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Overview
How ancient thinkers grappled with competing conceptions of divine law
In the thousand years before the rise of Islam, two radically diverse conceptions of what it means to say that a law is divine confronted one another with a force that reverberates to the present. What's Divine about Divine Law? untangles the classical and biblical roots of the Western idea of divine law and shows how early adherents to biblical tradition—Hellenistic Jewish writers such as Philo, the community at Qumran, Paul, and the talmudic rabbis—struggled to make sense of this conflicting legacy.
Christine Hayes shows that for the ancient Greeks, divine law was divine by virtue of its inherent qualities of intrinsic rationality, truth, universality, and immutability, while for the biblical authors, divine law was divine because it was grounded in revelation with no presumption of rationality, conformity to truth, universality, or immutability. Hayes describes the collision of these opposing conceptions in the Hellenistic period, and details competing attempts to resolve the resulting cognitive dissonance. She shows how Second Temple and Hellenistic Jewish writers, from the author of 1 Enoch to Philo of Alexandria, were engaged in a common project of bridging the gulf between classical and biblical notions of divine law, while Paul, in his letters to the early Christian church, sought to widen it. Hayes then delves into the literature of classical rabbinic Judaism to reveal how the talmudic rabbis took a third and scandalous path, insisting on a construction of divine law intentionally at odds with the Greco-Roman and Pauline conceptions that would come to dominate the Christianized West.
A stunning achievement in intellectual history, What's Divine about Divine Law? sheds critical light on an ancient debate that would shape foundational Western thought, and that continues to inform contemporary views about the nature and purpose of law and the nature and authority of Scripture.
Product Details
| ISBN-13: | 9781400866410 |
|---|---|
| Publisher: | Princeton University Press |
| Publication date: | 07/28/2015 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 432 |
| File size: | 4 MB |
About the Author
Read an Excerpt
What's Divine about Divine Law?
Early Perspectives
By Christine Hayes
PRINCETON UNIVERSITY PRESS
Copyright © 2015 Princeton University PressAll rights reserved.
ISBN: 978-1-4008-6641-0
CHAPTER 1
Biblical Discourses of Law
Introduction
Moses went and repeated to the people all the commands of Yahweh and all the rules; and all the people answered with one voice, saying, "All the things that Yahweh has commanded we will do!" Moses then wrote down all the commands of Yahweh. (ex 24:3–4a)
Biblical tradition portrays Yahweh as a divine sovereign commanding and enacting laws for his covenant partner, Israel. And yet, this portrayal is nuanced and complicated by countervailing trends that emphasize the roles played by wisdom on the one hand and history on the other in the articulation of norms for Israel. Thus, to characterize the conception of divine law in the Hebrew Bible as a law grounded solely in the will of a commanding sovereign is to provide only a partial account. Will, reason, and history interact in complex ways to produce a rich and multidimensional conception of divine law in ancient Israel. As we shall see, it is this multidimensionality that will enable later readers to claim a biblical pedigree for radically divergent notions of divine law.
We begin by examining those biblical texts that emphasize the emergence of divine law from the divine will. These texts stand as resources for later readers who seek to construe biblical divine law as positive law. We then turn to texts that emphasize elements of divine wisdom in the Law. These texts stand as resources for later readers who seek to construe biblical divine law in terms of natural law. Finally, we examine texts that narrate the historical circumstances under which this multifaceted law came into being and its role in the divine plan for Israel and humankind.
The varied contributions of will, reason, and history to the complex biblical conception of divine law manifest themselves in different approaches to the following topics: (1) the ontological status of divine law and the source of its obligation (are divine norms grounded in and thus coincident with a natural order or eternal "truth," or are divine norms grounded in authoritative decrees that have no basis in nature?); (2) the nature of divine law as universal and rational or particular and will-based; (3) the nature of divine law as static or evolving; (4) the nature of divine law as instructive or coercive; (5) the ideal posture of humans addressed by divine law.
