Natural Law in Judaism.
by David Novak.
Cambridge University Press. 210 pp $54.95.
I
At first glance, no marriage in the history of ideas would seem more unlikely to succeed as an artificial union of opposites (“arranged,” as it were, by Yenta the village matchmaker) than that between Jewish ethics and natural law. For one thing, in a Jewish context “ethics” covers a much wider swath of human behavior than what most people think of when they use ethical categories. At least among those untutored in the rarefied mountain air of meta–ethical theory, ethics usually denotes that range of human behavior that can be subsumed under the rubric of judgments about inherent good and evil. But no observant Jew, either in antiquity or modern times, has ever claimed that eating pork is an evil in and of itself or that resting on the Sabbath is so inherently good that it is enjoined on the whole human race.
Quite the contrary, large areas of Jewish law pertain to what the Torah holds up to Jews as God’s (at least seemingly) arbitrary ordinances for his people. There is no immediately discernable reason for the circumcision of male infants, or for the prohibition of mixing milk and meat, except the Torah’s claim that God has so ordained. Yet natural law theory holds that the judgments of good and evil are not (or at least should not be) arbitrary judgments based on convenience or political utility, but are in fact located in the very nature of the behaviors (or behavers) themselves. While very few Jews, I imagine, would hold that the Decalogue’s prohibition against murder is an arbitrary decree which God might have ordained otherwise, nonetheless the admission of an inherent good or evil in the very nature of certain actions can be deeply problematic for Jewish theology. This ambivalence arises not just because the concept of natural law came from the pagan Stoics, but because the invocation of natural law seems both to trump revelation and to limit God’s freedom.
This dilemma is what David Novak, in his most recent tour de force of Jewish theology, Natural Law in Judaism, calls Judaism’s “Euthyphro problem,” after Plato’s dialogue featuring Socrates and the Athenian seer and mantic Euthyphro. In this early dialogue (perhaps Plato’s first), Socrates bluntly tells his eponymous interlocutor, a self–styled religious expert, that he, Socrates, cannot believe in the Greek myths because the gods behave so immorally. “Do you think that is why I am on trial [for atheism], because I cannot believe such tall tales as these?” he says at one point (thinking specifically of Zeus’ castration and murder of his father, the titan Cronos). And with that rhetorical question was born Western philosophy of religion, the first recorded instance of a pagan calling into question his religion based on a higher appeal to abstract norms of right and wrong.
Now Judaism’s “Euthyphro problem” is even more severe than anything Athenian religion endured under Socrates’ midwifery. One need only compare Socrates here with Abraham, universally regarded as the father of monotheism. What one notices immediately, especially when God orders Abraham to sacrifice his son Isaac, is that Abraham did not invoke a higher ethic against the deity. As Søren Kierkegaard noted in perhaps his most influential book, Fear and Trembling, if the story of Abraham’s attempted sacrifice of his son means anything it must signify that God transcends the categories (or at least our categories) of good and evil and that to follow the way of the Lord will eventually, at least for some select chosen ones, mean to renounce those norms.
Admittedly, Abraham does later interrogate God on behalf of the iniquitous city of Sodom, even daring to tell the Most High that his plan to obliterate the city (Genesis 18:25) would violate God’s own justice: “Can the judge of the whole earth not himself do justice?” Most fascinatingly, this almost Socratic rejoinder became for later writers the beginnings of natural rights theory. Hugo Grotius, the seventeenth-century Dutch Protestant who is generally taken to be the first modern writer to transpose the Stoic doctrine of natural law into the more modern key of natural rights, explains the passage as asserting that justice itself stands over God; and—in a fateful move—Grotius also goes on to say that natural rights would hold “even if we were to have the effrontery to say there is no God.” But as Novak rightly points out, “after this concession (and despite Grotius’ disclaimer of any atheism on his part), it is not too difficult to understand how Kant saw theology as having validity only when it is made to serve the ultimate ends of ethics.”
