“In 2016, the History of Rabbinic Literature SBL section hosted a review panel of Dr. Christine Hayes’ book, What’s Divine About Divine Law? Dr. Beth Berkowitz begins the forum in its new home at AJR. ”

One of my favorite stores is the Container Store. The Container Store offers a vision of order. Even your socks and bras and underwear have special containers designed to keep them from disarray. Reading Chris Hayes’s book is the intellectual equivalent of walking through the Container Store. She takes a hugely messy literary heritage from antiquity and, with seemingly magical powers of containment, brings conceptual order to them. Hayes shows that these texts are caught up in common questions, and are simply answering them in different ways for different reasons. Hayes doesn’t hide the mess; she’s not throwing all the dirty clothes and papers into the closet. On the contrary, Hayes is very taken with the textual subtleties, and the multiplicity of discourses. The achievement of Hayes’s book is that its conceptual refinement never entails reduction. Hayes organizes without simplifying.

The Container Store lover in me kept wanting to draw a map of the arguments, to see them visually jump off the page. This session seemed like a great opportunity to indulge that temptation, so my response to the book begins with just that, a visual map of the book, intended as a tribute to its beautiful conceptual order. That’s how I’ll spend these first few minutes, and then I’ll highlight a strand within the book that I found particularly intriguing, what Hayes calls rhetorics of concealment and disclosure. Finally, I’ll consider contemporary iterations of these issues in the Supreme Court’s landmark decision on same-sex marriage.

We know Hayes’s central question before we even crack the cover, since it’s right there on the cover: What’s divine about divine Law? Her foundational claim is that the Bible and the Greeks developed very different notions of divine law. According to the Greeks, divine law is embedded within nature, both within human nature, and within the natural world. Divine law is magisterial; it is eternal, unchanging, and true, not like human law, which is not really all that impressive. It’s just something useful, that keeps changing according to the needs of the hour. There are many different versions of divine law in ancient Greek and Roman writings. You can get a sense of the diversity here. But what they all have in common is this dichotomy between human and divine law, with divine law’s grandiosity wrapped up in its universality and eternality.

Things look very different in the Bible, when we consider the depiction of divine law there. The title of Hayes’s book is really more a product of the Greek conception than the biblical one, since according to the Bible, divine law is really just law, and it’s not being contrasted to anything else. Law in the Bible is highly particular: it consists of particular instructions, given to a particular people, by a particular God, at a particular moment in time. There are variations on the biblical idea, just as we saw with the Greek idea. The Bible features law largely as a function of God’s will, but sometimes the Bible features law as a function of national history, and sometimes in more Greek-compatible terms, as an embodiment of wisdom.

After identifying the key patterns in this way, Hayes notices something interesting: the Greeks’ human law actually looks a lot like the Hebrews’ divine law. Whereas for the Greeks, law that is temporary, particular, and changing just wreaks of human production, for the Hebrews, God’s law was all those things, and that was totally fine. But for ancient Jews grappling with both these cultural legacies, the discrepancy was very perplexing and troubling. Divine law is either eternal or temporary, either static or changing, either universal or particular; it can’t be both. So which was it? As Hayes sees it, ancient Jews came up with three approaches to this question. Some ancient Jews harmonized the two conceptions; that’s what Hayes calls bridging the gap. Some ancient Jews maintained and even exploited this gap; that’s minding the gap. Still other ancient Jews tried to change the terms of the conversation altogether, and that’s what’s called resisting the gap.

I’ll say a bit more about each strategy. The first strategy of bridging the gap could go in different directions. Philo, for example, basically deleted the Bible’s own conception, and read the Greek notion into the Bible. First Enoch and Jubilees, on the other hand, took aspects of the biblical conception and overlaid them onto the Greek one, such that natural law took on a positivistic cast. In a third version of bridging the gap, typified by the Qumran sect, the law of the cosmos (in other words, the Greek version of divine law) was thought to be the very substance of the Torah, revealed by God to the true Israel, which was, of course, them, in their view.

Minding the gap was principally Paul’s ingenious invention. No harmonizing for Paul. Paul instead accentuates the discrepancy, insisting that the Torah is one thing, while divine law is entirely another. For Paul, it made sense only for genealogical Jews to observe the written law of the Torah; it made sense for gentiles, by contrast, to focus their attention on the universal, unwritten law of nature. In order to convince the gentiles of this, Paul at times seems rather dismissive of the Torah, and we know how the rest of that story turned out.

