year, to love the foreigner, to judge him impartially, and to treat the orphan and widow with kindness. It instructs those who are more fortunate to act with charity towards those who are less fortunate; it does not turn to the recipients of this charity and inform them that they have a right to this treatment. In Confucianism similarly, the master is commanded to treat his worker in a certain way (eg. with tolerance) and the worker must listen to his master. There is no declaration of the worker’s right to this treatment but rather only an obligation imposed upon the master. This is generally the case regarding all divinely based systems of morality. Obligations, not rights are established both upon the individual and as is common in Hinduism and Judaism, upon the group. There are certainly some today who wish to prove that Judaism confers and always conferred rights, in order to make Judaism more palatable to those for whom human rights are a supreme value. The beauty of the divine ethic, though, in contrast to Western morality in which man – by definition – has no higher authority to emulate, is that man does not see himself as supreme but rather aims to raise his level of morality.

The Age of Secularism:

In the ‘Age of Secularism’, through the process of developing a kind of ‘civil religion’, Western philosophers searched for a source of morality or ethics. Initially, they attempted to anchor normative principles in objective sources. The transition from the Age of Religion to the Age of Secularism was bound up in a search for a new legitimate source that would be as objective as the divine source and thus could replace it. Objective, in their eyes, implied ‘truth’ and truth was compelling, worthy of being followed. Hobbes, Sieyes, and Kant each offered a different justification for their ethical systems.

Hobbes and the theory of a social contract found validation in the accepted principle that ‘agreements should be honored.’ The democratic movement, as expressed in the modern period by the ideologue of the French Revolution, Sieyes, and his followers, found legitimization in the notion that the nation is sovereign and the legitimate landlord of its country. Just as a landlord may do as he will with his own property, the nation has a binding lawful right to exercise its will over its own property. Therefore, if it is their will to choose for themselves a legislator who will create a constitution and pass laws, these laws will be binding because they were legislated by a legislator of all the nation’s choosing.

Kant found legitimization in the ‘truth’ and ‘objectivity’ that are within subjective man’s only objective possession, namely his reason. Pure practical reason, unsullied by man’s subjective elements, is the objective ideal by which truth may be discovered. Practical reason can take one of two paths in order to uncover the truth. It can follow the course of natural sciences, physics, and ‘find’ the true laws of nature (that exist) or it can follow the course of morality and virtue and create ethical principles, a creation ex nihilo. Kant sought to offer man freedom, freedom from laws of nature, a freedom that alongside the objectivity of the rules that his intelligence would establish, would motivate man to adhere to those same rules as a free man. This was a freedom that man in the ‘Age of Religion,’ who was bound by religious precepts, never enjoyed. Kant did not seek a source for morality in nature; if man’s pure practical intelligence had ‘revealed’ such a source, and adhered to its laws, man would see himself as constrained by natural laws that he did not create. Pure practical reason, however, belongs to man, and since it created principles of morality and laws autonomously, man’s compliance with these laws does not constitute enslavement, but rather the epitome of freedom. Consequently, man will willingly obey these laws. The legitimization of (secular) laws of morality was thus based on a truth that was derived from objectivity, and the freedom that is inherent in following these laws.[19]

Kant sought (unconsciously) to solve one of the problems Rousseau raised regarding the transition from a religious moral system to a secular one, by establishing a new ‘objective’ source for moral commandments,[20] namely that of ‘pure practical reason.’[21] Kant posited that one must not establish behavioral norms based on man’s [subjective] feelings, on his practical needs and desires, and on his aspirations. None of these are suitable sources for moral commands for they are all dependent on man’s whim. Morality’s authority lies in its objectivity. This trend toward objectivity, as will be seen, exists also today according to Rawls.[22]

The connection between the transition from the Age of Religion to the Age of Secularism and the fundamentals of Kant’s theory of morality and his idealization of pure reason, need not be interpreted as pretentious calumny of Kant and his philosophy. You may protest: ‘How dare the author of this book accuse Kant, one of the central pillars of the philosophy of morality, of distorting and twisting his theories in order to bolster secular philosophy? How can he suggest that Kant tailored his philosophy, which was intended to be theoretical truth untainted by any subjective interest, to promote secularism? What right does he have to charge Kant with such dishonesty, thus detracting from the value of his theories and the inner truth they hold?’

To this we respond that this work never meant to imply that Kant deliberately misled his followers or that he did not believe in his own philosophy. Kant, like all philosophers in every generation, was a product of his environment. He experienced the problems of his time and of the community in which he lived. Thus, though his theory of objective morality seemed to him to be free of any personal interest or bias, and as such he represented it in his writings, it was unconsciously influenced by his generation and country.

This is one of our primary criticisms of Kant’s theory, a theory that has been critiqued by many including Rupert Emerson who attributed hidden motives to all German philosophers from Kant until the rise of Nazism in Germany.[23]

Chapter 3: The Moral Helm is Transferred From God to Man

Utilitarianism and Law:

Over time as secularism struck roots, ideas about political and social entities developed, and the movement that placed man at the center grew stronger, the attraction of this external secular force faded for some philosophers, the desire to imitate the objectivity of divinely based morality ebbed, and theories that did not strive so much for ‘objectivity’ arose. Man himself, the subject, without the mantle of objectivity that would jar him out of his innate subjectivity (eg. through the practical pure reason that Kant spoke of) became a source of legitimization. It began with the social-utility theory that searched for the magic formula in the form of the greatest good of humanity. One of its proponents, Bentham,[24] constructed formulas by which the general social good could be calculated if the society was viewed as a single man. This theory of utilitarianism metamorphosed into a theory of individual utility, which was particularly popular in the 1970’s in the philosophy of Rawles[25] as well as Kimlika and Dworkin. This philosophy valued the individual and his rights and interests over the goals and interests of the general society. It favored the static rights of the individual over general society’s dynamic needs. This approach, which had budded far before the twentieth century, anchored individual civil rights into the constitutions of many countries, in an effort to check the pragmatic legislation by elected officials that accorded with the general variable interest. The clash between the individual’s constant rights and the pragmatic fluctuating interests of the general public as represented by the public’s constantly changing elected officials was the driving force behind a constitution, a rigid permanent set of laws that took legal precedence over legislated law. Advocates of this constitutional system believed that a particular generation could define basic desires and rights according to conceptions of their time, and impose them on later generations, regardless of how needs and ideas changed, leaving only an escape hatchet of a complex amendment process.

