Covenental Ethics, Civil Discourse, And The 2016 Election (Randi Rashkover)

2016 Election, Commentary, Ethics

The following article was originally published in the print Journal Political Theology  in volume 18, 2017 – Issue 3.  It was also published online on April 21, 2017.

On the morning of November 9, half-stunned, I called my brother – a Manhattanite who had, over the course of the past three months sent me no less than 5 text photos of himself standing next to Hilary at one or another democratic party function. On the phone he said two things: first, read the Federalist Papers and second, don’t worry, we have a system of checks and balances.

At the time, I was skeptical. Some two months later, I’m willing to consider how and why a Jewish philosopher might entertain this appeal to the system. To explain let me first offer a quick and highly limited diagnosis of the current situation.

At the moment, much of the nation is awash in anxiety and this I will suggest is the result of a correlation between anti-political populism and the distortion of civil discourse. A quick glance at the news headlines over the past several weeks reveals two dominant sources of current cultural anxiety both summarized by the question:  what will Trump do in his first one hundred days? Will he, some articles ask, backpedal on many of his campaign promises, leaving Trump supporters holding their breath, waiting and wondering? Or, those on the other side anxiously ask, will he actually enact these sloganed promises and unleash their maladaptive effects?

Both experiences are symptomatic expressions of a communicative distortion or what in this case is Trump’s free-wheeling, groundless rhetorical spewing – a mode of discourse that instead of delivering clearly communicated meaning purposely confounds the efforts of its recipients to discern whether it is meant as claim-making, theatre, or babble. For more than a year, the public has listened to him mock the linguistic habits of accountability required for grounding all human social, economic, political and emotional affairs; habits that allow us to trust one another and adapt to the world we live in. How, did this guy get elected?

One hypothesis is that Trump’s communicative violence arose as an expression of anti-political populism. There is, I dare say, a pragmatic value to Trump’s flights of rhetorical anarchy. Trump’s language is affective and appeals to what is a real and undeniable moment in linguistic function – the cry, the shout. Folks are angry. Folks want to “react” and Trump’s rhetorical lawlessness gives them language to do this. They shoot from the hip emotionally and he tosses back a slogan, something they can chant to perform a one-way utterance not intended for conversation but for catharsis only and the more he plays along, the more popular he becomes.

So, don’t we get to grunt and cry and shout?  Yes, of course we do but the marriage between anti-political populism and demagoguery signals the over-use of a linguistic function at the expense of other linguistic functions that can and need to kick in as we not only need to ‘react’ to our world but ‘live in it’ as well.  It’s one thing to shout ‘ouch’ when burned. It’s another not to move away from the flame, put it out – or call for help.

In other words, first we react and then we have to interpret and when we interpret we connect the event to which we’re reacting to our world and the problem solving begins. Anti-political populism halts in the moment of reaction before problem-solving and understanding begin to do their work.  Anti-political populism refuses to move into civil discourse resisting habits that preserve us and enable us to function.

So, how do we restore civil discourse in the wake of a reaction-driven anti-political populism? The first step is to recognize the deeper cause of these problems. The current rise in anti-political populism reflects a two-sided problem: 1) the inability of persons to articulate their needs and interests in a language that can speak to political and/or legislative processes i.e. ‘politicize their needs through the discourse of ‘rights’ language and 2) the “rationalization” of state and market forces that operate indifferently to the needs and interests of persons affected by them. Distortions in political processes give rise to distortions in civil discourse and the divide between human subjectivity and political and economic objectivity increases. Somehow the divide must be mended.

Certainly, I am not the first to anticipate the “revenge” of subjectivity over and against a state and market machinery deaf and dumb to the human factor. In a publicly held January 19, 2004 conversation with then pope Carl Ratzinger, Jurgen Habermas expressed deep concern over the ever-growing distance between political and market forces on the one hand and the democratic processes designed to meet and secure the needs and interests of citizens on the other.

