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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
God’s answer to the people of Ammon is: “You shall not commit adultery,” which is understood to include prohibitions on marital infidelity, incest, homosexuality, and bestiality. They reply that they cannot possibly accept such a commandment. This is because, according to the Bible, their nation emerged from the act of incest between Lot and his daughters.20 Here again, the immoral act is not just the deed of a lone individual, but an officially justified, even constitutive act. Incest is therefore something intrinsic to their historical identity as a nation, so they could not possibly accept such a prohibition.
The reply to the people of Ishmael is: “You shall not steal.” They too answer that they cannot accept such a command. Apparently, state-sponsored theft was the norm in their society, and provided its members with a source of income. The chief characteristic of Ishmael, their progenitor, is that “his hand will be in everything,”21 which, according to the midrash, became a trait that was valued andencouraged by the nation that descended from him.
The question that flows from this is as follows: If all these nations were to accept the Tora as we understand it, that is, the complete Tora containing the 613 commandments of the Written Law, then why did God not tell them that the Tora requires them to keep the Sabbath, or to observe the dietary laws, or to leave the corners of their fields for the poor? In other words, why did he not say what Jews are supposed to say to prospective converts, namely, what some of the specifically Jewish requirements of the Tora are, some of the requirements that would be new to them once they became Jews?22 If the aim had been to say something about the Tora as a unique law, God would not have relied on laws which would be seen by many nations as self-evident. Quite the opposite: In a famous passage in the Talmud, Satan and the nations of the world taunt the Jews for some peculiarly Jewish requirements, such as not eating pork and not wearing clothes of wool and linen weave.23
In the legend, what the gentiles are told by God is, in effect, what they should already have known. The Ten Commandments do not mark the first appearance of the prohibition on murder in the Bible. Rather, when God asked Cain after he murdered his brother Abel, “What did you do?”24 it is assumed that Cain already knew that murder is not to be done. Even though the prohibition had not yet been written down, he is held responsible for its violation. “You shall not commit adultery” is likewise not first revealed in the book of Exodus. Rather, when Joseph is tempted to sleep with Potiphar’s wife, he says to her, “How can I commit this great evil and thus sin against God?”25 The assumption is that not only is Joseph supposed to know that adultery contravenes the universal law of God, but so is Potiphar’s wife. Even though this prohibition is not yet written down in the Tora of Israel, Joseph is considered to be morally upright for knowing it is wrong, and resisting the great temptation he faced.26
Finally, when God says to the Ishmaelites, “You shall not steal,” it is not a new ethical pronouncement, and might very well be alluding to the prohibition of kidnapping, which is the rabbinic interpretation of this commandment.27 Stealing, in this sense, is the serious crime of taking someone else’s liberty, which is only slightly less heinous than taking someone else’s life, but much more heinous than taking someone else’s property. Here again, Joseph is the best example of the pre-Sinaitic, universal status of the prohibition of kidnapping. When he is in prison, after Potiphar’s wife has betrayed him, lied about him, and framed him for the sin she sought to commit, Joseph complains to the chief butler who was imprisoned with him: “I was truly kidnapped from the land of the Hebrews.”28 It is clear from the narrative that Joseph is attempting to have his liberty restored by appealing to what he hopes will be the moral outrage of the Egyptian. In other words, he assumes that this Egyptian already knows that kidnapping, as well as the legal “kidnapping” involved in wrongful imprisonment, is “not to be done” by anyone. The prohibition on stealing, as on murder and adultery, is a clear example of the rules of upright behavior about which the Talmud says: “If they were not written, they should, by right, have been written.”29
In the Bible, and especially the rabbinic interpretations of it, we discover an original Jewish teaching to the effect that the nations of the world, including the Jews, can be held accountable to certain moral standards—but not because the Jews invented these standards or because they were revealed to the Jews exclusively. Jews should not regard the idea of a universal law, which is inherent in the Bible and rabbinic doctrine, to be an example of what the Mishna, in another context, says: “Do as the Jews tell you to do.”30 But if, on the other hand, Jews assert that these standards are uniquely “Jewish, “that somehow or other natural law came from the Jews, then the idea of natural law would indeed be a form of legal, political, and cultural imperialism, as some have argued.31 In other words, if Jews claim that this universal law is derived only from the Tora, then this law would be nothing but Jewish law for gentiles. Indeed, those Jewish thinkers who have made this claim have also denied that this universal law is natural law. For them, the only connection anyone can have to the law of God is through the Jews.32 But this approach ignores the fact that other peoples and other cultures have discovered for themselves, independent of the Jews, much of the content that the Jewish tradition recognizes to be universal. Therefore this law not only ought to be universal (de jure); in many cases it is universal (de facto).
