Divine Law: Nominalist/Realist or Rational/Irrational?

by Jonathan Klawans in

“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. Jonathan Klawans continues the forum in its new home at AJR.”

Chris Hayes’s book is a path-breaking, wide-ranging, exhaustive study of a topic of crucial importance for Jewish studies in particular, and for legal/philosophical studies in a broader sense. The reader of the volume is enriched by learning a great deal about legal philosophy, as well as biblical, Greek, and rabbinic understandings of law. The greatest strength of the book is its clever and convincing trace of certain threads from the Greeks, through Philo and Paul, with rabbis then charting their own course in reaction: the distinctiveness of which in the ancient world has been heretofore under-appreciated. Hayes convincingly establishes that the rabbinic discourse on law is self-consciously distinct, moving in the opposite direction from a great deal of prior Jewish literature (to say nothing of Greco-Roman). It does this by denying that divine law is rational, true, fixed, natural and/or unchanging—all the things that properly characterize a divine/natural law from a Greco-Roman perspective.

I could go on saying nice things… but what’s the point of that? Let me proceed from here by highlighting two distinctions used in the book, one of which may be over-used and the other under-used. The over-used dichotomy is between nominalist and realist approaches to law; the under-used dichotomy is between rational and irrational laws. After discussing these two matters a bit, I’d like to think more about those efforts to reduce “the Law” to one or two principles—usually rational ones.

Let’s begin with nominalism and realism, a distinction that helps us see some very real things, especially those instances where the rabbis consciously accept rulings issued in error or with incomplete knowledge (for example, the famous Gamaliel story regarding the calendar dispute with R. Joshua). But like many things with calendar, in my view the realist-nominalist contrast here is bandied about in problematic ways and may be insufficient to the task of describing these legal disputes or the ideologies behind them.

It is frequently suggested that the 364-day calendar posits a close “realist” connection between heaven and earth, a careful coordination of heavenly and earthly bodies. (Hayes, 104, echoes this.) The problem with this view is that the 364-day calendar—with its mathematically perfect alignment of weeks, months and years—corresponds to nothing (not the moon, not the sun, and not even the seasons after a generation or so).

If practiced as described—without intercalation—this calendar is not realist, but nominalist: it carries on despite the contra-factuals. (Indeed, the contra-factuals are explained in 1 Enoch 80 as a punishment for sin—heaven and earth are now off kilter!) Compare the Greek Orthodox use of the Julian calendar: This is real nominalism, right? It’s “robo-calendarism” (cf. Hayes 48, ff. on “robo-righteousness”) following the Nicene Easter calculation, despite the fact that March 20/21 Julian is no longer the real vernal equinox, and everybody knows this. But the Pope had no power to mess with it…

And here’s another example of a matter that I’m not sure is addressed well with regard to realism and nominalism: conversion. Hayes asserts (p. 214) that “Conversion is by definition a legal fiction—a nominalist strategy that assigns Israelite identity to an individual who, prior to the moment of conversion, had no naturally grounded (no physically or biologically based) Israelite identity.” I find this problematic in a number of respects. First, I think some of the assumptions here may be incorrect: in the Greco-Roman world (when conversion emerged) identities were not always fixed—they were also changeable. Roman citizenship could be acquired (e.g., Alexander the Alabarch); Jewish identity could be effectively disregarded (e.g., Tiberius Julius Alexander). Moreover, conversion was not socially fictive: real people experienced real changes, joining new social communities. Consider the opposite angle: an “apostate” leaves the Jewish people, taking his Jewish-born wife with him. They eat pork, paying good money for it on the Sabbath—and they even ride a chariot there and back, uphill both ways—and in the process, they offer sacrifices to the emperor. Oh, and of course they don’t circumcise their sons. Halakhically, of course, they are all still Jews—now that’s nominalism. But realism should recognize reality, no? It’s realism that requires recognizing these experienced social changes. Why should conversion—apostasy in the other direction—be any different? Indeed, the supposedly “realist” literature of Qumran spends a great deal of time discussing changing identities: a significant portion of the Community Rule pertains to rules for joining (or getting thrown out) of the group. Once again, a real change in social orientation has social consequences that are as real as anything in human affairs. Identity changes were real possibilities in the ancient world; the rituals that sometimes came along with these things are not really legal fictions—unless all rituals are legal fictions. But if all rituals are legal fictions, I’m not sure I know what a legal fiction is anymore.

Hold that thought, and let’s turn to the third example of nominalism that I wonder about: the eruv. Here too I think we confront the inadequacy of the distinction or the imprecisions with which it may be drawn in broader scholarly discussions. Now the eruv may be insufficiently “real” to some, but there are real objects and real activities taking place. The question is whether these actions were believed to effect—or convey—sufficient difference to achieve the given purpose. But I think it’s hard to know for sure. On the one hand, the eruv seems fictive; but a truly fictive eruv is no eruv. Indeed, a broken eruv is no eruv. What we have here is a ritual that enacts an abstraction, a symbolic sharing of domains and property. But it’s real behavior, infused with symbolic significance, then making a noticeable difference. Nominalism here confuses me, unless we want to view all ritual behavior as nominalistic in a way, but those works that deal with realism and nominalism don’t tend to separate ritual behaviors out.

