by Henry Bean, delivered at Minyan M'at

I don’t say the prayer for the State of Israel. This has less to do with my feelings about Zionism (since I don’t say the prayer for the U.S. either, when we do that one) or even the simple pleasures of being obnoxious than because I’m my father’s son. He is a Reform Jew but an Orthodox lawyer. In our house, we believed in the separation of Church and State. We thought it was good for the State and good for Church; it also happened to be good for the Jews, but that was secondary. And if it had been good and right since 1791, then how could we abandon the principle just because suddenly there was a Jewish state to pray for?

Recently, however, I had some second thoughts about separation, and they came from a funny place. In Paul Berman’s book, Terror and Liberalism, there is a lengthy discussion of the Egyptian thinker, Sayyid Qutb, whom we began to hear about after 9/11 as one of the fathers of Islamism, even though Nasser had had him executed back in the ‘60s..

Qutb was a radical critic of what he called the schizophrenia of liberal west, by which he meant, chiefly, the split between materialism and spirituality. In this he was like Tolstoy and Lawrence and lots of others, but he put the issue in the context of religious history. Qutb admired the ancient Jews and what he called the Mosaic law, and he saw Jesus as a healthy refinement of that tradition. But then two catastrophes occurred: first, Paul abandoned the law, and, second, Constantine’s cynical conversion contaminated Christianity with Roman debauchery. This produced, in reaction, the monastic movement, and thereafter Christianity was split between two sicknesses: asceticism and paganism.

For Qutb, naturally, this prepared the way for Islam which, at least in its first centuries, had the swagger and popular appeal of Christianity, but without the schizophrenia, and the moral and intellectual rigor of Judaism without what Qutb called our “slavish mentality.” But then Islam faded, and the West took over.

In his view, the crux of the Western illness lies in the separation of Church and State. This is what has permitted and even fostered our consumerism, social inequality, degraded popular culture, licentiousness, racial bigotry, crime and so forth. He believed that a truly just society could exist only where the law had God behind it. For him, it seemed, without God, it wasn’t law.

And I have to confess that between Qutb’s critique of modern life, which had, at least for me, its undeniable truths, and his vision of a sane, holistic, “liberal” spiritual society, with Church and State as one, which had its undeniable appeal, I began to wonder how we could get there without going down his road. Even acknowledging the perils of that road, which we knew all too well.
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Qutb thought that the Jews’ “slavish mentailty” had begun back in Egypt and that we had never gotten over it. As we know, Jewish tradition has been concerned with this problem since before the Exodus. The chief business of the parshiot we have been reading over the past several weeks has been to establish Jewish freedom in simple fact, by leaving Egypt, and to institutionalize it in the giving of the law. And throughout, the Torah remains concerned with the lingering affects of bondage.

Indeed, the first precepts in Mishpatim, concerning treatment of a Hebrew servant, are read by a number of the commentators as a reminder to the people that though we were no longer in Egypt there was still slavery among us, even within us. That Jewish fathers were still sometimes compelled to sell their daughters. That freedom is a long road. And just as government of the people, by the people and for the people is not achieved simply by declaring it so, freedom and justice for b’nai Yisrael was an ideal toward which we would continually strive, sometimes getting closer, sometimes slipping farther away.

The chief instrument of this freedom, then and now, perhaps even the purpose of it, is the law. (There is a paradox and a mystery here, that I haven’t the time or the insight to go into. It’s the question we ask every Pesach, did we simply exchange slavery in Egypt for slavery to God or to the Law? Or is that servitude the exception that proves the rule, the Godel’s theorem, if you will, of our freedom. But we’ll leave this for another day.)

In these beginnings, Church and State appear indistinguishable, for God and Law are one. Indeed, if you think of law growing out of a Hobbesian wilderness, little bits of order gradually pushing back the “natural” barbarism and brutality, the Torah is a shock: an entire system of law seeming to spring full-grown from God’s non-anthropomorphic head, starting with that regulations about Pesach, laid out in the kind of detail for which the Jews would become famous, and not excluding how to respond to certain comments your children might make in future generations.