For Novak, however, nothing could be more disastrous for Judaism than to admit Socrates, Plato, the Stoics, Grotius, and Kant into the operative logic of Jewish jurisprudence, for not only did the ancient advocates of natural law such as Plato and the Stoics lack a doctrine of creation, but even Grotius and Kant—devout monotheists though they were—imported a false philosophy into God’s sovereign dealings with the human race:
The teaching of Scripture (and the Rabbis thereafter) is quite clearly not what Grotius and others made it out to be, even in the dialogue between God and Abraham. God creates everything, even justice itself, and nothing in the world can stand over God as judge. ... Pascal was right at this point: the God of Abraham, Isaac, and Jacob is not the God of the philosophers, certainly not the God of Plato and all whom he influenced.
Novak also sees the admission of natural law concepts as the first step in Judaism’s long effort to make peace with modernity by abandoning the inner essence of its identity, a Faustian bargain culminating in the Holocaust. (“The Holocaust and what is perceived as the continuing political isolation and vulnerability of the State of Israel are supposed to have taught us,” he says early in the book, “that the Jews have been asked to give far more than they have received from Western Civilization. And this has been used to argue, retroactively, that the Enlightenment itself, at least as regards the interests of Jews, and maybe in and of itself, has been a failure.”) But Faustian bargains aside, there is also the formal issue: to see Jewish ethics as itself one particular expression of behavior that is inherently good or evil forces Jewish law to justify itself before a bar that will compel Judaism to betray its origins in God’s will. To be sure, each step of the way toward the secularization of Judaism seemed plausible and reasonable at the time:
[At the dawn of modernity] it was assumed that Jewish ethics was only designed for the self–interest of the Jews, usually at the expense of whatever gentiles they might encounter in the world. So, if Jews could not make the opposite case for themselves and their ethical tradition, there was no reason to assume that Judaism itself could function outside the ghetto in a sphere of secular equality. Thus the identification of Judaism itself with a universalistic ethics must be seen as part of the effort, which began with Moses Mendelssohn in Germany in the middle of the eighteenth century, to argue that Judaism was not hopelessly parochial. Since Judaism can be shown to affirm universal truths and norms, Jews could become citizens of the new secularly constituted nation–states without having to leave their historical religion altogether, as was the case with Spinoza, a case that continued to haunt much of Jewish thought.
Astute observers of the Christian pathos will recognize a similar strategy at work in the writings of the English Deists Matthew Tindal and John Locke, and in the German Pietists Immanuel Kant and Friedrich Schleiermacher. If Christianity wants to avoid the charge of outright obscurantism or willful fanaticism, all four claimed, it must justify itself before the bar of nature; and if revelation has any meaning whatever, besides being otherwise an expression of ethnic or religious chauvinism, it must be seen as being merely a pedagogical repetition for the peasant mind-set of the Book of Nature. (The title of Tindal’s 1730 book, Christianity as Old as Creation, or the Gospel a Republication of the Religion of Nature, says it all, as in fact does Kant’s Religion within the Limits of Reason Alone and Schleiermacher’s Speeches on Religion Addressed to its Cultured Despisers.) In fact, at one point Novak helps Christians see the similarity:
Philosophically, after the Enlightenment, Judaism as a minority religion had the same problem as did Christianity, the majority religion. Religion, any religion, had to convince secular culture of its social worth. For because of Kant’s dominant influence, ethics was considered to be the highest level of human knowledge. It had successfully replaced both revealed theology and metaphysics as the throne before which all cultural institutions had to justify their very existence.
But there are important differences as well. Christianity in the industrial and developed nations is deeply divided across its whole spectrum on the issue of making peace with modernity, with fundamentalists hovering on the rejectionist side and liberal Protestants racing to embrace the Enlightenment and all its works. Judaism shows the same divisions, with Orthodox Jews huddled in self-created ghettos and rejecting much (though not all) of the modern world, while Reform and secular Jews follow the same tack as liberal Protestantism, embracing secularity. What is unique about the case of Judaism, however, is the strange task that seems to have devolved on secular Jews by which they have assumed the role—to Novak’s undisguised dismay—of being, so to speak, the gatekeepers and marshals of secular ideology, perpetually taking it upon themselves to police the boundaries between church and state.