Discourses of the Law
Discourse 1: Divine Law as an expression of Divine Will
Biblical passages that lend themselves to a positivistic account of divine law are generally silent on the question of the law's correlation to a natural order or eternal truth, and present the law as expressing the will of a divine sovereign, as particularistic, nonrational, evolving, coercive, and addressed to persons whose greatest virtue is unquestioning obedience.
(I) DIVINE LAW, DIVINE WILL
The law [created by covenant or berith with Yahweh] was no eternal Tao or Dharma, but a positive enactment ... God's ordainments come from his hand and are as such changeable. He may bind himself to His enactments by berith, but that is the result of His free resolve. (Weber 1967, 132)
In this pithy formulation, Max Weber underscores the role of the deity's "free resolve" or will in the creation of the covenant. The law that comes, freely willed, from Yahweh's hand is a positive enactment. For Weber, it is the unique biblical conception of the deity that sets the stage for this positivistic understanding of divine law. Anthony Kronman (1983, 152) explains that according to Weber, the
conception of God as a transcendent creator implies a view of religious authority that is essentially positivistic. The norms which the followers of such a God are required to observe are binding not because they are the expression of an eternal and uncreated natural order but because they are the commandments of god and have been deliberately enacted by Him. It is their origin in an act of divine legislation which gives these norms their obligatory force and hence their normative character. By contrast, the immanent and impersonal principles that in the Asian religions are believed to inform human conduct and determine the fate of individuals derive their ethical significance from the fact that they are considered part of an uncreated and eternally valid natural order.
There is certainly much in the biblical text to support this characterization of the Law. exodus 24:3–4a (above) is only one of many passages that can be cited in support of the claim that "God is not merely the custodian of justice or the dispenser of 'truth' to man," as in Mesopotamian law, but rather "he is the fountainhead of the law, the law is a statement of his will" (Greenberg 1976, 22). In Exodus 21:1, Yahweh himself conveys the specific terms of the Law to the community through Moses: "These are the rules that you [Moses] shall set before them." Direct divine authorship of the Law is reinforced by the retention of first-person address in many individual provisions: "When a man schemes against another and kills him treacherously, you shall take him from My very altar to be put to death" (Ex 21:14); "if you lend money to My people, to the poor among you, do not act toward them as a creditor; exact no interest from them" (Ex 22:24); "you shall observe the Feast of Unleavened Bread—eating unleavened bread for seven days as I have commanded you" (Ex 23:15). Yahweh refers repeatedly to "my rules" (mishpatay) "my laws" (huqqotay) and "my commandments" (mitsvotay) (Lev 18:4–5; 19:37; 26:3). In line with the notion that the laws are authored by, and express the direct will of, the deity rather than himself, Moses is portrayed as referring to the laws as rules that Yahweh has commanded him to impart to the Israelites (Deut 6:1), and warns the Israelites to do "as the Lord has commanded" (Deut 5:29). Likewise, the biblical narrator refers to the "commandments and regulations that Yahweh enjoined upon the Israelites" (num 36:13; cf. ex 31:18).
Consequently, to violate the Law is to defy the personal will of Yahweh. As Moshe Greenberg notes (1976, 22), "God is directly involved as legislator and sovereign; the offense does not flout a humanly authored safeguard of cosmic truth but an explicit utterance of the divine will."
In these and many other texts, divine law is characterized as the will of a divine sovereign rather than the expression of an ontologically primary natural order or abstract eternal truth. In line with this characterization, biblical divine law is not represented as possessing features typically attributed to an ontologically primary natural order or abstract eternal truth, but as possessing features typically attributed to positive law. Specifically, divine law is represented as particular rather than universal, arbitrary rather than rational, evolving rather than static, coercive rather than instructive, and as addressed to obedient servants.