Liberal Individualism:

Proponents of a liberal-individualist philosophy argued against a communitarian morality, a non-objective morality that varies from society to society. How can we, they asked, condone the caste system in India since it conforms with the ethical code there, when it is inconsistent with an objective truth.[26] Though undeniably, liberal-individualist philosophy has raised awareness of the value of fundamental rights of the individual, it is a problematic view. It demands the state’s neutrality on one hand and non-intervention of one individual in the affairs of another, on the other hand.[27] Though proponents of liberal-individualism will deny it,[28] by putting the individual at the center and his will as the basis of freedom and rights, this philosophy weakens man’s natural inclination to live in a society and his commitment to it, and hampers society’s ability to serve as his moral compass.[29]

Modern Communitarians and Their Criticism of Rawls

Modern communitarians, such as Michael Sandel[30] opposed individualist philosophy. Sandel asserted that Rawls’ theory of a social contract minus the personal interests of those forming the agreement was similar to Kant’s state of ‘pure reason’, and that Rawls simply ‘translated’ Kant’s theory into terms palatable to Americans today. Kant’s source of moral norms, the state of ‘pure reason’ was compatible with the German culture of his days, but it was not, according to Sandel, compatible with twentieth century American culture. In America’s business culture, the concept of a ‘deal’ was far more agreeable as the basis for an ethical code. Thus, according to Sandel, Rawls apparently[31] possessed an inner moral conscience, which he sought to convey to Americans using terms that would speak to their hearts. From Rawls’ own words, it is clear that he felt an affinity for Kant’s theories. Thus he simply modified them for twentieth century Americans, his greatest change being the marriage of American business with Kant’s objectivity. He proposed eradicating the self-interests that by nature do not lead to consideration for others or justice (just as Kant had ‘eradicated’ feelings and tendencies), by viewing normative questions and social principles through a ‘screen of ignorance’ through which those defining principles of morality do not recognize their own interests and thus all concur as to the moral fundamentals. Since this matter will be carried out under ‘just’ conditions, it will produce a ‘just’ ethical system. While a thorough critique of this theory must wait until Part V of this book, it will be noted here that it is clear that this imaginary scenario in which the participants mask their eyes and thoughts with a ‘screen of ignorance’, which blinds them to their inner moral and rational senses is impractical. Even Rawls never claimed that this situation could be practically implemented but rather only that man could reconstruct it in his imagination and based on his reconstruction sketch the correct principles of justice.

Based on Sandel’s critique, it becomes apparent that Rawls, like Kant sought ‘an objective source’ of morality as a kind of substitute for God. Rawls combined his modified version of Kantian philosophy with a watered down version of Hobbes’ social contract. He did not speak of a constitutional social contract that establishes (like Hobbes) a new society, but rather of a means of improving a society’s already existing rules. Rawls lived at a time when ‘secular religion’ had already taken root; therefore he was not driven by the same motive as Kant, a desire to legitimize principles of justice, which had been divorced from God, a common objective for people accustomed to the idea that truth could issue only from God or nature. Nevertheless, Rawls adopted the fundamentals of Kant’s philosophy regarding the objectivity necessary in devising binding ethical rules.

Ascendancy of the Community and the Social Contract vs. Ascendancy of the Individual and Liberal Individualism:

Margalit’s theory equates self-interests with rights, a connection likely to be drawn by modern Western philosophers (Rawls included). It views rights as the product of self-interests. People achieve rights according to their interests (whether communal or individual). The entire social system and its functioning is dictated by interests. A person’s self interest is what will motivate him to seek this right and then ultimately to implement this right. A right allows the fulfillment of an interest, and an interest is protected by a right. Whoever believes in liberal-individualism, as Dvorkin depicts it (and as Barak does in his rulings) believes that at the center of man’s being is a blueprint in which are linked the connections between will and right, between right and interest, between interest and will, and so on and so forth.[32] This is in essence the opposite of Sieyes’ philosophy. Instead of saying that only the will of the nation can by virtue of its very existence turn into law (or right) – Dvorkin’s liberalist theory emphasizes the supremacy of the individual over the ‘good’ (interest) of the general society. Modern day Western communitarianism (in contrast to modern day liberal individualism) also associates man’s self interest with his will. Communitarians view man as the center and purpose of ethics and morality,[33] but since they view the individual as a social creature, they speak of the community and society. In this way both liberal individualism and communitarianism in our days relate to the tension between the supremacy of the individual’s right and the ‘good’ (interest) of the general society. The common denominator between these two theories is the centrality of man’s self interest. This is the issue that distinguishes both of these theories from an ethic[34] based on religious Jewish faith. This will be the subject of the following chapter.

Chapter 4: Jewish Morality

An Edifying Jewish World View and the Laws of the State of Israel
Before continuing, it is important to examine the Jewish perspective on morality, its place in Jewish philosophy, and to demonstrate the uniqueness of the Jewish religion in comparison with other divine religions, including those monotheistic religions that were an offshoot of Judaism: Christianity [35] and Islam. Yeshayahu Leibowitz[36] identified two categories of believers in a divine creator. There are those who believe in a God who metes out justice in his world, who rewards those who fulfill his commandments. Serving this God is ultimately self-serving and thus there is an element of utility in serving this creator. A second category shares the type of faith that Avraham, the forefather of the Jewish people, manifested particularly in the story of the akeidah (the binding of Yitzchak). His love of God did not depend on reward. His love of God was bound up in fulfilling God’s commandments. Even when God’s commandment essentially negated all prior divine promises (regarding the nation that would emerge from Yitzchak), Avraham remained silent. He did not reproach God for breaking his promise, but took his son Yitzhak to offer him up as a sacrifice on Mount Moriah, as God had commanded. Through this act, Avraham distanced himself from all materialism and utilitarianism and drew closer to his God in his love of him. There are groups in certain non-Jewish religions, such as Jesuit monks who have retained some of these sparks of worship, and shun all materialism or personal benefit in this world – but they do anticipate reward in the world to come.

After this digression, let us proceed. A Jew is commanded to emulate the noblest of traits, which are embodied by the Creator. Every Jew has a purpose in this world. He is not the center of the universe, and his needs and self-interests have import only if they serve higher loftier goals. Humility is as esteemed as happiness, and mercy is greater than both. A Jew adheres to the commandments that are incumbent upon him, for their fulfillment is his means to spiritual growth. A Jew takes care of his body so that he will have the strength to fulfill God’s commandments. This perspective should be the basis for how Israeli courts interpret Israeli law laws, as will be demonstrated further on. This is not because this work advocates religious coercion. The term “law” itself, however, contains an element of coercion, and a world-view that arises from the law is binding upon a judge even if he does not personally share that view. For example: the laws of the State of Israel absolutely prohibit corporal punishment in the schools. While it is quite likely that a specific judge in Israel will deem it appropriate to hit a student under certain circumstances, the laws of the state obligate him to rule against the teacher who hit his student. That judge would be absolutely unjustified in claiming that the law constitutes coercion of a world-view.