Still, what makes Habermas a noteworthy voice of this critique is his post-secular identification of the role religion can play in restoring civil discourse. If according to Habermas, it is certainly the case that, “the liberal state can satisfy its own need for legitimacy in a self-sufficient manner . . . [it is also the case, that] . . . citizens are expected to make active use of their rights to communication . . . not only in what they rightly take to be their own interests, but also with an orientation to the common good”.(30)  And to do so, citizens can and ought to have recourse to religion. As a language about the common good, religion, Habermas maintains can play a critical role in morphing needs into ‘rights’ thereby awakening democratic processes from their political and economic slumber.

Unfortunately, there is a good philosophical reason why this post-secular account of the installation of religious values in the public square will not repair our current problem. Simply stated, ‘ought’ statements (i.e. ‘we ought to love one another’) are aspirational at best and irrelevant or dogmatic at worst unless they are directly tied to what I refer to as ‘is’ statements or claims about the world within which these ideal claims are relevant and realized.

The effort to “politicize” a value requires that ‘x’ value be linked to the world we live in.  It requires that the value be identified and accounted for as the mediator between the two apparently oppositional spheres e.g. subjective need and political process. Values cannot stand alone but require in philosophical language, ‘transcendental analyses’ of ‘how’ they mediate between needs and laws.

“First order” values-discourse interventions untested by their utility fall prey to a range of logical problems that include, 1) utopianism and/or irrelevance, 2) de facto legitimization of existing power structures (i.e. free floating symbols of ‘the good’ can, when untested by the real needs of persons and to the real policies that could work on their behalf, get taken up into the discourse of those in power as tools in their arsenal of self-legitimization and/or 3) dogmatism. The installation of ‘values’ into political discourse is tricky business, and when performed without philosophical self-reflection or examination can result in the determination of dogmatic positions that work against the protection of individual and communal rights and not in support of them.

This is a lesson that modern Jewish philosophers have had to learn the hard way.  As commonly known, modern Jewish history can be characterized as the tumultuous back and forth between rights acquisition and rights deprivation. Undoubtedly, Western European and American Jews often jumped on the ‘values’ bandwagon eager to present Judaism as a fount of the common good and in this way, create a culture concerned with subjective rights in general and Jewish rights in particular.

Unfortunately, as history demonstrates, these attempts generated little success. Nonetheless, there is a strain in modern Jewish thought that identifies a third way between resignation to political power and a naïve and utopian effort to promote universal values in the name of securing rights and interests.

The earliest proponent of this third way was Moses Mendelssohn who argued that the greatest contribution a religious tradition can make to the cultivation of a rational civil discourse is not its universal moral principles but its on-going hermeneutical or ‘oral’ reflection upon written or in the case of Judaism, legal texts. Moral principles, Mendelssohn argued can be easily enlisted for the purpose of sustaining political and economic power.

Cultural exercises in hermeneutical reflection that insist upon the ongoing determination of the meaning of a written text as it changes and is effected by its readers and the world within which they live require by contrast social engagement, questioning and openness to change.

According to Mendelssohn, rabbinic Judaism’s praxis of oral study offers a key example of how hermeneutical reflection upon a written text can generate a pragmatically constrained “religious” discourse that can positively contribute to the development of a civil discourse needed to offset the tendency by ‘prosperous enlightenment’ nations to support theoretical claims without inquiry or critique.

Mendelssohn’s unique post-secular account of the direct connection between rabbinic study and civil discourse has been widely appreciated by contemporary Jewish scholars. Fewer Jewish philosophers have recognized the import of Mendelssohn’s analysis of rabbinic study and the political rights dimension of civil discourse in particular. Ironically, the connection was not lost on the purportedly anti-semotic legal theorist Carl Schmitt. In his work The Leviathan in the State Theory of Thomas Hobbes Schmitt noted that,  “In the eighteenth-century it was Moses Mendelssohn who  . . . demanded from the state freedom of thought . . . he was of no great mind but endowed with the unerring instinct for the undermining of state power (emphasis, mine).”(60)

Generally speaking, Schmitt dismissed Judaism as overly particularistic and legalistic, capable in his estimation of emptying history of soteriological meaning and development. In his book on Hobbes, Schmitt identified Spinoza qua ‘liberal Jew’ as the first defender of a legal proceduralism that might place limits on the authority of a sovereign to exempt himself from the law.

