In an article appearing not too long ago in the ultra-Orthodox press, the children’s author Chaim Walder compared the new Israeli Finance Minister Yair Lapid with Hitler. Although after the controversy that followed, he took it back, he persists in portraying the ultra-Orthodox in Israel as a downtrodden minority deprived of their rights, facing the whims of a totalitarian regime. The current Israeli government, he writes, wants to strip the ultra-Orthodox of "basic rights like payments, tax discounts, welfare, food for our children."
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Two weeks ago, in a protest of the ultra-Orthodox in New York against the imminent change to the Israeli draft law, another set of rights, this time of freedom of expression and religion, were invoked by those advocating the avoidance of service in favor of Torah study: "Proudly go to jail rather than join the Zionist army" one sign displayed; another proclaimed simply: "Religious Freedom."
Though the embrace of the language of rights by the ultra-Orthodox culture may be a salutary development, those doing so should be careful what they wish for. Rights come with responsibilities; that is, a framework of rights is made possible by a society making demands on its citizens.
Not only in dreams, as W.B. Yeats writes, but in rights begin responsibilities. Moreover, a culture of liberal rights, the great political achievement of modernity, is built upon a free public sphere. Last century, the British political scientist Isaiah Berlin described liberal rights as "negative liberties," the freedom of an individual to cultivate her private life without government interference. Classical republics on Athenian and Roman models are based on ‘positive liberties’ and the joint participation in the creation of a common public sphere. The great Christian Republican thinker, and author of Paradise Lost, John Milton, called it, following classical predecessors, the res publica, literally the ‘public thing’ or the Commonwealth.
But the liberal thinkers that follow Milton, starting with Thomas Hobbes, John Locke and later John Stuart Mill, grew increasingly wary of the presumption of common values. Though the pull of positive liberties is always present – the aspiration of joining together to create a shared cultural identity – the dangers that they impose lead liberal thinkers to advocate negative liberty, and a public sphere freed from any value. I have my personal space – whether my apartment, my shul, my Facebook page – for the expression of my private beliefs and aspirations.
As a consequence, the public sphere itself is increasingly emptied of content, especially religious content, becoming a place of 'commerce’ – with the mall as the paradigmatic (though impoverished) public space of our time. That is, the price for advocating the freedoms that Berlin classes under the category of ‘negative liberties’ is that the public sphere, given over to Calvin Klein and DKNY, give us less, hardly any, common ground for meaningful conversations.
But negative liberty – and why we can’t do without it in Israel today – allows me to tell my neighbors to leave me alone, to respect my privacy, and further to restrain themselves from attempts to turn the public sphere into a version of their private values or fantasies, especially their religious ideals. Rights, then, are not just an abstract concept to invoke when it suits me, something to stick on a placard at a rally: They have a particular history, and are part, today, of a specific political culture.
So the ultra-Orthodox who invoke rights, Chaim Walder among them, should be careful what they wish for. Child-support payments and tax-discounts on housing and education are not rights, but are part of social welfare models, that are subject to negotiation, not givens. Further, you may have the right to learn Torah, but not the right to a state subsidy to support that learning.
But even more basically, one who invokes rights has to accept from the beginning the split between public and private spheres. Express your religious idealism, but do it in the private sphere, and not at someone else’s expense. Meaning, once I start a sentence with "I have the right to…", I am relying upon a culture of rights and a public sphere understood as neutral and free. With all that comes the acknowledgment: "You have rights as well," and further, and more importantly: "I will not impose my values on you."
If you want to invoke such rights, you will find it hard advocating separation of genders on public buses like the 402 Bnei Brak-Jerusalem line; of demanding civic control over marriage and divorce; of insisting upon religious control of public spaces, like the Western Wall. It’s not only that with rights there are also obligations – someone has to pay taxes and watch over the borders – but that your rights only come with the acknowledgment that the rest of us can make the same claims.
Though as Stanley Fish writes, there’s no such thing as free speech," - for even liberal democracies do not permit all speech, forbidding, in the classic example, shouting “fire” in a crowded movie theater. So also, there is no such thing as a completely free and neutral public sphere. Americans after all take off a week for Christmas, not Kwanza or Hannukah. And there are limits – always – even in the most “free societies” to what you can say and do. The absolutely neutral public thing or place is, in this sense, a myth.
With this in mind, the ultra-Orthodox might want to be part of a national conversation about the paradoxical thing we call Israeli democracy, without all the time screaming "Foul!" Such a conversation might consider whether there are things upon which we can agree about the Jewish State, however various the experiences and interpretations of the traditions that bring us together here – in Zion – in the twenty-first century.
It may turn out that principles of religious or national identity are not entirely at odds with liberal toleration. The relation between them, however, will require conversation and even negotiation – perhaps enabled by a non-coercive public sphere – not just refusal, or cynical assertions of the rights that suit me now.
The posters held up at the New York rally attest to a changing world, one where everyone invokes rights, even the ultra-Orthodox. But, for all of us, the question remains: How will the demand, all the more urgent today, for a free public sphere and individual rights co-exist with the persistent aspirations, still felt by so many different Israelis, for community and connection, in a state that embodies the ideals of our common traditions and history.
Professor William Kolbrener, Chair of the English Department at Bar Ilan University, is author of Milton’s Warring Angels (Cambridge 1996), and most recently Open Minded Torah: Of Irony, Fundamentalism and Love (Continuum 2011); his introduction to the first Hebrew translation of Milton’s Areopagitica was recently published by Shalem Press.