Kinship, Law and Politics: An Anatomy of Belonging 9781108499682, 9781108589444

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Kinship, Law, and Politics Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentiethcentury statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wideranging and fluid notions of belonging can be. Joseph E. David is Professor of Law at Sapir Academic College, Israel, and a visiting professor at the Program in Judaic Studies and Law School at the University of Yale. His research focuses on Jewish studies, law and religion, legal history, and comparative jurisprudence, on which he has published extensively.

The Law in Context Series Editors: William Twining (University College London), Maksymilian Del Mar (Queen Mary, University of London) and Bronwen Morgan (University of New South Wales). Since 1970 the Law in Context series has been at the forefront of the movement to broaden the study of law. It has been a vehicle for the publication of innovative scholarly books that treat law and legal phenomena critically in their social, political and economic contexts from a variety of perspectives. The series particularly aims to publish scholarly legal writing that brings fresh perspectives to bear on new and existing areas of law taught in universities. A contextual approach involves treating legal subjects broadly, using materials from other social sciences, and from any other discipline that helps to explain the operation in practice of the subject under discussion. It is hoped that this orientation is at once more stimulating and more realistic than the bare exposition of legal rules. The series includes original books that have a different emphasis from traditional legal textbooks, while maintaining the same high standards of scholarship. They are written primarily for undergraduate and graduate students of law and of other disciplines, but will also appeal to a wider readership. In the past, most books in the series have focused on English law, but recent publications include books on European law, globalisation, transnational legal processes, and comparative law. Books in the Series Acosta: The National versus the Foreigner in South America Ali: Modern Challenges to Islamic Law Alyagon Darr: Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine Anderson, Schum & Twining: Analysis of Evidence Ashworth: Sentencing and Criminal Justice Barton & Douglas: Law and Parenthood Beecher-Monas: Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process Bell: French Legal Cultures Bercusson: European Labour Law Birkinshaw: European Public Law Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal Broderick & Ferri: International and European Disability Law and Policy: Text, Cases and Materials Brownsword & Goodwin: Law and the Technologies of the Twenty-First Century: Text and Materials Cane & Goudkamp: Atiyah’s Accidents, Compensation and the Law Clarke: Principles of Property Law Clarke & Kohler: Property Law: Commentary and Materials Collins: The Law of Contract

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Kinship, Law, and Politics An Anatomy of Belonging

JOSEPH E. DAVID Sapir Academic College

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108499682 DOI: 10.1017/9781108589444 © Joseph E. David 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: David, Joseph E. (Writer on law), author. Title: Kinship, law, and politics : an anatomy of belonging / Joseph E. David. Description: New York : Cambridge University Press, 2020. | Series: Law in context | Includes bibliographical references and index. Identifiers: LCCN 2019045599 (print) | LCCN 2019045600 (ebook) | ISBN 9781108499682 (hardback) | ISBN 9781108589444 (epub) Subjects: LCSH: Kinship (Law) | Kinship – Political aspects. | Persons (Law) | Human territoriality. | Domestic relations. Classification: LCC K627 .D35 2020 (print) | LCC K627 (ebook) | DDC 346.01–dc23 LC record available at https://lccn.loc.gov/2019045599 LC ebook record available at https://lccn.loc.gov/2019045600 ISBN 978-1-108-49968-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To my beloved Noga

Contents

Preface

Introduction: The Anatomy of Belonging Part I 1 2

Corporal Union as Performance of Belonging The Making of Kin Belonging

Part 2 3 4

Law

Territorial Belonging and the Law Religious Identity and Law

Part 3 5 6 7

Kinship

Politics

page xi 1 21 23 38 57 59 80 99

The Familial–Political Analogy Liberal Iconoclasm Beyond the Analogy: Liberal Alternatives

103 112 119

Bibliography Index

134 153

Preface

The ambivalence of feeling at home in some respects yet feeling displaced in other ways speaks to me very personally. The fact that belonging has become a serious concern perhaps is a unique feature of these highly mobile and globalized times. The extent to which our belonging is a matter of choice or fate, its impact on our identity and well-being, and the consequences of being rejected from certain realms of belonging are in our world existential questions for both individuals and society. The studies in this volume probe several aspects of belonging in a voyage traversing historical moments and intellectual crossroads that reflect means of intellectual grappling and turning points in the history of the idea of belonging and its meanings. I consider myself privileged to have a wonderful and supportive family, which not only gives me my most meaningful belonging but also is the heart and the powerhouse of my intellectual energy. Through the years, my different experiences of affiliations and belongings have kept me contemplating what belonging is. I found myself intensively busy in my mind and writings with the complex relations between the feeling of belonging and its conceptualization, and this troubling is a fundamental backdrop to the chapters that follow: the search for insights that adequately capture the emotional experiences of belonging and the quest to decipher the circularity that exists between our emotional experiences and our conceptualizations, the extent to which our feelings of intimacy and closeness are products of our ideas and conceptions of belonging, and conversely, the extent to which our emotions dictate and shape our understanding of reality. Through my scholarly engagement with the relationships between law, philosophy, and religion in non-Western and premodern contexts, I became acquainted with the turning point in Karaite law where the catenary doctrine of incest laws was refuted and rejected. This was an unambiguous change in a lively legal tradition that immediately caught my attention and triggered my instincts as a legal historian who seeks to comprehend legal developments in theoretical terms. The fact that such a legal change had hardly been studied surprised me then – as it still puzzles me today – and piqued my curiosity. My collaborative work with Martin Goodman at the University of Oxford some years ago gave me occasion to closely consult several Bodleian medieval

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manuscripts with relevance to this legal change, which launched my inquiries into the topic. The combination of my jurisprudential sensibilities, improved access to Karaite writings, and expanding knowledge of the Karaites’ Mua’tazili background drove me to examine the opinions and stances that had been expressed about this legal change. I found myself walking along a pathway that had been paved by Isaak Dov Ber Markon and Leon Nemoy, leading twentiethcentury scholars of medieval Karaism who both recognized the importance of the change. Markon published the central work of Yeshu‘ah ben Yehudah, the dominant proponent of the change, with the intention to follow them with the other relevant works, while Nemoy preferred to understand the change against the social conditions of Karaite communities of the time. I arrived at the understanding that the importance of this transition went far beyond the particular history of Karaism. It is an outstanding test case for theories of legal change and a perfect subject for the law-in-context method and integrative study of legal history and legal theory. Its importance for general legal studies lies in its being a counterexample to the legal transplant thesis: a legal change that emerged from a deep revision of the conceptual vocabulary of belonging within the Karaite scholarly world, with no external impact or import. Further, unlike similar reforms, such as the Fourth Lateran Council of 1215, this legal change was not an expression of an established controlling power, but an outcome of scholastic activities that appealed to deliberative prudence and argumentative capacities. Another unique aspect of this watershed has to do with the distinction between a radical legal change and a silenced one, where radicality and silence are not measures of a change but modes of announcing and presenting it. At times, a silenced legal change may be a revolution that is camouflaged by traditionalist language. Such change is typical of those who formally comply with tradition and are committed to acting within traditional contours. A distinct example of a silenced fundamental change is Maimonides’s insertion of Aristotelian philosophy into Jewish theology and law, with which he claimed to reveal the original meaning of Scripture in continuation of the Talmudic tradition. Contrarily, the Karaites were much more deliberative, and their abolition of the catenary theory thus was accompanied by a declaration of the erroneous understandings of its advocates. My realization that belonging to the law is not a trivial matter resulted from prolonged contemplation of the nature of Jewish law in comparison with other types of law, such as Islamic law and the law of the modern state. This comparison demonstrates an intriguing interrelation between law and religion, in that belonging to the law is both a jurisprudential and a theological concept. The studies presented here on this theme are revisionist readings of two commonplace perceptions: the phenomenology of Judaism as a law-based religion and the nature of the jurisdiction of Jewish law. The identification of Judaism, like Islam, as a law-based religion is a prevalent convention that impacts on a broad range of areas. As Rev.

