Why "Law" in Pauline Discourse

David Kaden responds to the SBL 2016 Pauline Epistles review panel.

Introduction:

Before I begin, I want to thank the organizers of this panel, especially Emma Wasserman.  It is humbling to have my book being reviewed by such a distinguished group of scholars alongside Matt Thiessen’s.  I am grateful to you all for taking time to read and comment on my work.  I plan to do three things in this response.  First, detail a few of what I see as the most important features of my book.  Some of this will overlap with a few of the things that have already been said, but I think that is okay.  This will lead to my second point, which is to reply to a few of the critical comments made by today’s respondents, and offer some comments of my own on Thiessen’s book.  And finally, close by outlining possible research areas that could build on the field of legal anthropology.

I.) Summary of Matthew, Paul, and the Anthropology of Law:

My book was first a dissertation at the University of Toronto that emerged after I had what legal theorist Catherine Valcke calls a “hunch”[1] that something was amiss in the fields of Christian origins scholarship on law, especially in the fields of Matthean and Pauline scholarship.  Scholarship in both fields has probed reasons why Matthew and Paul discuss the topic of law, implicitly raising a question that provides the foundation of my book:  Why law?  Or, in more explicitly Foucauldian terms, why does law surface as an object of discourse for these two writers? 

Researchers in both fields typically address the question from within what I call a “Jewish-Christian matrix” that circumscribes their work.  Scholars examine matters of law to pinpoint Matthew and Paul’s proximity to Judaism.  The most recent manifestations of this stream of scholarship are the “Paul within Judaism” and the “Matthew within Judaism” movements.  The problems with this approach of trying to determine Matthew or Paul’s proximity to Judaism are in my view two-fold.  First, scholars do not agree on where to place Matthew and Paul vis-à-vis Judaism.  I spend an entire chapter surveying scholarship since the mid-twentieth century to demonstrate this point, but I provide a brief summary in chapter one that goes as follows: 

Graham Stanton has argued that Matthew’s views of the law and his polemical language signify that his group has separated from Judaism and no longer observes certain precepts of the law, such as the Sabbath.  Anthony Saldarini comes to the opposite conclusion.  He argues that Matthew is still within Judaism, that Matthew should be situated among other post-destruction [that is, post-70 CE] Jewish texts, and that Matthew’s group is fully law observant.  Among Pauline scholars, Mark Nanos insists that Paul should be located ‘within or for or representing Judaism,’ and that Paul remained a law observant Jew his entire life.  Stephen Westerholm draws a different conclusion from Paul’s statements about the law.  He argues that Paul sees the law as fundamentally flawed in that it cannot rectify humanity’s core problem of ‘captivity to sin,’ which indicates that for Paul ‘the Sinaitic economy’ is ‘temporary by design,’ playing a ‘role [that is] negative and preparatory.’[2]

Each of these scholars in their respective fields is looking at the same data; yet, they draw opposite conclusions.  Scholars do not agree on what Matthew and Paul say about law, and this leads to disagreements about where to place Matthew and Paul vis-à-vis first century Judaism. 

The second problem with this approach is that it treats the Jewish-Christian matrix as sui generis, as unique and special, and thus incomparable.  But the research question, “Why law?” is not only relevant to the writings of first century Judeans.  I apply it cross-culturally to four areas:  1) to several ethnographies from Indonesia, the Philippines, Mexico, and colonial Hawaii within the field of “legal anthropology”; 2) to the descriptions in Philo and Josephus of Judean rights as authorized by the complex machinery of Roman legal precedent; 3) to the proliferation of Roman legal tactics generated by imperialism—what Clifford Ando describes as the use of law to “dissolve … distinctions in the legal status of persons”;[3] and 4) to Matthew and Paul’s discussions of law, which emerge in the discourse of missionizing the ethne, which, I argue, participates in what Ando and others refer to as an Augustan-age imperial discourse that focused on geography and conquered peoples.

