Judaism

CHAPTER II

RE­LI­GION AS LAW

The fea­ture of Ju­daism which first at­tracts an out­sider’s at­ten­tion, and which claims a front place in this sur­vey, is its ‘Nomism’ or ‘Le­gal­ism.’ Life was placed un­der the con­trol of Law. Not on­ly moral­ity, but re­li­gion al­so, was cod­ified. ‘Nomism,’ it has been tru­ly said, ‘has al­ways formed a fun­da­men­tal trait of Ju­daism, one of whose chief aims has ev­er been to mould life in all its vary­ing re­la­tions ac­cord­ing to the Law, and to make obe­di­ence to the com­mand­ments a ne­ces­si­ty and a cus­tom’ (Lauter­bach, _Jew­ish En­cy­clo­pe­dia_, ix. 326). On­ly the lat­est de­vel­op­ment of Ju­daism is away from this di­rec­tion. In­di­vid­ual­ism is nowa­days re­plac­ing the old­en sol­idar­ity. Thus, at the Cen­tral Con­fer­ence of Amer­ican Rab­bis, held in Ju­ly 1906 at In­di­anapo­lis, a project to for­mu­late a sys­tem of laws for mod­ern use was prompt­ly re­ject­ed. The chief mod­ern prob­lem in Jew­ish life is just this: To what ex­tent, and in what man­ner, can Ju­daism still place it­self un­der the reign of Law?

But for many cen­turies, cer­tain­ly up to the French Rev­olu­tion, Re­li­gion as Law was the dom­inant con­cep­tion in Ju­daism. Be­fore ex­am­in­ing the va­lid­ity of this con­cep­tion a word is nec­es­sary as to the mode in which it ex­pressed it­self. Con­duct, so­cial and in­di­vid­ual, moral and rit­ual, was reg­ulat­ed in the min­utest de­tails. As the Dayan M. Hyam­son has said, the max­im _De min­imis non cu­rat lex_ was not ap­pli­ca­ble to the Jew­ish Law. This Law was a sys­tem of opin­ion and of prac­tice and of feel­ing in which the great prin­ci­ples of moral­ity, the deep­est con­cerns of spir­itu­al re­li­gion, the gen­uine­ly es­sen­tial re­quire­ments of rit­ual, all found a promi­nent place. To as­sert that Phar­isaism in­clud­ed the small and ex­clud­ed the great, that it en­forced rules and for­got prin­ci­ples, that it ex­alt­ed the let­ter and ne­glect­ed the spir­it, is a pal­pa­ble li­bel. Phar­isaism was found­ed on God. On this foun­da­tion was erect­ed a struc­ture which em­braced the eter­nal prin­ci­ples of re­li­gion. But the sys­tem, it must be added, went far be­yond this. It held that there was a right and a wrong way of do­ing things in them­selves triv­ial. Pre­scrip­tion ruled in a stu­pen­dous ar­ray of mat­ters which oth­er sys­tems de­lib­er­ate­ly left to the fan­cy, the judg­ment, the con­science of the in­di­vid­ual. Law seized up­on the whole life, both in its in­ward ex­pe­ri­ences and out­ward man­ifes­ta­tions. Har­nack char­ac­teris­es the sys­tem harsh­ly enough. Chris­tian­ity did not add to Ju­daism, it sub­tract­ed. Ex­pand­ing a fa­mous epi­gram of Well­hausen’s, Har­nack ad­mits that ev­ery­thing taught in the Gospels ‘was al­so to be found in the Prophets, and even in the Jew­ish tra­di­tion of their time. The Phar­isees them­selves were in pos­ses­sion of it; but, un­for­tu­nate­ly, they were in pos­ses­sion of much else be­sides. With them it was weight­ed, dark­ened, dis­tort­ed, ren­dered in­ef­fec­tive and de­prived of its force by a thou­sand things which they al­so held to be re­li­gious, and ev­ery whit as im­por­tant as mer­cy and judg­ment. They re­duced ev­ery­thing in­to one fab­ric; the good and holy was on­ly one woof in a broad earth­ly warp’ (_What is Chris­tian­ity?_ p. 47). It is nec­es­sary to qual­ify this judg­ment, but it does bring out the all-​per­vad­ing­ness of Law in Ju­daism. ‘And thou shalt speak of them when thou sittest in thine house, when thou walk­est by the way, when thou li­est down and when thou ris­est up’ (Deut. vi. 7). The Word of God was to oc­cu­py the Jew’s thoughts con­stant­ly; in his dai­ly em­ploy­ment and dur­ing his man­ifold ac­tiv­ities; when at work and when at rest. And as a cor­rel­ative, the Law must di­rect this com­plex life, the Code must au­tho­rise ac­tion or for­bid it, must turn the thoughts and emo­tions in one di­rec­tion and di­vert them from an­oth­er.

