Let me begin by thanking the organizers of this session: Michael Rosenberg and Hayim Lapin. They organized a truly distinguished panel of reviewers whose insightful remarks have stimulated my further thinking. I am grateful to them.
I will begin with Jonathan Klawans’ comments and the question of realism and nominalism because this is an important confusion that I’ve encountered on more than one occasion. In fact, I am now persuaded by Aryeh Amichay that better terminology would be “legal essentialism” and “legal formalism” because so many people confuse the term “realism” in its technical sense with the nontechnical notion of “realistic,” which is not at all what the term means when deployed in philosophical and legal contexts. All legal systems are realistic – no legal system will include a law demanding that citizens levitate for two hours every Tuesday morning. So let me clarify how I am using the terms and why I stand by my claim that works like Jubilees, Enoch and some Qumran writings evince a basically essentialist (= my realist) orientation to law, i.e., they hold that divine law has a mind-independent reality and immutable essence; and why I stand by my claim that the rabbis are much more inclined to legal formalism (= my nominalism), i.e., they allow divine law from time to time to deviate from empirical or mind-independent reality (because while abstractions like law are real, they do not have a reality independent of their particular concrete instantiations or the minds that conceive them).
I cite Amichay’s definition of legal essentialism in a footnote in the book (147n6) because it is close to what I mean by realism, and I will highlight it again here: the core concept of essentialism is “that the characteristics used to define a thing are thought to inhere in its very essence and, thus, to be unchangeable” – at least by humans. I would add that in the philosophical realism of antiquity these qualities exist not only in particular things but also in an immutable and eternal mind-independent realm (such as the Platonic realm of ideas). Amichay continues, “The pork carries with it impurity, and the pentateuchal dietary laws thus only reveal a fact that is true regardless of whether the law was written. The holidays occur according to a celestial calendar that no human error can change, and if a certain holiday is not celebrated on the correct date, it does not change the fact that it was indeed the date of the holiday, since this is an essence of time that is instilled in nature, just as the sun rises and the moon sets… It is an ontological premise that informs the attitude towards the law.” So a legal approach is essentialist (what I call realist in the book), when it gives to mind-independent reality a determining role in shaping the law. It is formalist (what I refer to as nominalist in the book) when a mind-independent reality does not consistently trump other considerations – such as certain social values or goals – when determining the law.
Now when we want to assess whether a legal system is essentialist or formalist, the criteria are internal to the system. Whether you or I think the 364-day calendar is anchored in the mind-independent movement of the heavenly bodies is not the point. The point is: does the legal system we are assessing understand itself, represent itself, as shaping law in conformity to a what it perceives to be a mind-independent reality? Jubilees and the Qumran writings I discuss explicitly do. They state that the calendar was established by divine decree at creation; it is written on heavenly tablets which means it is a celestial law that cannot be altered by human rulings. God could conceivably alter it – which is why Qumran’s divine law isn’t Greek natural law.
Alternatively, we might ask, does the legal system we are assessing describe itself as overruling what the system itself points to and names as mind-independent reality? The rabbis explicitly do this. Sometimes – not always -- they say: yes, we see the new moon and we know that today is the first day of the lunar month, but we are going to declare tomorrow the first day of the lunar month and we expect people to abide by that ruling even though it contradicts empirical fact. They explicitly use the language of error, deviation from truth and independently observed facts, and assert that their articulation of the divine law must be obeyed even if it occasionally deviates from this mind-independent reality. Such a move is just unheard of in the texts from Qumran.
I also stand by the characterization of conversion as a legal fiction made possible by a nominalist approach. A new book by David Kaden (Matthew, Paul and the Anthropology of the Law, Mohr Siebeck, 2016) sheds light on this issue. The Romans, of course, invented the legal fiction. Kaden notes that under the pressure of an expanding empire, Roman jurists had to find ways to incorporate noncitizens into the legal framework of the empire and they did so by means of the legal fiction. They treated non-Roman litigants who met the criterion of residence in the geographic space of the empire as if they were Roman citizens subject to Roman civil law in a given case. Of course, “a non-Roman did not ontologically become a Roman, but he was treated as if he were a Roman for the purposes of” adjudicating a case (Kaden, p. 171, citing John S. Richardson “The Roman Mind and the Power of Fiction”). Kaden shows that Jews did the same thing, treating gentiles who behaved a certain way or performed a certain rite (like circumcision) as if they were native Judeans. Similarly, the non-Jew could be brought into the community of Judeans on almost equal terms by means of a kind of fictio, on analogy with the extension of Roman citizenship to non-Romans by means of a legal fiction.