The strange, almost religious, adherence to the norms of secularity by so many Jews and their lobbying organs has many roots that are not always easy to sort out. Indeed the failure to recognize this complexity is one source for the old and vaguely anti-Semitic canard about untoward “Jewish influence” within the media and law courts. But as Novak points out, at least one reason for this quasi–religious subscription to the norms of modernity is precisely the sense that, in contrast to Christianity, Judaism—as primarily a behavioral rather than a doctrinal religion—is ideally suited to worship at the Kantian altar. Judaism’s behavioral bias makes it suited to join the forces of secular moralism; and perhaps it is the Hebrew rather than the Hellenic strain in Western culture that most accounts for the moralistic tone of so much contemporary debate. (Despite what some would say, it surely cannot be entirely accidental that Karl Marx was born in a Jewish household.)
Perhaps the three most influential philosophers of Judaism in the twentieth century are the neo-Kantian Hermann Cohen, the existentialist Martin Buber, and the recent hero of postmodern thought Emmanuel Levinas, whose influence as Jews on secular thought is rivaled only by that of Ludwig Wittgenstein and Noam Chomsky. But the latter two have concerns that far transcend their religious background, for whom that background seems more or less accidental to their philosophical positions, while the former three argue directly out of their Judaism, precisely the outlook that makes their thought so instructive for Novak’s thesis:
One could argue that for all of them [Cohen, Buber, and Levinas] God’s only function is to provide some sort of undergirding for ethics, and that is their view of God’s function in Judaism as well. And for all of them, both the singularity of revelation and the singularity of the Jewish people as the community elected to receive that revelation in the covenant sooner or later become subsumed into universal nature.
Now it is central to the whole point of David Novak’s argument that this entire strategy is founded on a most fundamental error, whose formulation we must cite in full, adding italics to highlight its centrality: “Theologically, the error here is that revelation is essentially reduced to the supreme awareness of an order already present in creation.” And as we have seen, nothing could be more antithetical to the core of Judaism itself than to interpret revelation as a reduplication of nature, in spite of what a cloud of Jewish witnesses, from Spinoza to Levinas, might say. In fact, to assert the opposite would itself be the worst form of ethnic chauvinism: the Bible makes it perfectly clear that there is nothing inherent in the Jews as a people or race by which they might have “merited” the election of God. Nor can circumcision be regarded as natural or the eating of pork unnatural, despite what so many anthropologists from Ernest Renan to Mary Douglas have tried to establish. God’s election is either an act of divine will (which inside history is bound to seem arbitrary) or it must be regarded as the height of ethnic presumption. Judaism is either a fashioning by God or it is no religion at all.
II
In light of all the above, the reader will no doubt feel pardoned for getting the impression that Natural Law in Judaism is one long philippic against the advisability of introducing the concept of natural law into Jewish theology. In fact, the reader will perhaps be surprised to learn, David Novak’s book is not only a most effective and learned defense of the use of natural law in Judaism, it is also one of the most brilliant expositions of natural law theory I know, fully worthy to join ranks with works on natural law by Yves Simon, Russell Hittinger, and John Finnis.
But how can such a thesis be reconciled with the reservations cited by Novak, the totality of which seem to preclude any marriage, arranged or otherwise, between Jewish ethics and natural law? (I should note that, while I agree with the author’s analysis outlined above, the objections to natural law given there are Novak’s real convictions and not a rhetorical straw man.) So sharply contrasting are his views on natural law that it almost seems as if Novak were adopting Thomas Aquinas’ method, that is, beginning his book with the concession: “It would seem that the concept of natural law cannot function inside Jewish theology or jurisprudence.”