By comparing these disparate cultural materials, I am intentionally modeling my work on the comparative method of Jonathan Z. Smith called “redescription,” and on the stylistic features of Smith’s approach (which I will talk about in just a moment in response to one of today’s respondents).  I am also trying to break out of the circumscribed mould that has governed Matthean and Pauline scholarship – a move that has been anticipated in the work of other scholars, such as Niko Huttunen, Paula Fredriksen, and Brigette Kahl.  These scholars have situated discussions of law – for each of them it is Paul and the law – within broader discussions of law in the Greco-Roman world, whether in parallel to those of Stoics writers, or as by-products of cultural tension or Roman imperialism. 

J. Z. Smith’s method of comparison as rediscription incorporates disparate cultural materials to defamiliarize, in his words, well-worn fields of scholarship, such as, for my purposes, Matthew and Paul and law.  Smith’s article “Sacred Persistence,”[4] for example, compares divinatory practices of the Yoruba and Nnnn-dembu peoples with treatments of canon in text-heavy religious traditions.  By drawing from these materials – in this case, from the cultural practices of nonliterate peoples – Smith defamiliarizes the notion of canon, which, of course, presumes literacy to access its contents, in order to focus on the cross-cultural pattern of “limitation, closure, and exegetical ingenuity” that characterizes divinatory practices in one context, and textual hermeneutics in the other.   A weakness in Smith’s approach, I argue, is that it presumes the existence of inherent structural similarities in these disparate materials – fully-formed objects, we might say, that the ingenious scholar need only mine out and put to use.  This is how Smith treats the cross-cultural pattern he identifies, which is odd given his insistence elsewhere that items are compared because they are of interest to the scholar comparing them, and not because of some inherent feature that requires them to be compared.  Smith does not address Michel Foucault’s contention that objects of analysis are shaped by relations of power.  So it is not the objects themselves that should be compared, but rather the relations that form objects of discourse. 

With this theoretical caveat, my project compares cross-cultural relations of power that cause law, or law-like practices in indigenous contexts, to surface as objects of discourse with a view to answering a fundamental question, “Why law”?  I argue that this comparative grid can be applied to such disparate cultural practices as:  Ilongot headhunting, court proceedings among the Talean Zapotecs in Mexico and the Dou Donggo in Indonesia, Roman legal fiction, Philo and Josephus’ descriptions of Judean laws and customs authorized by Roman legal precedent, modifications to indigenous law during the colonization of 19th century Hawaii, and Matthew and Paul’s views of Judean law.  By putting all of this together, I am defamiliarizing for us as scholars Matthew and Paul on the topic of law. 

II.) Responding to Respondents:

Christine Hayes’ response focuses on ways Thiessen’s book and my book complement each other, identifying seven areas of confluence.  She sees a connection between my book, which speaks to the issue of how Roman imperial power delivered the ethne for the respective missionizing programs of Matthew and Paul, and Thiessen’s book, which frames the issue of Paul and the law as Paul’s problem with gentiles.  Both books also focus on, in Hayes’ words, “Jewish responses to the Gentile problem,” in particular “Jewish strategies” for incorporating and including gentiles.  Hayes sees a strong intersection between the two books in our respective understandings of Rom 2, even as she identifies a difference in how we understand the mechanism by which gentiles enter Abraham’s family:  either Paul is a constructivist or an essentialist, she says; that is, either Paul reckons gentiles as if they were native-born Jews, even though in fact they are not (which is my argument), or, Paul actually sees a substantive change in gentiles when they receive Christ’s pneuma, and thus are materially joined to Abraham’s seed, which is Thiessen’s argument.  (The difference between the two is generated, I think, from our different methods, which I will talk about in just a moment.)      

Stephen Young offers some critical comments about whether my use of Foucault drifted into an “application of” instead of “theorizing with” Foucault, and he wonders whether I should have been more sensitive to the fact that Matthew and Paul discuss law within, in his words, “complex, literary textual practices.”  Young also raises a very interesting question about the overall presentation of my work:  he is disappointed that the payoff, if you will, in terms of the number of pages I devote to Matthew and Paul is comparatively (no pun intended) small relative to the size of the book. 