The same holds true regarding the Jewish view that esteems spiritual values over personal interest. Since judges are required to rule according to Jewish values, they must rank dry material interests much lower than higher values, such as teaching people the importance of returning lost objects. The case of Handels vs. Kupat-Am Bank involved interpretation of Israeli law regarding the restoration of lost objects.[37] When a bank customer found an object on the floor of the vault and the owner could not be found, a legal dispute ensued over rights to the object. Barak ruled, in accordance with American law, that the bank (who owned the vault) had rights to the object, while Alon ruled according to Jewish law in favor of the finder. The difference in ruling depended on interpretation of an Israeli law. Both judges had already given their reasons in detail in an earlier round of the case.[38] Alon based his ruling on the goal shared by the Israeli legislator and Jewish law – that of encouraging the person who finds a lost object to try to return it to its owner – by reporting it to the police according to Israeli law or by searching for its owner according to Jewish law. The knowledge that he may acquire the lost object, if despite his best efforts its owner is not found, may encourage the finder to fulfill his lawful obligation. It is now in his self-interest to do his duty. This is a perspective that views self-interest not as the goal but only as a means of encouraging fulfillment of an obligation. The obligation and mitzvah to locate the owner shapes our interpretation of the law. Virtuous behavior on the part of the finder is encouraged by offering him a potential reward, the chance to earn the lost object for himself, if he fulfills his obligation to search for its owner. There is no need to encourage the owner of the place where the object was found, since he does not face any moral challenge. This is an example of an interpretation of law which considers the edification of man and development of his character as central to the legal system. Barak’s interpretation of the law, on the other hand, gave precedence to ownership and rights, not virtue, and since the object was found on bank property, it belonged to the bank. The virtue that is spoken of is not the virtue that Alasdair Macintyre refers to, one that places man and his self interest at the center,[39] but rather a Jewish conception of spiritual virtue (in accordance with the view of the Rambam who adopts a similar understanding as Plato, one that is not popular in Judaism today), one that does not hold man at its center, one that is not utilitarian, and whose characteristics do not seek to improve him as an ends to itself but rather as a means of drawing him closer to the attributes of the Creator. Hermann Cohen refers to the commandment in Deuteronomy, “Behold I have placed before you today life and good, death and evil…therefore choose life,” and deduces from it that God limited himself when He gave a Jew freedom of choice, since though He commanded him to choose the just path, God will not prevent him from choosing otherwise. Cohen develops from here the constraints of a God who does not interfere either in man’s intellectual reasoning (by which man establishes laws of reason) or in his moral reasoning (by which man’s behavior is guided, and which is responsible for, among other things, a Jew not only fearing God but loving him). Fear distances man from his God while love draws him closer and impels him to strengthen his connection with his Creator by emulating Him. This ambition is a far cry from Western philosophy’s goal of man’s ‘self fulfillment’, that focuses entirely on advancing the secular man who sees himself as the source of all norms. Though Hermann Cohen calls man the goal, he in actuality views man’s good deeds as the goal.[40] The objective here is not religious coercion, but rather entry into a world in which man and his traits are viewed as the “corridor that leads into the dining hall.”

An In Depth Examination of the Jewish Perspective:

The Babylonian Talmud in Tractate Brachot[41] cites the Biblical commandment to send away a mother bird before taking her eggs, explaining “that he considers God’s attributes as stemming from mercy. The Gemara there asks why we must silence the person who attributes this Biblical Law to God's mercy and answers (one of its two answers) because this person errs in attributing God's laws to mercy when in fact they are decrees. The Maharal[42] analyzes Rambam’s reason for this mitzvah. The Rambam, in contrast to the Ramban and other Jewish philosophers, did not believe that the purpose of mitzvahs was to develop man’s spiritual traits so he would more closely emulate God. He is more in line with Plato’s view that the improvement of one’s traits is an inherent good, not necessarily connected to the mitzvahs. The Rambam, therefore, in contrast to the perspective in Judaism that we will be presenting, did not think that the commandment to send away the mother bird before taking her eggs was intended to teach man to be more merciful. As a result, the Maharal rejected the Rambam’s opinion, preferring the Ramban’s view instead. Nevertheless, as he explains in his ‘Hilchot Deot’ compiled by Dr. Zifroni and published by Omanut in 1968, the Rambam agrees that a Jew seeks to develop his behavioral traits in order to draw closer to God. De’ot is synonymous with techunot-attributes and in fact the subject of this book is not ideas (an alternate meaning of de’ot) but rather attributes. The book is primarily directed toward a ‘wise’ man, a man, as the Rambam describes on page seven of this book, “whose attributes are moderate and temperate.” The Rambam elaborates on page six saying: “The just path is one of moderation in every trait that man has, so that each trait is equidistant from either extreme and not close to either. Therefore the early sages commanded that man should put [contemplate, as Zifroni explains according to Sota 5b] his traits constantly and direct them to the middle road, so that he will be complete in his person. How so? He shouldn’t be an angry person, easily incensed nor like a dead person who is insensate, but rather moderate: angered only by important matters that deserve his wrath, so that he won’t be inclined to do so another time. Similarly, he should desire only those things his body cannot live without as it is written : "A little bit is good for the righteous person. He should not seek more, nor should he squander his money, but rather he should give charity according to what he has and loan money to one who needs. He should not be foolish and giddy nor gloomy and miserable but rather cheerful and contented all his days, with a pleasant countenance.” The Rambam cites as support for his advice the verse in Deuteronomy 25:9, “You should walk in His ways” and the Gemara in Sota 14a, “Just as He is merciful, you should be merciful, just as He is compassionate, you should be compassionate, just as He is holy, you should be holy.” On page eight he lists God’s attributes as He was depicted by the prophets (long-suffering, merciful, righteous and just, perfect, strong and mighty). He writes that the prophets sought “to advise us that these are good and just paths and that man must follow them and undertake to emulate Him as best as he can.” The obligation to emulate God is incumbent upon all of humanity, and not only Jews, as is logical, since it doesn’t relate to a religious commandment but rather directly follows from the recognition that there is a creator. Since the Rambam lived among religious Muslims who shared a belief in monotheism, his premises were different from those of Plato’s or Aristotle’s. A different section of ‘Hilchot De’ot’ is dedicated to the Jew specifically. There (page 24), he relates an explicit mitzvah in Torah to a Jew’s moral behavior, even though generally the Rambam does not link man’s traits to mitzvahs. The Rambam writes there: “It is a mitzvah incumbent upon every person to love each and every Jew as himself, as it is written, ‘You shall love your neighbor as yourself.’ Therefore, he must relate his praises and watch over his property just as he watches over his own property and desires honor himself. And one who rejoices in his friend’s downfall has no part in the World to Come. The obligation to love of the stranger, who has come under the wings of the Divine presence, stems from two positive commandments, one because he is included among ‘neighbors’ and two because he is a convert, and the Torah commanded us, “You shall love the convert.” The Torah commanded us to love the convert just as it commanded us to love God himself, as it is written, ‘You shall love Hashem your God.’ God himself loves converts as it is written, ‘and He loves the convert.’