But maybe indeed we do need to separate ritual behaviors out. In chapter 6, Hayes presents an extended quotation from the Sifra to the effect of distinguishing between “hukim” and “mishpatim”—between those laws that could have been known without revelation (e.g., don’t kill) and those laws that could not have been known without revelation (e.g., shaatnez). If the nominalism-realism distinction is overdrawn in this book, the present distinction is the one I am now wondering about possibly being underdrawn.

To be clear, what I am thinking about is not the macro level distinction—law on the whole is rational for this writer, the law is irrational for that writer; what I’m interested in looking at is whether other ancient Jewish writers, like the rabbis, characterize certain Jewish laws one way, and some other laws another—and whether ritual laws pose any particular problem in this respect.

Perhaps the most important example of this in ancient Jewish literature is Letter of Aristeas. Yes, on one level, the priestly Eleazar speaks eloquently about the rational nature of even the dietary laws in those famous passages; but the discourse about the dietary laws is fundamentally different from the quintessentially rational wisdom traditions articulated by the translators during the seven-day symposium that takes up nearly 1/3 of the entire work. This extended passage is an elaborate defense of the rational nature of wisdom’s ethics. While drawing on Hellenistic analogues to be sure, there can be no doubt that the Jewish author of Aristeas is self-consciously drawing on a wealth of prior Israelite/Jewish Wisdom traditions, and justifying them by their rational, self-evident appeal. And the overall message here is clear: educated Jews in the Hellenistic world can represent certain aspects of Jewish wisdom—ethics, divine providence—as self-evident truths.

But Aristeas—like the later rabbis—understands that distinctive Jewish ritual practices cannot be defended, certainly not to outsiders, as self-evident. Defending these laws as rational requires stretching “rational” so that the word no longer means what we once thought it means. If rational law is (as some Greco-Roman discourse puts it, and as the rabbis put it in the Sifra passage at hand) law that can be derived from reason alone, the discourse about kashruth in Aristeas is something else. These are laws that can serve a rational function in aggregate (to separate Jews from Gentiles), but the details of the laws cannot be defended on rational grounds at all. The details are symbolic, expressive; their rationality is not self-evident.

The literary artifice of Aristeas further supports the claim that our author finds some serious distinction between the self-evident rationality of the wisdom discourse and the symbolic quasi-rationality of the priestly discourse. After all, these are two very different discourses, spoken in different places by distinct characters. The self-evident rationality of the wisdom discourse takes place in Egypt, in the presence of the Hellenistic ruler; the quasi-rational symbolic discourse is the utterance of the high priest, in Jerusalem, in the temple, to the sympathetic royal emissaries. The quasi-rationality of Jewish dietary practice is defended in Jewish terms, in the Jewish temple, in Jerusalem; the self-evident rationality of the wisdom discourse is proclaimed in Greek terms, in a Greek place, by Jews who were experts in Greek too, and who clearly knew how to turn “off” any distinctive Jewish concerns.[1] So in this respect too, Aristeas prefigures the rabbinic sensitivity to audience in apologetic: Just as Ben Zakkai (in the Pesikta de-Rav Kahana passage, discussed on Hayes, pp. 279-280) defends the rationality of purity law in public (but not in private) so too in Aristeas, the rationality of purity law is defended in one type of Jewish-Gentile discourse (when the visitors pay their respects to the High Priest in Jerusalem) but not in others (when the translators pay their respects to the king in Egypt). In Jerusalem, the high priest Eleazar can deride idolatry and condemn incest; in Egypt, the translators stick to less controversial subjects, avoiding all offense.  Now the difference isn’t black-and-white: after all, the 7-day wisdom symposium involved a kosher meal! (§§ 180-181; of course we don’t know what that means—some members of my own family surely would have ordered the fruit plate…) But it’s not quite the case that Aristeas defends “the law” as “rational”; some laws are more easily seen as rational than others, and the location, context, and audience of the discourse all remain as meaningful variables. There are types of arguments for types of laws, each fitting for different types of places.

So not all defenses of law as rational are the same. This brings us to another figure who also distinguished among laws, seeing some as rational and others as less so: I’m thinking now of Paul:

14 When Gentiles, who do not possess the law, do instinctively what the law requires, these, though not having the law, are a law to themselves. 15 They show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them 16 on the day when, according to my gospel, God, through Jesus Christ, will judge the secret thoughts of all.

Of course, we don’t know exactly what these laws are that the Gentiles can know and do all on their own, but the context suggest that Paul means the biggies from the second half of the Decalogue, things like adultery, theft, murder (2:21-24); and presumably he does not mean to include the “ceremonial” laws that would characterize Jewish behavior.

This may well be what the rabbis have in mind in the Sifra as well: these are the laws Gentiles should (and could) know without being told. I don’t think this is a question of which laws are objectional or not. The question is one of presumed self-evidence—that I think is a key aspect of rational law (see Cicero).