Each of these critical comments can be dealt with together by pointing out that my book is not only an attempt to advance our field by thinking differently about law; it is also very intentionally modeled on the stylistic features of a typical Jonathan Z. Smith contribution to the field of religious studies.  In Smith’s article, “Sacred Persistence,” there are several disparate textual materials pasted together with little seeming glue holding them together.  Smith discerns a cross-cultural pattern below the discursive surface, but his comparisons are all derived from textual ethnographies that he juxtaposes.  Like Smith, I am not an ethnographer, but a comparativist with access not to practices that I can observe but to texts that are at least one step removed from the ground.  Accordingly, my comparisons hover, in the spirit of Foucault, at the discursive, text-based level.  The payoff of Smith’s article comes in the third paragraph from the end, long after the reader has had to labor through a dense thicket of prose and seemingly disconnected ideas.  But the genius of Smith’s style, it seems to me, is that it intentionally marginalizes “the familiar,” in this case Jewish-Christian materials, and thus underscores Smith’s point that such materials are not sui generis.  This is why I spend less time on Matthew and Paul than some scholars in our field might like.   

In his response, Bert Harrill points out that Thiessen and I both deploy comparison as a method, and both of us, in his words, have a “global optic,” that is, both are incorporating cultural materials from outside of the Jewish-Christian matrix.  My book’s examination of ethnographic materials is especially overt in this regard, while Thiessen turns to literature, borrowing concepts from Malkani’s novel Londonstani as a point of comparison with the ways in which Paul addressed the gentile problem, and with how scholars have, in Thiessen’s view, misconstrued Paul by universalizing his arguments, making him speak beyond gentiles to all of humanity, including Jews.  The difference between the two books, Harrill observes, is one of emphasis:  particular generalization characterizes Thiessen’s approach; generalized particularization characterizes mine.  Harrill puts this difference even more succinctly:  “Kaden goes wide, Thiessen narrow.” 

This catchy summary captures a fundamental difference between the two books.  What Thiessen and I are doing is really quite different in that we are working from two different paradigms.  Thiessen delves more deeply than I do into Judean scripture and tradition to make quite provocative points about, for example:  the “law of circumcision” and its connection to timing on the eighth day, which informs Thiessen’s reading of various thorny texts in Romans and Galatians.  Thiessen also provocatively engages two dominant paradigms in Paul and the law scholarship throughout his book:  the anti-legalistic Paul (of, say, Westerholm), and the anti-ethnocentric Paul (of, say, Dunn).  The former is irrelevant for Thiessen if indeed Paul remained within Judaism; the latter is subverted by Thiessen, who in one place points out that Paul himself was ethnocentric not anti-ethnocentric.  Paul was, writes Thiessen, “a primordialist,” seeing “Jewishness and gentileness in essentialist terms” as “divinely instituted identities” (p. 7).  Another provocative point Thiessen makes relates to the solution to problem, problem to solution discussion that Sanders highlighted long ago.  Thiessen suggests that Paul’s “conversion” didn’t just present a new solution to the gentile problem; it actually changed the nature of the problem itself.  Whereas Paul had once, by his own admission, “preached circumcision,” now he realized that gentiles could not convert to Judaism, which means, curiously, that Paul’s post-conversion position actually brought him closer to one strand of thinking within Second Temple Judaism that viewed gentiles, in Thiessen’s words, as “irremediably gentiles and no amount of Jewish law observance [could] alter this fact” (p. 14).  Moreover, Thiessen’s book is really an excellent piece of scholarship that demonstrates some productive ways the Gaston-Gager-Stowers-etc. hypothesis of Paul within Judaism can be advanced.  Instead of laboring to prove the hypothesis from Paul’s writings, Thiessen presumes this framework at the outset before beginning his analysis.  (And let me add:  Although Thiessen presumes the Paul within Judaism framework at the outset, he does convincingly show in ch. 2 that Paul’s intended audience in the Letter to the Romans was comprised of gentiles.)

