Oddly enough, so-called divine law for the rabbis has all the characteristics that Greco-Roman thinkers ascribed to positive (i.e. human) law but which they (the Greco-Roman thinkers) denied to divine-natural law. This would boil down to the capacity of law to respond to changing human needs and situations, to disrupt stasis, and to introduce flux into the heart of the system. While the terms “reason” and “truth” might be qualified to mean “as conventionally understood in Greco-Roman antiquity,” it’s worth sticking with the strongest possible language in order to register the sharpest possible takeaway from Christine Hayes’ What’s Divine about Divine Law? Early Perspectives. Divine law is not just “divorced,” as per Hayes, but, one could say as well, redeems and is redeemed from reason, truth, and stasis; divine law unmoors and is unmoored from the stability or even reality that these attributes are supposed to provide or represent in conventional religious thought (cf. p.377, 244).

Some of these conclusions have long been a point of pride in modern and contemporary liberal and liberal-orthodox Jewish thought and philosophy. But the argument presented by Hayes about divine law or what we might want to call Torah-law is far more radical. In fact, the most striking part of her formulation concerns the actual unmooring of law from truth itself. By truth, Hayes means something not just along the lines of true judgment and formally correct rulings, but also rulings based upon the truth of strict justice, and even more to the point, upon ontologically mind-independent reality (chp.5). In other words, the status of legal categories, determinations, and judgments undergirding divine law are non-realist, even nominalist in the minimization of its appeals to mind-independent reality as a way to clarify and justify judgments (see especially pp.197-8). That means that divine law, i.e. the Torah-law of the rabbis, would be relatively unconcerned with the way things are in actuality.  Examples include [1] the subordination of appeals to astronomic fact in the rabbinic determinations of the calendar year, [2] the manner by which thought and other intentional states of consciousness determine the halakhic status of persons, objects, and things, [3] appeals to legal fictions and legal presumptions (pp.195-222).

It is easy to understand why Hayes chose to organize her study under the rather foreign sounding rubric “divine law.” The decision allows Hayes to place the rabbinic materials in relation to Greco-Roman, especially Stoic, models of law and legal theory, as well to place so-called Jewish law in conversation with contemporary legal theorists working today. This lends a conservative patina to a phenomenon that by her own account is decidedly not. Reading Hayes’ study under the more pious rubric would allow us to conclude that “Torah” has not much to do with what we conventionally call reality. There is nothing “real” about it. What religious Jews look to as Torah relates to no mind-independent reality, physical or ideal. If, as per Hayes, this model suggests a conception according to which there is no such thing as mind-independent reality, it means that matter is considered “unreal” to the extent that matter is permeated by mind, by divine mind, from the very start as its first condition. Without the perspectival depth provided by a system of physical, external reference, the world of Torah is rendered theoretical and flat. While Hayes will have to concede that, in fact, the law is defined as a nominalist-realist hybrid in order to account for the way physical reality does impede upon divine law, it would be important not to overestimate the degree to which the sense and the picture of physical reality gets all bent out of shape in antique and late antique rabbinic Torah systems (cf. p.201).

What trips up the discussion, if only a little, is basic question concerning form and substance or content. This takes us into the conversation in chapter 6, where Hayes claims that the Torah system is irrational. Again, it depends upon what one means by “rational.” By rational, Hayes herself means in relation to an intrinsic and essential rationality in substance, meaning that a rational law or commandment could brook nothing arbitrary, contradictory, or absurd. A law would be rational in the sense that its serves “a rational purpose determined by its specific content. (Accessibility and authority are presented as additional criteria, but these don’t concern us here.) (pp.246-7).

The upshot of this part of the argument is when Hayes’ writes, “If the commandment itself is devoid of meaningful content, then it cannot be the substance of the commandment that refines [the human person.]. Rather it is the very act of performing the commandment in obedience to God’s will that refines the human actor. In other words, while the law is said to have a general rationale (refinement of Israel), that rationale is not intrinsic. It does not flow from the specific substance and content of the law; it is a purely extrinsic utility” (p.258, emphasis in the original).  By intrinsic substance, Hayes means that, say in the laws of kashrut, the moral refinement of the human subject would have something necessarily and directly to do with the specific procedure under which the animal is slaughtered; it would make an intrinsic moral difference if the animal was cut at the throat or at the nape of the neck.

Hayes will point to less immediate and extrinsic reasons for observing the law (an opportunity to refine the human subject, to create holiness, to secure divine protection and reward. But these are not considered intrinsic to the substance of the command itself. For Hayes, that means that the commandment itself is therefore less than rational per se (p.271). Is this to say that the commandment is irrational, when these are in fact among the reasons adduced by the rabbis for observing the law. By focusing solely on substance and content, we lose sight of more formal and performative forms of rationality. Regarding those voices, especially in the Bavli, that affirm the irrational character of the commandments, can’t we attribute them to hyperbole and a little perversity on the part of the rabbis? As a general rule, the rabbis are operating in a system that includes reasons, even if the rationality of the system itself is, as per Hayes, extrinsic and performative, not intrinsic and substantive. Is it not the case that the rabbis are just not interested in content as such as much as process? As Hayes argues, the rabbis especially in the Bavli are more interested in the details of the law (details in which, one might add, they lose themselves intentionally) rather than in the law itself, not the inherent quality of law, as in Stoic philosophy, but rather its formal and performative dimension as Torah (p.272, 328).

Working through a sugya such as the one in tractate Bava Kama that considers the proper disposal of human waste and hazardous building material might bring the discussion back down to earth. But why call it “divine law,” and not “Torah.” To even ask what’s “divine” about “divine law” is to beg the question.  Hayes may want us perhaps to rethink our notion of the divine as fluid and based on the fluidity and freedom of Talmud from truth, reason, and stasis. That is a worthy task when viewed one way. But taken the opposite way, the answer is “nothing.” There is nothing divine about divine law, nothing divine about Talmud which, according to Talmud itself, was given over to flesh and blood and human beings. Perhaps the most startling conclusion of Hayes study is in the likeness drawn by her between what we’re calling Torah-law and what she calls positive-human law in the Greco-Roman legal tradition. This has nothing to do with “content” or “substance,” only with form and performance. It would be as if to say that what’s divine about what she’s calling divine law is the human element to which it boils down –or put more simply, what is divine about divine law is human.