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PDF FormatIf the prohibition of idolatry pertains to a human being’s relationship to the transcendent or the divine, and the prohibition of bloodshed pertains to the relationship of one human being to another, then the prohibition of wanton sexuality pertains to the human being’s relationship to the community, most immediately the family. Thus, in the Jewish tradition, the commandment “be fruitful and multiply”61 is not just a general commandment to reproduce more human beings, but rather to reproduce more Jews.62 This explains the halachic ruling that a man who fathered children as a non-Jew and then converted to Judaism must go on to father Jewish children as part of his new communal identity.63 Hence, even though the ultimate source of this commandment is God, its immediate source is a communal requirement.
That communal requirement should not be seen as uniquely Jewish. It is obvious that all other communities that regard the family as the most fundamental unit make a similar demand upon their members. When procreation is seen as the main reason for sexuality, one can understand why acts that are homoerotic, bestial, or adulterous are prohibited or, minimally, not sanctioned by society. Homoerotic and bestial acts are not procreative; adulterous acts lead to the birth of children of uncertain parentage. All of this is not in the best interest of society. Thus, when the socialization of sexuality is denied, as it has been in Western Europe, for example, one sees a dangerously low birth rate. Such a low birth rate calls into question the ability of any society to maintain its identity and its ancestral territory.
Needless to say, there is a dangerously low birth rate among the Jewish people. I think this is primarily due to the adoption of a basically liberal attitude towards sexuality by a large segment of the Jewish people. And I think that this attitude towards sexuality, one that regards it to be essentially a private matter, is consistent neither with the Jewish tradition nor with what that tradition sees to be a universal requirement of human social nature.64
When it comes to the Jewish world, the rejection of the notion that sexuality requires socialization can be seen as the heart of the problem of intermarriage. This problem is one that seriously threatens the future demographic well-being of the Jewish people. Here, moreover, is where Jewish attitudes towards issues affecting general society directly affect Jewish attitudes on questions within the Jewish community. When Jews take a public stand in favor of such matters as elective abortions (as distinct from strictly therapeutic abortions) and removing the restrictions associated with the traditional idea of marriage, they are saying that sexuality is purely a matter of personal freedom. Sexuality becomes a matter of individual rights rather than a matter of communal duties. But if that is the case, how can these same Jews tell their children to marry only other Jews? How can parents tell their children to limit the objects of their desire, when these parents have been telling the outside world that one may desire whomever one wants and act on that desire, as long as the other person wants the same thing? For Jews, intermarriage is, in effect, a form of sexual immorality, for it threatens the very existence of the Jewish people. The sensitivity that underlines this attitude is not peculiar to Jews; the general idea of communal restrictions on sexuality, and communal support of socialized sexuality, was a universally justifiable norm even before it became further specified in the Jewish tradition.65
In Judaism, Jews and non-Jews alike have the same ethical “red lines.” That is the bar beneath which none of us can allow ourselves or our communities to sink. The acceptance of this minimal law is what made it possible for the Jews to accept the full Tora, that is, to accept God’s covenantal election at Mount Sinai. Any people that falls below this basic moral bar has forfeited the very precondition for becoming the elect people of God. This does not mean, of course, that just because the Jews were constituted as a community for whom this basic moral law was in place, God had to choose them. God’s election of Israel, like his creation of the world, is not necessitated by anything. The necessity is human, not divine. In other words, it was necessary for a human community to be morally constituted before it could be elected by God.66 It is not so much a question of why God chose the Jews (which, according to the Tora, is a mystery), but how the Jews were able to accept the Tora as the content of their divine election.67 It is a question that Jews must continually ask themselves in an attempt to interpret the Tora by ethical criteria. The criteria by which the Jews accepted the Tora are not to be discarded after its acceptance; rather, they make it possible to accept the Tora anew in the Jew’ ongoing ethical interpretation of it.
Here we see the very important connection between law and ethics. The great German-Jewish philosopher Hermann Cohen once observed that the relation of ethics to law is like the relation of mathematics to physics.68 That is, just as mathematics provides the conceptual language needed to make intelligible the data of physics (and all the other natural sciences), so does ethics provide the same type of conceptual language for the data of law.69 For Cohen, who was a great champion of the notion that Judaism was based on a concept of natural law, ethics is itself natural law. In a Jewish sense, it means that the Jews had ethics before they had revealed law. And, even though revealed law sanctifies them in a way that mere ethics could not, ethics is in no way overcome by the law. This point has great significance for how halacha is interpreted today on a number of key issues facing the Jewish people.
