If the Law Isn't In Heaven, Where Is It?

What's Divine About Divine Law? 
by Christine Hayes
Princeton, 432 pages, $39.50

In one of its more famous passages, the Talmud records a debate about the mundane (but important) issue of whether a certain oven can be used to cook kosher food. All of the rabbis except one, Rabbi Eliezer, rule that the oven cannot be used because it is impure. To prove that he is correct and that the oven is pure, Rabbi Eliezer calls on God to perform miracles in the presence of his colleagues—a carob tree is uprooted and moves across a field, a river reverses its course, and the walls of the rabbis’ study hall magically begin to cave in—but the rabbis remain unmoved. And so, in a final effort to convince them, Rabbi Eliezer calls on God to give a clear indication as to whether the oven is pure or not; a heavenly voice cries out to the rabbis that Eliezer is right, that the Law is always on his side.

Nevertheless—and this is the crux of the story—the rabbis reject the heavenly voice, treat the oven as impure, and ultimately excommunicate Eliezer. Citing Deuteronomy’s contention that “[the Law] is not in Heaven,” they insist that, although God seems to have just revealed that Eliezer is indeed correct, God cannot now overrule the principles of the Torah given at Sinai—the very same principles with which the rabbis made their determination about the oven.

Such a view of divine law should strike any sensible person as strange: If even God can’t overrule divine law or give the definitive interpretation of it, then truly what could be divine about divine law? How did the rabbis of the Talmud possibly arrive at such a view? In what context could they have been writing such that this story—a story in which God is overruled by man—could be considered acceptable by an ordinary observant person?

Though they go unstated, these are the questions addressed by Christine Hayes in her new book, which attempts to trace the changing conceptions of divine law—both popular ones and those articulated by individual writers—across the Greek and Jewish worlds. Her aim is not, ultimately, to make divine law relevant to us today, or even to help us understand how ancient notions of divine law shaped our modern understanding of secular, political law. Each of those certainly worthy goals would require lengthening an already lengthy book.

Rather than focusing on the Christian divine-law tradition (as most theologians do) or on the Greek and Roman civil-law traditions (as most classicists do), the focus of this study is to give a comprehensive account of how the rabbis of the Talmud approached what they considered to be divine law: the Torah. This is, it should be noted, a gargantuan task. The Babylonian Talmud contains the legal opinions of hundreds of rabbis who lived over a span of nearly 500 years; it totals nearly 5,900 pages in the standard Vilna-edition format. What’s more, it is exceedingly rare for those rabbis to speak in one voice, even on topics that seem clearly cut. Hayes’ project, therefore, is not so much an attempt to interpret a complete, coherent text as it is a sociological investigation into the minds of observant Jews in the wake of the destruction of the Temple, the ones whose practices and tradition set the standard for observant Judaism even to this day.

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Any account of the development of divine law in the West must begin with Scripture, of course. Hayes therefore commences her study with a whirlwind tour of the Hebrew Bible’s multifaceted approach to law and authority. At some times, the laws handed down at Sinai are understood to be preeminently rational; at other times they’re understood to ride solely on the arbitrary will of God. In some instances, they appear immutable and eternal, while in other instances they portray themselves as flexible and contingent. And though their ultimate source is God, laws are frequently formulated by prophets and interpreted by judges. Since Hayes is not out to undermine the authenticity or seriousness of the Bible (as many scholars now and in the past have set out to do), the lesson here is not that Bible is incoherent. Rather, it is that the character of divine law in the Bible is a bundle of various concepts. The Law of Moses is complicated and nuanced, containing numerous “discourses” on the Law and its source.

In contrast to the muddled character of divine law in Jewish texts, Hayes locates in the Hellenistic tradition, which developed contemporaneously, a much cleaner understanding of divine law. “The cultures of classical antiquity,” Hayes writes, “assume a basic dichotomy between divine law and human law,” a dichotomy which is foreign to the Biblical tradition. The distinction, as any amateur student of Plato and Aristotle can attest to, is between what is eternal or natural—that is, what is in accordance with the world’s order as set by God—and what is contingent or conventional—that is, what is dependent on human beings only. (It’s worth noting that, for students of antiquity unconcerned with the Biblical tradition, Hayes’ short chapter on Greek divine law could alone prove to be very helpful.)

Following thinkers ranging from Tertullian to Heidegger, Hayes supposes that the entire Western tradition is founded on these two very different views of law and divinity. In the final few centuries of the first millennium BC, the descendants of each tradition encountered one another, and their incompatibility forced them into competition. For the Greeks, the competition was undramatic: Adherents to the dichotomy between divine and human law could write off the laws of the Torah as merely human. For the Jews, however, the stakes were incredibly high: It’s very difficult to see how a commandment like abstaining from murder can be equally as divine as, say, tying fringes onto your four-cornered garments, especially when confronted with cultures that also prohibit murder but don’t tie fringes onto their four-cornered garments.