As it happens, Novak’s reservations about natural law are not cordoned off in the opening chapter but are scattered throughout the book (as is his defense of natural law), though at one point he does bring the reader up short in true Thomistic manner (“On the contrary, I reply”) when he quotes the Talmud to validate natural law: “The Torah is no longer in heaven.” This rather enigmatic dictum could perhaps be interpreted in a number of ways, but we have the authority of the great medieval Jewish theologian Moses Maimonides to see the statement as a justification for natural law. In his Guide for the Perplexed Maimonides glosses this line from the Talmud with the remark: “Therefore I say that the Law, although it is not natural, enters into what is natural.” Or as one early rabbinic source puts it even more bluntly: “There are matters written in the Torah which even if they had not been written there, reason would have required that they be written.”
Yet the question still hovers over the proceedings like Poe’s raven: If such concepts as natural law and natural rights are so dangerous for Judaism, why are they also so indispensable? The solution, for Novak, is actually quite simple. It begins with the realization that the dilemma of modern Judaism stems from the way it keeps presenting itself with a false alternative. Now formulating issues as false alternatives is the mark of a mediocre mind. David Novak’s creativity as a theologian, on the contrary, derives from his ability to rephrase alternatives in fresh ways. As noted earlier, the received wisdom that thinks in terms of either natural law or devotion to Torah practice summarizes the entire modern Jewish pathos.
This dichotomy, however, is a false one. For the modern problem really lies in the fact that so many Enlightenment thinkers relied on a concept of “natural” that was anything but a reflection of human nature as it actually exists. In other words, too much of natural law theory, especially that derived from those thinkers from Grotius on who transposed natural law into natural rights (which after the French Revolution usually became known as “human rights”), relies on a concept of nature that is not natural. Vast swaths of political theory stemming from the Enlightenment speak of human beings as pre-social monads whose sociality stems from a subsequent decision to join a group from a prior isolation. “Unlike what pertained in the older premodern societies,” the author says, “the individual human [in modernity] did not come from society; rather he (and later she) came to it.”
This notion, as everyone knows, is called the theory of “the social contract.” Unfortunately for its advocates and despite its vast influence, it is a total fiction, a complete distortion of the nature of the social life of humans. The absence of any historically authentic social contract in the life of primitive man makes all political theories founded on this airy cloud equally fictional. Most people today categorize political divisions into the binary categories of liberal and conservative (another one of those jejune, digital pigeonholes that function more to preclude thought than to promote it). A much more central dichotomy in modern politics, however, is rooted in those who accept the fiction of a social contract and those who see it for the fiction that it is.
The former view, one that accepts the social contract theory, leads to a hyper-individualism that, on the liberal side, fetishizes free speech and subscribes to a “do your own thing” morality, and, on the conservative side, is reflected in libertarian economics, as in Margaret Thatcher’s famous (or notorious?) statement, “There is no such thing as society.” The position that recognizes the social contract as a fiction, however, sees community as the locus for individual meaning. It too has more or less liberal and conservative expressions, with the former leaning toward communitarianism (a kind of unlikely hybrid of socialism and capitalism that Alasdair MacIntyre once rather dryly called “going to bed with the phone company”) and the latter stressing traditional morality and trying to resist the rationalizing trends of modern society.
In any event, here is where an authentic theory of natural law proves to be indispensable for Judaism, but only when the social contract theory is abandoned, a task that “requires radical criticism of the key political idea of the Enlightenment, . . . that human beings can construct their own primary society autonomously. It is an idea running from Locke to Kant to Rawls to Habermas, but one having philosophical opposition running from Burke to Hegel to Gadamer to MacIntyre—mutatis mutandis.”
Once it is recognized that the notion of a social contract is a fiction and that human sociality is an essential component of human nature, it then becomes immediately clear that community takes priority, not over the individual as such (Baroness Thatcher’s worry), but over society. Novak is alluding here to the famous German distinction between Gemeinschaft (community) and Gesellschaft (society). Gesellschaft is also the German term for a corporation owned by stockholders, which highlights the specifically contractual reality of society.
