Law Not Law (The Cambridge Companion to Judaism and Law)

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For a long time I have thought that “Law” is something of a thorn in the side of Jewish thought and philosophy, associated as it is with all sorts of wild, even violent claims by those invested in its discourse about normativity, authority, and the political. Arguably, about law and Jewish law, modern Jewish thinkers from Mendelssohn to Rosenzweig, and from Kaplan to Soloveitchik, meant something else than the political. This has been argued most systemically by Leora Batnitzky. But what if law in Judaism is not law? What if it is rather the case that it is something more like a figure (beautiful, mystical, auratic) than a body of legislative practice?

Starting with Strauss, attention to law as a political form in contemporary Jewish thought goes back to Spinoza who argued in the Theological Political Tractatus that the Torah is a form of law determining the political life of a commonwealth and that this law lost its claim to authority with the destruction of that commonwealth by the Romans. To the best of my knowledge. No one to date has ventured to ask about how Spinoza might have gotten this all wrong, to say against his own theory in particular that Torah law is utopian in character, that it never was, never was the law of a land, and that Torah only looks like law.

It is today in orthodox thought and conservative Jewish philosophy under the influence of orthodoxy where the problem of law is truly flagrant. The most basic assumption is the idea that Judaism is determined as law, of which there are several variants, not always consistent. These include the following: [1] Torah is law. [2] Law in Judaism is eternal, unchanging, apriori, divine (Hirsch, Soloveitchik). [3] Jewish law or Halakhah is or was once the constitution of a Jewish commonwealth or of a semi-autonomous community (Spinoza). [4] Judaism is political, not a religion, a matter of obedience, not freedom (Strauss). [5] Jewish society today needs to reconstitute and shore itself up on the basis of law. To date, the discourse of law in Jewish philosophy has been essentialist, showing only the barest modicum of historical nuance.

For theoretical clarity, The Cambridge Companion to Judaism and Law (2017) edited by Christine Hayes stands out as the go-to source to suss out and test claims of this sort about law. Its contributors are drawn from the best and the brightest across the field of Jewish Studies, including Hebrew Bible scholars and scholars of rabbinics, historians, intellectual historians, and philosophers. Each contributing essay examines the phenomenon of law in its author’s area of specialization, with each contributor culling from the larger scholarship in their field. The volume is both synthetic and analytic. What makes the book invaluable is the way in which the contributors, for the most part, end up complicating and making unclear the very thing that the book is supposed to clarify: namely the allegedly primary status of law in Judaism.

Is there a consensus about law in Judaism apart from the typical agreement that the “figure” of law, if not law itself, is a dominant phenomenon? Is there any agreement about the status and function of law in Judaism? Strange as it sounds, there might actually be such a consensus across much of the volume, one that cuts against the grain of the introduction penned by Hayes. Exploring the centrality of law in Judaism almost all of the chapters collected under her expert editorial leadership, including her own contribution, subvert the contention expressed in the introduction that Jewish law is the essence of Judaism. Ultimately undermined is the view that, historically, before the modern period, “Judaism was law,” that structurally, Judaism is law,” meaning that law is “constitutive of the divine-human relationship,” that “the norms that guide human action lay some claim to divinity” qua written legislation (pp.2, 3, emphases in the original). The Cambridge Companion to Judaism and Law gives every reason to undermine that basic, regnant view of law in Judaism.

We can start with curious thing, which is that when Hayes talks about law in Judaism what she means is “divine law,” not some political nomos under the direct rule of a human halakhic authority, religious or political. The closer one looks at the historical material (in biblical, Second Temple, rabbinic, and medieval sources) one begins to suspect that “Jewish law” does not actually exist prior to its reconstruction in the medieval sources if by law we mean some umbrella phenomenon or master rubric definitive of Jewish life as such. By law or Torah, Hayes will actually contend that in Judaism what is meant is not a “system of secular law” for God’s people (p.4).