Jewish responses to the encounter with the Greek dichotomy were as varied as basic logic would seem to permit. Some, like Philo, accepted the Greek distinction but identified the Torah’s laws with the eternal, unchanging order. Indeed, he said, there were differences between human and divine law, it just happened to be that the Jews were the only people who had divine law, the law that was in harmony with “the universal order of creation.” Other Jews, like St. Paul, who broke from the Jewish tradition, also accepted the Hellenistic distinction between human and divine law, but considered Jewish law to be secondary to the eternal, unchanging, rational law of nature. The Law of Moses was therefore unnecessary in order to live in accordance with God’s will, which in truth required only one thing: faith.

Finally, and most importantly for Hayes’s interest, the rabbis of the Talmud were, like Paul, Philo, and numerous other Jews of the time, also responding to the Hellenistic dichotomy of human and divine law. Hayes brings down a mountain of evidence—from the Palestinian Talmud, from the Babylonian Talmud, from early and late midrashic works, and from the Qumran texts (popularly known as the “Dead Sea Scrolls”)—to demonstrate that the sages of the Talmud were well aware of the Hellenistic view, that they considered it seriously, and that they found it lacking.

The result is a law that was authored by God and yet remains, in certain respects, flexible, particular to the Jewish community, irrational, and, interestingly, untrue (insofar as Jewish law does not always align with logical, metaphysical, or empirical “truth”). For the rabbis, these characteristics were not cause for concern; rather, they were precisely evidence of the law’s divinity. This is not a law that would fit into the legal typology provided by St. Thomas in his Summa, nor any other subsequent Western legal philosophy or theology. Though the contours of such a view are disorienting to thoroughly Greek-influenced readers like us, Hayes takes pains to trace those contours carefully and clearly. Though it’s never stated explicitly, the most significant academic conclusion to be drawn from Hayes’ characterization of this intellectual history is that the sages of the Talmud, in contrast to Paul and Philo, were presenting a view of divine law more conceptually faithful to Hebrew Scripture precisely because they rejected the Hellenistic dichotomy which is alien to Scripture.

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In 1885, rabbis from the newly consolidated Reform movement in America gathered in Pittsburgh to hammer out the fundamental doctrines of the movement. The Pittsburgh Platform, as it came to be called, stated the following: “[T]oday we accept as binding only [the Mosaic law’s] moral laws.” All the laws of the Torah that weren’t distinctively moral—even things as elemental to Jewish life as not eating pork or shellfish—were deemed to be incompatible with the “views and habits of modern civilization.” The Reform movement, in a single breath, pledged allegiance to the Jewish tradition while dismissing many features of the Bible as “primitive.” (One wonders whether some of the core ideas contained in the Platform could be cast as quick-and-dirty adaptations of the works of St. Paul.)

Though perhaps unique among contemporary Jews for their ecstatic rejection of Jewish law, the Reform movement is far from alone in having implicitly incorporated the Hellenistic dichotomy into their view of Judaism. As early as the late 11^th century—600 years after the closing of the Talmud—Jewish thinkers like Yehudah HaLevi and Maimonides were suggesting that the laws of the Torah were both true and rational. For HaLevi and Maimonides, those qualities implied that Jewish law was of divine origin—a position that, as Hayes shows, the sages of the Talmud expressly rejected and frequently ridiculed.

And if the works of preeminent Jewish thinkers of the past century are any indication, there can be no doubt that the dichotomy between divine and human law has found a lasting place in Jewish thought. As Hayes points out in her short conclusion, figures as diverse as Yeshayahu Leibowitz and Rabbi Joseph B. Soloveitchik have justified the authority of Jewish law from a framework that incorporates the distinction. It speaks volumes that perhaps the most celebrated essay by an Orthodox rabbi of the last 40 years, “Does Jewish Tradition Recognize an Ethic Independent of Halakha (Jewish Law)?” by Rabbi Aharon Lichtenstein, approvingly concludes with the following thought: “[H]alakhic Judaism (i.e., a Judaism governed by Jewish law) demands of the Jew both adherence to Halakha and commitment to an ethical moment that though different from Halakha is nevertheless of a piece with it and in its own way fully imperative.”

There is something very deep shared by HaLevi, Maimonides, Leibowitz, Soloveitchik, and Lichtenstein: the notion that there is, in a very fundamental, almost unnoticeable way, a distinction between divine and human law. This idea, over many centuries, became a core part of the Jewish tradition not only for intellectual reasons, but also because Jews, having been exiled from their homeland, were subject to the laws of their non-Jewish rulers. Whatever the reasons for its incorporation, the subtle assumption that the Torah’s laws are divine in contrast to human law remains standard fare in the circles where Jewish law is still considered binding. In important ways, that assumption has enabled observant Jews to make substantial progress in relating to their non-Jewish neighbors, in accommodating and encouraging the secular and religious ambitions of Jewish women, and in rooting out certain kinds of discrimination within the community. And yet, if Hayes’s reading is correct, it must be claimed that the last few centuries of Jewish thinking and observance have departed significantly from the sages of the Talmud. It seems that Rabbi Eliezer (and God, who sided with him) has won after all.  

Benjamin Silver is assistant editor of National Affairs.

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