But as I argue, those who had an essentialist understanding of Jewish identity, viewing it as a God-given genealogical status sealed by circumcision on the 8th day and only on the 8th day, rejected the possibility of conversion all together. Only God can change the identities he has assigned – no human ritual or legal declaration can accomplish that. This is the view of Ezra, Jubilees, the Qumran texts and Paul. They are all essentialists about identity and essentialists in their approach to law. Law cannot modify these essential qualities. Now Paul will find a way to incorporate gentiles into the family of Abraham, but it will entail an actual transformation of the gentile’s essence by divine powers, a transubstantiation of the gentile’s body by the pneuma of Christ. As a member of Christ’s body, the gentile becomes the seed of Abraham because Christ is the seed of Abraham (as Matthew Thiessen has argued in his excellent new book Paul and the Gentile Problem, Oxford University Press, 2016). For an essentialist like Paul, no mere human ritual (like circumcision at the wrong time) or legal fiction can achieve the inclusion of the gentile in the divine promises. So regarding conversion in ancient Judaism, we see an essentialist approach that trades in ontological essences, and a formalist or nominalist approach that trades in fictions.
And here let me say to Paula Fredriksen that she is correct to point out a problem in a footnote on p. 147, where I talk about gentiles becoming Israel, using Israel in its broad sense, the Israelite community, which I should not have done without further investigation of Paul’s usage of the term “Israel” in connection with gentiles. So for now, please be guided by what I say in the main text on p. 148. There I say that for Paul “Believing gentiles may be the children of Abraham and like him they will be justified by faith in a state of uncircumcision but they are Abraham’s sons or heirs according to the promise and thus distinct from the Jews….” That is the primary claim in the book.
But back to Jonathan Klawans and his criticism that I underutilize the category of the rational. Jonathan is absolutely correct that not all defenses of the law as rational are the same. I tried to make that clear, but the idea was more developed in the rabbinic chapter on rationality (chapter 6) than in the Hellenistic Judaism chapter (chapter 3), so it is easy to miss. In chapter 6, I list the different things classical writers and philosophers meant when they said the natural law is rational. I write (p. 246): “First and foremost, it is intrinsically and essentially rational in its substance, meaning that it is not arbitrary and contains no contradiction or absurdity, no illogical or paradoxical claims. Second, natural law is rational in the sense that it serves a rational purpose determined by its specific content; it has an intrinsic rationale and conduces to a specific rational good... In classical thought there are two additional features that follow from the natural law’s rational character. First, since natural law is constituted by or conforms to reason, it follows that it is rationally accessible. Second, its authority lies in its rational character rather than an external mechanism of enforcement.”
I show that different Hellenistic Jewish writings assert the rationality of the law in one or more of these ways. The author of the Letter of Aristeas is not interested in showing that the laws can be derived from independent reason. He is interested in showing that the dietary laws are rational in their substance and in their telos, crafted in wisdom precisely to convey specific principles of just behavior. Regarding the system as a whole he says (161): ‘[t]he legislation was not laid down at random or by some caprice of the mind, but with a view to truth (ἀλήθεια) and as a token of right reason (ὀρθοῦ λόγου).’ For its part, 4 Maccabees asserts that the dietary laws are in their substance in harmony with nature, which is itself informed by wisdom. Philo of course goes for big game and argues that the Torah can be derived by reason – we know because the patriarchs by virtue of their rational perfection, observed it before it was given at Sinai by reading it in nature.