In his response, Harrill asks Thiessen and I to engage the issue of method.  And so let me do so now by making two observations about our different approaches.  The first relates to the distinction between influence and comparison.  One criticism I have of Paul and the law scholarship (and Matthew and the law as well) is that extra-Jewish materials are only incorporated into a scholar’s research when such materials are believed to have influenced Paul’s thought.  Put differently, extra-Jewish materials only count for Paul and the law scholars if we think Paul knew about them.  To take one example, Niko Huttunen’s comparison of Paul and Epictetus on law, while in many ways a breath of fresh air that even draws in part from J. Z. Smith’s method of comparison, still searches for influences from Stoicism on Paul’s thought.  On my reading of Thiessen, I do not see him falling prey to this problem, in that he avoids tracing extra-Jewish influences on Paul’s views of law.  Thiessen does draw from Stoicism when detecting a confluence between the notion of krasis and Paul’s treatment of pneuma; but this is not the same thing as what Huttunen does, though it is still within the broader framework of tracing influences on Paul. 

A different approach than this in terms of method focuses on comparison, and is content to see, in J. Z. Smith’s words, “nothing natural about the enterprise of comparison”; that “similarity and difference,” he adds, “are not given,” but “are the result of mental operations … within the space of the scholar’s mind for the scholar’s own intellectual reasons,” and “not natural affinities or processes of history.”  Elsewhere, Smith warns us about undertheorizing our comparisons when he speaks of the dangers of “magic.”  Here is Smith in his own words: 

[A]t some point along the way [in the course of the scholar’s research], as if unbidden, as a sort of déjà vu, the scholar remembers that [they have] seen ‘it’ or ‘something like it’ before … .  This experience, this unintended consequence of research, must then be accorded significance and provided with an explanation.  In the vast majority of instances in the history of comparison, this subjective experience is projected as an objective connection through some theory of influence, diffusion, borrowing, or the like.  It is a process of working from a psychological association to an historical one; it is to assert that similarity and contiguity have causal effect.  But this … is not science but magic.[5]  

My intention here is merely to highlight Smith’s words of caution that challenge us as scholars to do a better job of theorizing our comparisons, and move us away from overly fetishizing influences.

My second comment addresses the different goals of our books.  Thiessen is working from within the broader Judean thought-world to discern coherency in Paul’s reasoning.  I am working outside of this context, and looking for cross-cultural patterns in the operations of power that form law as an object of discourse.  The different approaches are quite evident in how we read the end of Rom 2.  Thiessen focuses on vv. 25 and 27 to argue that when Paul speaks about “law” what he really means is “law of circumcision.”  This reading of “law” as “law of circumcision” in Rom 2:25 connects nicely with Thiessen’s reading of Gal 6:13, and thus renders Paul coherent.  I focus on Rom 2:26, and see incongruity in Paul’s thinking when he asks, “if those who are uncircumcised keep the requirements of the law, will not their uncircumcision be regarded as circumcision?”  The issue scholars wrestle with in this verse is how an uncircumcised person can keep the requirements of the law when circumcision is one of those requirements?  Thiessen moves deeper into Judean scripture and tradition to discern an underlying consistency in Paul’s reasoning; and I, as I do throughout my book, move outside of this context, turning to similarities with Roman legal fiction as a legal tactic to, as J. Z. Smith says, “rectify incongruity.”  Which for Paul is generated by missionizing the ethne, and which, in the case of Roman jurists, is generated by imperial expansion.  I point out that the Roman senate authorized legal fiction to treat conquered non-citizens as if they were citizens so that Roman law could be used to adjudicate their cases; and Paul treats uncircumcised gentiles as if they were law keepers in order to incorporate them into the family of Abraham.  In neither case is there a change in real status – non-citizens do not become citizens, and gentiles do not become Jews – but both groups are treated as if they were something other than what they in fact are.  This conclusion – insofar as it relates to law – is consistent with the Gager-Gaston-and now Thiessen hypothesis of Paul within Judaism, even though my project moves outside of the Paul and Judaism field of discourse.