But all contractual relationships are first founded on a prior community of kinship relations, which themselves are founded on ineluctable biological realities of mammalian life: mother/child, begetter/conceiver, infant/adult, and so forth. Human sociality is entirely an outgrowth and expression of these unavoidable relationships, which are no more “agreed upon” by some hypothetical caucus of Australopithecenes than is human existence itself. No one chooses to be born, or to be born male or female, etc., nor does anyone in primitive communities choose the role of hunter, gatherer, and so on. Even later social identities of status—king, shaman, crone, warrior, matriarch, seer—are grounded in these more fundamental mammalian relations and not in some fictitious contract or verbal agreement. In other words, using Novak’s terminology, the individual always comes from society (in the wider sense), not to it.
And the same may be said of culture: we are much more its products than its fashioners (though of course we are both). In most democratic theory (John Dewey’s, for example) “culture” is a concept that usually links rationalized “society” and autochthonous “community,” which is true enough. But under the absurdities of social contract theory, culture must develop from being a matter of historical custom into a form of behavior that is more rational and organized. But as Novak rightly points out, the word “culture” comes from the word “cult,” meaning devotion to a god. And this intentionality embedded in cult/culture alters the very terms of the debate:
“Cult” is not regarded by its adherents as something “quaint” or particular at all; they regard it as the axis mundi, the very connection between God and the world, and that which gives humans their true place in the cosmos. To call them “folk cultures”... is to avoid any phenomenological integrity at all. Indeed, such communities, which are inevitably religiously constituted, operate at a deeper level of human existence than any society possibly could. For they deal with the most profound of all human questions: What is my true place in the universal order of things?... A society like a modern democracy can at best only deal with the question: What is my proper role in an association based on the rights of various, disparate wills?
Just as society is founded on a prior community, so too the procedural questions of a secular state are secondary issues founded on a more transcendent culture. The “cultus,” the devotion to God, must be open to nature because nature is God’s creation. This is why Novak can say that “in the deepest sense, there is no ‘secular culture.’”
Contemporary society makes plain enough the price we must pay for repressing these cosmic questions. This repression is doubtless the single most important factor behind the vast range of pathologies now so endemic to modern life, including the political pathologies of the twentieth century such as communism and fascism, which, as Novak well notes, rush in to fill the vacuum.
When a religious believer refuses to repress these questions or even uses his faith to answer these questions in the public square, he soon meets with secular ideology’s intolerance toward even the formulation of these questions. Richard Rorty once notoriously called the invocation of God’s will a “conversation stopper,” expressing the now-standard view that citizens who are believers must first assume a public identity as rational, ahistorical persons before venturing to participate in public debate, reserving their private identity as believers for more domestic spheres, as if religion were a hobby such as fly–fishing or building model trains. But that, as Novak points out, relies upon “the erroneous notion that democracy must create its own culture rather than drawing upon the practical wisdom of more primary cultures, cultures like Judaism that inevitably trace their wisdom back to the God who has created all and who has revealed himself to its adherents.... The issue is whether one is required to be a secularist in order to be a participant in secular space.”
Here is the point where natural law establishes its central place in mediating between society and community, between political jockeying in the secular space and religious commitments in the domestic sphere, between debate in the public square and prayer around the family hearth. For as the author notes early on, “natural law... is less exalted than direct divine revelation and more exalted than merely local human arrangements.”
Even more crucial, natural law also provides the only possible long–term grounding for human rights. At one point Novak speaks of natural law theory “replacing” the idea of human rights. I myself would prefer to speak of natural law grounding human rights (this is perhaps the only misstep in the book); but in any event his wider point is no doubt correct that only a theory of natural law can rescue the campaign for human rights from being anything more than disguised power politics or cultural imperialism.
The idea of human rights has usually assumed that these rights can simply be posited without the enunciation of any ontology underlying them, that they create themselves as it were....But unlike the idea of human rights, [the concept of natural law] does not claim to be self-constituting. By its real assertion of nature, it indicates that it is rooted in an order that transcends any immanent society. Here is where it parts company with liberalism and reconnects itself to the religions of revelation whence it emerged, in our case, to Judaism.