Noth­ing in the his­to­ry of re­li­gions can be cit­ed as a com­plete par­al­lel to this. But in­com­plete par­al­lels abound. A very large por­tion of all men’s lives is reg­ulat­ed from with­out: by the Bible and oth­er sa­cred books; by the in­sti­tu­tions and rites of re­li­gion; by the law of the land; by the im­posed rules of ac­cept­ed guides, po­ets, philoso­phers, physi­cians; and above all by so­cial con­ven­tions, cur­rent fash­ions, and pop­ular max­ims. On­ly in the rarest case is an ex­cep­tion­al man the mon­stros­ity which, we are told, ev­ery Is­raelite was in the epoch of the Judges–a law un­to him­self.

But in Ju­daism, un­til the pe­ri­od of mod­ern re­form, this fact of hu­man life was not mere­ly an un­con­scious tru­ism, it was con­scious­ly ad­mit­ted. And it was re­alised in a Code.

Or rather in a se­ries of Codes. First came the _Mish­nah_, a Code com­piled at about the year 200 A.D., but the re­sult of a Phar­isa­ic ac­tiv­ity ex­tend­ing over more than two cen­turies. While Chris­tian­ity was pro­duc­ing the Gospels and the rest of the New Tes­ta­ment–the work in large part of Jews, or of men born in the cir­cle of Ju­daism–Ju­daism in its oth­er man­ifes­ta­tion was work­ing at the Code known as the _Mish­nah_. This word means ‘rep­eti­tion,’ or ‘teach­ing by rep­eti­tion’; it was an oral tra­di­tion re­duced to writ­ing long af­ter much of its con­tents had been sift­ed in the dis­cus­sions of the schools. In part ear­li­er and in part lat­er than the _Mish­nah_ was the _Midrash_ (’in­quiry,’ ‘in­ter­pre­ta­tion’), not a Code, but a two-​fold ex­po­si­tion of Scrip­ture; homilet­ic with co­pi­ous use of para­ble, and le­gal­is­tic with an eye to the reg­ula­tion of con­duct. Then came the _Tal­mud_ in two re­cen­sions, the Pales­tini­an and the Baby­lo­ni­an, the lat­ter com­plet­ed about 500 A.D. For some cen­turies af­ter­wards the Geon­im (heads of the Rab­bini­cal Uni­ver­si­ties in Per­sia) con­tin­ued to anal­yse and de­fine the le­gal pre­scrip­tions and rit­ual of Ju­daism, adding and chang­ing in ac­cord with the needs of the day; for Tra­di­tion was a liv­ing, flu­id thing. Then in the eleventh cen­tu­ry Isaac of Fez (Al­fasi) for­mu­lat­ed a guide to Tal­mu­dic Law, and about a hun­dred years lat­er (1180) Mai­monides pro­duced his _Strong Hand_, a Code of law and cus­tom which in­flu­enced Jew­ish life ev­er af­ter. Oth­er cod­ifi­ca­tions were made; but fi­nal­ly, in the six­teenth cen­tu­ry, Joseph Caro (mys­tic and le­gal­ist) com­piled the _Ta­ble Pre­pared_ (_Shulchan Aruch_), which, with mas­ter­ly skill, col­lect­ed the whole of the tra­di­tion­al law, ar­ranged it un­der con­ve­nient heads in chap­ters and para­graphs, and car­ried down to our own day the Rab­binic con­cep­tion of life. Un­der this Code, with more or less re­lax­ation, the great bulk of Jews still live. But the re­volt against it, or eman­ci­pa­tion from it, is pro­gress­ing ev­ery year, for the old­en Jew­ish con­cep­tion of re­li­gion and the old Jew­ish the­ory of life are, as hint­ed above, be­com­ing se­ri­ous­ly un­der­mined.