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Rowan Williams famously exemplified in his 2008 discussion, “Civil and Religious Law in England: A Religious Perspective,” the phenomenology of law-based religions is an utmost challenge to multicultural democracies that insist on the rule of law and equality before the law. This phenomenology is a major obstacle for the Western ideal of the separation of church and state in societies that are dominated by law-based religions. The identification of Judaism as a law-based religion also plays a central role in interfaith discourses that emphasize the affinities and similarities between Judaism and Islam as sister religions that peacefully coexisted in the past. Invited by the German Association of Comparative Law to give remarks about “Nomocentric Religions and Legal Pluralism” in September 2015, I inquired into how consistent this phenomenology was as an internal perspective on Judaism or an external projection that fulfilled social and ideological functions. Tracing its origins to early modernity, I developed a revisionist perspective that has in the meantime been endorsed and argued by several other scholars with regard to both Judaism and Islam. The question of belonging to the law also troubled me in a practical legal sense, with regard to the manner in which law is perceived to communicate with its addressees. The commonplace rabbinic view has since the time of the Second Temple been that jurisdiction in Jewish law is personal, which is consistent with the idea that it remains valid and applicable in exilic circumstances. Yet after years of studying and teaching legal theory and medieval legal traditions, I realized that the approach to this question espoused by the great medieval thinker and jurist Nahmanides did not necessarily dovetail with such an assumption. Nahmanides was traditionally portrayed as a mainstream rabbinic authority and a pioneering figure in the emergence of the cabala in Gerona and its integration with the halakhah. However, new readings of his works in view of the legal reality and rhetoric of his time led me to view his legal theology as an innovative and even radical suggestion to view Jewish law as based on territorial rather than personal jurisdiction. My attentiveness to the political meaning of the family in liberal contexts emerged from my exchanges with the late political philosopher Yaron Ezrahi during the time we jointly taught a research seminar on theo-political thought. My dialogues with Yaron helped me better understand the deep interplays between the political and domestic orders and between relations of belonging in the familial context and in the political arena. Outlining the landmarks of the analogy between the familial and the political led me to acknowledge the inner tensions within liberal worldviews regarding the political meaning of private families and to reflect on how liberal society grapples with this challenge. The above vagrancy between topics of belonging reflects my intellectual journeys in recent years, and I am grateful to the many persons and institutions that have enabled and supported these voyages. I am thankful to the libraries that allowed me to examine original manuscripts, including the Department of

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Manuscripts and Institute of Microfilmed Hebrew Manuscripts of the National Library of Israel, the Bodleian Libraries of the University of Oxford, and the library of the University of Leiden. I am grateful to the various forums that provided me with the opportunity to present and discuss my ideas as they formed, including the Van Leer Jerusalem Institute, the seminar of the Judaic Studies Program of the University of Yale, the David Patterson Seminar of the Oxford Centre for Hebrew and Judaic Studies, the biannual meeting of the Gesellschaft für Rechtsvergleichung at the University of Bayreuth, and the faculty seminar of Sapir Academic College Law School. I am also thankful to the students who participated in my seminar “Between Identity and Otherness” at the Hebrew University and Sapir College. I am also grateful to the academic editorials of the journals in which some of my arguments and theses were discussed and cultivated. That includes The Oxford Journal of Law and Religion, The Jewish Quarterly Review and Law, Culture and Humanities. Over the years, I have been privileged to visit various academic institutions that encouraged my research and provided me with fora to exchange and discuss ideas. I am grateful to the Center for the Study of Law and Religion at Emory University; the Max Planck Institute for Social Anthropology in Halle, Germany; the Judaic Studies Program at Yale College; and the Abdallah S. Kamel Center for the Study of Islamic Law and Civilization at Yale Law School. Special thanks to David B. Greenberg, who not only edited this book for language but also was a careful and critical reader of my analyses and arguments. The text and I greatly benefited from his close reading.

Introduction: The Anatomy of Belonging

A Modern Theme? Belonging is an idea that is fundamental to our social existence, both as individuals and as collectives. It is an idea that enables our interpersonal relations, shapes our communal imaginations, and inspires in us feelings of solidarity. At the same time, the idea of belonging also motivates us and situates us within the chaotic networks of meanings and social spaces. As many commentators note, the endeavor to define and conceptualize the idea of belonging is a relatively modern trend, reliant on the presumption that a sense of belonging to other individuals or groups is crucial to our distinctiveness, identity, and meaningfulness. Nonetheless, belonging as a theme that is central to the human existence is certainly not a new one. The problem of belonging is one of the most ancient themes to trouble the human mind. Human belonging has been approached and valued differently in different times. While in modern times the idea of belonging is deemed a crucial condition for the development and socialization of the individual and a mechanism that enables social interactions and integration, in premodern times it was conceived as an organizational idea by which the social order was described, maintained, and controlled. Throughout the twentieth century, the idea of belonging was one of the key topics that attracted the attention of psychologists, sociologists, political theorists, and scholars of law and ethics. Belonging was acknowledged from the 1930s as a significant component of the healthy development and functioning of mature persons. At first, it was declared a crucial quality for the development of the individual’s capacity to integrate in social affairs.1 Later on, belonging was defined as one the fundamental human needs2 or as a necessary condition for 1

2

Alfred Adler’s theory suggested that individuals’ sociability is conditioned on the “experience of belonging” through three ties: to place, society, and marriage. Adler also presumed that childhood antecedents were critical to experiencing belonging in adulthood. See Ferguson, “Adler’s Innovative Contributions.” Abraham Maslow (Theory of Human Motivation) placed belonging as a midlevel fundamental need equal to love in his hierarchy of human motivation, arguing that once the human physiological needs of food, shelter, and sex are fulfilled, the psychological needs of belonging

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well-being and healthy development.3 Feminist psychology introduced observations and theories about connections between various forms of belonging and gender biases.4 Finally, with the rise of global migration toward the end of the twentieth century, alongside the newly emerged discourse of belonging politics, the idea of belonging captured the interests of sociologists, political theorists,5 and scholars of environmental studies.6 Some writers argue that beyond the modern focus on belonging as a crucial precondition for human sociability, the emerging senses of place and space7 have vastly changed the traditional meanings and modes of belonging.8 Conversely, others stress that modernity, or perhaps postmodernity, is marked not only by novel senses of belonging but also by absence of belonging or the experience of losing one’s sense of belonging.9 As a result of these approaches, belonging came to be perceived as subject to moral and political reasoning, and hence a vital theme to be treated in the fields of law, ethics, and political theory. Yet despite the vast discussions of belonging as a multidisciplinary theme, it is difficult to escape the impression that the idea of belonging continues to suffer from conceptual vagueness and a dearth of

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and love take primacy in a person’s motivation. Once belonging and love have been satisfied, the human need for self-actualization becomes primary, followed by self-transcendence. Santokh Anant (“Need to Belong,” 21) suggested that a sense of belongingness was crucial for human well-being and healthy social, emotional, and mental growth. He emphasized the interdependency between the personal experience of belonging and social identification, the former being dependent on the latter. Baumeister and Sommer (“What Do Men Want?”) found that women were oriented toward close forms of dyadic relationships as a means of fulfilling sociality and belonging, whereas men pursued attachments through a greater number of acquaintance-level groups and relationships. Yuval-Davis (“Belonging”) proposed that belonging should be viewed not as a “fixed state of being” but as a dynamic state of affairs. She suggested that belonging varied according to three factors: the individual’s social location, attachment to collectives, and attachment to ethical and political value systems. Linn Maree Miller (“Being and Belonging”) argued that belonging-identity relations are dependent on congruence between three connections: to a social community, to historical ancestors, and to locality. These senses are experienced and designed by modern phenomena, such as visions of globalization, mass migration, worldwide cyberspace, international trade, and climate change. All of these deeply challenge our traditional senses of belonging, which were based on territoriality, nationality, or religious affiliation. “Movement has become fundamental to modern identity, and an experience of non-place (beyond ‘territory’ and ‘society’) an essential component of everyday life. . . . Exile, emigration, banishment, labor migrancy, tourism, urbanization and counter-urbanization are the central motifs of modern culture, while being rootless, displaced between worlds, living between a lost past and a fluid present, are perhaps the most fitting metaphors for the journeying modern consciousness” (Rapport and Dawson, Migrants of Identity, 5–6, 23). Such writers characterize modern human experience as one of “homelessness.” Some stress the emergence of the “homeless mind” (Peter L. Berger, Brigitte Berger, and Kellner, The Homeless Mind, 138), some observe homelessness as “coming to be the destiny of the world” (Heidegger, “Letter on Humanism,” 219), and others emphasize the imaginative aspects of the idea of belonging and describe “being at home” as fictional nostalgia: “This homeless mind is hard to bear, and there is widespread nostalgia for a condition of being ‘at home’ in society, with oneself and with the universe: for homes of the past that were socially homogeneous, communal, peaceful, safe and secure” (Rapport and Dawson, Migrants of Identity, 31).

