Yom Kippur War 5784 – A Conceptual Perspective (Column 595)

In the previous column I discussed the Yom Kippur riots in Tel Aviv, and argued that this is not a war over tolerance but a war between two intolerant “religions,” both speaking in the name of tolerance while taking its name in vain. One common comparison in this confrontation is between the religious world’s attitude toward homosexuality and the Pride Parade, and the secular public’s attitude toward gender separation in the public sphere. The issue begins with the theoretical question of which behaviors may be legally enforced in the public domain (assuming there is a value dispute regarding the behavior in question).

The previous column examined the matter of separated prayer and was mainly op-ed in character. In this column I wish to pause a bit on the theoretical roots of the fundamental dispute I have described here. The analysis is based on two sources I happened to read in the past few days: the first is the article by the late Ruth Gavison, “The Enforcement of Morals and the Standing of the Principle of Liberty,” and the second is the fascinating book by psychologist Jonathan Haidt, Why You Are Always Right, which has already been mentioned here in the past (see columns 86, 165, 201, and 348). In thinking about the current “wars,” these two works came together for me into a picture that sheds some light on the theoretical roots of these struggles. At the end of the column I will remark on the relationship between the theoretical plane and practical conduct.

The Devlin–Hart Debate on the Enforcement of Morals

Ruth Gavison opens her article by describing a controversy among jurists regarding the enforcement of morals by law.[1] The story begins with the Wolfenden Committee in Britain in 1957, which dealt with the question of the law’s approach to homosexuality and prostitution. The committee determined that, in principle, the aim of criminal law should be only to preserve public order and decency, protect the individual from harmful or injurious acts, and ensure safeguards against exploitation or corruption. In the committee’s view, there is no justification for interfering with and enforcing a certain form of behavior (or abstention from a certain form of behavior) unless it serves one of the needs listed above. In other words, there is no justification to turn a (moral) sin into a (criminal) offense unless doing so serves one of those purposes. One conclusion of the committee was that the prevailing prohibition on homosexuality between consenting adults in private should be repealed. They saw this prohibition as the enforcement of a moral norm (even assuming it is indeed morally forbidden—there is no need here to enter the question of what to do about moral disagreement) that does not serve any of the aims listed above. In time, this policy was adopted throughout the Western world, including Israel.

Two years later, in 1959, Lord Devlin delivered a lecture attacking the policy recommended by the committee. I quote the description of his position from Gavison’s article:

In his opinion, there is no justification to limit the legitimate scope of society’s intervention in the way proposed by the committee. Society—he argues—has full right to forbid any behavior liable to harm it. Immoral behavior that does not meet with a hostile social response may harm society because it undermines its moral consensus. A society is a group of people united, among other factors, by consensus on matters of morality. Undermining this consensus may therefore weaken society and cause it to disintegrate from within. Society has a right to defend itself against such disintegrative forces, and therefore it has a principled right to punish any behavior that endangers the moral consensus of its members. Hence, there is a right to intervene even in cases where the only reason is that certain behavior is considered “abhorrent”; in other words, there is, in principle, a right to turn any sin into a crime. Devlin admits that this right will not be exercised in every case. The legislator must also consider limiting factors such as the efficiency of enforcement, liberty, and privacy. Yet these considerations do not limit the fundamental right to intervene.

To the question of how to determine which behavior is considered sinful in society’s eyes, Lord Devlin answers that the test of the reasonable person should apply here—the ordinary person who might be chosen as a juror. The feeling that the behavior is abhorrent must be strong and must be shared by the majority of society. However, those who share this feeling need not be able to justify it or explain it.

The principal opponent of Devlin was the renowned legal philosopher H. L. A. Hart, who defended the Wolfenden Committee’s approach. His criticisms of Devlin were of two main types: sociological–factual—whether the failure to impose sanctions on abhorrent behavior (that does not harm another person or group) would in fact endanger society’s values; and normative—even if it would, why assume a priori that such change is dangerous? Perhaps the change is for the better? In other words, why should the society’s present values prevail over its future values? There is no justification to tie the hands of future society from making value changes. Another legal philosopher, Ronald Dworkin, argued that there is no guarantee that society’s strong moral feelings reflect a moral outlook. Sometimes they are prejudices. Therefore, in his view, Devlin must at least agree that moral justification is required for such enforcement (recall, at the end of the previous quotation we saw Devlin claiming that no justification is needed).