What then is law in Judaism? What is Torah? Consider the evidence as suggested in the historical studies to The Cambridge Companion to Judaism and Law. What are we talking about when we talk about “Jewish law” or law in Judaism? What does “law” look like at whatever historical juncture? Is it prescriptive, normative code actually defining the actual life of a social body, namely the Jewish people or community of Israel, in a comprehensive fashion down to the detail? Or is it something other than that, more rhetorical, paideiac, monumental, utopian, set apart from and potentially in tension with actual lived life? Was divine law, i.e. the divine law of the rabbis as opposed to Jewish lay authority, backed up and enforced? Was it “political”? Did it enjoy broad social sanction? To what degree was divine law or Torah lived out in life and to what degree, and to what degree was talmud Torah, the study of the law, as something simply taught in schools, loosened from broader social life?

In the Hebrew Bible, Chaya Halberstam begins her analysis noting the non-relation between history and text. This is to say that the laws that the biblical text purports to prescribe have no finding in the historical record, such as it is. Already on the very first page to her essay, “Law in Biblical Israel,” we have only the negative conclusion that “law does not seem to have been a highly developed, autonomous field, or a ‘system’ in any real sense of the word.” Law was instead embedded in other social discourses such as covenantal history, prophetic poetry, rhetoric and emotional exhortation (pp.19-20). To this I would suggest that law was perhaps not only embedded in these other discourses, but even overwhelmed and subordinate. Halberstam own view is that the only way for any of what counts as law in Scripture to count actually as law is with a wide-open lens defining our term as “the enterprise of subjecting human conduct to rules”). As offered by Halberstam, law in biblical Israel was a body of tradition with which to resolve disputes and establish restorative justice. But what we’re looking at in the Bible is not specialized legal training, but rather popular paideia, a “purely theoretical, didactic enterprise” in no way connected to “ancient Israelite legal practice” or emerging from real experience. What I would recommend calling non-political, law in biblical Israel was a social practice, a “series of moral rules backed up by nothing other than their own moral authority” continuous with cultic observance and familial custom (pp. 23, 27).

But also discontinuous with actual practice. For instance, according to Halberstam, biblical laws determining capital punishment for homicide was a priestly rule, not one designed by and for public magistrates. They were promulgated not on the principle of civic order, but out of concern perhaps for ritual purity, and perhaps in conflict with actual social practice in ancient Israel and the ancient near East by which compensation was accepted even in this area of law (p.26). Halberstam more than suggests that biblical law was more polemical than legislative. Indeed, she indicates that these rules take on auratic character once committed to written form (p.22). Situating these utopian legal materials into a cultic system, Halberstam considers it unlikely that the Torah, the law of God was ever used as code of law (p.27). What we get from this analysis is the firm sense that biblical law was more dramatic and emotive (in Deuteronomy, in prophetic writing, in the wisdom and anti-wisdom literature of Proverbs and Job) than legal as such.

Regarding Second Temple Period sources, Seth Schwartz observes that among the high clerisy legal sources were “largely absent.” Torah is adored and fetishized, but there is no interest in applying law outside the world of the Jerusalem Temple or sectarian communities, and that among the low clerisy, little attempt was made to bridge the gap between normative biblical texts and actual legal practice (pp.48-9). Regarding the Dead Sea Scrolls, for example, one finds a rule based ethos, but “little or none of this material feels legal in any way that we would recognize.”  There the focus is dominated by apocalyptic urgency and sectarian stringencies about purity and righteousness. In the sectarian texts, law is less legal than hortatory and futuristic (p.51). In non-sectarian literature, there is the valorization of Torah coupled with fear of God and wisdom, but no taste for legal details (pp.51-2). For Philo, Torah is didactic, not legal (p.52). Josephus gives us a sense of customs and norms, but there is little mention of courts other than that of a Jerusalem council that met sporadically. In these sources, no sense is given of a high legal theory, nothing systematic or specialized. Law is more narrowly cultic in scope (pp.54-5, 59). In Hellenistic Egypt, if a Jewish legal politikoi nomoi survived it was in the realm of religion and limited areas of private law. There is no way of telling how Jews in rural areas unofficial arrangements outside courts and village offices, and no knowledge of how ethnatic/politeuma courts worked and with what kind of law or these survived into the Roman period (pp.59-61). Regarding the “customs” permitted to the Egyptian Jews by the emperor Claudius, there is no hint of legal autonomy, ethnarchs, or courts. In Judea, Schwartz speculates that Jewish law was, indeed, the law of the land in a strong sense, but there is no detailed evidence prior to the Great Revolt. In sum, the Second Temple Period texts indicate ritual law, with not much to indicate about civil law. About the “quotidian legal lives of Israelites and Jews,” there is almost nothing to know (p.71). What we have are “strongly localized versions of general Hellensitic and near-eastern pan-Aramaic legal norms and instruments and a tendency to claim such norms and instruments as specifically Jewish” (p.72).