Schmitt clearly identified this challenge to authority by a legal system of rights with Judaism and its so-called legalistic particularism. Undoubtedly, Schmitt did not do Jewish scholars the favor of outlining the direct relation between Jewish legal hermeneutics and modern legal proceduralism and rights discourse. Still, his prejudicial recognition of this connection ironically reminds contemporary Jewish philosophers to do so ourselves.

Arguably, the connection between Jewish legal reflection, modern legal proceduralism and the development of a civil rights discourse is covenantal. To explain, let’s have a brief look at a rabbinic text Bamidbar Rabbah which offers a commentary upon Deuteronomy 2:24. In Deuteronomy 2:24 it says, “Rise ye up, take your journey, and pass over the valley of Arnon; behold, I have given into thy hand Sihon the Amorite, king of Heshbon, and his land; begin to possess it, and contend with him in battle.”

In response, Bamidbar Rabbah states the following:

when the Holy One, blessed be He, said to him: ‘Make war with Sihon. Even though he does not seek to interfere with you, you must provoke war with him’ . . . Moses did not do so, but as it is written further down, ‘sent messengers . . . with words of peace. The Holy One, blessed be He said to him ‘By our life! You have spoken well! You have taught Me something! I shall thereby cancel My words and adopt yours . . .

What’s going on here? Moses, we can speculate, performed a kind of cost-benefits analysis. In his effort to determine whether the law made sense he tested it in light of who it would affect and whether or not it was realistic given the facts of his current situation. Clearly Moses concluded that the law was not justified or could not be rendered meaningful or intelligible on either of these grounds. Consequently, he challenged it and by extension, the authority of the God who issued it.

Moses’ review of God’s command to go to war with Sihon illustrates how Jewish legal thinking performs a kind of non-utopian and theoretically grounded practical reason. Jewish philosophers have long recognized this dimension of practical reasoning in rabbinic thought otherwise known as inquiry into the ‘reasons for the commandments’. This inquiry refers to an investigation into the meaning or the purpose of a law such that it is intelligible to the person who is obligated to perform it i.e. makes sense in relation to other things we know about our world.

When examined this way, Jewish laws are tested for their ability to mediate between their aspirational normativity and the world within which they are to be taken as authoritative. In this way, Jewish legal reflection functions as an expression of God’s covenantal love promised through the capacity of the law to construct a just community.

Surely, this is the sort of move that worried Schmitt when contemplating the contribution Jews might make to legal proceduralism and the reflection upon individual and communal rights in the German state. If Jews are accustomed within their own legal tradition to assessing the validity of laws in relation to their ability to mediate between a principle of “justice” and its pragmatic effects, why would they not stand in a emboldened position to either a) present particular laws to the public square if and when they were deemed relevant for Jews or for non-Jews given their ability to demonstrate the direct connection between the law or the ‘ought’ and the ‘is’ or b) challenge laws or ‘values’ presented by state power when these laws or ideas fail to be justified by analogous practices of pragmatic review and examination?

According to rabbinic Judaism, authority is linked to reason and frequently, rabbinic reasoning amounts to pragmatic review.  As such, rabbinic thinking constitutes a real challenge to political arbitrariness and indifference.

Unlike post-secular appeals to “values” discourses that cannot offer accounts of how they “work” to meet the needs and purposes of those they are said to represent and how they can be viably translated into political action, rabbinic legal reasoning has the capacity to prepare rational justifications for its laws (or norms) such that these justifiable accounts can be brought into the public square. In this way, rabbinic Judaism can contribute to the restoration of a civil discourse saddled with the responsibility of helping persons express raw needs with a linguistic maturity that others can hear and be expected to respond to or act upon.

Randi Rashkover is associate professor of Religious Studies and director of the Judaic Studies Program at George Mason University. She is the author of Revelation and Theopolitics: Barth, Rosenzweig and the Politics of Praise (T&T Clark, 2005) and Freedom and Law: A Jewish-Christian Apologetics (Fordham University Press, 2011). She is editor of many volumes including, (with C.C. Pecknold) Liturgy Time and the Politics of Redemption (Wm.B. Eerdmans, 2006) and (with Martin Kavka), Tradition in the Public Square: A Novak Reader (Wm. B. Eerdmans, 2007) and (with Martin Kavka) Judaism, Liberalism and Political Theology (Indiana University Press, 2014).

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