Returning to Hart: he argued that Devlin is not truly defending society’s values but its conservatism (its right to defend its present values against change). One may defend existing values by placing limits on change so that it not be done rashly or too quickly, but categorical prohibitions on change amount to unjustified conservatism. It seems that at the base of Devlin’s claims lies the assumption that the present situation is perfect and cannot be improved.

Of course, one can discuss Hart’s last claim. Devlin does not forbid value changes, since the legislature can always change the law. He also does not forbid writing and debating existing values (unless expressing such views is deemed proselytizing, which is also considered harmful to society’s values—see the previous column). Devlin only argues that such changes must be made through debate and legislation and not “from below.” After the debate is held and the law is changed, people can of course act in ways that were previously considered “abhorrent.” Thus, we can now see that Devlin’s position can indeed be viewed as a delay rather than a categorical bar on change. But the tenor of both sides’ arguments is clear.

Devlin argues that a society may enforce prevailing morals—that is, the moral sensibility of the majority of voters—without regard to its content. Hart notes that John Stuart Mill already observed that the democratic principle does not oblige the minority to accept the majority’s view and agree to it. That concerns the moral dispute itself. But he adds that a democracy should be limited in its intervention even with respect to agreed moral principles. The law should allow a person to sin even in an act whose moral flaws are not disputed—at least so long as he does not harm others. He presupposes here the Wolfenden Committee’s conception that the law is not meant to educate us but to protect us. This brings us to a discussion of Mill’s principle of liberty.

The Principle of Liberty as an Exclusionary Principle: Territorial Considerations

Gavison argues that lurking behind this dispute is a more basic disagreement: according to Devlin, the principle of liberty can be overridden in favor of other values or considerations, and the whole debate is over what counts as a legitimate consideration. Hart argues that the principle of liberty does not enter this game of overrides at all. In her terms, liberty is an “exclusionary principle,” meaning that there is no consideration that can justify violating a person’s liberty (unless he infringes the liberty of another, in which case the entire weighing lies within the domain of liberty). She claims this has nothing to do with the authority of the principle of liberty, since Hart is not saying that the principle of liberty overrides other considerations, but that it does not allow them to be weighed at all. Regardless of the importance of those considerations, they cannot be taken into account to infringe a person’s liberty.

Gavison notes that Mill himself brought freedom of expression as an example of an exclusionary principle. In his view, there is no justification for restricting freedom of expression in any circumstance and for any reason (except where there is a significant risk of harm to others—liberty versus liberty). Therefore, the distinction between an exclusionary principle and assigning different weights seems somewhat vague and perhaps empty. The reasons given by Gavison for adopting exclusionary principles ultimately speak of harms, even if indirect (for example, the concern that governments will abuse limits on free speech, or that for various reasons we fear error in weighing). Thus, here too there is in fact weighing, only tacitly. From this it follows that her formulation is merely a restatement, in different words, of what we saw above: according to Hart, one must not restrict a person’s liberty unless he harms another person or group. Yet it seems that the distinction that we are dealing with an exclusionary principle still has significance.

In several places in the past I have defined halakhic override principles as “territorial considerations” (see, e.g., columns 291 and 567). Thus, for example, I argued that injury to a person’s property—and certainly to his body and life—lies outside another person’s domain, and therefore in no circumstance may one enter his territory. This is the basis for Rashi’s view that one may not save oneself with another’s property (that is, there is no license to harm another’s property even if it is needed to save one’s own life). I think this is roughly what Gavison calls an “exclusionary principle.” Note that this is not tacit weighing but a substantive claim: even if the value in whose name you act clearly outweighs the harm to another’s property (saving a life or preventing a murder surely does, since theft or damage is not among the three most severe prohibitions—see my columns cited), there is still no license to harm another’s property simply because that would be entering his territory. Decisions about a person’s property are made only by him and by no one else. Not because the decision is mistaken (that the value of property outweighs the value of life), but simply because this is an exclusionary principle.