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satisfying accounts.10 This discontent is indeed troubling, and it is an explicit motive behind the studies presented in this book. A point of departure for our attempt to better understand belonging is the observation that most contemporary discussions overlook the historical and cultural backdrops against which ideas of belonging developed and tend to approach belonging as a universal, metacontextual idea. Nevertheless, the semantic baggage of previous perceptions of belonging clearly, if often unconsciously, underlies and fuels contemporary discourses of belonging. Therefore, we choose to integrate the conceptual analysis of belonging with historical, or genealogical, investigations. The studies in this volume trace cases where ideas of belonging were reflected, contended, or modified through legal changes or exegetical accounts, by intellectual endeavors, polemics, or seismic shifts in worldviews. Each section of the book addresses a discrete context in which belonging is a pivotal component – the familial, the legal, and the political – and focuses on important moments of grappling with ideas and expressions of belonging. Among these are moments of change from substance to structure, from materialism to mentalism, from personal to spatial, from theosophy to legality, and from collectivity to individuality. The cases range across different historical periods, cultural contexts, and religious traditions, from eleventh-century Mediterranean theological legal debates to twentieth-century statist liberalism in Western societies. They address independent discursive contexts (or in Foucauldian terminology, ways of speaking) that are in no way continuous or intertwined, and no pretense is made of a link between them. Each case is an independent demonstration of a distinct effort to contend with the theme of belonging in a different setting, driven by that setting’s particular concerns and challenges. The methodology thus is not only that of a conceptual genealogy that looks at continuities or transitions of a singular idea, concept, or term.11 The focus is on cases and discourses that construct independent chapters of the conceptual history of the meanings of belonging. Two major observations arise from the analysis of these unconnected cases. The first of these concerns the character of the search for the foundations of belonging. It is a search governed by opposing trends: an inclination to ground belonging in tangible facts and a contrary acknowledgment that belonging is in fact predicated a product of the human imagination. The former trend represents the tendency to view the idea of belonging in essentialized terms; the 10

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Floya Anthias, “Belongings in a Globalising and Unequal World”; Marco, Antonsich, “Searching for Belonging”; Kathleen Mee and Sarah Wright, “Geographies of Belonging.” One might distinguish between Nietzschean genealogical methodology and the archeological method of Foucault. While the former traces the developmental wriggles and twists of a term, idea, or concept, the latter develops an attentiveness to the complexities and the inner dynamic and relationships in distinct discursive frameworks.

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latter sounds the call to de-essentialize belonging and to view it through a pragmatic lens. The second observation is about the elusiveness of belonging as a concept. The presumption that belonging is a fixed, universal, and metacontextual idea is misleading. As we closely read different appearances of the idea of belonging and treatments of it, we come to recognize how differentiated it truly is. In different contexts, through different semantic networks, the idea of belonging is associated with various other ideas, and accordingly changes form, disperses, or dilates. The anatomy of belonging thus further requires a treatment of adjacent ideas and the semantic borderlines between us and them. A salient example of one common confusion is the tendency to commingle ideas of belonging with the idea of identity. In the following discussion, we will provide a brief conceptual exposition of these two observations.

Conceptual Foundations Being and Longing The concept of belonging is multidimensional and multifunctional. It regulates and organizes the relationship between an individual and other individuals or groups. It is a concept that proclaims our existence beyond our corporal borders and subjective experiences. With the concept of belonging, we conceive our existence as social beings, and with it we situate ourselves within the social spaces that surround us. The concept confirms the connection between our internal atomistic consciousness and the external social order in which we dwell. It is the device that enables our sociability: the interaction between our subjectivity and the intersubjectivity that surrounds us. As a concept, belonging contains an inner semantic connection between two modalities: a given aspect and an aspirational one. This delicate ambiguity is well demonstrated by the term, which simultaneously implies that belonging is about being part of something and about longing to be part of something. The concept of belonging thus discloses a restlessness, or persistent motion, inherent to human existence that is captured between belonging that is and belonging that is wished, or imagined, or ought to be. The being–longing dialectic explains how the concept of belonging prescribes, and not only describes,12 and how belonging has become in various contexts a thing to be regulated, an object of enforcement, and a source of morality that legitimizes rights and imposes duties. The same dialectic exposes the fact that belonging is about relating to, or being related to, something. Hence the familiar vocabulary of belonging and its use of terms such as engagement, partaking, and membership. 12

The dialectic tension embodied in the concept of belonging traverses some of the most commonplace dichotomies and linguistic taxonomies, such as descriptive–normative, objective–subjective, real–imagined, and given–aspired.

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Yet on what grounds is the concept of belonging, whether as being or as longing, intelligible? The plain answer to this question rests on the presumption that belonging is based on sharing something or having something in common. Belonging therefore is founded on an assumption of factual or aspirational mutual sameness.

Belonging as Sameness The earliest expressions of the concept of belonging appear in the context of the problem of human solitude, where belonging is proposed as an answer. Reflections about human belonging can be traced to the rootstocks of Western civilization, where it captured the imagination of ancient mythical thought as well as philosophical accounts. In both instances, belonging was perceived as a relation between objects that have common or identical traits, belonging as sameness: One individual belongs to another if both share, or have in common, one or more traits. Similarly, an individual belongs to a set or group if the individual and the group have certain traits or properties that are the same. Notably, the earliest mythical accounts of belonging as sameness appear in attempts to explain the human inclination to pair, or to couple, with another human being. In the ancient myths at the foundation of the Western tradition, the idea of belonging as sameness appears as a solution for the predicament of human solitude.13 The core idea with which this manifestation of belonging appears is the separation–individuation template, according to which existence as an individual is a result of a preceding separation. The concept of belonging is thus grounded in the unity that preceded the separation. The same sense is shared by the being–longing dialectic: a combined act of reminiscence of and aspiration to a presumed sameness or unity. The view of human pairing as an elementary paradigm of belonging is a vital perspective entrenched in the Western mind since ancient times. The roots of this perspective independently appeared in the traditions that emerged from the Hebrew Bible as well as the Greek world. In both cases, myths that grapple with human solitude and the origins of the inclination to pair with other human beings emphasize the delusionary aspect of self-sufficient human existence. Both traditions share the view that despite human physical separateness, solitude and autonomous being do not reflect the true nature of human beings. The concern of belonging is thus deeply associated with discomfort with the idea of human solitude, which is resolved through coupling and belonging. The protest of the Bible against the idea, or ideal, of human solitude is a demonstration of how the idea of belonging serves as a response to the 13

In various ancient contexts, human existence was equated to existence in a social framework, as with the famous Aristotelian definition of the human being as homo politicus. In ancient Latin, to live and to be among men are expressed the same way (inter homines esse), as are to die and to cease to be among men (inter homines esse desinere). See Arendt, The Human Condition, 7–8.