III.) Areas of future research:

Let me close by outlining an avenue of research that takes seriously the work of legal anthropologists who have broadened the concept of “law” beyond a written code.  Older anthropologists of law referred to “law-stuff” – those unwritten practices and socially constructed limits that regulate the conduct of social groups.  Bronislaw Malinowski, a representative of early research in this area, defined law as “social and psychological constraint … which makes [people] keep to their obligations.”  Adamson Hoebel studied “song duals” among native peoples in northwest Canada, and admitted that at first glance such songs do not seem “law-like,” but in fact they function, in his words, as “juridical instruments … to settle disputes.”  More recent scholarship has examined the role of “custom” in so-called “primitive law” (David Bederman).  And I draw attention in my book to Ilongot headhunting as functioning “like” law, and to the Dou Donggo paresa, which operate “like” court trials.[6] 

These few examples suggest that what can “count” as law when we examine Paul (or Matthew) and the law can be broader than simply Judean nomoi.  In my next book project, I examine how Paul’s various directives to his audiences compare with the regulations that govern Greco-Roman associations, and delineate acceptable behavior for group members.  Paul adds the threat of supernatural intervention if his audiences fail to comply with his directives; they might get sick or die if they don’t eat the Lord’s Supper properly, for example.  The well known Iobacchoi and Philadelphia inscriptions detail similar group regulations.  The latter lists the rules that regulate group conduct for the household of Dionysios, and warns of negative supernatural intervention if members transgress; it even prescribes a regular ritual that requires members to touch the stone on which the rules are inscribed.  If one is a transgressor, the act of touching will expose them to supernatural punishment.  The Dou Donggo of Indonesia also apply supernatural threat language to their group regulations, warning members of the tribe that failure to follow proper procedure in the paresa, will anger deceased ancestors, who may retaliate by smiting the transgressor with illness or even death.

Drawing comparisons between these practices identified by legal anthropologists as “law-like,” and the various rules that governed groups in the ancient world, including Pauline groups, pulls us out of viewing Paul only within the Jewish-Christian matrix.  It also challenges some of the time-honored designations in Pauline scholarship, such as, for example, a “law-free gospel.”  By stretching the definition of “law,” there is no such thing as “law-free.”  Future Paul and the law scholarship could actually have little to do with Judean nomoi.  It could move beyond the letters of Galatians and Romans, and examine legal discourse elsewhere in the Pauline corpus, such as in, say, First Thessalonians – a letter that never talks about the Torah, but which is filled with regulations.  Guided by rich resources in the field of legal anthropology, Paul and the law scholars could pursue various possible avenues of research if we have the courage to move beyond the debates of the past and try something really new.  Thank you very much.       

[1] Catherine Valcke, “Reflections on Comparative Law Methodology: Getting Inside Contract Law,” in Practice and Theory in Comparative Law, eds. Maurice Adams and Jacco Bomhoff (Cambridge: Cambridge University Press, 2012), 22-48, here, 29.

[2] David A. Kaden, Matthew, Paul, and the Anthropology of Law (Wissenschaftliche Untersuchungen zum Neuen Testament/2; Tübingen: Mohr Siebeck, 2016), 6.

[3] Clifford Ando, Law, Language, and Empire in the Roman Tradition (Philadelphia: University of Pennsylvania Press, 2011), 10.

[4] Jonathan Z. Smith, “Sacred Persistence: Toward a Redescription of Canon,” in Jonathan Z. Smith, Imagining Religion: From Babylon to Jonestown (Chicago: University of Chicago Press, 1982), 36–52.

[5] Jonathan Z. Smith, “In Comparison a Magic Dwells,” in Jonathan Z. Smith, Imagining Religion: From Babylon to Jonestown (Chicago: University of Chicago Press, 1982), 19-35, here, 22.

[6] See the fuller survey in ch. 2 of Matthew, Paul, and the Anthropology of Law.