III
Christians enamored of the theology of Karl Barth are apt to think that theologians who venture to admit a concept of nature into their thought are thereby abandoning the gospel; at one point in his career Barth even made bold to dub natural theology the invention of the Antichrist, a piece of theological silliness he never did manage entirely to live down. But what Novak has made clear in his book, as in the quotation above, is how the concept of nature gains its truest legitimacy from the Bible itself, specifically in its theology of creation. Far from being a pagan import whose introduction into the theology of revelation is bound to trump God and limit his freedom, natural law belongs in Jewish (and, pari passu, in Christian) theology precisely because Scripture itself affirms its legitimacy. Natural law has its place in revelation not just for the obvious, almost tautological reason that “humans bring an intelligence to revelation before they receive governance from revelation.” Nor does natural law have a place in the Bible just because Cain knew that the murder of his brother Abel made him guilty eons before the Decalogue’s command “thou shalt not kill.” Natural law for Novak forms an essential part of all Jewish theology and jurisprudence because, above all, nature is God’s gift—is, in other words, a product of God’s will.
It may seem that Novak is now skirting the discredited Deist view that revelation is merely a republication of the Book of Nature, that Scripture merely reminds us of what nature already testifies. Not at all. In a fascinating parallel with Thomas Aquinas’ view of the matter, Novak shows that the covenant does not abolish nature but builds on it: Where natural justice was the most that other nations in the ancient Near East could imagine, justice was for Israel the bare minimum the covenant guaranteed.
The covenant’s dependence on nature even holds for that feature of God’s pact with the Jews that would seem to connect most closely with social contract theories: the element of mutual agreement. Like the words “pact” and “treaty,” “covenant” and “contract” imply a mutuality of will that would seem to undermine Novak’s previous contrast between ineluctable community and agreed–upon society (perhaps this is another reason for the quasi–religious adherence of so many secular Jews to the “naked public square”). But as the author explains, God encounters his people as a people, and only on that (natural) basis does the Torah make sense.
God’s covenant is not primarily made with individual persons but with a people, a people that is already constituted as a community. That is quite different from an association of like–minded individuals who come together after each is convinced of a political idea. The covenant is such an association too, even in biblical times, but that association presupposes an earlier form of community that is improved but not replaced by it.
This insight explains why Novak can say in his concluding chapter that “natural law is the practical thrust of the doctrine of creation,” indeed is the very presupposition of the covenant. Moreover, in his lapidary formulation, natural law is also “that which makes Jewish moral discourse possible in an intercultural world.” Interest in natural law throughout Jewish history, he notes, can be directly correlated to the worldly involvement of Jews at any one juncture of history. Natural law is the bridge, so to speak, for Jews who want to leave the ghetto without becoming so assimilated that they abandon their religion: “What a natural law perspective does for Jews at this level is to enable them to make rights claims, but without having to adopt the type of all-embracing secularism that is antithetical to the covenantal basis of traditional Jewish life and thought.”
One cannot help but think once more of Karl Barth. Despite his towering genius and momentary influence, Barth’s influence on Protestant churches is now almost entirely vestigial, even in Switzerland. No doubt it would be tempting for Barthians to attribute this lack of influence to the decadence of contemporary mainline Protestantism, and they could certainly cite the recent romance of many seminary professors with multiculturalism and postmodern thought as evidence for their suspicion. However plausible such a defense might seem, I cannot help but feel that Barth is himself, at least partially and perhaps largely, to blame, for his rejection of natural theology automatically guarantees the later ghettoization of his influence. But even more damaging to Barth’s position is the fact that the foundation for natural law is not just philosophical but—for believers at any rate—scriptural. (One does not defend Scripture by undermining the doctrine of nature established in Scripture.)
IV
I finished this book with only one lingering question: Why, having alerted his readers so effectively to the dangers of natural law in Jewish theology and having shown, nonetheless, its absolute indispensability, did the author not then go back, in true Thomist fashion, and answer his prior objections by assuring the reader that natural law is still not dangerous? In other words, perhaps the concept of natural law is both indispensable and yet no less fatal for that. I am thinking in this context of a remark by a character in one of Isaac Bashevis Singer’s short stories (“A Young Man in Search of Love”) who says: “A voice from heaven should be ignored if it is not on the side of justice.”