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human solitude. The Bible narrates the predicament of human solitude as a fundamental problem that is intimately connected to the divine creation, and it does so in two versions, both from the divine point of view. According to the first version, solitary human existence never was an option for humankind, which was from the beginning created as including two sexes.14 The second version, however, is more ambivalent. It expresses the possibility of human solitary as a more complex problem, narrating the creation of humankind as an experimental process of trial and error, or as a process of divine intents and regrets: And the Lord God planted a garden in Eden, in the east; and there he put the man whom he had formed. . . . Then the Lord God said, “It is not good that the man should be alone; I will make him a helper fit for him.” So out of the ground the Lord God formed every beast of the field and every bird of the air, and brought them to the man to see what he would call them; and whatever the man called every living creature, that was its name. The man gave names to all cattle, and to the birds of the air, and to every beast of the field; but for the man there was not found a helper fit for him. So the Lord God caused a deep sleep to fall upon the man, and while he slept took one of his ribs and closed up its place with flesh; and the rib which the Lord God had taken from the man he made into a woman and brought her to the man. Then the man said, “This at last is bone of my bones and flesh of my flesh; she shall be called Woman, because she was taken out of Man.” Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh.15

These verses depict the initial creation of humankind as solitary creatures as the original divine plan, which God ultimately deemed one that was “not good,” or a failure.16 The scriptural description is clear about the deficiency of solitary human existence. The terminology of the latter part of the same verse – “I will make a helper fit for him” – seems to indicate that this was taken as a functional or operative disadvantage. Divine action then tried to resolve this fundamental deficit. The first attempt to rescue humankind from solitariness was by the creation of other beings: “So out of the ground the Lord God formed every beast of the field and every bird of the air.” This was found to be useless. In the second attempt, liberation from human solitude was achieved not by introducing an external thing “fit” for the human being but by dividing the human into two separate, yet deeply connected, beings. This biblical narrative portrays human belonging as an amendment to the creation of human beings as solitary creatures. This mythical account illustrates that the human inclination to pair is reliant on the idea of belonging as 14

15 16

Genesis 5:2. Bible translations are those of the Revised Standard Version (RSV) unless otherwise noted. Genesis 2:8, 18–24. This statement resonates with the descriptions in the previous chapter, which depict all of creation as “good” and satisfactory (Gen. 1:4, 10, 12, 18, 21, 25, 31). The discrepant account of the creation of humankind as solitary beings as “not good” designates it a failure.

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The Anatomy of Belonging

sameness: individual human beings mutually belong because they are parts of the same entity. This notion is well expressed in the terminology that Adam is described as using to describe Eve: “bone of my bones and flesh of my flesh.” As we will see below, the notion of belonging as sameness and the separation– individuation template dictated the constructions of belonging in Jewish and Christian traditions throughout the Middle Ages. The notion of belonging as sameness also predominated in ancient Greek thought, both in mythical representation and in philosophical articulation. The myth of androgyny, an account on the origins of sexual desires and human coupling, classifies three types of human pairing: male–male, female–female, and female–male.17 This approach too is about belonging as sameness. The three types of pairs, illustrating three genders, originally exist as three unseparated spherical creatures, each composed of one of these three pairs. This myth too identifies the human desire to pair with another human individual as an outcome of a failure, here not the failure of the divine creator, but that of primordial creatures who tried to defy the gods. As a result of the intervention of Zeus, the spherical bodies were cut into halves, and each half yearns for its mate. Human eros and the desire to pair originated in a unified existence, which reflects the aspiration to recover a lost unity that preceded separation. Here again, the existence of separated individuals does not reflect an essential detachment or solitude. Here again, the affinity between two matching individuals and their mutual belongingness result from their being parts of the same original entity.18 The embrace of belonging as sameness is a leitmotif in ancient Greek philosophy. The Platonic metaphysic of the participation19 of physical objects in eternal concepts or objects is a salient display of the notion of belonging as sameness; likewise, the relation between the parts and the whole in Aristotelian logic is a reflection of the same notion.20 Despite the differences between Platonic and Aristotelian metaphysics, they agree that physical objects share the same properties as their corresponding concepts and the particulars participate in the whole. Aristotelian thought associates the idea of selfness as well with the notion of belonging as sameness, and hence the Aristotelian conception of relatives and 17 18

19

20

Plato, Symposium, 189e–191e. While both mythical frameworks embrace the notion of belonging as sameness, their overall orientations are at odds. While in the biblical context, human pairing is portrayed as deliberate divine design, in the Greek context it is a natural force consequential to divine intervention in the prior formation of human existence. “When we say change is the same as itself, we speak in this way because of its participation in the same in relation to itself [pros heautên]” (Sophist, 256a–b). See Allen, “Participation and Predication,” 43–60; Nehamas, “Participation and Predication,” 343–374. The ontology of the whole and the parts also claims for the primacy and superiority of the whole upon its parts and that the whole is the cause of its parts: “in all things which have a plurality of parts, and which are not a total aggregate but a whole of some sort distinct from the parts, there is some cause” (Aristotle, Metaphysics 8.1045a).

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friends as second selves. Aristotle objected to the equation of the ideal of selfsufficiency (αυτάρκεια) with solitude by claiming that friendship does not contradict or exclude self-sufficiency because a friend is in fact “another self” (ετερον αυτον).21 Aristotle proposal of kin belonging in terms of extended selfness is yet another expression of the notion of belonging as sameness – one that we will later see was pivotal to the constructions of kin belonging in medieval Karaite legal thought. Aristotle thus states that parenthood and siblinghood should be understood as the extended selfness of an individual: Parents, then, love their children as themselves (for their issue are by virtue of their separate existence a sort of other selves) . . . and brothers love each other as being born of the same parents; for their identity with them makes them identical with each other (which is the reason why people talk of “the same blood”, “the same stock”, and so on). They are, therefore, in a sense the same thing, though in separate individuals.22

Children are the “second selves” of their parents; by the same notion of belonging as sameness, siblings are “the same thing, though in separate individuals.” This idea is not only consistent with the organic metaphysics of the parts and the whole, but also an implementation of the latter. Accordingly, to belong is to take part or to participate in a broader organic order – a whole or self. These Aristotelian concepts also indicate that the paradigmatic form of belonging may contain asymmetric causal relations. This is an important dimension of the idea of belonging as associated with two further relations – namely, authorship and ownership. For Aristotle, viewing the child as the parent’s “second self” is not unrelated to the fact that filial relations give the parent-producer ownership of the child-product, since “the product belongs to the producer.”23 This conceptual link of belonging and ownership fueled and enhanced patriarchal patterns that endowed individuals perceived as original self with oppressive powers. Thus in Roman law, all women, children, and slaves of the famila were perceived as the extended self of the paterfamilia and hence his property and subject to his will. The linking of belonging and ownership was a major cause for the long heavy-handed history of patriarch-

21

22 23

“It is also disputed whether the happy person will need friends or not. It is said that those who are supremely happy and self-sufficient have no need of friends; for they have the things that are good, and therefore being self-sufficient they need nothing further, while a friend, being another self, furnished what a person cannot provide by her own effort; whence the saying, ‘When fortune is kind, what need of friends?’ But it seems strange, when one assigns all good things to a happy person, not to assign friends, who are thought the greatest of external goods” (Nicomachean Ethics, 1169b1–5). Aristotle, Nicomachean Ethics, 8.12.1161b–1162a. “The originator feels his offspring to be his own more than the offspring do their begetter; for the product belongs to the producer (e.g., a tooth or hair or anything else to him whose it is), but the producer does not belong to the product, or belongs in a less degree” (ibid.).

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The Anatomy of Belonging

alism, and one can only imagine how Western civilization would look if this conceptual link had been dismissed or a different pattern preferred. Be that as it may, the notion of belonging as sameness also molded the imagination of social and political orders and the modes of affiliation with them. Thus religious belonging, whether passive or active,24 was construed in terms of being or becoming “members of a body” (μέλη τοῦ σώματος)25 or “individually members one of another” (καθ’ εἷς ἀλλήλων μέλη).26 Overall, the notion of belonging as sameness is deeply rooted in a comprehensive perspective of the parts and the whole, with ontological, ethical, political, and sociological aspects. Belonging is portrayed as an essential trait that is commonly marked by tangible signifiers, such as blood, semen, bone, and body. To a great extent, this essentialist notion of belonging as sameness predominated in Western traditions, where its Hellenic precursors found expressions in practice and theory. This is not to say, however, that deviation or dismantling of this notion is a modern phenomenon. One spectacular alternative to the essentialist understanding of belonging as sameness was introduced and developed in the social thought of Ibn Khaldun.