(II) DIVINE LAW IS PARTICULAR AND NONRATIONAL
Certain biblical passages emphasize the particularity of the divine law of Yahweh. in contrast to the blood prohibition that is conferred upon all humanity through the covenant with Noah (Gen 9:1–17), the divine law delivered at Sinai is bestowed in covenant on a particular people—Israel—over whom Yahweh has established his sovereignty.
For you are a people consecrated to Yahweh your god: of all the peoples on earth Yahweh your god chose you to be his treasured people. (Deut 7:6)
To be consecrated or sanctified (q.d.sh) to Yahweh is to be separated to Yahweh's service, through the observance of his rules and commandments, and from alien peoples and their practices. Here and elsewhere in Deuteronomy, Israel's particular and unique relationship with Yahweh is expressed by the verb bahar = to elect, or choose.
Mark, the heavens to their uttermost reaches belong to Yahweh your god, the earth and all that is on it! yet it was to your fathers that Yahweh was drawn in his love for them, so that he chose you, their lineal descendants, from among all peoples—as is now the case. (Deut 10:14–15)
Yahweh has given other nations over to other deities (Deut 4:19–20) but has taken (l.q.h) Israel for himself to be his people living by his laws.
In these and other passages, biblical divine law is strikingly particularistic. It is designed to bring one nation among all the nations into a covenantal relationship with a sovereign ruler and enable it to live in a particular place—the land of Canaan (Deut 4:5). Indeed, according to some passages, the divine law's purpose is precisely not to promote universalism and sameness but to ensure the opposite—particularism and difference. The laws prohibiting abominable sexual practices are followed by this general admonition:
You shall faithfully observe all my laws and all my regulations ... You shall not follow the practices of the nation that I am driving out before you ... I, Yahweh, am your god who has set you apart from other peoples.
(Lev 20:22a, 23a, 24b)
The separatist purpose of the Law explains the presence of commandments and prohibitions for which a rational basis is not self-evident, laws whose very arbitrariness ensures that they will set Israel apart, in all her particularity. Unlike the prohibitions of murder and theft, which may be perceived as universal and rational in character, some of the divine law's regulations appear to be irrational (or at least nonrational). This is especially true of the dietary laws and purity laws, whose only explicit justification is that they set Israel apart, or "sanctify" (leqaddesh) Israel, as separate and particular. Thus, Deuteronomy 14 concludes its prohibitions of certain foods with the line "For you are a people consecrated [i.e., separated] to Yahweh your god," and Leviticus 20 underscores the separatist function of the purity laws:
So you shall set apart the pure beast from the impure, the impure bird from the pure. You shall not draw abomination upon yourselves through beast or bird or anything with which the ground is alive, which I have set apart for you to treat as impure. You shall be holy to me, for I Yahweh am holy, and I have set you apart from other peoples to be mine. (Lev 20:25–26)
(III) DIVINE LAW EVOLVES
Insofar as the divine law is understood to stem not from a necessary natural order but from the will of a divine sovereign, it can be modified by subsequent acts of divine willing. New rules and ordinances can be issued as long as there is continued access to Yahweh's will through various oracular procedures. The Pentateuch reports four occasions in which a legal gap is filled through direct consultation of Yahweh. In Leviticus 24, a man who pronounces the divine name in a blasphemous manner is brought before Moses and placed in custody "until the decision of Yahweh should be made clear to them" (v. 12). In numbers 9, men who have contracted corpse impurity ask Moses and Aaron why they are debarred from offering the Passover sacrifice in its proper time. Moses answers, "stand by, and let me hear what instructions Yahweh gives about you" (v. 8). Yahweh details an alternative sacrifice for persons defiled by corpse impurity or absent owing to a long journey. In numbers 15:32–36 a man gathering wood on the Sabbath day is placed in custody "for it had not been specified what should be done to him." Yahweh rules that the man is to be stoned, and so it is done "as Yahweh had commanded Moses." Finally, in numbers 27:1–11 the daughters of Zelophehad claim an inheritance from among their father's kinsmen. Moses brings their case before Yahweh (v. 5), who responds that the plea is just and the daughters must be provided with a hereditary holding. The deity goes on to formulate a general rule addressing such cases for the future. These passages depict divine law as subject to ongoing development in response to the shifting circumstances of human life.