The Maharal preferred the Ramban’s view over the Rambam’s. The Ramban was of the opinion that, “the reason [for the mitzvah to send away the mother bird] is to accustom us to act mercifully so that we won’t act cruelly to living creatures…And God decreed this attribute as well as all other commandments in order to inculcate man with good traits and they are decrees upon man.” The Maharal quotes Rabbi Yochanan ben Zakai who in reflecting on the entirety of the mitzvahs concluded that, “The Torah comes to improve us, but the commandment is a decree that He decreed, and this is the meaning of the statement – that he considers the attributes of God mercy when they are in fact decrees.” [In other words: the decrees that God ordained, are to improve our traits – Y.C.] The Ramban[43] writes regarding God’s commandment to Avraham to go to the Land of Canaan, “This section did not explain the whole matter, for why should God tell him – leave your land and I will do for you good unlike any ever done in the world, without prefacing that Avraham worshipped God or was a perfectly righteous man, or explaining that his reason for leaving his land was to go a different land that was closer to God.” The Ramban here is of the opinion that Avraham’s rewards for fulfilling God’s commandments are unimportant since only his closeness to God mattered. The Rambam, in his commentary on the introduction to Mishnah Avot,[44] writes: “Man must subjugate all his mental faculties to reason, as we wrote in the previous chapter, and he should always keep before his eyes one goal, and that is comprehension of God, to the extent that a human being can comprehend Him, and he should direct all his actions, his movements and his breaks and everything to this goal, until none of his actions have any element of futility, in other words any action that does not lead to this goal…” The Kuzari[45] writes: “Our Torah is divided between fear and love and happiness. Draw close to your God through each of these for your submission on a fast day does not draw you closer to God than your rejoicing on Shabbat and festivals…What we learn from this is that we can approach God only through his commandments…” In the Zohar[46] it is written regarding the verse in Isaiah 42: “R. Abba began and said, ‘Sing to God a new song, and His praise from the end of the earth…’ How beloved are Israel before God for their rejoicing and their praise only come to include God and His divine presence within it, as we learned in the Mishnah – Any rejoicing of Israel in which they do not include God, is not rejoicing…” [This teaches that even man’s joy, even his personal intimate joy should be done with the ultimate goal in mind. Man’s willingness to rejoice only if God rejoices with him demonstrates significant restraint and humility]. To this we should add the array of mitzvahs, which besides accustoming man to follow God’s commandments, yield no benefits through their performance, and their sole purpose is the training and refinement of man’s soul.[47]

The question this work will address regarding Israel’s existence as a Jewish State is the following: To what extent does, and to what extent should, an ancient Jewish principle, that is the creation of the Age of Religion in Judaism, of an ethic that is not constricted or constrained by the narrow framework of self-interest, apply? The term ‘self-interest’ here also includes the interests of the weak, the foreigner, the convert and the widow, for these are also human interests, as well as certain elements from prophecies of the prophets, concerns that are definitely extremely positive, and which still fall within the broader definition of ‘interest’: To what extent do we find in Israel the desire to emulate God expressed similarly to the way Judaism relates to this goal?[48] This is not a question of the application of Jewish law but rather a question that relates to man’s essence,[49] to a moral orientation that relates to man’s personal and social behavior through a conception that arises from Jewish religion without necessarily a connection to specific religious precepts,[50] as demonstrated in the Handels case. Man’s estrangement from the divine source of rules of behavior led many Western philosophers to concentrate on the ‘procedural’ question of ‘how to derive ethical principles’ while abandoning their search for the content of these principles.[51] Basically, the transition from a religious morality to a secular morality involves not only the transfer of the source of law from God to man, and in Judaism and the religions that stemmed from it, from the spirit that transcends man to human materialism,[52] but also a redefinition of the terms ‘good’ and ‘right’. While during the Age of Religion, ‘good’ was what was ‘right’, in the Age of Secularism – utilitarians defined the ‘right’ as what was ‘good’.

Western views vs. Jewish Views:

In Judaism, in general, and regarding modern Western theories of morality, in particular, there are varied opinions and approaches. The question arises – what should Israel’s approach be, considering the fact that it defined itself at its inception and also in its constitution as a Jewish state. Should Israel embrace individualism or communitarianism or perhaps an entirely different approach. Is the new approach that was revived in the 1970’s that relates to man’s character and to virtue consistent with Jewish beliefs? Wewill establish immediately that though they appear similar, they in actuality are fundamentally different. The point of reference in Western thought is man and its goal is to improve man’s inner essence. Thus, even Western theories that are opposed to utilitarianism are in fact also utilitarian in this broader sense. Even though Sieyes’ ideas about national will are generally not associated with approaches of the twentieth century such as utilitarianism, liberalism, communitarianism, emotivism, perspectivism, they all in fact revolve around one and the same thing – namely man (either as an individual or a social entity). In Judaism, in contrast, the focus (even according to the Rambam) is external to man and unconnected to will or personal interest, concentrated rather on God and fulfilling one’s responsibilities to Him. In short, the quality utterly lacking in Western philosophies is modesty. This is an attribute that follows naturally from many of man’s instincts – for preferring his emotions over his reason, for desiring social company, for finding the underlying principles – both in the realm of morality and social behavior and in the realm of science and technology. Even the ‘pure reason’ with which Kant sought to ‘rescue’ man from his enslavement to nature, was implanted in man by his Creator. Our constitution and the adherence to ‘Jewish tradition’ that is mandated by the constitution, as well as the entire principle of a ‘Jewish State’- all seek to set us apart from other nations. This legal and moral obligation that connects us to spiritually-blessed generations of Jews should not be renounced. As the author of this book explained in an earlier work,[53] Supreme Court decisions that direct otherwise, contradict the legal basis of the State of Israel, disregard Knesset legislation and thus are not morally binding. There is a higher command than the directives of the Supreme Court judges, besides Israel’s constitutional law and that is the command of Jewish history which is immersed in a moral system that is of no lesser stature than Western moral systems.

Chapter 5: Synopsis
In 1980, Israel passed “The 1980 Basic Law.” As was explained in Chapter VII of this author’s previous book,[54] this law was meant to cause a virtual ‘revolution’ in the area of Israeli jurisprudence. It determined that Jewish heritage should play a significant role in determining the norms of Israeli society. Israeli Supreme Court judges, biased by their personal ideologies (as demonstrated in Chapter VII ofour previous book) managed, however, to effectively table this law.

Connected to this fundamental law is the fact that Israel is a Jewish State as was established by Israel’s Declaration of Independence, a legal document that possesses paramount legal force. In Part VI of the book,[55] the circumstances by which the State of Israel was established as a Jewish State belonging to the Jewish nation are described at length. Azmi Bashara’s last attempt to run for Prime Minister of the State of Israel is and the legal blunder involved in not disqualifying his candidacy are examined. The election of an Arab prime minister is a step toward national suicide and is therefore an illegitimate action on the part of the Jewish State. This step reflects the view that Israel is a ‘state of all its citizens’ (a fundamental denial of the Jewishness of the state) – a view that may be held by some Israelis but which contradicts the principle that Israel is a Jewish state. A Jewish State cannot be governed by non-Jews - the majority of the Knesset, as well as the Prime Minister himself must be Jewish.

This chapter therefore, seeks to establish three things:

Morally-politically, Israel is meant to be a Jewish State, which preserves democratic principles so long as they do not conflict with its Jewish ones.
Israel should adopt, both in the political administration of the country and in its legislation, Jewish values of freedom, justice, honesty and peace. In this realm, intentions and education are no less important than actions, and as such the laws should be interpreted.
The basic approach of political morality in Israel should be distinct and compatible with the concept of a ‘Jewish State’. Despite certain similarities to communitarian theories as well as Western ideas of virtue, this approach will differ in all fundamental respects from these theories.