Imagined Sameness Centuries after the passing of the ancient Greek philosophers, the great Arab thinker Ibn Khaldun (1332–1406) introduced an innovative, de-essentialized version of the notion of belonging as sameness. Instead of viewing the idea of belonging in terms of being and longing for some past unity, he suggested a functionalist and behaviorist view that takes its cue from metaphysics and the separation–individuation template. To Ibn Khaldun, the notion of belonging as sameness is not rooted in fundamental ontology. Instead, it comes from human imagination and motivation. Ibn Khaldun’s model of belonging is found in his famous treatment of the concept of ‘asabiyyah,27 commonly translated as “group feeling,” “solidarity,” or “esprit de corps.”28 Ibn Khaldun equates various types of belonging – kin ties, sponsorship, alliance, and neighborhood – to support his claim that the idea of belonging is an efficient imagination or in his words a “useful illusion” (fayidat al-wahm) that effects human feelings and motivates solidarity with others.

24

25 27

28

The Eucharist is an act of belonging by which the believers partake in Christ and become parts of him: “The cup of blessing which we bless, is it not a participation (κοινωνία) in the blood of Christ? The bread which we break, is it not a participation (κοινωνία) in the body of Christ? Because there is one bread, we who are many are one body, for we all partake (μετέχομεν) of the one bread” (1 Cor. 10:16–17). 26 1 Corinthians 12:12; Ephesians 5:30. Romans 12:5. The term is derived from ‘asabah, which denotes the male relatives in the male line, who are thus called because they strengthen and defend the person. See Halim et al., “Theory of ‘Asabiyyah.”

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Belonging, according to Ibn Khaldun, is to be understood in terms of imagination, emotivism, and operational efficiency. Belonging is merely a hypothesis that constructs an imagination which consequently stimulates feelings and emotions, and these last eventually lead to action. Ibn Khaldun illustrates his approach by reference to the meaning and the value of pedigrees, which do represent not an existing belonging but only a potential trigger for an action: Pedigrees are useful only in so far as they imply the close contact that is a consequence of blood ties and that eventually leads to mutual help and affection. Anything beyond that is superfluous. For a pedigree is something imaginary and devoid of reality. Its usefulness consists only in the resulting connection and close contact. . . . In this sense, one must understand the remark, “Genealogy is something that is of no use to know and that it does no harm not to know.” This means that when common descent is no longer clear and has become a matter of scientific knowledge, it can no longer move the imagination and is denied the affection caused by group feeling. It has become useless.29

This constructivist account of social cohesion is striking in contrast to postmodernist approaches and attitudes. More striking is that Ibn Khaldun’s emotivism concerns not only social institutions, such as sponsorship and alliance, but also what are commonly taken as the prelegal and presocial relations of blood ties (silat al-rahim) and kinship (qurbaa). The presentation of the notion of belonging as sameness is thus detached from the ontological structure of the world. It is a concept not of factual sameness but of imaginary mindfulness. It is not a given and stable trait, but a fluid and goal-dependent organization created by human beings. Such a notion of belonging has been embraced by modern structuralist and constructivist trends that claimed to de-universalize and de-essentialize traditional categories of belonging. It would be wrong to state that essentialized versions of belonging pushed aside the constructivist notions over the years. Despite modern structuralist tendencies, essentialist notions of belonging as sameness are widespread and accepted in modern times, in which they sustain discourses about various types of affiliations, belonging, and identity, such as those of nation, race, and gender. Essentialist notions of belonging are supported by modern genetic science, which represents anew the relativeness of individuals as a complex fact that is the outcome of encoded data.30 At the same time, de-essentialized notions of belonging too are widely accepted, and widely absorbed and projected onto contemporary public debates. These notions of belonging encourage and enhance approaches to identity and belonging as fluid and interest-dependent ideas, as can be seen in identity politics.31 29 31

30 Ibn Khaldun, The Muqaddimah, 98–99. See Franklin, “From Blood to Genes?” Identity politics is defined as a type of political discourse typified by exclusive identity-based alliances. In such political discourse, identity is an organizing tool with which political claims, ideologies, and interests are framed. See Appiah, The Lies That Bind.

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The Anatomy of Belonging

In both accounts, belonging is explained by delusion. In the Biblical and Greek contexts, human separability is delusionary, while the Khaldunian account stresses the delusion of connectedness. The two major accounts thus would seem to vary on their answers to the question of whether the sameness that constitutes the sense of belonging represents something real or imagined, something tangible or fictional. As we will see below, the pattern of separation and individuation that lies at the foundation of the biblical mythical picture was translated into the ideal of ‘one self’, which was the basis for regulative principles of permitted and prohibited unification between individuals.

Belonging and Identity Identity is about belonging, about what you have in common with some people and what differentiates you from others. —Jeffrey Weeks, “The Value of Difference” As for identity, we can define it as the category . . . into which a person . . . is read as belonging, expressible as . . . a noun phrase or adjective phrase. —John E. Joseph, Language and Identity

We tend to confuse belonging and identity and to interchange them as if they expressed the same thing. The notion of identity, like belonging, always has been part of the human experience. Only in modern times, though, has it been conceptualized and acknowledged as a crucial component of human development and well-being.32 By the same token of belonging, through identity we map our social reality, classify our interactions, and orient them. Since both belonging and identity are central themes in modern debates, a clear definition of the similarities and dissimilarities between them seems crucial. A conceptual refinement of the differences, and the relations, between belonging and identity will also provide a better understanding of the dilemmas and the debates that are built upon these notions. In the following, we will engage in a demonstrative analysis of the distinction between belonging and identity and how the two operate separately and together.

Distinction and Interplay Before focusing on the relationship between belonging and identity, we should establish the precise meanings of identity that are involved here. There is no single concept of identity; rather, we can distinguish between three interrelated concepts. The concept of identity that underlies much of contemporary moral and political debates could be termed social identity, which examines what is required to identify a person p as p and what is derived from this identification. This alternative is distinguishable from the concept of logical identity, which 32

See Gleason, “Identifying Identity”; Izenberg, “Identity Becomes an Issue.”

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examines what makes a and b identical,33 and personal identity, which examines what makes a person p identical to herself.34 Despite the semantic linkage between the three concepts,35 only the first refers to identity as a social phenomenon and thus a direct matter of moral and political reasoning. The other concepts have more to do with logical and metaphysical relations than with interpersonal interactions. What then is the cause of confusion between belonging and identity? On what basis should we distinguish between them? Belonging and identity both reflect relations based on common traits and sameness between individuals and other individuals or groups. Due to their similarity, various theoretical endeavors have sought to eliminate one or to distinguish them using existential rather than semantic grounds.36 Our task, though, calls for distinguishing between them using pragmatic criteria that also emphasize the interplay between them. The distinction between belonging and identity can be demonstrated by the fact that identity propositions and belonging propositions sometimes are and sometimes are not semantically equivalent. This interplay between the two concepts becomes more prominent in light of this distinction. For instance, the statement “Angele is German” equally might denote a statement about identity (Angele’s identity is German) or an account of personal belonging (Angele is a citizen of the Federal Republic of Germany). These two statements are not symmetrical. While the identity proposition can be reduced to and articulated as a belonging propositions, the reverse is less likely to hold true. The identityproposition “Socrates is a Greek philosopher” includes an indication of Socrates’s belonging (“Socrates belongs to the group of Greek philosophers”). Nevertheless, the belonging proposition “Janet belongs to the population group of those whose blood type is AB-negative” probably does not contain meaningful information about Janet’s identity. 33

34

35 36

Logical identity, also termed identity in the strict sense and numerical identity, refers to a relation that is transitive (if a is identical to b, and b is identical to c, then a is identical to c), symmetrical (if a is identical to b, then b is identical to a), and reflexive (everything is identical to itself). Amélie Rorty (The Identities of Persons, 2) clarifies this point by distinguishing the problem of reidentification, or how one recognizes oneself as the same self in different contexts and different times, from the problem of identification. The latter is about the characteristics that identify someone as essentially the person she is; if these characteristics were changed, she would be a different person. See Shoemaker, “Identity and Identities.” In attempting to articulate a new ethics that transcends traditional concerns about subjectivity and ideology, Agamben introduces the concept of belonging without identity: “Because if instead of continuing to search for a proper identity in the already improper and senseless form of individuality, humans were to succeed in belonging to this impropriety as such, in making of the proper being – thus not an identity and an individual property but a singularity without identity, a common and absolutely exposed singularity . . . then they would for the first time enter into a community without presuppositions and without subjects” (Agamben, The Coming Community, 65). For further analysis of this direction, see Grossberg, “Identity and Cultural Studies.”