The Jewish understanding of natural law offers Jews a rational standard by which to evaluate the non-Jewish world. Jews have to judge this world because they have to interact with it with moral intelligence. They have to be able to determine what they have in common with it, and what they do not. Moreover, this Jewish version of natural law provides a rational standard for moral and political discussions among Jews. It satisfies the urgent need to find unifying principles that can be agreed to by disparate parts of the Jewish community. If all Jews accepted the Tora as the standard for all moral and political discussion, then the idea of natural law could be left for the philosophers to discuss. But in the absence of a universal Jewish consensus on the primacy of the revealed Tora, an attempt to work towards a consensus on what necessarily preceded Jewish acceptance of the Tora takes on a practical urgency. Thus, natural law might well provide a moral bridge between religious and secular Jews. Religious Jews could see this bridge as a non-authoritarian way of eventually showing secular Jews a path back to the Tora. And secular Jews could see this bridge as a way of showing religious Jews that Jewish law need not be the sole preserve of the rabbis.
In closing, perhaps it is best to recall the words of the prophet Isaiah: “Zion will be redeemed by justice, and those who return to her by righteousness.”70 I do not think the prophet means to say that God will automatically redeem us in this world if we are righteous enough. I think any such notion is pseudo-messianism, forcing God’s hand as it were. But perhaps we can interpret his words to mean that unless Jews make the effort to institute the most elementary standards of universal moral law, they will not be worthy of the final redemption, just as they would not have been worthy to accept the Tora at Mount Sinai had natural law and justice not been affirmed by Jewish society and instituted in it. Only then, when the Jews stand on solid ethical ground, will they be able to embrace that lofty promise which found expression thousands of years ago in the words of Isaiah: “And I will restore your judges as at the first, and your counselors as at the beginning; afterward you shall be called the city of righteousness.”71
David Novak is a Professor of the Study of Religion, and Professor of Philosophy, and holds the J. Richard and Dorothy Shiff Chair in Jewish Studies, at the University of Toronto.
Notes
1. See, for example, A.P. d’Entreves, Natural Law (New York: Harper and Row, 1965), pp. 17-47.
2. See Harry Austryn Wolfson, Philo (Cambridge: Harvard, 1947), 2:163-200.
3. See Philo, On the Special Laws, 4:61; Josephus, Against Apion, 2:168; also Wolfson, Philo, 1:160-163.
4. See Maimonides, Mishneh Tora, Sanctification of the Month 17:24.
5. See Joseph Albo, Sefer Ha’ikarim, trans. Isaac Husik (Philadelphia: Jewish Publication Society, 1946), 1:3.
6. Leo Strauss, Natural Right and History (Chicago: University of Chicago, 1953), p. 81. Cf. David Novak, ׂNatural Law and Judaism,׃ American Journal of Jurisprudence 43 (1998), pp. 117-119.
7. See David Novak, Natural Law in Judaism (Cambridge: Cambridge, 1998), pp. 27-61.
8. Genesis 29:26.
9. Genesis 34:7.
10. See Baba Kama 100a regarding Exodus 18:20; also Baba Metzia 30b; Responsa of the Rashba 3:393.
11. See Mechilta on Exodus 19:2, 20:2; Exodus 18:37.
12. See Pesahim 68b regarding Jeremiah 33:25.
13. See Maimonides, Mishneh Tora, Laws of Kings and Their Wars 9:1.
14. Yevamot 22a.
15. See Sifre, ed. Louis Finkelstein (New York: Jewish Theological Seminary, 1993), Devarim 343, pp. 395-397; Avoda Zara 2b and parallels.