What is curious here, and which almost no one seems to mention is that we are being commanded to remember and celebrate the Exodus before it has even occurred. Somehow the holiday occurs first and the event it celebrates second. It is only after all the details of Pesachs yet to come have been transmitted from God to Moses and from Moses to the elders that the people slaughter the lambs, mark their doorposts and prepare the offering. And only then does God kill the Egyptian first born and the going out finally get going.

So if there was time for all that telling and slaughtering and eating, then, notwithstanding the rules about chumatz and the fuss over unleavened bread, there was, in fact, plenty of time for the dough to rise. What we seem to be encountering here is not history commemorated by ritual, but ritual inventing history. And since, in an important sense, this going out constitutes the birth of the Jewish people, we can say that we were born out of the law. And into the law.

A few thousand years later, Emmanuel Levinas will turn that around and take it a step further. He will say, the law is God. For us moderns this might constitute a happy compromise between our rational minds and our spiritual longings, but it would drive Sayyid Qutb crazy. For him it’s schizophrenic secularism wrapped in a talis.

But I think Levinas is not merely right; I think it’s the only right position left to us.

In the book of Exodus, we often remark, God dominates the story in a way he hasn’t since at least the Flood. He brings down the plagues, leads the people out, parts the waters, gives the law… It is a tremendous show of power, a second creation, really, this time on what the Germans would call the world-historical scale.

And with God’s greatness seems to come a commensurate human smallness. Pharaoh, the competing deity, is brought low, of course, but even Moses is treated like little more than a puppet. We could spend a whole d’var torah some day on the way God uses Moshe Rabenu, ordering him here and there, putting words in his awkward mouth, having him hold up his staff and arm in a kind of dumb show while God and God alone divides the Red Sea and defeats the armies of Amalek. Abraham, Isaac and Jacob – much less Joseph – were never treated like this. They lived autonomous lives into which God intervened now and then. Moses can hardly be said to have an independent life at all once he has accepted the burden of leadership.

Yet at this moment of God’s triumph, when His might seems greatest and His Godhead irrefutable, it all shifts, and He begins to withdraw His power from the world. Or perhaps we should say that He – and the pronoun distorts everything – transforms the power into law and gives it to b’nai Yisrael.

The law sets us free in two way: in the regulations that impose order and morality on our conduct and, equally, in the requirement that we administer them ourselves. A small exmple: the very first law back in parshe Bo commands us to observe Rosh chodesh. This is later elaborated into a requirement that the people themselves determine the arrival of the new moon, with witnesses and so on. The midrash has God saying to Moses, “For 2448 years I have proclaimed every new month in Heaven, but now that you have become a nation, I entrust this task to you.” Duties formerly performed by God, even monitoring the movements of celestial bodies, are being assumed by man.

There is a more general observation along these lines which Leibowitz cites in her midrash on Mishpatim, R. Eliezer remarks about the law, “When Justice is done on Earth, Heaven suspends Judgment.” That’s nicely put. The Judgment hovers up there, like an axe (or a watchful parent) but, if we are good, it does not descend. Eliezer feels compelled to add, “But when there is no Justice, Heaven…sends down punishment.” Even so, it seems clear that we now have a means to keep God up there and out of human affairs. Not only a means, but a duty, for it is precisely our obeying of God’s law that will enable (and, I would submit, require) Man to live without God. And such a world would be, by definition, a good one. A Godly one.

With the giving of the law, God’s earthly presence comes to seem a mark of our immaturity. And Yithro’s administrative suggestion extends this line of thought: instead of Moses as the sole mediator between the law and b’nai Yisrael, we will have also princes, many levels of princes. If the law is the embodiment of God, then that “body,” the divine spirit, needs to be shared, distributed, spread out among the people.

