[Avodah] John Locke and Tzedaqa

[Michael Makovi]

Oh, and as Rabbi Emanuel Rackman notes in One Man's Judaism, the
obligation to separate terumah and ma'aser absolutely does NOT imply
an obligation to actually hand it over to its intended recipients. One
must separate the tithe in order to render his food kosher, but
following that, he may let the tithe rot in his cupboard. G-d may hold
you accountable, but no human will. Thus, personal autonomy is
retained as against government coercion. Moreover, it ensures that the
kohanim and levi'im, who were the rabbis of the day, will be
solicitous for your welfare. If they want to get paid (unlike the
Egyptian and Mesopotamian priesthood, the kohanim were not landed),
they had to cultivate a warm relationship with you. You were
technically required to give them their tithes, but they could not
force you to do so; your compliance with the law was between you and
G-d.

Rabbi Rackman's book, I might note, is filled with libertarianism,
cover to cover. His newest edition also has some fascinating
statements about Rabbi Yehiel Weinberg and Rabbi Eliezer Berkovits on
qidushei b'tenai, and about Barukh Goldstein and Yigal Amir.
Obviously, Avodah and Arevim cannot discuss Goldstein and Amir. I just
want to point out that Rabbi Rackman talks about them. I'm not saying
WHAT he says about them, however. I'll just say I agree with every
word he says on the subject.


Also, it would appear that some of my libertarian concerns HAVE been
voiced by Jewish authorities before me. In Rabbi Dr. Marc D. Angel's
The Jews of Rhodes, we read (p. 26),
> One of the persistent and complex problems associated with haskamoth
> was the question of whether the majority the right to pass an ordinance over the
> objection of a dissenting minority of the community. Does the majority rule, or
> is unanimity imperative? Over the centuries this question evoked considerable
> rabbinic discussion.
>
> It seems the Jews of Rhodes resolved this dilemma by distinguishing between
> different types of haskamoth. In matters involving an improvement that was
> needed for the general community, a majority was sufficient to enact a haskamah.
> But in matters involving taxation, a unanimous decision was required in order to
> protect individuals from a barrage of levies imposed on them by the majority of the
> community. In the final analysis, the situation surrounding each haskamah had to
> be carefully evaluated before determining whether a majority or unanimity was
> required for its adoption.
>
> Rabbinic law allowed for the institution of herem, excommunication, in order to
> give communities power to enforce their laws. Yet, herem was more a threat
> than an actual procedure.

As Rabbi Angel's larger discussion shows, many (if not most) of these
haskamoth were regarding tzedaqa to the poor. So the community
accepted that it could not pass a new haskamah, even for the poor and
for tzedaqa, without unanimous approval by the community. In other
words, the Jews of Rhodes were concerned with the tyranny of the
majority no less than Alexis de Tocqueville and the Federalist Papers
were, even regarding the issue of tzedaqa. The solution was different
than mine, but the question was the same libertarian one.


R' Zev Sero: Thank you. You've given me the best, most reasoned
response I've gotten from anyone yet. Let me respond then:

> And He has made each of us responsible for our fellow Jews,
> and authorised us to use force if necessary to make each other
> keep halacha.

A very good point, thank you.

But first, we are entitled to fiddle and tinker around with Locke a
bit. There's a difference between a liberal and a communal democracy,
with the latter being less individualistic and more societal. America
is mostly liberal, but even things like the Civil Rights Act are
communal. According to pure Locke-ian liberalism, if I want to keep
blacks out of my store, that's my prerogative. If I hate people in
wheelchairs and don't want to build them ramps, hey, that's my right!
So a communal democracy would take a broader outlook, and look at
things from the standpoint of the society at large. It'll tend towards
more positive liberty, but it's still closer to negative liberty than
to positive liberty. You could still say the black and disabled people
have a right not to be discriminated against, and you're enforcing
their negative liberty. You're using positive liberty and infringing
my right to keep out anyone I don't like, but you're also using
negative liberty and upholding their right to be respected as equal
human beings. It's a little bit of violence against Locke, but not too
terribly much. It's still more libertarian than not.

Based on that, we can still execute Shabbat violators, for example. If
Shabbat expresses G-d's existence, and if G-d's existence is the basis
for all morality, then anyone who violates Shabbat is liable to
violate all morality. It used to be that if you violated Shabbat
today, that you'd murder tomorrow. This is no longer true, as the
tinok she-nishba shita of the Arukh la-Ner says, but it used to be.
Back then, executing Shabbat violators was perfectly libertarian.