The point is that the rhetoric in The Letter of Aristeas reveals a sensitivity to the fact that the irrational appearance of the dietary and ritual purity laws casts doubt on the Torah’s divine character. Against this charge, the author wants to assert these laws rationality by whatever means he can (and the fact that he fails to convince us doesn’t mean he’s not doing it, or that he’s not bothered by the cognitive dissonance I identify). By contrast, the rabbis double down: yes, the dietary and purity laws are arbitrary!
As for the point that a distinction between rational and irrational Torah laws can be found in second Temple sources, I certainly agree. In fact, I argue that when ancient Jews encountered a concept of divine law that assumed its utter rationality, they were painfully aware that some elements of their divine law (the Torah) were irrational. The very fact that Hellenistic Jewish texts devote so much energy denying the irrationality of the dietary and purity laws and not, say, the prohibition of murder or theft, means they see the distinction. New Testament writers also see the distinction clearly, but they are not motivated to deny, conceal or apologize for the irrationality of some of the Mosaic laws. Mark’s Jesus simply pronounces the superiority and divine origin of the rational and ethical laws and the inferiority and human origin of the irrational purity and dietary laws (Mark 7:1-13). The rabbis also see the distinction but they choose a third way. They do not deny the irrationality as Aristeas does, nor do they deem it a mark of human origin as Mark’s Jesus does. Rather, they pronounce the divinity of both kinds of laws: divine law can contain rational and irrational elements. In other words, for the rabbis, divine law, pace the Stoics, is not inherently rational.
This brings us to Klawans’ point that there is a subset of laws that many Jews believed to be self-evidently rational. This is absolutely correct and consistent with my argument. My claim was never that the rabbis believed the divine law given at Sinai to be entirely irrational. My claim is that they did not believe it is necessarily rational, as the Stoics do. The Sifra passage (Sifra Ahare Mot 9:13) makes this plain. The passage points to logical laws in the Torah that arouse no objection and are easy to follow, and illogical laws that arouse protest and must be imposed as a coercive decree. But the Sifra passage must not be read out of context. The full passage in which this paragraph appears makes it clear that the arbitrary and irrational laws (huqqim) unique to Israel and marking her as God’s people, are of greater value than the rational laws (mishpatim) that can also be found in the laws of other nations and do not therefore mark Israel as God’s people. So again, the rabbis concede the premise of those who mock them – the Torah contains irrational laws – but because they reject the view that rationality is a defining feature of divine law they neither engage in the apologetics of Aristeas and Philo, nor denigrate or dismiss these irrational laws of the Torah as some NT sources do. Indeed, they accord these laws a higher status and assert that they are proof of the Torah’s divinity, not disproof of it.
Paula Fredriksen asks me about Romans 7 (gulp). I do think Paul is addressing gentile Judaizers and that he speaks from their perspective. I also think that he uses the first person in rhetorically powerful ways to signal his empathy with them. I read Romans 7:4-6 like this. Paul begins v. 4 with “So, my brothers and sisters” which sounds like he is drawing them close as kin, as “we,” but then he immediately distances them: “you also died to the law through the body of Christ.” Then, in the next verses he brings them near again speaking of “we.” “For when we were in the realm of the flesh, the sinful passions aroused by the law were at work in us, so that we bore fruit for death. But now, by dying to what once bound us, we have been released from the law so that we serve in the new way of the Spirit, and not in the old way of the written code.”