Viewed this way, Hart’s claim is that one must not infringe a person’s liberty under any circumstance and for any purpose, however important. His claim is that this does not follow from the importance of liberty but from its very essence: liberty means that the person himself is the sole sovereign over what happens within his domain, and no one has the authority to restrict him for any reason whatsoever. This is indeed the meaning of an exclusionary principle, but note that here I do not base it on any tacit weighing. The consideration is not concern for abuse of such limits or any other consequentialist reason. It is an absolute taboo due to territorial considerations, even if the harms of granting liberty outweigh the benefits.

The implication of this argument is that society—or any group within it—cannot coerce an individual or another group into any behavior merely because it bothers them. They must point to a concrete harm that such behavior causes. If we examine Hart’s key passage as quoted by Gavison, we will see that it almost states this explicitly:

The basic objection, of course, is that a person who regards personal liberty as a value cannot recognize a right of people to be protected from the distress arising from the simple knowledge that others are acting in a way they regard as mistaken. For, if we extend the utilitarian principle that coercion may be used to prevent harm to others so as to include protection against this kind of harm, we shall not be able to stop the extension at this point. If the distress arising from the knowledge that others are sinning is “harm,” so is the distress arising from the belief that others are doing things one does not want them to do. To punish people for causing this kind of distress is simply to punish them because others object to what they are doing. And the only liberty compatible with such an extension of the utilitarian principle is the liberty to do only those things to which no one seriously objects. Such liberty is plainly of no value. To recognize personal liberty as a value requires, at least, acceptance of the principle that the individual may act as he thinks fit even when others are angry and distressed when they learn how he has acted—unless, of course, there are other good reasons for forbidding that behavior. No social order which gives any weight to personal liberty can recognize also a right to be protected against the pain or anger caused in this way.

Mere opposition to the behavior of a group or an individual cannot suffice to forbid them (Hart indeed speaks of punishment rather than prohibition, but for our purposes it is the same thing. The simple presumption in criminal law is that what is prohibited by the criminal code entails a sanction for its violation). What remains to us is only concrete harm that such behavior causes, beyond the simple non-agreement and condemnation others feel toward it.

What Is Morality?

At this point we must return to a fundamental issue underlying the discussion. Ordinary moral values are summed up in the prohibition on harming others (I speak here of negative prohibitions. For the sake of discussion I will accept the common assumption that a positive duty to help others or benefit them is in any case not enforced by criminal law). Devlin argues that moral values also include values that do not directly harm others but erode society’s moral fabric (the obvious example is consensual homosexuality between adults in a private setting). Seemingly Hart disputes him and argues that morality is only the prohibition on harming others, and therefore conduct in other realms should be left to each person to decide. But this analysis is not necessary at all. Hart too does not necessarily argue for the relativity of other moral values (those that do not harm others). His claim is that there is no justification to enforce them by law. Thus, for example, Hart can accept that homosexuality is morally or ethically wrong, and still reject a criminal law that forbids it, for it is a sin that harms no one (beyond others’ disturbance at the mere fact that it occurs). Moreover, Devlin too grounds the license to coerce or legally prevent such behaviors in considerations of harm, even if indirect, to the social fabric. That is, he too speaks of a certain kind of harm that justifies legal enforcement, and in that sense perhaps it is precisely he who speaks of moral values as non-harm to others.

There is room to wonder how, if at all, Devlin can answer Hart’s criticism in the last quotation. Devlin maintains that one may forbid homosexuality by law if the majority clearly concludes that it causes harm to the social fabric and may disintegrate society. Hart argues in response that he is effectively allowing legal restrictions on behavior whose only “harm” is others’ disapproval. But Devlin can reply that here we are speaking of concrete harm (if society disintegrates, that is harm) and not merely disapproval. On the other hand, that disintegration stems solely from disapproval of these acts, since homosexuality as such dissolves nothing. This is not a simple question.

If so, the dispute is not about what morality is, but about what is justified to coerce in criminal law. From what has been said thus far it follows that both sides agree that restricting a person’s liberty can be justified only where some harm is caused—to another person or group, or to society as a whole. Their argument concerns only the kinds of harm relevant to restricting liberty. Is this necessary? This question brings us to Haidt’s book.