Chapter 6: A General Perspective

The evolution of the role of the British Parliament exemplifies the first basic distinction between Jewish morality and Western morality. Originally, the British Parliament functioned as a court of law. Its role was to establish law, through interpretation of already existing law, and not through actual legislation. This perception of Parliament stemmed from the prevailing religious view of the time according to which only God had the authority to ordain law. A king’s authority was limited to interpretation of God’s will via the agency of the Parliament.[56] It was only with God’s fall from power, that man, in other words – Parliament – was given the royal power to legislate. With this the Religious Age, the reign of God, ended, and the Secular Age – the reign of man – began.

The divine source of religious morality not only creates a technical difference between religious morality and secular morality, but also a very fundamental distinction. Religious morality, because of the nature of the relationship between God and man, is predicated on obligations. Secular morality, in contrast, is based on rights. God doesn’t need rights; only man does. In this lies the second distinction between religious and secular morality.

The third underlying difference between religious and secular morality lay in the creation of government rights alongside individual rights. These rights promptly turned into democracy.

Within the framework of divine morality, there are no rights, only obligations. These obligations, of course, benefit many others, but a benefit does not imply a right. This holds true in Hinduism, Buddhism, Confucianism, Shintu, Christianity, Judaism, and Islam. Thus, in contrast to secular systems, the Biblical injunction that a Hebrew slave goes free in the Sabbatical (seventh) year obligates the master to free his slave while granting the slave the right to go free only as a by product of the master’s obligation. The Torah commands the Jews to love the foreigner, to judge him impartially. It instructs those who are more fortunate to act with charity towards those who are less fortunate; it does not turn to the recipients of this charity and inform them that they are entitled to this treatment. The same holds true regarding the orphan and widow. The Torah commands us to treat them with kindness, justice, and love. It imposes an obligation upon the stronger members of society; it does not confer a right upon the weaker members. In Confucianism, the master is commanded to be lenient and magnanimous to his servant. This behavior is incumbent upon the master, but the servant does not possess a right to this treatment. Similarly, though the servant is obligated to obey his master, his master does not have a right to he be obeyed.

In Hinduism and of course Judaism,[57] these obligations are sometimes imposed upon the group – a communal responsibility or accountability.

A legal system, in which man, not God, designs the rules, is a system in which rights play a central role.[58] It is man who determines the law and it is man who implements the law. Man is supreme and there is no force greater than him. Since all men, by definition, are supreme, it follows that they are all equal. This brings us to the fourth premise of secular morality – the principle of equality. This right is derived from utilitarian ideology and the concept of ‘it’s coming to me.’ It is a right that is non-executable and utterly hypocritical. There never has been equality and there never will be.

The Jewish commandment ‘to love one’s neighbor as oneself,’ on the other hand, may not be more executable, but it is more enlightening. It reflects less conceit than the principle of equality, and greater truth. It turns to the one who should be giving, not to the one who should be receiving. My love for my neighbor does not necessarily result in equality, and thus it is more likely to be realized. The Biblical injunction addresses a person’s attitude and intentions rather than his technical superficial actions.

The beauty of religious morality is that man does not see himself as supreme, but rather strives to elevate himself and to raise his moral stature. The inherent problem with Western secular morality, in contrast, is that man has no higher authority to emulate. The potential for improvement that religious morality holds for a religious person combined with the obligations it imposes upon its adherents, create the potential to rise above the level of utilitarianism (assuming the divine commandments are not designed to simply benefit those who fulfill them or someone else of their choosing). This potential is not realized in every religion, nor in every religious system, but it does exist to some extent in the world of religious Jewish thought.

The spirituality of which Jewish sources speak, refers to the spirit of God that man seeks to emulate in order to draw closer to his Creator. This spirituality is not to be confused with the spirituality referred to by Western philosophers, such as John Stuart Mill. Mill refers to a matter that belongs to man, an inalienable right. It is a form of acquisitiveness, a spiritual utilitarianism. It is a spirit of man that seeks not to be crushed or suppressed, that wishes to grow and blossom. In Judaism, emulation of God’s attributes through one’s love of Him, is not man’s inalienable right, but a goal a Jew is commanded to strive towards, an obligation – he seeks to fulfill through his love for God. This commandment is an obligation, not a right. It is a much higher, deeper, more elevated spirituality that is far closer to the truth. Even those who try to find the latent benefits within the reasons for the commandments, concede that this spirituality is not an asset that belongs to man by right, but one that he has an obligation to strive towards.

Western man also exalts freedom of thought and expression, human dignity and freedom, free scientific inquiry. All these are Western man’s possessions, though they are spiritual possessions. In Judaism, Christianity, Islam and Hinduism, spirituality is a product of submission, humility, of a renouncement of greed and force – and thus it is a far more elevated spirituality.

Western secular systems, in contrast, safeguard material and spiritual assets in similar ways. They establish laws for the benefit of the individual and for the benefit of the group, for the good of the physical and the good of the spiritual – but the common denominator – is fortification of man’s property. Man fortifies himself, while in Judaism, the Jew fulfills his destiny by going out to meet his God.

As a result of Western-secular man’s inability to rise above his acquisitiveness- in both material and spiritual matters, certain inclinations towards: hedonism, exhibitionism, sexuality, and aggression have colored his everyday behavior. Some of the products of these inclinations are:

Pornography
Immodest dress that only promotes a view of women as sexual objects rather than subjects with the ability to influence their environment
Latent hedonistic competition – who threw the most ostentatious party, invited the most distinguished guests, or owns the biggest car - without regard for their host’s or owner’s emotional connection to them
Violent children’s games often based on a struggle between the forces of good and evil where good is equated with powerful and is thus victorious over evil
Gum chewing – perpetual eating
Use of force also in the political arena
In summary, Western secular morality is based on the supremacy of man, on rights, democracy and equality. Religious morality (what is common to all religions) is based on the supremacy of God, obligations, hierarchy. It has educational advantages for it emphasizes self-improvement. It sets realistic goals based on love and kindness, in contrast to secular morality that possesses hollow slogans and less regard for the individual. Secular morality apparently is intent on scientific, economic, and technological achievement, on the discovery of new distant physical worlds, while religious morality is more concerned with purifying and elevating mankind. Western man is more closed and focused on his achievements while homo religiosus is more spiritually receptive. Religious man should not feel compelled to bow to Western man.

Notes

1. See Clifford Geertz, Interpretation of Cultures, translated into Hebrew by Yoash Meisler (Jerusalem: Keter, The book was published originally in English in 1973), p. 38. On p. 37 Geertz writes that “The role of theory in ethnography [a branch of anthropology –Y.C.] is to provide the wealth of terms by which it will be possible to express what the symbolic action [the action which is the subject of the ethnographic article and the anthropological study] has to say about itself, in other words about the role of culture [the particular one that the anthropologist is investigating– Y.C.] in man’s life. On p. 35, however, after depicting the primary work of the anthropologist as ‘thick description’, Geertz writes: “We are unable to write a general theory of cultural interpretation.” Perhaps, we can, but it appears that the potential benefit is negligible, since the primary purpose in constructing a theory in our field [the field of anthropological science – Y.C.] is not to derive a formulation for the simple repeated action but to facilitate a thick description, not to include the individual cases [to find the common denominator that connects the anthropological facts into a broader understanding of the subject of research – Y.C.], but to include within them [to develop a ‘thick description’ in which the facts that emerge in the study connect at the low theoretical level, and not at a general fundamental level of understanding that even allows us to draw general conclusions – Y.C.]. On p. 36, though, Geertz explains that the emerging theory must be consistent with already existing as well as future findings, yet still the actual concept of theory is limited.