(Luckily, according to Rabbis Akiva, Tarfon, and Rashbag in Makkot, we
don't have to execute Shabbat violators anymore. Rabbis Akiva and
Tarfon say they wouldn't execute murderers, and kal va-homer they
wouldn't execute Shabbat violators either. As for Rashbag, he argues
against Rabbis Akiva and Tarfon that they'd cause murder to
proliferate. Ergo, he has no problem with their failure to execute
Shabbat violators. Based on this, I'll tell people, with a completely
straight face, that a theocracy in Israel would not necessarily entail
any coercion to keep Shabbat, or to keep anything else in halakhah for
that matter. That's what's great about Judaism - lo bashamaim hi. To
paraphrase Jackson's statement to Marshall, if G-d wants Shabbat
violators dead, then let Him do it.)

Rambam describes coercing the recalcitrant husband in terms of
positive liberty. I.e., his yetzer ha-tov really wants to divorce his
wife, so we force him to do what he really wants to do. But even then,
we could classify it as negative liberty, of the wife's right to be
divorced. So it's still acceptable to a libertarian.

But collecting tzedaqa is something different. At least with Shabbat
and tefillin and gittin, there are definite objects of my observance.
I have to put tefillin on ME. I have to avoid lighting THAT fire, and
I have to divorce THAT woman. But with tzedaqa, there are a million
different possible recipients of my money. How can you force me to
give money to this poor guy, when maybe, I want to give it to that
other poor guy?

A second distinction: I'm not into the sugya right now, but there's
the whole discussion in Makkot I think about giving makkot for a lav
that can be corrected. Do we lash you when you fail to correct your
transgression, or only when you render it impossible to ever fulfill
it in the future? I think it was something like: if you take the
mother with the eggs around, you can always put the eggs back. So do
we lash you the moment you fail to put the eggs back immediately, or
do we lash you when you eat the eggs and make it impossible to ever
put them back? I forget exactly, but I think that's the gist of the
discussion in Makkot. Tzedaqa is like that sugya in Makkot. Yes, I
have to give 10% of my income. But maybe I'll wait until I'm on my
deathbed and I'll give 10% of everything I've ever earned in my entire
life. So until the day I die, you cannot be sure I haven't done the
mitzvah of tzedaqa. With Shabbat, you know I violated it the moment I
light a match. With tefillin, you know I violated it the moment the
sun went down. But with tzedaqa, how can you be sure I violated it?

A third distinction: with murder or Shabbat violation or tefillin, my
violation is concrete, and my punishment is concrete. If I have to be
killed for Shabbat violation, it doesn't matter to me which beit din
kills me. Whether or not the beit din is one I accept, either way, I'm
dead. But with tzedaqa, when the beit din takes my money, they'll give
it to the social cause THEY like themselves. So now, it really does
matter to me which beit din takes my money. So who is this beit din to
tell me I have to give tzedaqa? Maybe I'd prefer it if the other beit
din took my money.

So even under libertarianism, it's relatively easy to justify
punishing for Shabbat or tefillin, as long as you feel free to fiddle
with Locke a little bit. But tzedaqa remains a huge question. It was
to answer that huge question that I offered my oqimta between small
communities and nations.

R' Arie Folger responded to my libertarian assertions regarding tzedaqa, saying,
> Eh, halakhically not true: kofin 'al hatzedaqa.
> Rambam hil. matnot 'aniyim 7:9[10]:
> http://www.mechon-mamre.org/i/7207.htm
> Whoever does not want to give charity, or  gives less than what befits
> him, the court forces him, and beat him, until he will give as much as
> [the court] establish he should give. And [the court may authorize for
> its designated agents to] go into his domain and take whtever it
> befits him to give.

Indeed. I know the halakhah, and I'm not trying to argue it. I'm
trying to reconcile Locke and halakhah. Thus, I suggested that
perhaps, in a small self-contained community, coercion like what
Rambam describes is legitimate.

Now then, R' Montagu said,
> This is true even of a minimal tzibbur of 10, who have the right to compel
> one another not to leave town on Yamim Nora'im, or to pay for a replacement.
> (end of OH 55).
This is the kind of law that'd have troubled me even more I learned
Locke. This kind of law just so totally cuts against my grain, I'll
have to scream. So I'll have to think about this one more. I don't
want to touch this law yet with a million-mile long pole, until I've
really thought about it deeply. Thanks for pointing it out.

Michael Makovi