Haidt’s Moral Receptors

Haidt argues in his book that people on the left conceive of morality differently from people on the right. He likens our morality to the sense of taste. As is known, we have five taste receptors (bitter, salty, sweet, sour, and umami), and the various tastes we perceive are blends, in different proportions, of those five basic tastes. So it is with morality, except that here there are six receptors (at least those he has managed to conceptualize thus far), each described along an axis represented by a pair of opposing values: the care/harm axis, the fairness/cheating axis, the loyalty/betrayal axis, the authority/subversion axis, the sanctity/degradation axis, and the liberty/oppression axis.

Haidt contends that all people have some sensitivity to all of these moral axes, but not equally. People who identify as “liberals” turn out to be very sensitive mainly to the care and liberty foundations, somewhat less to fairness, and give almost no weight to the remaining three (loyalty, authority, and sanctity). People who identify as conservatives are less sensitive than liberals to liberty and care, but more sensitive to the other foundations, and in their case there is almost equal sensitivity to all receptors. As a result of differing sensitivity to these moral foundations, we get opposing intuitions regarding situations requiring moral judgment or decision. The point Haidt is keen to stress in this part is the sincerity of each side. What guides everyone are genuine moral intuitions—not malice and not stupidity.

Think of values such as conservatism, acceptance and respect for spiritual authorities, loyalty to community, people, family, and family values, and the like. These are values found primarily among religious people and much less, if at all, among secular people—and even less among secular liberals. Haidt testifies about himself that he is a secular liberal, naturally a supporter of the Democratic Party—what we would call here a “leftist.” But suddenly he discovered that the person standing opposite him is not a monster but someone who genuinely holds value positions different from his—i.e., assigns different weight to the three receptors missing in Haidt and his peers.

Incidentally, Haidt argues that it was very difficult for him to understand this until he grasped it in his research. He explains that this gap makes it hard for liberals to understand conservatives, since they do not understand why the latter care about loyalty, sanctity, or authority. None of these is a value in liberals’ eyes, and one who clings to them, especially if he infringes liberty and fairness, is perceived as wicked. It is hard for him to accept that there are value receptors he is missing (or at least assigns very little weight to). The reverse is less true, since conservatives also accept the three “liberal” axes, only with a different weight than liberals assign them. Therefore, conservatives find it easier to understand the liberal moral world.

Incidentally, I believe I have written here in the past a similar idea: a religious person can understand a secular person much more than a secular person can understand a religious one. Every religious person is essentially a secular person plus a religious layer. Secularity is part of him (in the previous column I spoke of the impossibility of purely secular values. Of course secular people also have values, but usually from the three types Haidt enumerated). By contrast, the secular person lacks the religious layer (he does not recognize it, and usually not even it), and therefore it is harder for him to understand the system of religious values and conduct.

A Third Model: Non-Devlinist Conservatism

If we take the picture Haidt sketches, another possibility suddenly opens up alongside those of Hart and Devlin. There may be societies that will justify limiting liberty so as not to harm the three additional value receptors: loyalty, authority, sanctity. They do not accept the exclusivity of the “no-harm to others” values. Again, Haidt is dealing with different conceptions of morality, but I wish here to apply this to conceptions of (criminal) law. A conservative may come and present a position like Devlin’s that justifies restricting liberty without harm to others—not because of indirect harms (to the social fabric), but because it is immoral. Sanctity (the sanctity of the family), loyalty, or tradition (authority) are harmed. It seems that the whole discussion Gavison describes proceeds under a tacit assumption that what does not harm others is not legally enforceable—but that assumption itself requires justification.

Mill and Hart after him ostensibly provided such justification: liberty. Their claim is that if one adopts the value of liberty, then it is impossible to restrict a person’s liberty absent harm to others. The mere fact that some behavior bothers me is not enough to justify restricting it. Do conservatives of the sort I have described not accept the value of liberty? We must understand that this value appears to be a foundational assumption of democracy, and if it is itself not accepted as a foundational assumption, then democratic discourse becomes almost impossible. I do not think there is any serious group that claims one need not justify violating a person’s rights and liberty at all.