Michael LeFebvre (2006, 40) has recently emphasized the role of divine oracle as the ultimate source of law in ancient Israel, based on Pentateuchal descriptions of Israel's court system (ex 18:13–27; num 11:16–25; Deut 1:9–17; 17:8–13). Widely recognized as monarchic-era retrojections to the time of Moses, these descriptions all retain a role for divine inquiry (d.r.sh) in the disposition of difficult cases. According to Exodus 18, minor cases will be handled by competent, trustworthy, and honest men appointed for the purpose (vv. 21–22), while difficult cases will be referred to Moses for inquiry before the deity (vv. 19–20, 22). Although some scholars deny an oracular element in this system and assert that Moses himself decides the cases that are brought to him, LeFebvre (ibid., 41) argues persuasively that cases brought to Moses (by definition, hard cases) are not decided by Moses but are presented to Israel's god—the ultimate source of the law (42–43). This is the meaning of Jethro's statement in verse 19: "you [Moses] represent the people before Elohim: you bring the disputes before Elohim." This text and the four Pentateuchal cases described above, in which Moses inquires of Yahweh concerning a legal gap, assume that change, growth, and development of the divinely given law are all integral to the process, because the law is not an eternal and static natural order but an expression of God's will for a particular people in ever-shifting historical time.
According to LeFebvre, Deuteronomy 17 describes the "continuation of this 'oracular judgeship' through the establishment of a central court in Jerusalem" (44) to handle difficult cases brought by lower magistrates.
If a case is too baffling for you to decide ... You shall promptly repair to the place that Yahweh your god will have chosen, and appear before the levitical priests, or the magistrate in charge at the time, and you shall inquire (d.r.sh). When they have announced to you the verdict in the case you shall carry out the verdict that is announced to you from that place that Yahweh chose, observing scrupulously all their instructions to you. you shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left. (Deut 17:8–10)
The verdict of the high court, which must be strictly observed, appears to derive its authority from the court's location in the place that Yahweh has chosen—that is, from its cultic position "before Yahweh" (LeFebvre 2006, 44). LeFebvre concludes that this text presupposes cultic inquiry—by means of which the divine will is ascertained—for difficult cases. Thus, the continued growth and evolution of the divine law in response to the dynamic conditions of human life are not only envisaged but institutionalized by this passage.
Innovations point to the variability of the Law, as does the presence of self-contradiction, a striking feature of several of the commandments and prohibitions of the Pentateuch. To present just a few examples: the Pentateuch contains three different versions of the decalogue. The Exodus 20 decalogue is repeated in Deuteronomy 5 but with minor variations (cf. Deut 5:16 and ex 20:12; Deut 5:16 and ex 20:7; Deut 5:14 and ex 20:10; Deut 5:17 and ex 20:13). A more surprising variation occurs in Exodus 34. After smashing the first set of tablets inscribed with the decalogue of Exodus 20, Moses is given a second set of tablets. The biblical writer emphasizes that Yahweh wrote on the tablets the very words that were on the former tablets that had been broken (Ex 34:1). The reader expects, therefore, a verbatim repetition of Exodus 20. Yet the decalogue that follows has very little overlap with the earlier decalogue, and even where there is some overlap in substance, the wording is entirely different.