Just as the rabbinic sages had many negative things to say about the gentile nations with whom they came into contact, they also had positive things to say about the moral integrity of some of them.33 When this insight was developed by Jewish philosophers, the moral integrity of the gentiles was attributed to their law being grounded in the creative wisdom of God, and discovered by the moral wisdom of man.34 In fact, one can see in the biblical term “justice,” or mishpat, the designation of a created natural order, especially a created natural human order.35 The rabbis saw that there is an inherent rationality in those laws the Bible called “judgments” (mishpatim), that is, those laws whose justice is immediately evident.36 Medieval Jewish thinkers of a philosophical bent called them “rational commandments” (mitzvot sichliot).37
This insight, it seems, lies behind the rabbinic idea of the seven Noahide laws, which are actually general ethical-legal categories, each one of which contains several specific norms.38 This became the framework by which Jews judged the character of other nations—not as a standard that the Jews invented, but as one they had discovered and assumed that other nations had discovered, or ought to have discovered, as well. According to Jewish tradition, the Jews took this universal standard upon themselves prior to the revelation of the Tora at Mount Sinai—indeed, as we have seen, its acceptance made it possible for the Jews to accept the Tora with moral integrity. The question has always been, though, whether a particular gentile nation had accepted these basic obligations of justice and morality. Accordingly, the existence of such a universal standard enabled the Jews to judge rationally whether they should respect another people, whether they should do business with them, whether they should enter into political alliances with them.39 All of this influenced the way the Jewish law, or halacha, structured relations between Jews and gentiles, including the norms of behavior that Jews would demand of gentiles after regaining their national sovereignty.40 Likewise, this standard would affect the Jewish state’s relations with both gentile nations and individual gentiles living under Jewish rule.41 For Jews in the diaspora, it also was to have an impact on individual and communal relations with the non-Jewish regimes under whose rule they lived.
The idea of natural justice, therefore, has profound significance for relations between Jews and gentiles today, both in Israel and in the diaspora. But it also affects the way Jews see themselves. The Talmud says, “Correct yourself and then correct others.”42 In other words, a standard used to judge the gentiles has moral import only when Jews use it to judge themselves, that is, to determine how they should observe the specific set of laws given to them by God. Along these lines, the Talmud states as a general principle, “There is nothing that is permitted to Israel which is prohibited to the gentiles.”43 In other words, the maximal morality the Jews expect of the gentiles is the minimal morality they are to expect of themselves.
This can be seen in the Noahide laws themselves. There are seven commandments that were accepted by the rabbis as “the laws of the children of Noah.” During the time before the editing of the Babylonian Talmud was completed, there was some disagreement among the rabbis as to how many commandments would be included. Three of the seven commandments were understood to be especially important, since they were laws for which a Jew is obligated to give up his life rather than violate: (i) Idolatry; (ii) shedding innocent blood; (iii) sexual immorality.44 The decision to make these three prohibitions categorical was made at a time when the Jews were suffering extreme hardships: According to the tradition, the leading rabbis in the land of Israel held a meeting immediately after the failed revolution of Bar Kochba and the resulting persecution of Jewish religious practice by the Roman emperor Hadrian, in the second century C.E. Hiding in an attic in the town of Lod, they had a very practical need to determine what Judaism’s “red lines” would be—that is, which forbidden practices a Jew should be willing to commit in order to avoid execution, and which should be resisted even if that meant one would “die and not sin.” 45 It was in this context that the rabbis arrived at these three cardinal prohibitions. It is significant that the rabbis did not decree that a Jew must die rather than violate the Sabbath, the dietary restrictions, or the prohibition on eating on Yom Kippur.46 A Jew was to sacrifice his life only when asked to choose between death on the one hand, and idolatry, murder, or prohibited sexual acts on the other. Such an act of martyrdom was considered to be “the sanctification of the divine name.”47 In other words, it was seen as not only the moral thing to do, but also the holy thing to do.48 This law, moreover, is incumbent on non-Jews no less than on Jews. Both Jews and gentiles, when in extremis, are expected to fall back to the basic moral law considered to have been in effect before the revelation of the specific Jewish laws.
To understand this more fully, it is instructive to look at each of these cardinal prohibitions in depth. To begin with idolatry, it seems clear that this prohibition pertains to a person’s relationship to the greatest transcendence, which is always God in one way or another. This is what the rabbis assumed to be the meaning of one of the most common biblical names of God, Elohim, which is understood as representing the most universal manifestation of God.49 It is worth noting how this prohibition relates first externally, to the Jews’ relationship to gentiles, and then internally, within the Jewish world.
The prohibition of idolatry became extremely important for Jews in the Middle Ages for understanding the religious status of Christianity and Islam. These religions claimed to be worshiping the same universal God as the Jews. There were some Jews who said that these claims were true, and therefore that Christians and Muslims were not the same as the ancient idolaters so castigated in the Bible and the Talmud. There were others who claimed that Muslims, and even more so Christians, were not worshiping the one true God. These judgments depend on how one defines idolatry and interprets its prohibition. If one takes the latter to mean that gentiles must worship God the same way that Jews worship God, then the prohibition of idolatry for gentiles would seem to require their eventual conversion to Judaism.50 But if one understands it as requiring that gentiles only worship the same divine object as the Jews, then Jews can make great allowances for the different ways various gentiles worship that same God.51 The practical implication of these medieval discussions is to determine the degree to which Jews can show respect for the religious practices of Christians and Muslims. (Today, another practical implication of these medieval discussions is whether there is enough theological commonality with Christians or Muslims to be able to hold an authentic theological dialogue with them.)