I think the conservative model I have described does not necessarily reject liberty. He will not restrict liberty unless the values of authority, loyalty, and sanctity are harmed. In his view these are values just like “do not steal” or “do not murder,” even if one cannot point to concrete harm to someone expected from their transgression. This is an “objective” harm, exactly like taking life or property, and therefore it too, like them, justifies restricting liberty. Such a conservative is prepared to accept the value of liberty and will not restrict a person’s liberty even if he disagrees with him, so long as there is no substantive harm to loyalty, authority, or sanctity. One can of course define this too as harm to the social fabric and return to Devlin’s arguments, but that is mere semantics. So long as one does not point to concrete consequences apart from the mere fact that these behaviors will become prevalent in society (and that is itself the “harm”), this is only a semantic trick. I do not think Devlin meant this, but rather concrete harm to society (hence I explained above how he can answer Hart’s claim that he too speaks of concrete harm, albeit indirect). Yet even if that was Devlin’s intent as well, it is important to place this option on the table.

Back to the “Yom Kippur War”

We are now ready to return to the battlefield and try to understand better what exactly it is about. I described how neither side is tolerant. The conservative side is unwilling to allow proselytizing, Pride parades, LGBTQ rights, and more; and the “liberal” side is unwilling to allow Jewish “proselytizing,” or prayer in the public sphere, with or without gender separation, even for those who wish it. I wrote that both sides share a non-tolerant conception that seeks to impose on the other values he does not believe in, by force of law. We can now understand that both actually share Devlin’s conservative conception—or the conception I presented at the end—whereby it is justified to impose values on others even if they do not directly harm me, or at all. In Hart’s terms, it suffices that I do not like what the other does to justify such coercion. One party imposes on the other “liberal” or “democratic” values, and the other imposes “Jewish” values on the first. It does not matter that, in my opinion, this is neither liberalism nor Judaism—that is, they are mistaken even on their own terms (since Judaism does not prohibit proselytizing, and democracy or liberalism do not prohibit gender separation)—but in their own view this is the case and this is their justification.

But as Hart said, if so, how can they speak in the name of tolerance and liberty? If anyone who acts in a way I do not like can thereby be coerced, where does his democratic tolerance appear? He can justify it as I explained above, because of danger to society (or, as is commonly said, danger to “democracy,” at least as he understands it). It is worth noting that in this dispute both sides speak in the name of democracy, tolerance, and inclusion. On the one hand: What is my vote worth? Where is democracy? Where is their tolerance? On the other hand: a slew of warnings about dangers to liberal democracy, the silencing of anything that smells of “homophobia,” or “religionization,” and “exclusion,” and so on. As noted above, in democratic discourse everyone speaks in the name of tolerance, inclusion, and democracy.

We thus learn that, if there is any dispute between the sides at all, it is waged entirely in Devlin’s realm, under one of the two interpretations I offered of his position. The two warring sides are in the same realm. Against both I argue Hart’s claim, that so long as there is no concrete fear of tangible harm, there is no justification to restrict a person’s or a group’s liberty—in expression or in action.

Of course, one may argue against me that while this is Hart’s view, Devlin’s position is also legitimate. In the view of both sides, one may coerce behaviors and values even if they do not concretely harm others, so long as it is clear that they unravel the social fabric—or even without that (based on Haidt’s distinction). They hold by the opinion of the honorable Lord Devlin.

But in my view these are unreasonable applications of Devlin’s position even for those who hold it. In our current situation these values are the subject of very broad controversy. In a society so polarized, one cannot accept attempts to impose values in order to preserve the social fabric as it “ought” to look according to one side of the dispute. The coercion will not contribute to preserving the social fabric but will deepen the dispute even further.

Devlin’s approach might be applied in a society with broad agreement on the values in question, with a few individuals deviating from them and threatening it. That is not our situation. The social fabric is already shattered between those two groups, and therefore an attempt by one group to use the law to impose its values on the other group cannot be justified as preserving the social fabric. Indeed, if someone regards such behavior as “objective harm,” like theft or murder, he might try to apply it even in a polarized situation. Certainly, according to the interpretation I suggested—that no harm need be shown at all, but rather we speak of preventing evil—there is room to apply Devlin’s approach in a polarized society. I think the attempts by both sides to impose their values, in our circumstances, indicate that, as I wrote in the previous column, we are dealing with “religious” groups whose faith in these values is fanatical and who are unwilling to subject them to critical scrutiny or to accept disagreement or other views regarding them. This is a tried-and-true recipe for the disintegration of society—and in fact it indicates that it is already disintegrated.

