Natural law as form of Jewish social ethics, rests on images of the imagination. That is almost the way David Novak defines it in Jewish Social Ethics, not as the “[deduction] of conclusions from the rules at hand but, rather, to perform the more imaginative intellectual task of attempting to gain insight into the principles that inform and guide the whole normative Jewish enterprise in dealing with political and social issues” (p.5). The project reflects upon “the active process of imaginative human interpretation” based on “the passive process of obedient acceptance (qabalah) of the Torah as the word of God” (p.7). One way or another, a theory of Jewish social ethics will depend upon the imagination imagining things like Torah, God, nature, and the human subject.
As Novak himself mentions, the Greek terminology that supports “natural law” theory is not indigenous to Jewish tradition. The same, he says, holds true for “social ethics.” The admission puts the burden on the creative act of interpretive imagination and philosophical finesse insofar as one wants to construct these out of the sources of Judaism (pp.vii, 3). What results is a creative Jewish-Catholic hybrid created for these purposes, in which Jewish philosophy is mixed in with Aristotle, Newhouse, and Heidegger. From Aristotle, Novak introduces the idea that higher ends and purposes are that which structure human desire. End and purposes are stood up against Kantian subjectivity whose only end is itself (see especially p.63 and also discussions of sexuality and technology in separate chapters; on desire, see pp-51-6). The Heideggerian ontology at work in Novak’s natural law theory presumes that being is received, and that nature is a living organism in which human subjects participate (pp.17, 58).
The hierarchies that define Novak’s theory of natural law structure stipulate the need for the validation of social ethics by a higher order. In this view, ethics needs a theory of the good embedded in the higher orders of nature (natural law) and religious revelation in order to be “complete.” Against juridical models of (positive) law, only the sense of law as part of a larger system of ends allows for the recombination of old rules to meet new situations and difficult cases (pp.14-19). The hierarchy is structured as follows: ethics justifies and limits social and political power, including the sovereign autonomy of the liberal subject, while religion grounds ethics. For Novak, the logic and axiology are both top-down and uni-directional. In this theonomous construction, only God is ground, enveloping nature, which envelops human social ethics and politics.
What grinds down this structure of Jewish social ethics is the author’s grudging acknowledgment that classical natural law is based on an outmoded Aristotelean teleology. For Aristotle, intelligent beings desire to know higher intelligences, arranging life accordingly, i.e. intelligently. This is the position undercut by modern science when now the only recognizable end of reason is reason itself as a constructive and active principle (chapter 3). Novak’s statement that we are “for the time being at least” stuck with Kant’s critique of natural teleology supposes the possibility that perhaps one day new trends in contemporary science will restore some modified view of natural teleology (p.142). In the meantime, we are left with revelation with which to piece together a natural law theory, assuming with a confidence that will escape many readers that religious systems are more coherent than naturalistic ones –coherent in the sense that these are able to “[reconstitute] most aspects of [a] problem with the fewest assumptions” (p.77).
In a previous post, I mentioned the argument by Christine Hayes in What’s Divine about Divine Law that the rabbis did not recognize natural law in the way understood in Greco-Roman antiquity. The argument is directed largely against Novak, who, in fact, ascribes to a model of natural law that is more modes (less comprehensive) than for Cicero, according to whom nature envelops both the non-human in nature, the human, and the divine). For Novak, in contrast, nature is not the ground so much as the background for Jewish social ethics (pp.15, 31-32). It is this modesty that lends this modified model of natural law the coherence it enjoys. Nature is not so much the source of moral value and ethical system as much as its horizon.
But can even a modified theory of natural law create a binding grounds that legitimate a system of social ethics? If nature is a background, that has to mean the only ground for social ethics can be God and those scriptures that members of different interpretive communities will agree between themselves and amongst each other constitute authoritative bodies of divine revelation. The problem is philosophical, political, and hermeneutical. If God is groundless (as per the mystics) or fundamentally simple and unknowable (as per the rationalists) than God cannot truly serve as a ground for human social ethics; and even if members of interpretive communities can, in an ideal political world, come to an agreement about which scriptures will count as authoritative, that is not to say that they won’t get hopelessly lost in thickets of near infinite interpretation. In this version, natural law has as its source not nature but Scripture.
In his own argument against natural law in Judaism, the late Marvin Fox argued that the law is first revealed by God at Sinai before it is recognized as rational. Arguments about natural law are here shown to be based on claims regarding temporal-logical sequence. Which comes first, law or reason? Novak argues against Fox to say that the sequence tracked by Fox is true regarding hukkim (i.e. statutes in Jewish law such as kashrut that make no immediate rational sense), but not true regarding mishpatim (i.e. those laws, like that prohibiting murder, that make immediate rational sense). By Novak’s reading, God is first revealed to Israel as “good” at the Red Sea and it is this good that constitutes an a priori, independent ground upon which the people then accept Torah at Sinai (pp.26-9). But this is a rather strange assertion, given the pronounced grumbling and murmuring on the part of Israel after the revelation of God at the Red Sea before the revelation of law at Sinai. The revelation of divine goodness at the Red Sea (or is it power?) grounds and determines nothing beyond the event of its own sheer presence or happening.
The following aside in Jewish Social Ethics is not merely incidental. The basic components that a system of ethics would have to synthesize are identified by the author as the true, the good, and the lawful (p.14). I would again point readers back to the argument by Hayes that these things do not necessarily cohere in the rabbinic legal-literary sources. I would also raise the observation that the introduction of law into this triad disrupts the more classical version that posits the true and the good, not in relation to law, but in relation to the beautiful. About this one might say one of two things. Either the substitution of law for beauty is both abrupt and rude, almost unlovely; the author would seem to obscure the place of beauty in a philosophical system of culture; this should not go lost to any reader of Hermann Cohen, for whom aesthetics was the crowning part of a larger system. Or it might rather be the case that Novak has simply obscured the very beauty that makes compelling his own theological thinking, steeped as it is in the image and the imagination, in nature and theological desire.
So let me pick a fight. Is eros ever natural? My own suggestion would be that the artifice of aesthetics and the interpretative imagination are bound up in the very relation they simultaneously confuse between ethics, law, and nature. Not just in natural law, the harder one tries to argue explicitly otherwise will only underscore why the delineation of norms will always show itself to constitute an arbitrary philosophical gesture.