In addition, the decalogue in Exodus 20 does not stand completely unchallenged. Exodus 20:5–6 enunciates a principle of intergenerational punishment that is explicitly rejected in Deuteronomy 7:9–10. Ezekiel and Jeremiah will also reject the idea of intergenerational punishment (Jer 31:27–30; Ezek 18:20), declaring that although Yahweh used to punish intergenerationally, in the wake of the destruction he has renounced this modus operandi. in short, the biblical god is depicted as a god who changes his mind in response to the activity of human beings, not only in these prophetic proclamations, but also in narrative texts (see, for example, Gen 6:6; Ex 32:14; 2 Sam 24:16; Jer 26:19). And as his mind can change, so can his Law.
In addition to gap filling, innovations, and self-contradictions, biblical divine law contains examples of revision and modification. Deuteronomy revises or updates earlier versions of the law found in Exodus, a phenomenon described with particular acuity by Bernard Levinson (2002). Levinson maintains that Deuteronomy deploys a variety of interpretative and rhetorical strategies designed to hide its revisionist activity—a "rhetoric of concealment" that camouflages the actual literary history of the laws. Adopting "the garb of dependence to purchase profound hermeneutical independence" (2002,149), the Deuteronomic authors attempt to obscure their revision or annulment of older laws by retrojecting them to the time of Moses or conditioning them on changed circumstances.
(Continues...)
Excerpted from What's Divine about Divine Law? by Christine Hayes. Copyright © 2015 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
- Frontmatter, pg. i
- Contents, pg. vii
- Acknowledgments, pg. xi
- Abbreviations, pg. xiii
- Introduction, pg. 1
- Introduction, pg. 12
- Chapter 1. Biblical Discourses of Law, pg. 14
- Chapter 2. Greco- Roman Discourses of Law, pg. 54
- Introduction, pg. 92
- Chapter 3. Bridging the Gap: Divine Law in Hellenistic and Second Temple Jewish Sources, pg. 94
- Chapter 4. Minding the Gap: Paul, pg. 140
- Introduction, pg. 166
- Chapter 5. The “Truth” about Torah, pg. 169
- Chapter 6. The (Ir)rationality of Torah, pg. 246
- Chapter 7. The Flexibility of Torah, pg. 287
- Chapter 8. Natural Law in Rabbinic Sources?, pg. 328
- Writing the Next Chapters, pg. 371
- Bibliography, pg. 379
- Index of Primary Sources, pg. 397
- General Index, pg. 406
What People are Saying About This
"Christine Hayes confronts one of the most fundamental questions of the nature of law with a rare combination of conceptual depth and meticulous scholarship. Her analysis of the rabbinic understanding of divine law located in response to alternative notions developed in Greco-Roman culture is a brilliant and seminal achievement."—Moshe Halbertal, author of Maimonides: Life and Thought"For anyone interested in the history of Western legal thought, this lucid, lively, and meticulously argued book is an indispensable text. With verve and a scholar's mastery of the sources, Hayes brilliantly tells the story of an ancient theological quarrel whose echoes can still be heard in every law school classroom today."—Anthony Kronman, Yale Law School"This is a pathbreaking and ambitious study of a topic of crucial importance for Jewish studies in particular and legal philosophy more broadly. The scholarship is first-rate. Hayes convincingly establishes that the rabbinic discourse on divine law in late antiquity was self-consciously distinct from Greco-Roman conceptions as well as a great deal of prior Jewish literature."—Jonathan Klawans, author of Josephus and the Theologies of Ancient Judaism"Hayes invites us to consider how the early rabbinic conception of divine law continues to echo in modern debates within Judaism. Her remarkable book should be required reading for anyone concerned about the future of Judaism and, indeed, the future of law."—Suzanne L. Stone, Yeshiva University"This compelling and comprehensive book provides an elegant framework for differentiating between the metaphysical and philosophical givens presumed as the basis for divine law in the Bible, Greco-Roman culture, and a variety of ancient Jewish sources. Hayes articulates an extremely nuanced and periodized understanding of rabbinic law."—Barry Scott Wimpfheimer, author of Narrating the Law: A Poetics of Talmudic Legal Stories