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The Anatomy of Belonging

The difference between belonging and identity thus reflects their different pragmatic meanings. We would argue that although both reflect relations, the difference between them lies in the meaning that is ascribed to these relations, and the interplay between them should be understood through the social interactions in which the meaning of these relations are perceived.

Meaning The first feature that distinguishes belonging from identity, we would argue, is that while both reflect existing relations between an individual and other individual or a group, only identity reflects relations that are meaningful. The concept of belonging may designate relations that are not meaningful or even known to anyone to any person, while the concept of identity is informative with regard to the meaning that is connoted by or associated with these relations. Thus a person might belong to the group of persons who have absolute pitch, but this fact may be unknown to that person and to others – the relation may exist independently of any consciousness, whether of the person in question or the others. Moreover, the interplay between belonging and identity includes the changeability or transitivity between them. A matter of belonging becomes a matter of identity once meaning is ascribed to this relation or once the relation is charged by meaning. Conversely as well, a matter of identity can become a matter of mere belonging if its meaning is ignored or eradicated. For example, if a person a has O-positive blood, that fact alone may be lack meaning and be a mere matter of belonging (a belongs to the group of persons who have O-positive blood). If, however, the fact that makes a a better blood donor who can potentially save many lives, this fact can be meaningful and hence matter to the identity of person a. Further, the ascription of meaning to a relation, which can make it either belonging or identity, is usually a matter of choice – typically the choice of the person whose belonging or identity is described. Thus being Jewish, Black, or American is commonly perceived as a matter of identity. Nevertheless, for some individuals who are considered Jewish, Black, or American, being born to Jewish parents, having African origins, or having American citizenship might seem a meaningless fact that informs their belonging but not their identity. Therefore, it is proposed that the distinction and the interplay between belonging and identity ought to be understood not according to the ontology or epistemology of the stated relations, but based on their pragmatics or the meaning that is ascribed to the relations.37 Identity denotes relations that are charged with meaning, while relations reflected by belonging may be

37

Paul Ricoeur (Oneself as Another, 31) suggests comprehending belonging and identity as different perspectives on the human being, as either a belonging object (“the person is one of the ‘thing’ about which we speak”) or an identified subject (“a speaking subject”).

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meaningless or even unknown. Such relations are consciousness-independent relations. The next stage is to ascertain the nature of meaning that differentiates belonging and identity, and how the ascription of meaning to belonging makes it a matter of identity. For this purpose, we will briefly analyze the conceptual sequence that connects belonging and identity as one composed of three elements or constituents.

Social Situation Following the observation that the distinction between belonging and identity depends on the meaningfulness of the given relation, the interplay between them can be understood through the mechanism that generates this meaning. This mechanism, I would argue, is the intersection of the three of our lived experiences as human beings: the objective–subjective–intersubjective interface. An existing relation between an individual and other individuals or groups has various aspects that can be respectively viewed from different perspectives – as an objective, consciousness-independent matter (“Socrates belongs to the group of Athenian philosophers”); as a subjective, selfperceptive matter (“Socrates considers himself a philosopher”); or as an intersubjective, socially recognized matter (“Socrates is recognized as a philosopher”). These three aspects not only are crucial for the human epistemological experience and the construction of selfhood, but also are the constituents of the interplay between belonging and identity. Consciousness-Independent Relations The above observation of meaning as the threshold between belonging and identity allows belonging to be portrayed also as a relation that exists irrespective of its proclamation and acknowledgment, as a consciousness-independent relation. Stated otherwise, one’s belonging is an objective relation that one has regardless of whether one is aware, whether one cares, and whether it has meaning. Such a relation can be a function of tangible markers (such as color, genes, and gender signs), standardized qualities (such as IQ, personal dispositions, and interests), or institutions (such as citizenship) that may be unknown and meaningless. Such objective belonging can be valid outside the social realm, or more precisely, it is excluded from social situation and social interaction. Thus identity is an objective relation that is introduced into the networks of meanings that is weaved in the social realm. As such, it is acknowledgeable and can be charged with meaning. Therefore, belonging as a consciousness-independent relation is a matter of identity only if it involves subjective and intersubjective perspectives of the human consciousness: personal perception and social recognition. Personal self-perception and others’ perception of the self are the contours and the poles of the discourse of identity, and interaction between them constitutes individuals’ identity and debates about identities. Identity, in

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contrast to belonging, includes an aspect of communication between the subjective and the intersubjective, between the individual’s self-identification and her identification by others.

Self-Perception and Perception of the Self In contrast to consciousness-independent relations, identity is a meaningful relation and a product of the communicative process, a dialogue between the identified individual and those who identify her. Identity is generated by a reflective acknowledgment by us and by those around us of what and who we are. A person who writes poems may be considered to belong to group of as poets. This is a necessary condition for her to be identified as a poet, but certainly not enough. To be identified as a poet, beyond the objective aspect, one needs to externalize her relation to other poets and to be acknowledged as such by herself and by others. Therefore, the first step toward identification as a poet is to suggest the association of the image of a poet with the person. The character of the interactive dialogue between the identified individual and the identifying others can follow various patterns. Subjective and intersubjective acknowledgment of a person’s identity can be simultaneous and accordant. The claim may first be made by the identified person and then approved or rejected by others. Finally, identity can be first applied, or imposed, by others and then accepted or rejected by the identified person. Thus identity is a social situation that results from reciprocal dialogical interaction between the identified subject and intersubjective others. It is an inherently social phenomenon. As a matter of meaning, identity cannot be a private matter, and obviously there can be no identity for the solipsist who has no correspondence with the minds and perceptions of others. The fact that identity is a social phenomenon and a product of the subjective–intersubjective dialogue can explain in what circumstances identity becomes a moral and political issue – namely, when some tension between the three aspects of identity is revealed. To clarify this point, I suggest a distinction between perfect and imperfect identities. Perfect and Imperfect Identities Identities are not always universally agreed or accepted. Disagreements over them are everywhere, on the personal as well as the collective level. Some identities are claimed but not recognized. Some are declined, contested, or struggled over. This being the case, we can draw a conceptual distinction between perfect identity and imperfect identity. We would consider a perfect identity to be one that fulfills two conditions: none of its three aspects – objective, subjective, intersubjective – is contested, and there is consistency between these three aspects. Imperfect identity pertains where there is a hard case of identity, where one or both conditions are not fulfilled – namely, that at

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least one aspect is contested or they are not consistent with each other. For example, convicted offenders generally do not perceive themselves as criminals, but they are recognized as such by most of those around them. Some political entities, such as states with limited recognition, perceive themselves as persons of international law, but they are not recognized as such by all UN member states. Imperfect identities of individuals and collectives usually are cases of debate and conflicting arguments. Let us look at some contemporary hard cases of identity and see how they illustrate the interplay between belonging and identity as the intersection of objective, subjective, and intersubjective.

Csanad Szegedi Csanad Szegedi is a Hungarian citizen who was a leading activist in the Hungarian radical nationalist party Jobbik.38 In 2006 Szegedi was appointed vice-president of Jobbik, and in 2007 he established its paramilitary wing, the Hungarian Guard, which later was outlawed.39 In 2009 Szegedi was appointed a representative of Jobbik in the European Parliament, where he proudly appeared in the Hungarian Guard uniform. In an unexpected turn of events, it was revealed in 2010 to the mutual shock of Szegedi and his fellow party members that both of his maternal grandparents were Jewish Holocaust survivors. For years, his grandmother had successfully hidden from her entire family the fact of her Jewish background, as well as her arm tattoo from Auschwitz. The revelation led to Szegedi’s departure from Jobbik and brought him to begin affiliating with Judaism and associating with the Jewish congregation in Budapest.40 Szegedi’s dramatic metamorphosis can by all means be depicted as an identity crisis or identity transformation. It can be narrated in various ways: in the style of a Greek tragedy where fate is imposed on a person against his will, awareness, and intentions; with reference to a revealed knowledge of belonging that turns the epos around through a catharsis followed by reconciliation with fate and unknown belonging; as a Jewish Hasidic tale of the inner Jewish self that was unsuccessfully denied, oppressed, and silenced; or as the 38

39

40

Jobbik was defined from the beginning as a “principled, conservative and radically patriotic Christian party” that aspired to protect the “Hungarian values and interests.” In 2010 it won one-third of the seats in the Hungarian parliament. Through the years, Jobbik has been condemned worldwide and described as anti-Semitic, neo-Nazi, and racist. Its redefinition in 2014 rejected these accusations and presented it as a nationalist, popular, and conservative party. The Hungarian Guard (Magyar Garda) was established as an act of protest and frustration at the Hungarian police, aiming to “strengthen national self-defense . . . and to maintain public order.” It was outlawed in 2009 by a court for attacking the “human right of the minorities guaranteed by the Hungarian Constitution.” His dramatic identity transformation was documented in the 2016 film Keep Quiet.