What would Sayyid Qutb say to this? I suspect that he would agree -- with the caveat that it only works if you have the Church behind the law to give it force and vision. Here we come to that often convenient confusion of God and Church which I cannot fully unravel. But I want to ask Qutb if by Church he means truly a conduit for the Word and Will of the Almighty or merely a system of Priests who can invoke supernatural powers to buttress their authority. In short, is his Church truly a Church or is it just the State wrapped in [an imam’s cloak]? For if it isn’t a spiritual Church, then his argument loses all its radical force, and he’s just the Grand Inquisitor.

It seems to me that if we follow the logic of the Torah, Church and State not only should be kept separate, they must be. In a conceptual sense the two simply cannot occupy the same space. For where God retains his power, the law has no authority. God can’t administer the law, because then either He would have to submit to it, in which case He is no longer God, it is; or it would have to submit to Him, in which case it isn’t law, but a dumb show, like Moses raising his arm over the battle.

The Jews, always pragmatic, faced the implications. They understood that having human beings manage the divine power of law is never easy and far from safe. In Ex.23:8 we get a hint of this. God tells us, “And you shall not accept bribery, for bribery blinds the clear-sighted and causes the words of the righteous to falter.” Hirsch’s translation of v’y-salef as “falter” gets the delicacy of the situation better than the usual “perverts.” (Or should the credit go to Gertrude Hirschler’s translation of Hirsch?)

Leibowitz cites the story of R. Ishmael whose tenant farmer brought him on a Thursday the fruits that were due Friday because he had a hearing at the Beit Din that day. This wasn’t a bribe; it was simply the rent brought early to save an extra trip. Nevertheless, R. Ishmael disqualified himself from the case, and even so, he reports that as he listened to his tenant plead his case before other judges, he kept wanting to put better arguments in the man’s mouth and wishing with unseemly lack of dispassion for his success.

If even the righteous—the fanatically righteous—can falter like that, what about the rest of us? This reveals something beyond the dangers of bribery, something almost too frightening to contemplate: the incredible fragility of the entire system of law. It exists to contain human weakness, yet it rests on that weakness. Everything depends on these willful, disreputable, unreliable creatures. You can’t count on them, yet without them what’s the point?

Which is why God does everything he can in the giving to invest the law with as much of the divine spirit as possible. This is what I make of His strange outbursts in today’s parshe. That if we afflict the window and orphan He will kill us with the sword and turn our families into widows and orphans. Or that He will take away sickness from among us and no woman will ever be barren. Placed among the dry ordinances of Mishpatim, these unkept and unkeepable threats and promises seem like something from another age, from before the law when there was only God. That today we search them for coded or metaphorical meanings is itself evidence that God has withdrawn (as certain myths claimed He had to do at the Creation) from the world of the State, of governance, to the realm of the Spirit. Ha-mavdil ben chodesh, ben chodesh b’cal. It is by separating the holy from the profane that we protect them from each other. Because each is essential.

This is an anti-mystical vision, a celebration of the earthly, or at least an acknowledgment of reality. Perhaps there can be no utopian state here, but in exchange for that one great thing (which can be achieved only at the cost of much slaughter, and perhaps not even then) we get many good things – and bad things, too, thank God. And it is a pluralistic vision in more than just the commandment to protect to the stranger and his right to worship as he wishes. Sayyid Qutb promises this, as well; even Christians and Jews will be allowed to worship in his Islamic state. But Judaism goes where Qutb won’t.

Listen to them in the midrash arguing over the rules for restitution or parsing out our obligations to the thief caught in the house. The dry precepts of the law are watered back to life with human disputation. It is an endless elaboration of meanings, infinite shadings, torturous reasoning and countless opinons…and – and this is the key – the issue is often left unresolved. As if the answer were not one, but many.




This is precisely what Qutb would not tolerate, certainly not beyond locked doors. His Church-and-State Islam is not simply not simply monotheistic, it’s monologic, it is one voice talking. Judaism, at least in the midrash, is a conversation, or, rather, many people shouting all at once. You can hardly hear yourself think. But you better try. It’s the only way to survive here.

And that is why, again today, I won’t say the prayer for the State of Israel. But I have no problem not saying it in a community that does. In fact, what could be better?

Shabbat Shalom.

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