What’s going on? I think Paul has to momentarily disaffiliate and say “you” in v 4 because he is describing a concrete event in the lives of this specific group of Gentiles – their acceptance of Christ: “Listen, brothers and sisters – you died in the law through the body of Christ” i.e., you became Christ-followers which for you means you do not need the Law. Now, he says, let me explain how this works. At this point he can switch back to “we” language, meaning “we Christ-followers” because what he describes next is true of all Christ-followers. Here is where the speech in character begins. I think of these verses as Paul speaking from within the perspective of his audience – we as a group of new Christ-followers. When we were still in the flesh, sinful passion, which is only aroused by laws, worked in us. But now, we Christ-followers have died to what bound us – sinful passion – and so we are released from the Law. Purged of sinful passion the Law doesn’t have the power to incite us to sin the way it used to. So now we can serve in the way of the Spirit, which is to say, without struggle against sinful passions, and not in the old way of the written code which is marked by struggle against sinful passions. Paul goes on to explain how the Law arouses sinful passions – if not for the law against covetousness, I (speaking here from the perspective of the Gentile Christ-follower, but nonetheless empathizing personally with his feelings and emotions) would not have known what it is to covet or feel covetousness. But sin residing in my body seizes on what is prohibited in the law and tempts me to violate it, setting up this awful struggle, and sometimes sin wins. But don’t get me wrong, he adds in v. 12, I’m not saying the Law is bad. No, the Law itself is holy, righteous and good. The problem is the sin(fulness) in my members that pushes me to violate the Law. So by dying to sinful passion through Christ “we” are released from serving God in the way of the Law, i.e., the way of constant internal warfare against sinful passion. Purged of sin by the death and resurrection of Jesus, “we” can now serve God with a whole heart instead of warring with a divided heart. In other words, I think Paul is speaking from the perspective of the Gentile Christ-follower, though his “I/we” here is rhetorically powerful in signaling a degree of empathy and validation.
Paula Fredriksen also suggests a possible distinction between circumcision and law observance in general: perhaps Paul prohibited gentiles from circumcision but not necessarily from all law observance. I really haven’t thought about that, but it seems reasonable to me. It is really circumcision that is the problem for Paul because 8th day circumcision is a commandment that an adult gentile by definition cannot fulfill. So circumcision is uniquely off limits to a gentile. But general law observance may not be so problematic for Paul. Finally, Fredriksen wonders whether I give Paul enough credit for his positive statements about the law. It’s possible, but I do think others go too far in the opposite direction. Even Paul’s statement in Romans 7:12 that “the law is holy and the commandment is holy, and just, and good” has to be taken with a grain of salt because he has just blasted the law for inciting sin. Lest his reader conclude from his words that the law is terrible, he backtracks in v. 12. But this has the feel of a “course correction” after saying some really terrible things about the law, and not a robust acclamation of the law.
I turn finally to the comments of Beth Berkowitz. Berkowitz picked up on an aspect of the book that I very much hope others will see – that it has a message for today. I firmly believe that we are still wrestling with the cognitive dissonance I describe in the book and that the consequences of failing to recognize this fact are grave. So please indulge me as I share an insight I have had since finishing the book and which I developed more fully in a talk delivered at the inauguration of the Harvard Law School’s new Center for Jewish and Israeli Law – on election day no less.
For all their differences, the Stoics and the biblical writers were driven by a shared vision. Each was seeking to ground written laws, the black letter rules and legislation governing human society, in an authority that transcends mere convention but does not at the same time absolutize them. To connect the laws that govern us to a transcendent authority, to “divine the law” if you will, while retaining the possibility for critique, modification and evolution of those laws, to bestow written law with authority without immutability; authority without truth claims; authority without authoritarianism -- is a tough needle to thread, yet both traditions manage it albeit it in dramatically different ways.
In response to the sophists’ attacks on conventional law and morality as arbitrary and meaningless, the Stoics sought to base morality on something transcending human convention, something unchanging and eternal. Rather counterintuitively, they chose nature, breaking with a long Greek tradition that saw physis and nomos as antitheses. The Stoics were the first to characterize nature not as chaotic and arbitrary but governed by an inherent reason (logos), as ordered to a purpose, to justice and virtue. True, this universal, immutable, rational law of nature, this divine law, is an unwritten law distinct from and transcending the written laws of states, but against it the mutable and fallible written laws of human states can be continually evaluated and refined. By holding the written law of states accountable to an immutable and true divine standard, they bolstered the written law’s authority (the more in conformity with the rational order of nature, the more authoritative) without attaching to the written law of the state the qualities of immutability, inherent rationality, and truth. Written law will always be in need of adjustment and repair owing to its imperfection.
