I have met Tom Shaffer no more than two or three times in my life. Nonetheless, we have for several years been carrying on a conversation that has been of central and growing importance to me and to my work. He has spoken to me through his writing, about professional responsibility, about teaching, and about religion and law. Except for the ways in which he has influenced my teaching, I have responded mostly in my head. It is a unique opportunity to be able to acknowledge to him and others the gift of his work; I am proud to participate in this collective appreciation. I am grateful too for the chance to engage in this forum with some of what his writings have said to me.

To select, for a brief reflection, from a bibliography of Shafferiana that extends well up into the three-digit range is a daunting task. I have chosen two themes that have special salience for me: first, he celebrates the “particularity” of specific religious communities, while linking Judaism and Christianity to a common “Hebraic tradition”; second, he calls on those attracted to the use of “religious metaphors” to be clear about what beliefs underlie that use. I have found the first liberating and affirming, and the second profoundly challenging.

The contemporary turmoil in Eastern Europe and the former Soviet Union reflects acceptance by their populations that collectivism has failed them and that they have more to hope for from the property rights systems of the West. In economic terms, indeed, Western culture has depended fundamentally on these rights, and in recent years economic historians have been paying increasing attention to them. In doing so, however, they have encountered a problem which they are unable to solve within the terms of their own discipline: economics relies on the concept of agents who act only according to rational self-interest, but property rights as they can actually be found in history have often reflected forces that can only be described as altruism. Economics is now therefore having to take account of cultural factors in the formation of property rights, and the deeper these are studied the clearer the religious influence on them appears to be.

The earliest type of property must have been in the form of “exclusive communal” rights which, by establishing some form of defence against “outsiders,” prevented the latter from sharing in a resource which a tribe considered to belong to it. It is plausible that the historical shift from hunting and gathering to settled agriculture depended on the development of such rights. However, the extent to which they can lead to prosperity on their own is quite limited.

A Talmudic principle, attributed to Rabbi Chanina, claims that a person who is commanded to perform an action and who obeys is greater than a person who is not so commanded but nonetheless acts in the way the commandment requires. Although the principle mentions only how people act, there is no reason to think that the principle does not apply equally to omissions—the subjects of negative commandments. Accordingly those who are commanded to refrain from acting in certain ways and comply with these commandments are greater than those who are not commanded in this way but still refrain from the actions proscribed by the commandments.

The contexts in which this principle is cited suggest that the principle was accepted by the rabbis. In two places where it occurs, the statement is cited in order to resolve a difficulty and it is not subsequently disputed in the Talmudic discourse on the matter, suggesting its acceptance. In another context, combined with a statement of Rabbi Judah that the blind are exempt from (some) commandments, the principle yields the conclusion that the blind lack the religious potential of the sighted. This conclusion, the Gemara reveals in both places, was deeply disturbing to the blind sage Rabbi Joseph. Rather than rejecting Rabbi Chanina's statement, Rabbi Joseph declared that he would feast the rabbis if any of them could show that the halacha is not in accordance with Rabbi Judah. In other words, he assumed that Rabbi Chanina's view was sound and that the only way to avoid its disturbing implication for the blind was to prove that Rabbi Judah was wrong. The Talmudic endorsement of Rabbi Chanina's statement is confirmed by subsequent halachic authorities. Moses Maimonides cites the principle approvingly in his Mishne Torah as does Joseph Karo in the Shulchan Aruch.

Religion in public life is a significant issue at this moment in our history for at least three reasons. First, we are celebrating the bicentennial of our Constitution, with its commitment to removing religious tests for federal public offices, and we are looking forward to the bicentennial of the Bill of Rights, which enshrines religious freedom at the head of the liberties secured in the First Amendment. Second, we are the beneficiaries of a rich literature written in the past decade exploring the phenomenon of religion in American politics. Third, 1988 was a presidential election year in which two of the candidates seeking the nominations of their respective parties have served as ministers, and in which many of the other candidates have had occasion to explore in public debate the ramifications of their deeply held beliefs for a wide range of public policy choices, both foreign and domestic.

Several other reasons could be offered in support of the view that the role of religion in public life is worthy of full and rigorous exploration in this election year. Nevertheless, this theme is likely to remain an iceberg issue submerged from public view yet moving along inexorably. More's the pity. For, as the Williamsburg Charter Survey demonstrates, beneath the tip of the iceberg is widespread misinformation and confusion about religion and public policy. For example, the survey discloses that only one-third of the respondents were even aware that religious freedom is secured in the First Amendment, although 71% were aware that this freedom is protected somewhere in the Federal Constitution. When asked what pops into their mind when they hear the words “the first amendment to the U.S. Constitution,” only 4% think of religious freedom.