In modern times, understanding the prohibition of idolatry for gentiles has another function, one perhaps more important than how Jews ought to view either Christianity or Islam. It may also give us new tools for judging totalitarian ideologies like Nazism and Communism, under whose rule the Jews suffered so greatly in the twentieth century. Neither Nazism nor Communism would allow the Jews to live as Jews. Nazism did not allow the Jews to live at all; Communism eradicated Jewish learning, language, and practice with brutal efficiency. Unlike Christianity or Islam, though, neither of these totalitarian ideologies refers to absolute transcendence, to the Creator, God. What we see here is the deification of a finite creature: The state, or the party, or the volk.
The philosopher Emil Fackenheim has argued that one must understand Nazism and its evil to be an idolatry and not just a secular ideology. Thus Fackenheim identifies Nazism as “the modern idolatry because, being unsurpassable, it reveals all that idolatry can be in the modern world.”52 Fackenheim defines idolatry to be the substitution of the infinite (God) with the finite (creature). We may add that the reason the Nazis are morally responsible for their idolatry is because this idolatry is universally prohibited. It is not because the Jews invented this prohibition. The Jews only discovered it, just as the gentiles are also capable of discovering it.
Looking at the Jewish world, the prohibition of idolatry has another function. For Jews, it has become a powerful tool for an internal critique of what can only be regarded as forms of superstition or tribalism. The Jewish people are taught by the Tora that the God they worship is the maker of heaven and earth. Although the covenant gives them a special status in the divine governance of the universe, that special relationship with God is not meant to be exclusive. God’s intimacy with them does not mean that he has lost interest in the rest of his creation: All of mankind are created in God’s image.
Jews flirt with idolatry, which is the worship of a finite god, when they want their God to be too much like themselves. This has inevitably led to various forms of superstition which are, in essence, a practical version of anthropomorphism, making God too much like man. According to Maimonides, the epitome of such anthropomorphism, the error of all errors and the basis for idolatry, is the belief that God actually has a body.53 For Maimonides, the practical prohibition of idolatry and the theoretical prohibition of anthropomorphism, which are two sides of the same coin, are unlike any other prohibitions in the Tora. That is because when God said at Mount Sinai, “I am the Eternal your God”54 and “There cannot be other gods for you,”55 the Jews were not being told something they did not already know.56 In fact, Maimonides saw much of the “religious” legislation of the Tora (that is, what does not directly pertain to interpersonal relations) to be the historical specification of the general, pre-Sinaitic prohibition of idolatry.57 Thus, in practical terms, Maimonides was harshly critical of liturgical innovations that added to the seeming anthropomorphism of biblical language rather than moving beyond it in a more abstract manner.58
With regard to the prohibition of shedding innocent blood, it is important to begin by recalling the supreme importance this has taken on for Jews since the Holocaust, when they were the victims of both unparalleled barbarity and global indifference. However, if the issue is to be addressed coherently and rationally, Jews cannot turn it into a cause for special pleading, as if they have claims on universal justice different from those of other human beings. Despite all her ambivalence about Jews and Judaism, the philosopher Hannah Arendt was right when she insisted that the trial of Adolf Eichmann be seen as the judgment of “a crime against humanity perpetrated upon the body of the Jewish people.”59 The Nazis did not see themselves as murderers of human beings like themselves. They killed Jews because they believed that their victims were not human. Their crime was the attempted elimination of an entire people from mankind itself. The judgment against the Nazis, both at the Nuremberg trial and at the Eichmann trial, was that no one can remove the human status from any person or group, because that status is not conferred or denied by another human being. Human dignity transcends all human invention. It is the most fundamental datum, the most basic “given,” and every murder is an attempt to deny the basic rights derived from it. Hence, one might well look upon the true “original sin” to be not the eating of the fruit in the Garden of Eden, but Cain’s murder of his brother Abel.
As for the prohibition of uncontrolled sexual behavior, we see a view of human sexuality that runs counter to the prevailing attitude in most liberal societies. Modern liberalism has insisted that sexuality is the private business of consenting adults. As an element of privacy, it is something that society must not regulate in any way. Jewish tradition—and most other religious traditions as well—regards this laissez-faire attitude as contrary to the needs of human nature, which is necessarily social. When sexuality is left to its own devices, unstructured by social norms, it becomes counter-creative, and even violent. According to what the Jewish tradition regards to be universally binding, the natural context of sexuality is the family.60 The consequences of sexual permissiveness for the spiritual and moral health of society and the individual can be disastrous.
If 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.