I mention this remark here because one of the sure signs of Kant’s victory over the Bible was the scandal that so many Victorian intellectuals and Anglican divines took when they read the story of Saul’s slaughter of the Amalekites under God’s direct orders. Saul obeys the divine dictate to slaughter “every man and woman, babe and suckling, ox and sheep, camel and ass” of the enemy (1 Samuel 15:3). But he decides, on his own authority, to spare the king—a momentary “lapse” of human mercy that prompts Samuel, Saul’s divinely appointed prophet, to rebuke him for his disobedience, at which point Saul dutifully kills the Amalekite king before the Lord’s altar. On the whole, nineteenth-century readers were genuinely shocked at such passages, while many twentieth-century scoffers give the impression that they seek out such passages so that they can take a kind of impish delight in making believers uncomfortable.
Far from wanting to join the professional sneerers, I merely wish to point out that such a sensation of discomfiture was simply unknown in ancient and medieval times among Jewish and Christian writers (except perhaps Ambrose and Origen, who allegorized the passages). Now, however, the situation is quite otherwise: uneasiness against the warrior God of the Old Testament is widespread, most especially among believers, and for precisely the reasons that Novak adduces: the victory of Kant over metaphysics and theology.
That victory is not entirely a matter for dismay, in my opinion, as the example of Islam suggests. Consider the matter of the stoning of adulterers, which, to the great horror of Westerners, is part of Islamic jurisprudence. That practice, as it happens, is not required by the Qur’an. In fact, it was introduced into Islam from Jewish law, according to an oral tradition transmitted by the second Caliph of Medina, Umar ibn al-Khattab (reigned a.d. 634-644):
They brought to the Prophet, on whom be God’s blessing and peace, a Jew and a Jewess who had committed fornication. He said to them, “What do you find in your book?” They said, “Our rabbis blacken the faces of the guilty and expose them to public ridicule.” Abdullah ibn Salam [a convert to Islam from Judaism] said: “Messenger of God, tell the Jews to bring the Torah.” They brought it, but a Jew put his hand over the verse which prescribes stoning [probably Deuteronomy 22:21-22] and began to read what came before and after it. Ibn Salam said to him, “Raise your hand,” and there was the verse about stoning beneath his hand. The Messenger of God gave the order and they were stoned.... They were stoned on the level ground and I [Umar] saw the man leaning over the woman to shield her from the stones.
Now, Muhammad is obviously thinking of Moses when he orders the stoning of the fornicating pair, but the crucial point is that the Mosaic law being enforced here has reached the Prophet unmediated by either Talmud or New Testament. Moreover, for accidental reasons of history, Islam never passed through the “fiery brook” of the Enlightenment; its confrontation with Judaism and Christianity in the contemporary world is often intertwined with a simultaneous confrontation with the Enlightenment. The clash gets even more complicated by Islam’s much higher doctrine of revelation, which makes an accommodation with secular Enlightenment morality even more painful than has proved to be the case with Judaism and Christianity. (Islam’s high doctrine of revelation had such difficulty conceding legitimacy to the deliverances of reason that it eventually deprived Muslim philosophers of the oxygen needed for independent, rational reflection; and Muslim philosophy almost entirely died out with the death of Averroës in a.d. 1198.)
At least in certain formal respects, Islam can be described, after a fashion, as “Judaism without a Euthyphro problem,” or Moses without a Talmud, so to speak—as the civil war in Algeria so amply testifies, where the most horrific acts of barbarity are perpetrated under religious auspices and in the name of the God of revelation. The Euthyphro problem lives on in today’s headlines, and it seems to me that David Novak needs to probe this issue more deeply, for his own (admittedly quite mild) Enlightenment-bashing leaves him with more problems than he seems to realize.