16. See Maimonides, Mishneh Tora, Laws of Kings and Their Wars 8:10.
17. Exodus 20:13.
18. See Gitin 28b regarding the Romans, whom the rabbis considered to be Edom, the contemporary descendants of Esau.
19. Amos 1:11.
20. Genesis 19:38.
21. Genesis 16:12. See Genesis Raba 45:9.
22. Yevamot 47a.
23. Yoma 67b.
24. Genesis 4:10.
25. Genesis 39:9.
26. See Sota 36b.
27. Cf. Sanhedrin 86a.
28. Genesis 40:15.
29. Yoma 67b.
30. Mishna Gitin 9:8.
31. See David Novak, The Image of the Non-Jew in Judaism: A Historical Constructive Study of the Noahide Laws (New York: Edwin Mellen, 1983), pp. 11-14.
32. See Marvin Fox, Interpreting Maimonides (Chicago: University of Chicago, 1990), pp. 124-151.
33. See, for example, Sanhedrin 39b regarding Ezekiel 5:7, 11:12.
34. Novak, Natural Law in Judaism, pp. 82-89.
35. Cf. Eliezer Berkovits, ׂThe Biblical Idea of Justice,׃ in Eliezer Berkovits, Essential Essays on Judaism, ed. David Hazony (Jerusalem: Shalem, 2002),
pp. 129-152; David Novak, The Election of Israel (Cambridge: Cambridge, 1995), pp. 125-128.
pp. 129-152; David Novak, The Election of Israel (Cambridge: Cambridge, 1995), pp. 125-128.
36. Sifra, Leviticus 18:4.
37. See Saadia Gaon, The Book of Beliefs and Opinions, trans. Samuel Rosenblatt (New Haven: Yale, 1976), pp. 141-147.
38. Tosefta Avoda Zara 8:4; Sanhedrin 56a-b.
39. See, for example, Sanhedrin 63b and Tosafot ad loc., s.v. asur.
40. See Maimonides, Mishneh Tora, Laws of Kings and Their Wars 8:9-10.
41. See Avoda Zara 64a.
42. Baba Batra 60b regarding Zephaniah 2:1; Jerusalem Baba Batra 2:11.
43. Sanhedrin 59a.
44. Sanhedrin 57a.
45. Sanhedrin 74a. Cf. Kidushin 40b.
46. See Yoma 85a-b.
47. Sanhedrin 74a-b.
48. See Pesahim 25b, where it seems a natural law-type reason is given for not murdering even under threat of death.
49. See Arthur Marmorstein, The Old Rabbinic Doctrine of God (New York: Ktav, 1968), pp. 43-53.
50. See Megila 13b regarding Daniel 3:12.
51. See Hulin 13b; also Moshe Halbertal and Avishai Margalit, Idolatry, trans. Naomi Goldblum (Cambridge: Harvard, 1992), pp. 137-162, 180-213.
52. Emil L. Fackenheim, Encounters Between Judaism and Modern Philosophy (New York: Schocken, 1980), p. 193.
53. See Maimonides, Mishneh Tora, Laws of the Foundations of the Tora 1:8-9.
54. Exodus 20:2.
55. Exodus 20:3.
56. Maimonides, Guide for the Perplexed 2:13.
57. Maimonides, Guide for the Perplexed 3:29.
58. See Responsa of Maimonides (Jerusalem: Mekitzei Nirdamim, 1960), 2:256.
59. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Viking, 1965), p. 269.
60. See David Novak, Covenantal Rights: A Study in Jewish Political Theory (Princeton: Princeton, 2000), pp. 166-176.
61. Genesis 9:1.
62. See David Michael Feldman, Birth Control in Jewish Law (New York: New York University, 1968), pp. 46-53.
63. Yevamot 62a; Maimonides, Mishneh Tora,Laws of Personal Status 15:6, and Magid Mishneh, ad loc.
64. Novak, Covenantal Rights, pp. 166-176.
65. See Kidushin 68b; Avoda Zara 36b.
66. See David Novak, Jewish Social Ethics (New York: Oxford, 1992), pp. 22-24.
67. See Deuteronomy 7:6-8.
68. Hermann Cohen, The Ethics of Pure Will (Hildesheim: Georg Olms Verlag, 1981), p. 227. [German]
69. See Hermann Cohen, Religion of Reason Out of the Sources of Judaism, trans. Simon Kaplan (New York: Frederick Ungar, 1972), pp. 113-143, 327-332.
70. Isaiah 1:27.
71. Isaiah 1:26.