2. R. Yehuda Cohen, Who Fears a Jewish State? An Ideological and Legal Perspective (Tel Aviv: Lishkat Orchei Hadin Publications, 2001).

3. Ibid.

4. Emanuel Joseph Sieyes, What is the Third Estate? Translated by M. Blondel and edited with historical notes by S.E. Finer, Pall Mall Press (1963), p. 126.

5. Ibid, p. 119.

6. A. Margalit, The Decent Society, p. 38.

7. R. Yaakov Bronovsky, Sources of Knowledge and Imagination – Witchcraft, Science and Culture – Two Series of Lectures, Translated from English by Sarah Yertzki-Kahanski (Tel Aviv: Am Oved, Ofakim Library, 1983, Published in English in 1978). There on pp. 22, 25, 29, 41, the idea is proposed that over the last million years, man essentially created himself by developing his brain, and that man’s understanding of things in nature is more a product of receiving mechanical sensory information according to a conception that matters of import must be able to line up. Man’s imagination guides him more than reality. Man’s ability to understand nature depend more on his ability to interpret sensory information than on factual information. On page 79, it is claimed that man’s world view is dictated by his biological makeup and on page 82, it is explained that every scientific principle is subject to modification based on new understandings and research. On page 76, man is depicted as a hopeless optimist who searches for new principles every time his old system of principles collapses.

8. Jeffrey G. Warnuk, Modern-day Moral Philosophy, Translated by Shaul Chanani, Ed. David Had, (Magnes Press: 1987, 1992), pp. 59-60. He writes: “Even though the emotives weighed the effect of moral dialogue on the standpoints, their explanation was incomplete, or in actuality completely misleading. The problem stemmed from certain imprecision in the explanation of the term “standpoints”. Their goal was to associate standpoints with feelings – to identify, for example, my disapproval of Mr. Smith’s behavior with the repugnance or recoil I am likely to feel when I witness it. This is not, however, a simple mistake but rather a most serious one. For the result was…my disapproval with Mr. Smith’s behavior was identified with a completely different occurrence – ‘of getting something off my chest’ with regard to it. My desire to change Mr. Smith’s viewpoints turned into a mere attempt to ‘work’ on his emotions. This is the source of the fallacy that moral expressions hold ‘emotional significance’, for if let my emotions out and ‘work’ on your emotions, aren’t I using emotional language? >From this we are led to the final conclusion that moral dialogue is fundamentally irrational, a product of psychological pressure and not rational argumentation, a matter of effective manipulation and not reasoning.”

9. Kant, A Premise of Metaphysics, Magnes Press.

10. Further on, Kant’s motive in formulating this philosophy will be analyzed, an explanation that will connect Kant’s philosophy with the transition from the Age of Religion in the areas of morality and law to the Age of Secularism in the development of society.

11. John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972).

12. See Victor Frankel, The Unknown God, Psychotherapy and Religion (Jerusalem-Tel Aviv: Devir, 1985 – Translated into Hebrew by Shimon Sevi), p. 37. The original is in German, its 3rd edition was published in 1979 and its first in 1948. Speaking about the roles of reason and emotion in directing human behavior, Frankel writes, “Man’s emotion has the ability to be far more sensitive than his reason has to be logical.”

13. H.L.A. Hart, The Concept of Law (Clarendon Press, Oxford, Second Edition, 1994) pp. 185-200.

14. Further on, this work will present the difference between the approach that places man and his traits as a goal onto itself (as the center and supreme goal) held by Aristotle and Macintire on one hand, and an approach found in Judaism, that views man’s traits as the way to get closer to God. It will be shown that Aristotle and approaches REST MISSING IN HEBREW FOOTNOTE.

15. Kant describes the connection between existing laws of nature that man uncovers and behavioral (moral) laws that man creates in his book cited in footnote 9, on pages 78-79. On page 91, he elaborates on man’s tendency to formulate principles as well as on the objective root of moral principles. The generality and objectivity of moral principles is the reason, according to Kant, that man is obligated to follow these principles. See pp. 103-105 of his book.

16. See his book cited in footnote 1, chapter IV. On p. 136 he describes the ‘impulse to find meaning in his experience, to give it form and order.”

17. Ibid, p. 54.

18. M.J.C. Vile, Constitutionalism and the Separation of Powers (Clarendon Press: Oxford), pp. 24-25.

19. Kant, in his book cited in the previous footnote, on page 110 explains, in the context of why man should heed laws of morality that he himself (and not an objective source such as God or nature) creates, that adherence to the laws of ‘pure practical reason’ that man autonomously designs make man ‘free in regard to all laws of nature and bound only by those laws that he himself gives.’

20. Jean Jacques Rousseau, On the Social Contract (Magnes Press, 1996), p. 64. He writes there: ‘This is what compelled heads of state throughout the ages to rely on help from God and to give honor to the Gods, attributing to them their own wisdom, so that the nations bound by the laws of their country as they were to laws of nature, recognizing that the same force itself created man…will willingly heed and eagerly bear the burden…This exalted principle, which is beyond the understanding of the masses, is that the legislator put his decisions in the mouth of the Gods in order to suppress by divine decree anyone not stirred by human authority.’ Isaiah Berlin in his book Four Essays on Religion, translated into Hebrew by Reshafim Press in 1971, writes on page 189, regarding the transition from the Age of Religion to the Age of Secularism: ‘In it’s apriori version, it is a secular form of Protestant individualism, in which a rational approach replaces God…’ It is clear to all that reason replaced God in the Age of Secularism. What we seek to explain and emphasize is the reason why reason was chosen in these circumstances. In Kantian philosophy, reason is objective, and therefore it became the incontrovertible anchor that replaced faith in God.

21. Kant, Basis of Metaphysics, cited in footnote 9, pp. 99,117,124-131, 143-150, 159, 167-170.

22. One may view liberal individualism as a decisive transfer of the crown to man. After it had rested on the head of the deity during the Age of Religion and been passed through three secular stations that provided refuge from claim of non-objectivity in other ways, man forgot about the Age of Religion. The problem of legitimization ceased to disturb him, and it was finally possible to crown man with the same crown with which it was inconceivable to bestow upon mortals in the Age of Religion. But see: Hermann Cohen, Religion of Reason from Jewish Sources (Mossad Bialik Press and the Leo Baeck Institute (1971) written by the religious liberal Jew Hermann Cohen in the beginning of the 20th century. His writing reflects the strong influence of Kant, and in fact Cohen builds a moral theory based on man’s reason, but not in opposition to religious morality but rather as the product of his system that marries what is in existence (nature) to what is desirable (morality) to form one unity directed by the scepter of a God who created man so that he might join between these two using his powers of reason granted to him by God. According to this, truth is the union between what exists and what is desirable and its chances of success depend on God. This union produces the true religion which all people will eventually come to follow. This is the ‘religion of reason’ that Hermann Cohen finds backing for in Jewish sources.

