Formulating the Jewish Social Contract
To argue intelligently for the idea of the Jewish social contract today, one must situate the argument within current discussion of social contract theory in general. One must then take a stand on what an authentic social contract is and how sources for it can be activated from out of the Jewish tradition.
The original justification of a society as an agreement between its equal members has long been known as the idea of the social contract. It is a highly attractive idea as evidenced by the amount of discussion it has evoked for at least the past four hundred years, and especially during the past thirty years or so.1 Many contemporary political thinkers in democratic societies, who are loyal to their societies in principle, believe that this idea best explains how a democracy—especially their democracy— can cogently respect and defend the human rights of each of its citizens. These rights are the claims persons are justified in making before these societies can subsequently make their own claims on these persons as citizens. Moreover, even these subsequent claims are all essentially redistributive, that is, they are justified by being given an instrumental status. As such, the claims democratic society makes upon its members, to which they are to dutifully respond, are ultimately for the sake of the respect and defense of the prior human rights of the citizens of that society.2 Therefore, posterior social claims cannot contradict or overcome these prior human claims on society without losing their own derivative justification.
1 The point of departure for all social contract theory today is John Rawls’s A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). There (p. 11) Rawls writes: “[W]e are not to think of the original contract as one to enter a particular society or to set up a particular government. Rather, the guiding idea is that principles of justice for the basic structure of society are the object of the original agreement… the principles which are to assign basic rights and duties.” For Rawls and his followers, then, the social contract assigns rights and duties, but it does not presuppose that these rights and duties are what the parties to the social contract bring to it themselves. In effect, then, the parties come to the social contract normatively naked. See M. J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), 143–46.
2 In liberal social contract societies, there are no original communal rights/claims on the individual members of the society. The society only has what the members give to it originally. Cf. D. Novak, Covenantal Rights (Princeton, N.J.: Princeton University Press, 2000), 153–58.