Now in what pre­cedes there has been some in­ten­tion­al am­bi­gu­ity in the use of the word Law. Much of the mis­un­der­stand­ing of Ju­daism has arisen from this am­bi­gu­ity. ‘Law’ is in no ad­equate sense what the Jews them­selves un­der­stood by the nomism of their re­li­gion. In mod­ern times Law and Re­li­gion tend more and more to sep­arate, and to speak of Ju­daism as Law _eo ip­so_ im­plies a di­vorce of Ju­daism from Re­li­gion. The old an­tithe­sis be­tween let­ter and spir­it is but a phase of the same crit­icism. Law must spec­ify, and the lawyer in­ter­prets Acts of Par­lia­ment by their let­ter; he re­fus­es to be guid­ed by the mo­tives of the Act, he is con­cerned with what the Act dis­tinct­ly for­mu­lates in set terms. In this sense Ju­daism nev­er was a Le­gal Re­li­gion. It did most as­sid­uous­ly seek to get to the un­der­ly­ing mo­tives of the writ­ten laws, and all the ex­pan­sions of the Law were based on a de­sire more ful­ly to re­alise the mean­ing and in­ten­tion of the writ­ten Code. In oth­er words, the Law was looked up­on as the ex­pres­sion of the Will of God. Man was to yield to that Will for two rea­sons. First, be­cause God is the per­fect ide­al of good­ness. That ide­al was for man to re­vere, and, so far as in him lay, to im­itate. ‘As I am mer­ci­ful, be thou mer­ci­ful; be­cause I am gra­cious, be thou gra­cious.’ The ‘Im­ita­tion of God’ is a no­tion which con­stant­ly meets us in Rab­binic lit­er­ature. It is based on the Scrip­tural text: ‘Be ye holy, for I the Lord am holy.’ ‘God, the ide­al of all moral­ity, is the founder of man’s moral na­ture.’ This is Pro­fes­sor Lazarus’ mod­ern way of putting it. But in sub­stance it is the Jew­ish con­cep­tion through all the ages. And there is a sec­ond rea­son. The Jew would not have un­der­stood the pos­si­bil­ity of any oth­er ex­pres­sion of the Di­vine Will than the ex­pres­sion which Ju­daism en­shrined. For though he held that the Law was some­thing im­posed from with­out, he iden­ti­fied this im­posed Law with the law which his own moral na­ture posit­ed. The Rab­bis tell us that cer­tain things in the writ­ten Law could have been reached by man with­out the Law. The Law was in large part a cor­re­spon­dence to man’s moral na­ture. This Rab­binic idea Lazarus sums up in the epi­gram: ‘Moral laws, then, are not laws be­cause they are writ­ten; they are writ­ten be­cause they are laws.’ The moral prin­ci­ple is au­tonomous, but its archetype is God. The ul­ti­mate rea­son, like the high­est aim of moral­ity, should be in it­self. The threat of pun­ish­ment and the promise of re­ward are the psy­cho­log­ic means to se­cure the ful­fil­ment of laws, nev­er the rea­sons for the laws, nor the mo­tives to ac­tion. It is easy and nec­es­sary some­times to praise and jus­ti­fy eu­de­monism, but, as Lazarus adds, ‘Not a state to be reached, not a good to be won, not an evil to be ward­ed off, is the im­pelling force of moral­ity, but it­self fur­nish­es the cre­ative im­pulse, the supreme com­mand­ing au­thor­ity’ (_Ethics of Ju­daism_, I. chap, ii.). And so the Rab­bi of the third cen­tu­ry B.C., Antigonos of So­cho, put it in the mem­orable say­ing: ‘Be not like ser­vants who min­is­ter to their mas­ter up­on the con­di­tion of re­ceiv­ing a re­ward; but be like ser­vants who min­is­ter to their mas­ter with­out the con­di­tion of re­ceiv­ing a re­ward; and let the Fear of heav­en be up­on you’ (Aboth, i. 3).

Clear­ly the mul­ti­pli­ca­tion of rules ob­scures prin­ci­ples. The ob­ject of cod­ifi­ca­tion, to get at the full mean­ing of prin­ci­ples, is de­feat­ed by its own suc­cess. For it is al­ways eas­ier to fol­low rules than to ap­ply prin­ci­ples. Virtues are more at­tain­able than virtue, char­ac­ter­is­tics than char­ac­ter. And while it is false to as­sert that Ju­daism at­tached more im­por­tance to rit­ual than to re­li­gion, yet, the two be­ing placed on one and the same plane, it is pos­si­ble to find in co-​ex­is­tence rit­ual piety and moral base­ness. Such a com­bi­na­tion is ug­ly, and peo­ple do not stop to think whether the base­ness would be more or less if the rit­ual piety were ab­sent in­stead of present. But it is the fact that on the whole the Jew­ish cod­ifi­ca­tion of re­li­gion did not pro­duce the evil re­sults pos­si­ble or even like­ly to ac­crue. The Jew was al­ways dis­tin­guished for his do­mes­tic virtues, his pu­ri­ty of life, his so­bri­ety, his char­ity, his de­vo­tion. These were the im­me­di­ate con­se­quence of his Law-​abid­ing dis­po­si­tion and the­ory. Per­haps there was some lack of en­thu­si­asm, some­thing too much of the tem­per­ate. But the facts of life al­ways brought their cor­rec­tive. Mar­tyr­dom was the means by which the Jew­ish con­scious­ness was kept at a glow­ing heat. And as the Jew was con­stant­ly called up­on to die for his re­li­gion, the re­li­gion en­no­bled the life which was will­ing­ly sur­ren­dered for the re­li­gion. The Mes­sian­ic Hope was vi­talised by per­se­cu­tion. The Jew, devo­tee of prac­ti­cal ide­als, be­came al­so a dream­er. His vi­sions of God were ev­er present to re­mind him that the law which he cod­ified was to him the Law of God.