But the story that Hayes is telling is really more about the rabbis, who take a very interesting approach to the problem. Whereas Philo makes Mosaic law look a whole lot like Greek divine law, and Jubilees makes Greek divine law look a whole lot like Mosaic law, and Paul invests in keeping them separate, the Rabbis argue with the assumptions on which the entire conversation is based. Who says that something being temporary, particular, changing and sometimes irrational makes it human? Maybe we need to rethink what it means for law to be divine in the first place. They go so far as to say that these attributes of particularity and irrationality, so constantly denigrated in the Hellenistic world, are actually virtues. It’s like when you say you love someone despite their faults, versus saying you love someone because of their faults; the rabbis are the “because-of” types. The rabbis see the flaws as endearing, as distinctive, as making the Torah far more interesting. But it’s not like they didn’t know how everyone else looked at it; they knew everyone else considered these attributes flaws, and as disqualifying the law from any sparks of divinity. They realized how ridiculous their position seemed.

That scandal is the part of the story that I found most interesting. I see this book as a celebration of the weirdness, or we could even say queerness, of the rabbis. What makes them queer rather than just weird is that they know they’re weird; they’re pretty honest about the struggle involved. Hayes captures this weirdness so effectively in the vocabulary she develops of rhetorics of concealment and disclosure, and that’s why I wanted to focus on that vocabulary and to consider how others of us might adopt and extend it.

Hayes borrows the phrase “rhetoric of concealment” from Bernard Levinson, who uses it to refer to the biblical authors’ tendency to “camouflage the actual literary history of the laws.” (p. 48, Legal Revision). The biblical authors, instead of openly getting rid of the old laws that they didn’t want anymore, and substituting them with new ones that they liked better, kept the vestiges of the old law within the new ones. The rhetorics of concealment, then, are the various literary strategies that the biblical authors used to conceal their innovations. There is a deep irony in such rhetoric: “the very act of concealment,” says Levinson, “reveals the innovator” (p. 92).

There is also an irony in Hayes’s adaptation of Levinson’s term, since Hayes is innovating as she borrows. Hayes uses the term in a far broader way than does Levinson, since she uses it not just with respect to Bible, and not just to refer to strategies for camouflaging literary history. When Hayes uses the term, she is referring to all the ways that ancient Israelite but also late ancient Jewish authors hide change, concealing any kind of revision or modification.

Hayes also innovates with respect to Levinson by inventing a partner for the rhetoric of concealment. That partner is the rhetoric of disclosure. Such rhetoric entails an open acknowledgment of change. The two rhetorics, one of concealment and one of disclosure, operate dialectically and even simultaneously, according to Hayes. When Deuteronomy retrojects the centralization of sacrifice to the time of Moses, for example, it is on the one hand concealing innovation, but on the other hand it is openly acknowledging that centralized sacrifice did not always exist, that it needed to be introduced at a certain point in time.

These rhetorics get really interesting with the rabbis. With her rhetoric of disclosure, Hayes is drawing on Aaron Panken’s work on rabbinic rhetorics of innovation. So her partner rhetorics, of concealment and disclosure, are the product of an ingenious combination of Levinson’s work on biblical concealment with Panken’s work on rabbinic disclosure. Panken uses the term rhetoric of innovation to refer to instances in rabbinic literature when the rabbis self-consciously sponsor legal innovation. Panken’s method relies upon what he calls “semantic indicators,” terms like gezerah and takkanah where the rabbis are explicitly marking their law as an innovation. Panken coins the term “rhetoric of disclosure” – he is himself in dialogue with Levinson’s work -- to refer to these cases of announced legal change.

Hayes complicates Panken’s conclusions, however, by suggesting that these cases involve not only confident self-assertion on the rabbis’ part, but also anxious disowning of innovation. Hayes looks at cases where the Babylonian Talmud roots a rabbinic decree in a biblical source (p. 291-292) and suggests that takkanot are more plausibly seen, at least for the Bavli, as a rhetoric of concealment, since the Bavli seems bent on undoing the impression of innovation left by earlier generations of rabbis. Hayes suggests that we are seeing here an “attempt to conceal even as it discloses.” (p. 291)

But Hayes also extends Panken’s idea of a rhetoric of disclosure to include not just moments in which legal change is flagged but to include also moments in which legal change is being, to use a bit of psycho-babble, processed. The rhetoric of disclosure refers to the moments when, to quote Hayes, “a realist perspective is fully or partially delegitimized and rabbinic nominalism is fully or partially upheld.” These are the moments when the rabbis reckon with the fact that the laws change, or are not necessarily true or rational or universal. For Hayes, the rhetoric of disclosure is really about self-awareness; it’s not just a disclosure of innovation but also a disclosure of the self.