I should mention that the author was kind enough to mention in the preface that he was motivated to write Natural Law in Judaism because of certain critical remarks this reviewer made in these pages (June/July 1993) about his previous work, Jewish Social Ethics. While certainly flattering, his admission of my accidental influence on the present book rather deters me from making any further suggestions for his later work, lest I derail his research plans for the next few years. But despite my diffidence, I cannot help but feel that he needs to engage more deeply Singer’s principle that no voice from Heaven can speak against justice and still be, as it claims, from Heaven. This principle seems intuitively true to most believing Jews and Christians today; but if it is true, then we come right back to the Euthyphro problem, rational morality’s inevitable tension inside a religion of revelation.
The author also mentions, if only in passing, that the greatest vulnerability of natural law theory, both in ancient and modern times, stems from a kind of cultural myopia that too easily reads in one’s own local customs or prejudices as “natural,” as in Aristotle’s view that women are naturally inferior to men or St. Paul’s assertion that “nature teaches” that long hair on a man is a disgrace but on a woman is her glory (1 Corinthians 11:14-15). Novak’s concession reminded me of a similar point made by Yves Simon, one that must be borne in mind by all natural law theorists:
For a number of years we have been witnessing a tendency... to assume that natural law decides, with the universality proper to the necessity of essences, incomparably more issues than it is actually able to decide. There is a tendency to treat in terms of natural law questions which call for treatment in terms of prudence.... People are quick to realize what is weak, or dishonest, in pretending to decide by the axioms of natural law, or by airtight deduction from these axioms, questions that really cannot be solved except by the obscure methods of prudence, and they gladly extend to all theory of natural law the contempt that they rightly feel toward such sophistry. Thus, whereas an ideological current marked by relativistic and evolutionistic beliefs may cause a situation strongly unfavorable to the theory of natural law, ideological currents expressive of an eagerness to believe that some things are right and some things wrong by nature may cause another kind of difficulty and call for a supplement of wisdom on our part.
Russell Hittinger echoes this warning when he points out that “in our time and culture, natural law is invoked as a response to the breakdown of tradition, to moral relativism and nihilism, to various species of utilitarianism, and to legal positivism. It is expected to be an all-purpose antidote to the estrangements of modernity. Called upon to remediate more than reasonably can be expected, natural law is liable to descend into ideology.”
But how does one distinguish between the genuine teachings of nature and the easy ideological import masquerading as the real article? Novak is not the only one who skirts this issue; in fact it marks off a theme too rarely treated across the spectrum of natural law theorists. But unless the issue is treated and resolved, the whole superstructure of natural law could come tumbling down like Samson’s Philistine temple and bury the theory alive. At some point in the future, it seems to me, Novak will need to ask what gets included in natural law: the immorality of contraception? of polygamy? of income-tax evasion? the morality of judicial review? of democratic over theocratic government? of no-fault divorce law?
These rejoinders, however, are mere cavils when set against the greater achievement of this book. The author’s mind is blissfully free of those stale, hoary categories that have led to Judaism’s marginalization, and Novak has also mastered a staggeringly large amount of learning, both Talmudic and philosophical, that he is able to wear lightly. There is something to learn on every page (especially for the Gentile reader) and yet the material is presented so that the text flows easily.
At one point, Novak quotes the Talmud to the effect that “when one grasps too much, one grasps nothing; when one grasps something less, something indeed is grasped.” This also happens to catch the essence of the author’s own scholarship, for he knows just the right text to cite to illustrate his point, yet without overly burdening the reader. (Printing the references as true footnotes, that is, at the bottom of the page rather than as endnotes at the back of the book, also trims a good half-hour off one’s reading time.)
I expect Natural Law in Judaism will prove even more illuminating for Christians (and secularists) than it will for most Jews. As the author says at one point, “An old Jewish proverb has it, when on the right road, one is bound to meet other travelers.” Speaking at least for this traveler, I cannot imagine having a more learned, affable, and lucid companion along the way than David Novak.
Edward T. Oakes, S.J., is the author of Pattern of Redemption: The Theology of Hans Urs von Balthasar and editor of German Essays on Religion