23. Rupert Emerson, State and Sovereignty in Modern Germany (New Haven: Yale University Press, 1928), chapters I & II. An analogy is drawn there between cultural and political events and developments in the internal government and the different systems. Though great German philosophers were leaders until today in the development of moral and political thought, Emerson depicts them as prisoners of the reality in which they lived. They developed their theories as answers to the problems of the reality they were familiar with. This supports the thesis of this book regarding the weaknesses of secular Western philosophy, which despite its hopes to reach the skies with its ‘objective’ study, was mired in the sludge of the ever-changing reality

.24. J. Bentham. An Introduction to the Principles of Morals and Legislation (Athlone Press: London, 1970), ed. by J.M. Burns and H.L.A Hart.

25. See footnote 10, J. Rawls, A Theory of Justice.

26. See a description of Rawls position in footnote 30, Communitarianism and Individualism, p. 5.

27. See the comparison between the political community and the domain of integrative feelings and accountability of the individual within it, as described by Dvorkin in his book in the previous footnote, pp. 211-213.

28. See Bentham, 219, where Dvorkin claims that a liberal who lives in an unjust society will feel that his quality of life is diminished as a result. He will develop true sensitivity of civil republicanism??? In which individual citizens must fuse their interest and personality within the communal politic??? Dvorkin argues that this approach will blossom only in a liberal community and that only a liberal is capable of merging political morality and his own interest and personality. Dvorkin ignores, however, the limited framework in which the liberal will exercise his involvement in the national society, the framework of the activities of the ‘neutral’ establishment that does not restrain individuals in the country from behaving in a manner that the communitarian ideologue considers contrary to his values.

29. See footnote 11, Rawlesp. 560.

30. Sandel Michael, “The Procedural Republic and Unencumbered Self”, Communitarianism and Individualism (Oxford: Oxford University Press, 1992), Avineri and A. De-Shalit ed., Political Theory 12, pp. 81-96.

31. Apparently, but not in reality as will be demonstrated in Part V of this book.

32. This is manifested in countless examples. For example: Ronald Dvorkin, “Liberal Community”, California Law Review, Vol. 77 [1989] 479, p. 485. Dvorkin clearly distinguishes between circumstances which are clearly in man’s interest whether or not he recognizes, such as good relations with one’s children to man’s understanding of their value. Dvorkin advocates society’s non-intervention in areas that are autonomous to man. He argues that society has no right to interfere on paternalistic grounds and to force man to appreciate the importance of his relationship with his children and thus improve his relationship – even if this intervention is intended to help the man himself and to further his interests. This assistance is objectionable since it involves interference in an individual’s private affairs.

33. Communitarianism and Individualism [edited by Shlomo Avineri and Avner De-Shalit, Oxford University Press, p. 3. They write, “Both communitarian and individualist theories begin with the image of the individual.

34. This book distinguishes between the words morality and ethic. Ethic refers to already existing principles of behavior while morality refers to appropriate principles of behavior. Ethic is the implementation of morality in a certain time and place. Morality, according to a communitarian perspective, can be appropriate for a specific society at a certain time, while according to a liberal view, it will be applicable at all times and in all societies. A third possibility, is that it is the suitable moral code for a particular generation. These three viewpoints will be analyzed further at some other time.

35. Not including the Jesuites and monks, to a certain extent, as will be clarified further on.

36. R. Yeshayahu Leibowitz, Five Books of Faith (Jerusalem: Keter, 1995), pp. 23-24.

37. See D”N 13/80. Handels vs. Kupat Am Bank Inc., P.D. 35 (2), 785.

38. P.D. 546/78, 34 (3) 57.

39. Alasdair Macintyre, After Virtue A Study of Moral Theory, second edition (University of Notre Dame Press: Note Dame, Indiana, 1984), Chapter XIV “The Nature of Virtues”, p. 187. Macintyre enumerates three steps in the development of virtue: a)practice (in contrast to theory) b)way of life c)moral conduct. He distiguishes between external ‘goods’ bestowed upon man by external sources and internal ‘goods’ who possess excellence in ‘practice’. He differentiates between institutions (such as universities) who award degrees, external ‘goods’, and exceptional ‘practice’, which is an internal matter. In defining the ‘practice’, he opposes the labels of good and bad. A wonderful pianist, Macintyre writes, may possess negative personality traits (p. 193). Yet, he establishes that the ‘practice’ must be one that benefits society. Excellence, Macintyre writes, must include three elements: justice, courage, and honesty. Different societies may have different codes of justice, courage, and honesty, and man must be judged according to the yardstick of his society (pp. 192-193). Macintyre discusses the element of gratification there is in ‘practice’, and he posits that this pleasure from the action and the action itself are one and the same (p. 197). He doesn’t rule out the possibility of action leading to iniquity. Virtue, he writes, may be linked to activity that has no redeeming value and that is not positive, and therefore one must differentiate between the excellence of man’s action and the virtue regarding the morality of the action, since the question of morality lies independently in the realm of moral law. In general, Macintyre adheres to Aristotle’s approach, and he notes that not only in Aristotle’s philosophy (who seeks to cause man to help himself), but also in other schools of philosophy that relate to man’s character, like Plato’s ( who seeks to motivate man to help society), the New Testament (that seeks to draw man closer to a certain destiny as a believer), and of Franklin (who seeks to motivate man to achieve the greatest benefit from his actions) virtue is not a goal onto itself but rather a means to a certain goal. Macintyre embraces Aristotle’s position, but when we search for the system most in line with the trend in Judaism that we are presenting in this book, the New Testament is the closest. The Rambam’s view will not be examined in this context except to note his divergent interpretation of the mitzvah to send away the mother bird away.

40. See Hermann Cohen in his book cited in footnote 22, pp. 431-432.

41. Tractate Brachot 33b.

42. In his book Tiferet Yisrael (Jerusalem: 1972), Chapter VI, pp. 21-24.

43. In his book Commentaries on the Torah (Mossad Harav Kook Publications: Jerusalem, 1959), Volume I, Genesis, Exodus, p. 76, Genesis 12:2.

44. As cited in Rambam’s Introduction to his Commentary on the Mishnah, ed. and explained by Mordechai Dov Rabinovitch (Mossad Harav Kook Publications: Jerusalem, 1961), p. 184, in his reference to chapter V of Shmoneh Perakim.

45. Sefer Hakuzari in five articles with the two well-known commentaries of Kol Yehuda and Otzar Nechmad. First printing by R. Yitzchak Golman , Warsaw Reprinted by Hadran Pub. In Israel, 1959. Attributed to the Sage R. Yitzchak HaSangari. Second article, p. 115 and on.

46. Zohar on Torah (Yosef Lugassi: Jerusalem, 1959), p. 362.

47. Sefer HaChinuch, 7th edition (Mossad Harav Kook Publications, 1966), authored by an anonymous Jew from Barcelona in approximately 1407 who due to his humility wrote under the assumed name of R. Aharon Zalhahan. First published in Venice in 1523.