That is why Hayes’s version of the rhetoric of disclosure includes such fascinating phenomena in rabbinic literature as the motif of mockery, and the displacement of criticism onto various outsiders. In her treatment of these phenomena, I think Hayes is anticipating, inaugurating, and participating in an exciting new phase in the study of rabbinic literature, one that we’ve been building up to for a little while, and that is finally now flowering. It can be seen in the recent books by Mira Balberg and Dina Stein, and in Boyarin’s Fat Rabbis, Rosen-Zvi’s Demonic Desires, and Moulie Vidas’s Formation of the Talmud. If I were giving the pitch in Hollywood, I would describe this work as Max Kadushin’s Rabbinic Mind meets Michel Foucault’s Technologies of the Self meets Peter Brown’s Making of Late Antiquity. Its question is how the rabbis fashioned the self and grappled with the problem of subjectivity. It is an encounter between psychology, religion, politics, and culture. Hayes has taken us to this next frontier of rabbinics scholarship. In asking about rabbinic rhetorics of concealment and disclosure, Hayes is asking what the rabbis knew about themselves, what we can know about them, and, I’d venture to say, what we can know about ourselves.

Speaking of ourselves: I want to talk a little bit about the repercussions of this book for our own world. At the end of the book, Hayes speaks of some of those repercussions in modern Jewish thought, but I’d like to address the repercussions in a more supposedly secular context, the Supreme Court, in its decision on same-sex marriage from last year. A reading of the opinions shows that they are caught up in precisely the themes that Hayes treats in this book.

In the majority opinion, Justice Kennedy supports the petition of the 14 same-sex couples to have the right to marry or to have their marriages recognized in other states. Look at how Kennedy speaks of marriage. It is “transcendent”; part of the “human condition”; it has existed “for millennia and across civilizations,” “since the dawn of history.” It responds to “universal” fears of loneliness. After reading Hayes’s book, I can’t help seeing Kennedy’s discourse as just wreaking of divine law or natural law, the qualities of which are being transferred to the legal institution of marriage.

Keep in mind: this is the opinion that is arguing for marriage to be redefined, and to change! What we have here, in my view, is an intense rhetoric of concealment. The rhetoric is designed to conceal or camouflage the innovations. At the same time, in other parts of the opinion, Kennedy does speak of conceptions of marriage as changing, and he uses the example of interracial marriage. Kennedy says explicitly that marriage has “evolved over time.” Here I can’t help hearing the paradigm of human positive law that Hayes describes. And, not unlike the rabbis, Kennedy argues that this evolution is in fact evidence of the strength of the institution of marriage, not its weakness. So Kennedy is engaged in a very complex combination of a rhetoric of concealment with a rhetoric of disclosure, not unlike what Hayes attributes to the rabbis. We can see in Kennedy’s opinion some of the same tensions, and some of the same creativity, that we find in the ancient writings grappling with these models.

You might expect the dissenting opinions, of which there are four, by Roberts, Scalia, Alito, and Thomas, to argue hard for marriage’s immutability, to really push the natural law paradigm. That’s not actually what happens. Instead, those opinions argue largely based on more technical grounds, that the Constitution doesn’t say anything explicit about same-sex marriage, or even marriage at all, so it should really be left up to the states to decide.

Nevertheless, one does see popping up here and there in the dissenting opinions the idea that an eternal institution should not be tampered with or, in other words, that natural law should not be confused with human positive law. You can see that language in Roberts’s opinion: law should not be a product of the justices’ own beliefs, or in other words, of their own will. Justice Roberts even quotes Cicero in his opinion. Justice Roberts speaks also of American history and tradition, which brought to my mind the historical jurisprudence paradigm that Hayes speaks of. So there are elements in the Roberts opinion of both the biblical paradigm and the Greek one, unsurprising in a country that has been so profoundly shaped by both those traditions. Hayes’s paradigms, in sum, help us to understand not only ancient modes of thought, but contemporary ones too.

In conclusion, I want to say that the vocabulary of rhetorics of concealment and disclosure, and the beautiful paradigms of law that Hayes forges in this book, pave the way not only for a new era in the study of rabbinic literature, where we are beginning to scrutinize rabbinic notions of subjectivity and self-reflexiveness, but Hayes’s work also allows for us to look again at ourselves today, and the rhetorics that are structuring our world as it unfolds.

Dr. Beth Berkowitz is the Ingeborg Rennert Associate Professor of Jewish Studies in the Department of Religion at Barnard College.