A parallel achievement, but by other means, may be attributed to the ancient Israelites who also sought to base morality on something transcending human convention, something unchanging and eternal. Instead of choosing the divine reason of nature, they chose the divine will of a personal deity. Biblical divine law is not an impersonal and unwritten natural law of reason, distinct from the written laws of states, as it is for the Stoics, but identical to the written law of a particular people in a particular place. Grounding the written law in a responsive and adjustable divine will rather than an immutable divine reason, enhanced the authority of the written law, without attaching to it the qualities of immutability, inherent rationality, universality and truth, and ensuring that it remained dynamically responsive to the shifting circumstances of human life. As was true in the case of the Stoics, the written law of states was bolstered but not absolutized; rather, it was understood to be susceptible to continual adjustment and repair but now as a function of its perfection not its imperfection, because in the biblical view, that which is divine is perfect insofar as it is dynamic and responsive, not static and immutable.
It is my contention, then, that both the Stoics and the biblical authors understood (and it is this they tried to guard against), that to accord immutability and truth to written laws, is the first step on the road to authoritarianism because the seduction of certainty and absolutes in the realm of the uncertain and relative (i.e., life), is beyond the ability of many mortals to resist. Indeed, as evidence of that seduction I would point to voices in both the philosophical and the biblical traditions that expressed a yearning for what I call in the book “robo-righteousness:” a desire to achieve virtue without the need to obey laws and commandments or to fight against sinful passions. This powerful and anxious longing for robo-righteousness proved to be dangerous when, in the course of history, the two conceptions of divine law I have just laid out were conflated.
That conflation occurred in the Hellenistic period when Jews encountered the Stoic dichotomy of an immutable and true unwritten divine law on the one hand and mutable written human law on the other and realized that their divine Torah possessed features considered by their Greek neighbors to be unfailing indicators of a human law rather than a divine law. In various Hellenistic Jewish writings, to varying degrees and with different emphases, the written Torah, increasingly took on the traits of the unwritten divine law of Greek tradition, traits it did not possess in its biblical articulation: it is deemed to be utterly rational, immutable and true.
Ironically, then, with the conflation of Torah and nomos theios in the Hellenistic period, there emerged a conception of written law that neither the Stoics nor the biblical tradition had wanted and that each had taken great pains to guard against -- a written law deemed immutable, rational, ontologically and metaphysically true, increasingly exempt from the adjustments and refinements of moral critique and moral reasoning: in other words, the Bible of much of subsequent western tradition. In the Hellenistic context, the attribution of divinity was increasingly understood to confer upon the Torah not only authority but also immutability, leaving little room for moral agency, moral reasoning and the freedom to critique the law. Debate, dissent, argument, the calibration and refinement of the law will eventually be perceived not as a built in mechanism for the law’s correction; but as a scandal and a heresy.
It is this that the dominant voice of the Talmud resisted. The Talmudic rabbis resisted the conflation of Greek and biblical notions of divine law found in Jewish writings beginning in the 3rd c B.C.E., and constructed a portrait of divine law in defiance of Greek assumptions about the attributes of divine law, specifically the attributes of conformity to truth, universal rationality, and immutability. The rabbis advanced a portrait of divine law that was not self-identical with truth and rationality, not universal and immutable, not immune to critique and improving modifications. And they did so in full awareness that they were a scandal to others.
In the medieval and modern periods, the Greek binary of divine natural law and human positive law would become controlling paradigms in the west. We are heirs to this tradition with the result that we, like many ancient readers, conflate Torah with nomos theios. We too, often unwittingly map onto the Bible, the characteristic features of Greek divine law. And so for us too, the rabbinic construction of divine law– not inherently rational, divorced from truth, subject to change or evolution – can seem scandalous. But I maintain that there is much to be gained from bringing the rabbinic construction of divine law out of the shadows, from considering the possibility that a law, and a text can be divine without being universal, absolute, unchanging truth.
The talmudic vision is a difficult and demanding one because it requires constant work. It requires moral reasoning, debate, and argument, and subsequent Jewish tradition has not been consistently loyal to this vision through the ages. Today, Jewish law has its absolutist proponents who claim for its categories and norms an ontological status that renders them immutable and true – divine in the Stoic sense rather than the biblical sense. These deformations are understandable perhaps – the search for solid ground, the yearning for robo-righteousness, the desire to be done with the burden of moral agency and to accept authoritarianism, is as strong today in this era of Trump, as it ever was. And it is no less dangerous.