In rabbinic sources, the picture of law turns out to be no less clear, despite the prevalent legal form that stamps them. There is, I think, a tension in Hayes’ analysis, perhaps a contradiction. On the one hand, she adapts the notion that law in rabbinic Judaism was comprehensive and systematic, embracing all actions of daily life (pp.79-80). But here’s the rub. Hayes will also recognize that the historical record (as opposed to ideological positioning of the law by the rabbinic class) was more complex. For instance, the halakhic study hall was in tension with the synagogue as successor of Temple; the status of the rabbis was dependent upon the patriarchs (p.77). On top of that, the Theodosian Code of 398 CE granted Jews authority over religious laws only, not civil, whereas in Sasanian Persia, the relations between rabbis and the lay authority of the Exilarch were often strained (p.78). The idea of rabbis taking the lead in reviving Jewish life is recognized by Hayes as historically dubious (p.80n.8).

For this reader, the most interesting and tricky moment in Hayes’ analysis is where she draws the distinction made by Michael LeFebvre between “legislative” and “non-legislative” models of legal societies. In the former, law is identified with written statute, legal practice based on texts as the source of rulings. But in a non-legislative model of law, Hayes quotes LeFebvre, “written law “may be a description of what law looks like, but what is written is not viewed as being ‘the law’…The idea of law, in these cultures, is abstract, like the ideas of justice, truth, and righteousness. All of these ideas can be discussed in writings, but none of them are ever supposed to be embodied by a text….There is a distinction between actual law and law writings in the non-legislative society.” Commenting, Hayes refers to non-legislative law as serving “academic, pedagogic, monumental, propagandistic, or other functions (pp.88-9).

For arguments about law in Judaism, this distinction cannot be overstated. LeFebvre is talking about non-legislative law in the Bible. He and Hayes both assume that over time these non-legislative biblical legal wrings assume a legislative status. The claim is that the rabbis see in Written Torah a legislative, prescriptive source of law. The problem with this contention is that non-legislative models seem just as applicable to rabbinic sources. According to Hayes, the dialogue form and unresolved disputes for which rabbinic law is famous stand “in tension” with the “assumed prescriptive function of law” (p.99). Accounting for this is the historical fact that for much of the tannaitic and early amoraic periods, what Hayes calls the “rabbinic movement” was not an “organized corporate group, but rather a loose network, making it impossible to fix the halakha or achieve a majority opinion on any matter” (pp.99-100).

Hayes considers it “perhaps ironic” that with the acceptance of diversity and pluralism comes an “ambivalence toward normativity itself.” Add to that appeals to extra legal considerations (p.103) and the status of law as normative authority begins to wobble. With and against this comment, I would argue that none of this is ironic. Hayes will go on to say that anonymous rulings establish legal normativity, but the cat is already out of the bag. We know, of course, how anonymous rules in mishnaic text are always unfixed, opened up and parsed in the gemara. Indeed, after a quick look at ritual law, including in this analysis, the laws of sotah, which she describes as theoretical and fantastical, Hayes swings back to ask almost suddenly if the Mishnah was ever a prescriptive law code in the first place. She more than states that it was not, that the Mishnah was theoretical paideia and utopian, meaning non-legislative even if the idiom is legal. What Hayes finds are elements of code, collection, teaching manual. They are not unlike Greco-Roman legal writings. Except the rabbinic sources show keen interest in ritual matters relating to an inoperative Temple, which, she tells us, sets rabbinic law apart from Roman law (pp.110ff). As for the Bavli, Hayes points our attention to non-legal facets that defy easy classification, suggesting that these non-legal aspects and, in her words, the “incoherence” of statue allow us to “reimagine law not as prescriptive.”

