What's Divine about Divine Law?

Early Perspectives

Christine Hayes

• Publisher: Princeton University Press
• Year: 2015
• Print ISBN: 9780691176253, 9780691165196
• eBook ISBN: 9781400866410
• Topic: Theology & Religion
• Subtopic: Ancient & Classical Philosophy

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.

PART I

Biblical and Greco-Roman Discourses of Divine Law

Introduction

The chapters in part I explore the distinctive discourses of divine law that prevailed in the two sources of Western civilization—the Hebrew Bible on the one hand (chapter 1) and classical Greece and Rome on the other (chapter 2). Both the biblical tradition and the classical tradition feature multiple discourses of divine law. While one or two discourses may dominate within each tradition, alternative and even contesting discourses exert an important influence.

As noted in the introduction: Greco-Roman sources of all genres draw a distinction between divine law and human law, characterizing each in terms of, and in contrast with, the other. For this reason, a full account of Greco-Roman discourses of divine law will necessarily entail a full account of Greco-Roman discourses of human law. Indeed, the classical tradition of law exhibits a strong tendency toward dichotomies—the dichotomy between divine (or natural) law and human law is inflected by the dichotomies between reason and will, between universalism and particularism, between stasis and change, between truth and politics. The tensions between these dichotomies are often managed with the aid of mythic narratives about the emergence of human law and its relationship to divine law.

Biblical sources do not draw a clear distinction between divine and human law. The divine law and the laws of the state are one and the same—the Torah revealed through Moses to the Israelites at Sinai. The Bible does imagine two modalities of divine law. The primary modality, which dominates biblical conceptions of divine normativity, is the divinely revealed Torah, a set of concrete rules and instruction revealed at a specific moment in history. A second and much less explicitly attested modality of divine law is a universal moral order that obligates humankind more generally. The relationship between these two modalities is not dichotomous. As we shall see, biblical discourse is best understood as a complex entanglement of reason, will, and history; of wisdom, power, and myth. A full account of the biblical concept of divine law will necessarily underscore its multidimensional character.

The exposition of biblical and classical discourses provided in these chapters is purely descriptive. In chapter 1, I outline the rich array of biblical claims about divine law. My approach is not that of a biblical critic. I am not interested in identifying the actual historical provenance of the biblical materials or the manner in which they have been composed and combined. I am interested in identifying the conception and discourses of divine law that would have been conveyed to the biblical text’s earliest readers. Thus, while I draw upon modern biblical scholarship insofar as it illuminates the contents of the biblical sources, I make minimal use of this scholarship insofar as it engages historical questions regarding the composition and development of these sources.

In chapter 2, it is not my intention to present, in successive systematic treatments, the totality of the thought of Plato or Aristotle or the Epicureans or the Stoics on divine and human law. My goal is to identify and describe the primary themes, motifs, and tropes associated with law across a wide array of sources of diverse provenance and genre in classical antiquity, and I have found it convenient to organize these themes, motifs, and tropes into seven distinct “discourses” and three legal or literary practices. If a given philosopher or philosophical school employs more than one discourse of law, that philosopher or school will be mentioned in connection with each of those discourses. In other words, the material in chapter 2 is organized around discourses, not around specific philosophers or philosophical schools.

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” (ḥuqqotay) 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 baḥar = 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.ḥ) 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.¹ 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 h...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Acknowledgments
• Abbreviations
• Introduction
• Part I: Biblical and Greco-Roman Discourses of Divine Law
• Part II: Mosaic Law in the Light of Greco-Roman Discourses of Law to the End of the First Century CE
• Part III: The Rabbinic Construction of Divine Law
• Writing the Next Chapters
• Bibliography
• Index of Primary Sources
• General Index