This is also where Pseudo-Phocylides fits in (cf. Hayes, p. 109; sorry, been thinking about this text a lot lately). Later today I’ll be presenting my argument that this text is Christian; and without giving the whole thing away, part of the argument can be seen in relation to these same issues.

Whoever the author of Pseudo-Phocylides was, he wanted his readers to believe that the Greek gnomic poet Phocylides knew various ethics, all on his own. In other words, Pseudo-Phocylides believes in the self-evident nature of some biblical ethical laws—self evident enough to be knowable without revelation. The text is uncannily in agreement with the discourse of Paul in Romans 2:14: the Gentiles could know many ethical laws all on their own.

Now to be clear, none of this raises serious questions to Hayes’s overall analysis, but I believe we are considering here an additional complexity, one that I never would have seen without her work: the distinction drawn between rational and irrational laws of the Torah that can be found in some second temple period sources, prior to the rabbis. Some laws were understood to be self-evidently rational (and that’s what I think we mean by rational law). Other laws could be deemed rational by what I’m going to call “rational fictions”—arguments that appeal to rationality, and that assert that rational people do these things, or that rational/symbolic explanations can be provided (e.g. Aristeas on the dietary laws). But the different types of rationalizations underscores that a difference was discerned, and not all laws were seen by these rationalizing sources as rational in the same way. 4 Maccabees and Eleazar in Aristeas engage in these “rational fictions.” We do have to wonder whether anyone was convinced by these. And what’s missing here is the internal discourse—Jew to Jew, sage to sage—that is disclosed in Pesikta de-Rab Kahana. After all, the Eleazars in Aristeas and 4 Maccabees are speaking with Gentiles, not Jews.

So far, I have questioned the overuse of the nominalist/realist distinction, and the underuse of the rational/irrational distinction, with the specific suggestion that the rationality of some moral laws is understood to be self-evident in some sources, while the irrationality of ritual law is what is equally self-evident in the same sources.

The final point I want to make pertains to those sources that explicitly or implicitly suggest the reducibility of the law to one or two commandments.

The sources are varied and well-known (b. Makkot 23b-24a; b. Shabbat 31a; Mark 12:28-31). Time will preclude a full analysis of these traditions, but what strikes me as important is that in a number of cases, when the reducing is complete, we are left with a rule or two that could plausibly be viewed as rational in the “self-evident” sense. This is certainly true of the famous Hillel story (where Torah is reduced to the Golden Rule). It would seem to be true of Jesus in the Gospels too, who consistently reduces the law to the two-fold love command (of God and neighbor). There seems to have been among early Christians some debate as to the rational nature of this two-fold reduction of the Torah; but by the time the smoke clears, there emerges among the Christian fathers the view to the effect that the natural laws of which Paul speaks can be equated with the two-fold love command of the Gospels (Origen (Commentary on the Epistle to the Romans, 2.9 explicitly attributes the “love of neighbor” command to the natural laws known to Gentiles; cf. Romans 2:14).[2]

This is arguably less true of the b. Makkot passage, where the reducing to one comes down to Habakkuk 2.4 (the righteous live by faith). But the thrust of the larger passage is really quite similar: the law is reduced to pithy ethical summaries—definitions of righteousness that ought to be intuitive if anything is intuitive. And of course, what really matters here is this: no one reduces the law to any of the ritual passages distinctive to Jew religious practice. All agree that the law cannot be reduced to one or another of the irrational chukim, such as sha’atnez.

Let me now reduce the last twenty minutes—ten pages—to something much shorter. I can’t disagree with the bulk of Hayes’s analysis; and without her work I would not have been able to make heads or tails of much of this. But I do think there’s a discourse that still requires further thinking. This discourse is neither nominalist nor realist. This discourse understands that a certain subset of the laws—say, the second table of the Decalogue—includes laws that are and should be intuitive. These are the laws that can be reduced to the Golden Rule. These are the rules that are, for some Jews, the essence of the Torah. And for Paul and some rabbis, these are the laws of the Law that righteous people should be able to understand, by nature. There is, in short, an important but small subset of the Law that many ancient Jews, in the second temple and rabbinic periods, believed to be self-evidentially rational.

Dr. Jonathan Klawans is Professor of Religion at Boston University. 

[1] The identity-shifting in Aristeas becomes even more complicated when we keep in mind the pseudepigraphic nature of the work. The author of the work was most likely a Jew taking on the (false) identity of a Greek, in turn describing Jews behaving in various ways in different socio-religious contexts. The identity issues here—as perhaps elsewhere—may not fit well into any binary scheme.

[2] See also Clementine Homilies 7.4 (“The Golden Rule”); for discussion, see Olivier du Roy, “The Golden Rule as the Law of Nature, from Origen to Martin Luther,” in The Golden Rule: The Ethics of Reciprocity in World Religions (ed. Jacob Neusner and Bruce Chilton; London: Continuum, 2008), 88–98, esp. 88–90.