So rabbinic Judaism was Torah-centric. But all of this is confusing. We know from Hayes herself that Torah is not law, which is a strange thing to say in a volume devoted to “Judaism and Law.” In a footnote at the very start of the chapter, she explains that the Hebrew word Torah “continues to govern a much broader semantic field than the inadequate translation ‘law’…Readers are reminded that the rabbinic concept of Torah is expansive and includes both form and content not regularly signaled by the English term ‘law’” (p.76fn.6). Legal normativity may be the last word of Hayes’ essay, but the very idea has been severely complicated by a close reading of her own analysis already at a margin from the bottom of the first opening page.

About law in medieval Judaism (Jewish philosophy and halakhic literature), for Ze’ev Harvey it’s an opening question the extent to which medieval jewish thinkers considered the Torah of Moses to be “law” (p.157). To be sure, in these medieval sources there is an actual interest in law as such, and on the priority of law as a principle of good government. Here we are on firm Straussian terrain. But is Torah political as a legislative body of practical law? What interests us in this discussion are questions picked out concerning the status and authority of Sinaitic law and its relation to secular, sovereign authority. As Harvey reads him, according to Maimonides, only undisputed law can be said to go back to Sinai. And since the vast majority of laws in the Jewish legal tradition are under dispute, they can ipso facto be considered as not coming from Sinai; they are rather the product of difference in human legal reasoning. They have no divine authority. The law has been effectively secularized. Once promulgated, even by Moses, law is subject to human legal reasoning (pp.168, 171). For his part, the Rashba subordinated Jewish Torah law to gentile rulers and to Jewish lay leaders on the assumption that Torah law, when strictly observed, leads to the desolation of the world (p.177). Lastly, Ran distinguishes the “righteous judgments” of Torah law, which he considers to be more ethical and religious than political, more conducive to individual morality, but less conducive to the general welfare of city (p.181). In short, what is interesting about Harvey’s analysis is the way that law has been disassociated from Torah, politics from religion, already in the medieval sources.

Verena Kasper-Marienberg throws much historical light on Jewish law at the historical cusp before German Jewish Haskalah and Emancipation, that point when, as alleged in conservative leaning Jewish philosophy following Strauss, everything begins going wrong in Jewish life, when Judaism loses its distinct shape as a political community defined by its own law.  Kasper-Marienberg indicates the sharp narrowing of Jewish juridical boundaries well before Emancipation and 19th century liberal modernity. She mentions in particular the Judenstättigket, a local Jewry ordinance in Frankfurt am Main, originally promulgated in 1424. Centuries before the time of Mendelssohn, Jewish law was restricted to ritual, ceremonial functions and minor civil disputes. Kasper-Marienberg also makes mention of Jews going to non-Jewish courts increasingly in the eighteenth century, and not because they sought to buck Jewish communal norms, but simply to secure their own legal advantages in particular suits. Perhaps most important is the indication we are given of rabbis affiliated with if not dependent upon Jewish lay leadership, and what we begin to see is how narrowly circumscribed a “religious” thing Jewish law was already before liberal modernity.

Everything changes in modern period. Nothing changes in modern period. On the one hand, the discussion falls flat, both in real life and the analysis of the book. Higher stakes are placed on questions regarding normativity and authority as the subject headings shift away from law, rhetoric, and paideia to polemics for and against “The Law” (and “Halakhah”) as reified theoretical and cultural objects. This starts with stilted notions of “Jewish law” in Spinoza, nineteenth century liberal and modern orthodox polemics, and, at times, twentieth century thought. On the other hand, for all the precision that “the political” is supposed to bring to our understanding of “law” in Judaism, the historical studies inform us is that what we’re looking at continues to fall under the category of “religion” insofar as law in Judaism still has primarily to do with theology, cult, and ceremony, not political social structure.