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resurgence of a Jewishness, a story of repentance and of an exiled soul that eventually returned home. Without excluding any of the above narratological possibilities, we can alternately describe Szegedi’s case in terms of interplay between belonging and identity. Szegedi’s initial identity as a genuine patriotic Hungarian Christian seemed to be a perfect identity until the revelation of his origins. This revelation generated a tension between aspects of his identity: his objective belonging to Judaism, or the Jewish people, was deeply inconsistent with his subjective self-identification and intersubjective social recognition as a Hungarian nationalist and patriotic Christian. His attempt to maintain his nationalist identity and to ignore his belonging was rejected by his fellow party members, and as a result he formally resigned from his political positions and adopted the new identity of a Jew. This saga and the ambiguity of the adjective Jewish in this story illustrate the asymmetry and irreducibility of belonging and identity. Szegedi’s Jewishness here appears in two different modes, corresponding to the two acts of this dramatic story. At first, prior to the revelation of his genetic origins, his Jewishness was a matter of objective belonging to the Jewish people. Following the disclosure of his Jewish ancestry, Szegedi’s Jewishness no longer was a consciousness-independent or meaningless matter. It was a fact that consciously reflected and meaningful, and hence a matter of identity. The revelation of Szegedi’s Jewishness complicated his seemingly perfect identity by exposing an incoherency between his belonging and his identity that was unbearable to him and his associates. The process in which Szegedi came to terms with his Jewish background can be described as a personal choice that he made to embrace his objective belonging and to proclaim it as his identity.

Oswald Rufeisen The case of Oswald Rufeisen, also known as Brother Daniel, was a milestone in Israeli constitutional law and Israeli legislative history. Rufeisen was born in 1922 to a Jewish family and raised as a Jew in prewar Poland. During World War II, he was imprisoned by the Nazi Gestapo but escaped in 1941 and became deeply involved in resistance activities, saving many fellow Jews from danger. In 1942 he chose to be baptized, and in 1945 he joined the Carmelite Order. In the aftermath of the war, through the 1950s, he applied for Israeli citizenship under Israel’s Law of Return, which bestows automatic Israeli citizenship on Jews who immigrate to Israel. His application was denied, and following an appeal to the Supreme Court of Israel, the decision of the government was upheld.41 Rufeisen’s claim was that since “he was born as a Jew, was raised as a Jew, suffered as a Jew and sees himself, from a nationalist 41

Rufeisen eventually gained Israeli citizenship through a difference process. He lived until his passing, in 1998, as an Israeli citizen in Haifa.

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perspective as a Jew,”42 and since according to Jewish legal principles he was considered a Jew, he ought to be considered a Jew for the purpose of the Law of Return.43 Rufeisen’s hard case of imperfect identity also illustrates the inner tension between the three above aspects of identity and the interplay between belonging and identity. None of the judges on the bench contested the objective aspect of Rufeisen’s Jewishness, as all agreed that according to Jewish law, he was considered a Jew.44 Likewise, his subjective identification was not questioned. The question was whether he ought to be identified as a Jew on the basis of these two aspects alone. The minority opinion in the court case, authored by Justice Haim Cohen, indeed argued that the subjective aspect should prevail and his Jewish identity duly recognized.45 The majority opinion, however, denied his Jewishness on the basis of his self-identification and objective belonging. The core argument against recognizing Rufeisen’s Jewishness was that historical and popular attitudes could not tolerate a combined identity of Jew and Christin, and that such hybridity invalidated the objective and subjective aspects of Jewish identity.46 The comparison between this and the previous case is striking. Both concern complex self-identities that are not in line with traditional attitudes; both illustrate the prevalence of intersubjective perceptions that eventually displace the subjective aspect. In both cases, Jewish identity and Christian identity are perceived as mutually exclusive. What follows is another hard case of imperfect identity where the subjective aspect was in tension with the intersubjective and brought into question whether objective belonging was relevant at all.

Rachel Dolezal Nkechi Amare Diallo, born Rachel Dolezal, is an American artist and civil rights activist with a case of personal identity that continues to be disputed. Despite being born to white parents and having no African ancestry, Dolezal 42

43

44 45

46

Quotations in this case are translated from High Court of Justice 72/62 Rufeisen v. Minister of Interior, Supreme Court Rulings 16(4), 2428 (1962). “My ethnic origin is and always will be Jewish. I have no other nationality. If I am not a Jew, what am I? I did not accept Christianity to leave my people. I added it to my Judaism. I feel as a Jew.” “A Jew, even if he has sinned, remains a Jew” (Babylonian Talmud, Sanhedrin, 44a). “In the absence of an objective test provided by the law itself, there is no alternative, in my opinion but to assume that the legislature’s intention was to content itself with the subjective test, that is to say, that the right of return to Israel belongs to any person who declares the he is a Jew returning to his homeland and wishes to settle there” (see the work of Cohen, Silberg, and Berinson). “In my opinion, sharp and clear – a Jew who has become a Christian is not deemed a ‘Jew’” (as noted by Silberg). “The people themselves, however, because of a well-developed sense of selfpreservation, have decided otherwise, have behaved differently throughout the centuries. For them, a Jew who has embraced another religion has withdrawn himself not only from the Jewish faith but also from the Jewish nation and has no place in the Jewish community” (as noted by Berinson).

19

The Anatomy of Belonging

perceived herself and proclaimed herself as a black woman. Following the disclosure of her white parents and her admission of the objective facts of her origins, she claimed that she disregarded her white origins and that her black identity was independent of these.47 The Dolezal case received immense media coverage, followed by a lawsuit and scholarly debates. In our terms, the imperfectness of Dolezal’s identity includes inconsistency and was contested over her self-perception.48 In contrast to the previous cases, in which the objective belongings of Szegedi and Rufeisen did not explicitly contradict their self-perceptions, here there was no attempt to blur the incongruity between being born white and self-perceiving as black. Defense and support for Dolezal’s black self-perception were based on the apparent sincerity of her feelings and the integrity of her behavior, backed by claims for the prevenience of self-perception over objective belonging. Other arguments for recognizing Dolezal’s black identity were based on claims for relinquishing objective belonging as a sine qua non of social identity or based on endorsing her identity as a result of a transformation from being a white person to being a black person. Dolezal’s case is another illustration of the practical gap between perfect and imperfect identity that sharply challenges the weight of objective belonging vis-à-vis self-perception.

*** The studies in this book focus on various usages, formations, and configurations of belonging and identity in three realms: the familial, the legal, and the political. First we will consider kinship, which has since ancient times been assumed to represent an elementary form of belonging that precedes social institutions and legal and political arrangements. This assumption is an indispensable backdrop to the history of ideas and conceptions of belonging in the Western tradition. At times, the assumption inspired the memetic development of artificial forms of belonging, while in other contexts it was challenged and encouraged the rise of replacements. The studies presented in the context of kinship address a variety of notions of belonging that underlie legal deliberations, through exegetical and jurisprudential discussions, about incest regulations. These studies concentrate on two main historical themes: the generation of individual belonging and kin belonging through corporal union, and the connection between conceptions of belonging and selfhood. The second part of this volume focuses on modes of belonging to law. The state of being affiliated with a legal system is described as being under that law, 47

48

“I acknowledge that I was biologically born white to white parents, but I identify as black” (Lara, “Rachel Dolezal”). Ann Morning argues in favor of broadening the scope of identity and suggests a kaleidoscopic model that portrays identity as territory containing a core and a periphery, in which individuals are situated. See Morning, “Kaleidoscope.”