48. Sefer Hachinuch (Mossad Harav Kook) examines each of the 613 mitzvahs, generally finding within them a connection to education of man and improvement of his traits. R. Dr. Shimon Federbush’s in his book Morality and Law in Israel (Mossad Harav Kook), also writes about the value of morality and law according to the Jewish perspective, emphasizing the development of spiritual attributes by the Jew who trains himself to love others and yield to their wishes. He writes that the Jewish legal system does not accord with Iharing’s perspective that it is morally incumbent upon every man to seek justice for every legal claim in court because by conceding, he weakens moral foundations and promotes injustice. Quite the contrary, one finds in all of Talmudic literature sharp criticism of those who sought judgement according to the strict law and praise of those willing to compromise, who behaved mercifully and leniently to others…This is the crux of the difference between Western philosophy and Jewish philosophy – Western philosophy will value social order and society’s interest even at the expense of the development of the individual’s character while Jewish philosophy is more concerned with elevating man and his traits, drawing him closer to God than with correcting the way society functions.

49. It is clear that the contempt for the weak and for morality in general and for morality towards the servants in particular, that are the basis of Nietzche’s philosophy, reflect just how low we are liable to sink when man stands at the center of our moral systems.

50. Kant ‘borrowed’ one of Judaism’s principles of faith in order to justify an estrangement from religion and in order to build a secular moral system. He adopted the principle by which man should “act only according to that maxim by which you can at the same time will that it should become a universal law.” This principle is in fact a reformulation of Hillel the Elder’s statement, “Whatever is despicable unto you, do not do unto your friend” which was his interpretation of the verse in Leviticus, “Love your neighbor as yourself.” Kant took this verse that exhudes love and feeling, and distorted it, formulating in an utterly dry unfeeling manner. This principle, thus lost its primary moral force and it is easy to identify its weaknesses. Jeffrey G. Warnuk, in his book Moral Philosophy of Our Times, translated into Hebrew by Shaul Chanani (Magnes Press: Jerusalem, 1987, reprinted 1992), pp. 81-82, refers to a similar idea to Kant’s, developed by Hare of the perspectivist movement, that the author of any moral statement must always be willing to have the statement apply also to him. Warnuk writes: “The callous landlord, about to turn his elderly, ailing, and indigent tenants out into the cold, is likely to agree that not only will they not appreciate such treatment, but also that he wouldn’t appreciate it more if he were in their place. Nevertheless, he is likely to claim that it is still just to evict them just as it would be to evict him in a similar circumstance. The degree of satisfaction or dissatisfaction is irrelevant; the point is that a deal is a deal and that a financial agreement must be kept. In other words, a consistent defense of the fact that I ignore the interests of others, doesn’t require me to go so far as to positively desire that my interests be overlooked, or even my equanimity when others disregard them. All that is demanded of me is my agreement that failure to take my interest into account should not prompt feelings of moral repugnance, and this isn’t a perversion of justice or inequity. This is the principle that lies behind self-reliance, the unrestrained competition of captitalism – a message that no matter how unpleasant was adopted by many reasonable people.”

51. See Warnuk’s book in the previous footnote, beginning on p. 84.

52. One should not confuse the relationship between spirit and material to that of liberal individualism (‘rights of the individual’) and communitarianism or utilitarianism. Placing rights above self-interests is not the triumph of the spirit that this book speaks of. This book is not referring to man’s spiritual needs, to his freedom of speech and thought and other basic human rights. All these are examples of man’s self-interests, though they may be spiritual interests. This book refers rather to spirit in the meaning of that which man aspires to, not that which man already possesses and should not have stolen from him. The first is an existing spirituality, that wishes not to be trodden upon and aspires to grow and develop. The second is what we identify as a higher value that we aspire towards, though only very few will attain it, since it is extraordinary and exceptional in relation to human nature, and it is common particularly among religious people who distance themselves from materialism. Examples of the first are freedom of thought and expression, man’s dignity and freedom, free scientific inquiry. The second is exemplified by an unassuming nature, humility, submissiveness, lack of greed and violence, and self sacrifice at critical moments. An example of the first is Mill’s philosophy. See “Toleration and Mill’s Liberty of Thought and Discussion” by David Edwards, Susan Mendus ed., in Justifying Toleration (Cambridge University Press, 1988), pp. 87-113. There, he speaks of the inherent value of individualism, that goes beyond the anticipated benefit to society. When he says this, though, he means that individualism is in the interest and to the advantage of the individual person, and not only to society. Mill is still referring to human benefit; he is simply distinguishing between general and individual benefit. In contrast to this popular Western apporach (that Mill is expressing), according to the Aristotelian system that the Rambam developed, and in later generations, also Yeshayahu Leibowitz developed (in his book on five books of faith, Keter Pub: 1995) a Jew is obligated to fulfill religious commandments without any connection to self-interest. This is illustrated in Rambam’s Mishneh Torah, on Mada, Ahava, Zemanim, printed in Israel, on page 40a, where the Rambam relates to the view that mezuzah holds practical benefit. The Ba’al Haturim holds this opinion as he writes that, “the mezuzah will cause Moshiach to come into your houses” for if you shall “preserve [the commandment]” “God is thy keeper. God is thy shade upon thy right hand. God shall preserve thy going out and thy coming in… (Psalms 121).” R. Avraham ????WHO – BEN HARAMBAM? Takes a similar approach towards the mitzvah of mezuzah, viewing it as having practical value as he writes, “In addition to the laws…given regarding mezuzah, the world is accustomed, in order to increase the security of their home, to write at the ends of the lines certain marks and names of the angels, and these do not detract but they are also not a commandment, but simply added security.” In Gaonic literature we find similarly regarding mezuzah, “It is written only on Mondays and Thursdays, during the fourth hour, in the beginning of the light???, at the time when the angel Anael administers, and all tefillin, mezuzahs, and amulets written at these times bring luck with the will of God.” The Rambam, however, takes issue with these opinions, writing, “Those who write inside names of angels or holy names, or a verse or mark, are included among those who have no portion in the World to Come. For these fools have not only forfeited a mitzvah, but they have also related to an important mitzvah of making God’s name one, serving and loving Him, as if it were an amulet of their own making…” The Rambam, therefore, rejects any connection between a commandment and benefit or enjoyment. This is a rejection of the utilitarian approach, a rejection that was adopted in Judaism, and so from the time of the Rambam on, people stopped adding names of angels to the parchment of the mezuzah.

53. R. Yehuda Cohen, Who Fears a Jewish State? A Legal and Ideological Perspective, cited in footnote 2.

54. Ibid.

55. Ibid.

56. M.J.C Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press) pp. 24-25.

57. Eva Hellman, “Dynamic Hinduism – Towards a New Hindu Nation,” in Questioning the Secular State – The Worldwide Resurgence of Religion in Politics, edited by David Westerlund (London: Hurst & Company) p. 242.

58. The distinction between obligations and rights should not be confused with the totally separate issue of the possible