The problem in the modern period is the confusion of Torah with “Halakhah,” which is then confused as something actual. What I means here is something very narrow. Eliyahu Stern in his essay on law and the Jewish Enlightenment assumes that Spinoza’ political theory is the strongest challenge to Mendelssohn non-political interpretation of Jewish law (p.218). But Mendelssohn’s view has only been confirmed by the ancient, medieval and early modern discussions in this volume. In Jewish history, Torah law has been submitted to the law of the king or state, eking out a narrow place for divine law in the narrow four cubits of ceremonial and private space. For his part, Yonatan Brafman fails to consider deeply that what concerned modern Jewish thinkers, even orthodox ones, was, all in all, not politically consequential (p.303). While Brafman is, I believe, the only person in this volume to even consider gender, I am not sure what to make of the expressed personal desire to “recreate” “holistic ‘lifeworlds” in which halakha once again simply makes sense to the individual (p.311; emphasis added). Nor do I know what to make of the notion that contemporary Jewish philosophy “must overcome” the distinction between theology and law understood as a symptom of modernity without “succumbing” to “romanticism for premodern forms of Judaism” (p.312). The questions here are begged. Our historical sources more than suggest that law never “simply made sense” in pre-modern Judaism.

About the relation between theology and law, far more critical are the bracing thoughts concluding Menachem Lorberbaum’s chapter on Hasidic and Misnagdic sources.  Here he opines regarding the failure of Jewish law in those very quarters where one might think it makes the most immediate, common sense. An authority on the secularization of law and the narrowing of divine law in the medieval Jewish legal tradition, Lorberbaum writes here about the incoherence of ultra-orthodox Judaism today. “Viewed in light of the relation to halakhah, to culture, and to mysticism, there is no overarching theological commitment that can hold a convincing and coherent position regarding all three. Jewish orthodoxy will necessarily be a loose political coalition of incommensurable theologies. The challenge of its politics may be understood as the ongoing effort to preserve this collation through the ideology of a halakhically committed community whose power lies more in its ability to exclude competing ideologies than in its ability to provide a compelling and overarching theology of Judaism” (p.256).

The key words in Loerberbaum’s astute analysis are “convincing,” “coherent,” and “compelling.” His is a point made by Rosenzweig in his essay “The Builders,” that today “Jewish law” does more to split community than bind it together, that Jewish thought continues to squirm on the needlepoint of a why.

One possible and counterintuitive conclusion from a reading in the round of Judaism and Law is that, in Judaism, law is not law. In other words, law is not law in that does not “simply” legislate. Bounded by tradition and custom, by law in Judaism one can only mean it to be, as per Schwartz, “a subcategory of righteousness, sanctity, or purity” (p.48). It is, with Hayes, “non-legislative,” “academic, pedagogic, monumental, propagandistic.” The more you look at law in Judaism as a historical phenomenon, the less substantitve it appears, less “political,” less “legal” and more “religious” and “iconic.” In schools and study halls, vested social actors set what Hayes is calling divine law apart from and above the societies they want this law to govern. In combinations of written form and oral form, there law assumes a virtual life of its own, no doubt causing real effects in actual life, but at the same time one that becomes increasingly impracticable. As a distant phenomenon, as gazed upon, as removed and set apart from the concrete ins and outs of daily social life, divine law enters social life as if from without as something more magnificent and mysterious than mere law. Therein lies its unmistakable aura.

Liberal theory still gets some things right. Rejected here is the by now old argument in religious studies and political theology that there is no distinction to be drawn between religion and law. Our own takeaway would be that religion and politics through the medium of law and ceremonial performance pass through each other. The support or undermine each other, but almost always from separate positions. This is not, however, to ignore how the more or less religiously unencumbered secular law of palace and parliament always trumps religious or divine law. About this, Spinoza was indubitably correct. Congruently from inside its own place, religion completely overwhelms law the more religious groups like ancient priests or antique and medieval rabbis lack power. Also indubitable is the typical disaster to both religion and the political when religious actors are given the free chance to apply religious values in broad and definitive political strokes against large and resistant sectors of the general public.

 

About zjb

Zachary Braiterman is Professor of Religion in the Department of Religion at Syracuse University. His specialization is modern Jewish though and philosophical aesthetics. http://religion.syr.edu
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