A Practical Note

I have heard from people belonging to both groups the claim that, although this is improper coercion, since the other group behaves with violence and dominance, there is no choice but to employ similar tools against it. If this is the argument, then we are not in the theoretical realms of Hart and Devlin. This is war, and one should not expect arguments and justifications from either side. And yet, even in war one must weigh harm against benefit. I think such indiscriminate and unjustified war will not benefit either side. The problem is that to stop it requires the consent of both sides (for if one side continues, the other has no choice but to continue as well), and that is hard to obtain.

This reminds me of the well-known feud in Ponevezh between the “Haters” and the “Assaulters.” I once asked students who participated in the dispute and were in my class in Bnei Brak how they explain such appalling behavior by—and toward—eminent Torah scholars and their students. They answered that it is indeed problematic behavior, but they have no choice because it takes two to tango. The agreement of both sides is required to end the war. If one thinks that the other is trying to take over the yeshivah by force, he certainly allows himself to employ the same means—and the same from the other side. Thus arises a situation in which two sides who ostensibly aspire to behave properly cannot do so. They shackle each other. Each side justifies itself on the grounds that the other is in the wrong; therefore neither is willing to stop, and this perpetuates itself (for if one does not stop, then clearly it is pointless for the other to stop).

We see that, as we learned from game theory, theoretical analysis is not always relevant to understanding reality. It proceeds according to broader and less rational considerations. If our coalition of horrors continues to abuse the public cynically, self-servingly, and maliciously, it should not expect its opponents to behave like knights of morality. It takes two to tango. And despite everything, I think it is important to present the theoretical basis of the two views, if only as a small contribution to the effort to end this witches’ sabbath. In particular, it is my impression that there is still a sane majority that opposes the rampage of both “religious” sides, and it is time that it, too, make its voice heard.

A Final Note on Freedom of Expression and the Prohibition of Incitement in Halakhah

In the comments to the previous column, claims were raised that one who is bound by halakhah would presumably oppose proselytizing—i.e., the preaching of views contrary to it. I was asked how I can allow myself to advocate a Speaker’s Corner that permits every statement and opinion. My positions on the matter are detailed elsewhere; here I will answer briefly.

I answered there on two levels: first, my commitment to democracy (i.e., to morality) exists alongside my commitment to halakhah, and in this matter the commitment to democracy prevails. Beyond that, in my view halakhah itself cannot object to the airing of any arguments whatsoever. A person is supposed to make decisions based on full information. There is no value in a person’s commitment to some position merely because he has not seriously considered the opposing position. Therefore, the basis for the demand for religious commitment—or any other commitment—is freedom of expression for all opinions and arguments. Moreover, it is highly unreasonable to expect that I can coerce my views and deny my opponents the right to express theirs, while the other side will be required to allow me to say all that is on my heart. I am not speaking of the self-interested fear that similar measures will be taken against me, but that the symmetry is an indication of the immorality of such a stance. One cannot expect someone born into a pagan tribe or a Christian family to examine his path and realize he must abandon idolatry, while forbidding someone born into a Jewish family to examine his path. If he does not examine, how will he know he is in the right place?! See on all this column 6 (where I also explain how to interpret halakhic prohibitions that seem to contradict my words).

Beyond that, note that in halakhah there is no prohibition on incitement (except for one who incites to idolatry). The reason is a logical principle (see Sanhedrin 29a): “The words of the master and the words of the disciple—whose words are heeded?” When a person incites his fellow to commit a transgression, the one incited is required to heed the voice of the Holy One (the Master) and not the voice of the inciter (the disciple); and if he did not—responsibility lies with him and not with the inciter. Likewise, there cannot be a prohibition on presenting reasoned arguments and positions in the public sphere on the grounds of causing others to stumble, for ultimately the responsibility lies with the listener. A person is supposed to make decisions and is responsible for them. See on this in my lecture series on doubt and statistics, lectures 26–29. There I also discuss the meaning of incitement addressed to the public, which may be different, but I will not enter that here.

[1] This is, of course, not the only article on this matter. See, for example, Shaul Cohen’s article, as well as Adi Perush’s article in the previous issue of Iyyun (ibid.), “Law as an Instrument for the Enforcement of Morality,” and others.