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PDF FormatThe usual understanding of the idea of “natural law” or “natural justice,” as it was articulated by both ancient and modern thinkers, is that there are certain basic moral norms, binding on all people, which need to be recognized by all people—or at least to be officially recognized by their societies—even if individuals often violate them in practice. In modern times it has become a commonplace that this idea was invented by Greek philosophers, beginning with Plato and Aristotle, and further developed as the idea of “law” per se by the Stoics in late antiquity.1 Only then was this idea discovered by Jews in their encounter with Greek civilization during the Hellenistic age, when Jerusalem met Athens. Natural law, then, was one of the foreign ideas that some Jews picked up and adapted for their explication and application of Jewish moral teachings.2
Yet there is an ancient Jewish tendency to argue precisely the opposite about the origin of the idea of natural law and justice. In this view, what is supposed to have been invented by the Greeks is actually something they learned from the Jews. Classical Jewish thinkers like Philo and Josephus, who were great admirers of Greek philosophy, especially its political ideas, suggested that these ideas were actually derived from Moses.3 The intent of such “revisionist” history, for which there is no corroborating historical evidence, is to claim that if the Greeks came up with the powerful idea of a universal law, knowable by all rational people, they must surely have gotten it from the Jews, the people who received God’s fullest law at Mount Sinai, the people among whom prophecy flourished as nowhere else. According to this view, it is not the Jews who went to the Greeks for wisdom, but, rather, the Greeks who came to the Jews.
Nevertheless, I would like to suggest that both of these notions are mistaken in their explanation of the origin of natural law. It is more correct to say that nobody invented natural law except God, who created the natural order, especially the order that corresponds to human nature; put another way, natural law is only to be discovered.4 If there are Jewish “roots” of natural law and justice, those roots are in the creative will, the wise commandment, and the perfect judgment of the one God, who was known as the “root of all roots.”5
Therefore, what is worth discussing from a Jewish perspective is the Jewish discovery of natural law, how that discovery took place, and what it signifies both for the understanding of Jewish relations with mankind in general, and for the understanding of the interpretation of our own specific law, given in the Tora and developed by rabbinic tradition. As we shall see, the concept of natural law functions both as part of the way Jews look at the non-Jewish world, and as part of the way Jews look at their own Judaism.
Leo Strauss, in one of the most important books on this subject in the past fifty years, denied that there is any original Jewish version of the idea of natural law and justice, since the Bible has “no knowledge of natural right as such.”6 However, a closer reading of the Bible reveals a recognition of the difference between natural law and what is known as “positive law”—that is, the difference between law made for everybody, everywhere, and law that is only for certain people in certain places.7
In the book of Genesis, for example, there appears the story of Jacob complaining to Laban that he was promised Rachel as his wife, but instead received Leah, Rachel’s older sister. When, on the morning after the wedding, Jacob confronts his father-in-law, Laban tells him: “It is not to be done in this place to marry off the younger daughter before the older one.”8 In other words, according to Laban, Jacob should have found out what the specific local practices, laws, and customs were. Since he obviously is ignorant of them, and that ignorance is his own fault, Jacob has no grounds for complaint. As a newcomer, he should have better informed himself of what is “to be done in this place.”
However, just a few chapters later, when Jacob’s daughter Dinah is abducted and raped by the crown prince of Shechem, the Tora’s judgment is put in more general terms: “This is not to be done”9—not only in this place, but anywhere. In other words, it is a recognition by the Tora, not an innovation or invention of the Tora, of a prior law. Abduction and rape are simply not to be done by anyone, anywhere, anytime. Thus, their prohibitions are essentially different from the specific marriage regulations of Padan Aram, where Jacob happened to be living with Laban’s clan for a time. Comparing the language of these two parallel passages, written in very much the same literary style, using the same key term “what is not to be done,” we see a clear distinction between natural law and positive law.10
This distinction is useful for understanding the difference between the revealed Tora law and the earlier natural law, by which even the people of Israel were bound before they received the revealed law at Mount Sinai. Although there are some ancient Jewish opinions that the Tora was meant for all mankind and not just for the Jews, this universalism seems to be thought of ideally; that is, it is the eschatological hope that in the far-off future, all the nations of the world will accept the Tora as the universal law of the universal God.11 But, for the here and now, the Tora contains the commandments posited by God for a certain people, in all their specificity. Jewish tradition regarded this revealed law to be the highest law possible for any human being, and for any human community in the as-yet-unredeemed world.12 Nevertheless, the Tora has been seen to presuppose that there is a more general law to which the recipients of the Tora were previously bound. Furthermore, this more general law was not repealed by the revelation of the higher, more specific law. In fact, it was included in this higher law intact, inasmuch as it constituted the preparation for the acceptance of this higher law.13 If it were repealed by the higher law, this would imply that absolute precepts binding on humanity as a whole have been repealed in the face of claims that they apply to only one nation. It could then very well be said, as the Talmud puts it, that “we came from a higher level of moral sanctity to a lower level of moral sanctity.”14
This idea is illustrated by a marvelous rabbinic parable which has, it seems, been frequently misunderstood. This parable states that God offered the Tora to all the nations of the world but only the Jewish people accepted it.15 The nations of the world cannot complain of God’s preference for the Jews, since they were offered the Tora, but refused it.
On the surface, this parable is very difficult to interpret. First of all, it insists that the Tora was actually intended for all the world’s nations—the implication, perhaps, being that the other nations, having missed their first opportunity to receive the Tora directly from God, should now accept it from the Jews and thereby convert en masse to Judaism. Yet even though there is no specific halachic prohibition against Jews proselytizing gentiles, and even though Jews have always accepted converts, Jews for very good reasons have been loath even to imply that other peoples must adopt Judaism.16 But if one looks at the story very carefully, it becomes clear that the real question is not why the nations of the world did not adopt Judaism, but what lay behind their refusal to accept the ethical basis of Jewish law.
In the legend, the nations of the world are represented by three nations that existed at the time the Tora was given. All three ask God: “What is written in it?” Three answers are offered, all of which come from the same verse in the Ten Commandments, in the book of Exodus.17
The people of Edom are told: “You shall not murder.” They respond that they cannot possibly accept such a commandment since, in effect, it contradicts their societal mores. Their answer suggests that not only are there murderers among the Edomites—there are murderers among the Jews, too—but murder is a state-sanctioned institution in Edom. There is a big difference between murder by an individual, and murder permitted or even mandated by the state. Accordingly, the Edomites could not accept the Tora without losing their historic identity as a nation. The Edomites, descendants of Jacob’s brother Esau, had always been seen as particularly prone to bloodshed, and were even proud of their ready use of capital punishment.18 Edom had traditionally been perceived as the one who, in the words of the prophet Amos, “pursued his brother with the sword and suppressed all pity.”19