20

Kinship, Law, and Politics

a constructed form of belonging that sometimes appears as an addendum or alternative to kin belonging. Our studies in this area will focus on two forms of belonging as being under the law: the jurisdictional sense of being under law, which refers to the manners by which a person is an addressee of the law and subject of the law, and the theological sense, in which being under the law is considered a religious creed and a marker of religious identity. The third part of the book traces the operation of the analogy between the family (as an institution that encompass elementary relations) and the political. This is therefore an argument about the capacity to imitate and replicate kin belonging to political belonging. The family–political analogy played a crucial role in the history of Western political thought and the various political orders and values that it shaped and justified. Our analysis focuses on several breaking points and watershed moments in the history of this analogy and suggests the awareness of its dissolution with the emergence of early modern liberal theories.

Part 1

Kinship

The emerging field of law and religion is an integrative extension of legal studies into another academic field. It encompasses the study of themes and topics that follow from the nexus of these two disciplines, yet also is about reconsidering traditional conceptions of and attitudes toward law and the character of law. The study of law and religion injects new blood into old inquiries; it invites a reevaluation of jurisprudential convention and hence demands refreshment of traditional conceptualizations of law. A deeper contemplation of the interconnection between law and religion revitalizes questions about the independence of the law as a normative realm, calling on us to reconsider how religious ideals function as sources for existing law and how theology informs legal diction and argumentation. Unlike the naïve traditional image of a legal source as an immanent determining factor, nowadays we tend to think about sources of law as falling into the categories of claims, arguments, and inspirational ideas.1 Thus religious concepts originating in scripture or myth that are recognized as vital sources of Western legal traditions ought to be an indispensable component of theoretical accounts of legal practices. The jurisprudence that emerges from the combined approach of law and religion is a combination of legal theory and the history of ideas. The following is an investigation into certain aspects of a causal relationship between theological ideas and legal norms. It explores the origins of several legal norms and institutionalized practices centered on the notion of corporal union as joining individuals who are consequently considered a single entity – “one flesh.”2 Corporal union was perceived in ancient thought not only as an expression of eroticism and love but also as an elementary performance of 1

2

From such a perspective, source is a misleading metaphor because it invites us to imagine immanency: Law is not something that “flows” from a “source”; rather, it is a form of language and argumentation that carries with it a certain amount of persuasiveness when one man or group of men is trying to get another man or group of men to behave in a certain manner. . . . Law does not “come from” a place. In a claim-oriented sense, one might say that a “source” of “law” is any argument used to claim that a given primary rule or norm is in fact a rule of law. Such arguments, when they become structured through countless repetitions, become “secondary rules.” (D’Amato, “Sources,” 264–265) Genesis 2:24.

22

Part 1 Kinship

belonging. This primordial perception, originating in the Old Testament and later embraced by the New Testament and subsequent ecclesiastical traditions, laid out and gave backing to a patriarchal, heterosexual, and monogamous model of kin ties, love, and sexuality. Further, it constituted various legal norms and patterns, which it subsequently maintained throughout the history of Western legal thought and practice. It hallowed the view of marriage as an irreversible and undivorceable tie,3 justified the criminalization of polygamy4 and of the marriage of a man to his deceased wife’s sister,5 and prevented married women from enjoying property rights.6 3

4

5

6

This view is typified by Mark (10:10): “What therefore God has joined together, let not man put asunder.” For an extensive survey and analysis of the role that the idea of one flesh played in premodern and secularized efforts to grapple with the legitimacy of polygamy, see Witte, “One Flesh.” Witte argued convincingly that Western antipolygamy sentiment was deeply grounded in nonChristian habits. The claim that husband and wife are one flesh was the backbone of opposition to the legalization of marriage with the sister of a deceased wife. See Nancy F. Anderson, “Incest Anxiety”; Gullette, “Deceased Wife’s Sister.” The concept of one flesh was legally interpreted as one legal persona. It was accordingly deduced that control, management, use, and possession of all the wife’s property ought to be in the husband’s hands. In the words of Henry Bretton (ca. 1210–ca. 1268), husband and wife “are quasi one person, for they are one flesh and blood” (De Legibus et Consuetudinibus Angliae, fol. 429b). See Combs, “Measure of Legal Independence”; English, “Married Women.”

1

Corporal Union as Performance of Belonging Sociologically, the biblical idea of one flesh encouraged incest regulations and nourished Western exogamous patterns of marrying outside of the community, clan, or tribe. These two social arrangements rest on the distinction between consanguinity and affinity and the acknowledgment expressed by this distinction that kinship arrangements can be not only posited and given, but also constructed, generated, and produced by human decisions, acts, and social institutions.7 The dichotomy of consanguinity and affinity seems intrinsically tied to exogamy. Yet exogamy was not always self-evident in ancient cultures; it was questioned or advocated on various grounds across the generations. Our interest is not in the arguments for and against it8 but rather in accounts of the precise principles and mechanisms that make the creation of new kin ties possible in the absence of consanguinity. Our inquiry, concerning Christian and Jewish perceptions of the human capacity to establish kinship by corporal union, is deeply anchored in hermeneutical reflections on biblical ideas about the nature of kinship. The keystone of these discussions is the biblical statement made in Genesis 2:24: “Therefore a man leaves his father and his mother and cleaves to his wife, and they9 become one flesh.” This verse was a fundamental referent and point of departure for contemplation and argumentation, so much so that the conceptualized accounts of the performative competence of corporal union take the form of exegetical discourses about the scriptural epigram and the nature of the outcome posited by the verse. The resulting theosophical conjectures about the meaning and ramifications of 7

8 9

Notwithstanding modern constructivist criticisms of the pervasiveness of traditional categories of kinship, the pivotal role of the distinction between consanguinity and affinity in the history of kinship in the West is undeniable. The mutual exclusivity of these categories was the bedrock of modern anthropological interest in kinship and taboos. In his critique of kinship studies (“Kinship”), David Schneider showed that the distinction between consanguinity and affinity is culturally constructed. See Mitterauer, “Christianity and Endogamy.” The word “two” is here inserted in the version of the Septuagint (καὶ ἔσονται οἱ δύο εἰς σάρκα μίαν), which unlike the Masoretic text emphasizes the transformation from two to one. The additional word appears in the Vulgate and Peshitta as well, the latter probably as a result of Christian influence, although the Samaritan Pentateuch also includes it. Daube (New Testament and Rabbinic Judaism, 81) demonstrated that the addendum is related to the Greek ideal of monogamy.

24

Kinship, Law, and Politics

corporal union and about the balance between human and divine agency in this regard gave rise to accounts that present different perceptions of the performative implications of sexuality, intimacy, attachment, and belonging. The view of corporal union as an event that performs belonging by transforming man and woman into one flesh has a central function in the conceptual scheme of several theological and theosophical systems built during late antiquity on Scripture, which survive in Gnostic texts, the writings of Philo, the New Testament, and Qumran literature, all of which provide an undeniable background to subsequent legal and theological trends in Christianity.10 Centuries later, toward the turn of the first millennium, the same concept was central to the Karaite11 legal doctrine known as the catenary theory of forbidden marriages.12 Notwithstanding different contexts and temporal distance, all of the provided texts evince similar concerns and intellectual grappling, which justifies a comparative study of them as three systematic readings of the biblical portrayal.13

“One Flesh” as Sacrament The sacramental reading, several versions of which appear in ancient religious literature, sees the above verse about corporal union as disclosing a nontrivial divine intention that otherwise would have been impossible to discover.14 10

11

12 13

14

The adoption of this view as the theological and legal basis of policy regulating affinal ties is crucial to medieval canon law and has deep theological roots. See Archibald, Incest, 9–52. For a general survey of Karaism, see Lasker et al., “Karaites.” The Karaites trace their origins to the partition of the Kingdom of Judah. Rabbanite sources, however, place the emergence of Karaism in the days of Anan ben David, in the eighth century. The Karaites did not appear as such until the ninth century; their precursors were known as Ananites – followers of Anan. Generally, the Karaites’ doctrine is characterized by independence and denial of the Talmudic tradition. On the term catenary theory, see n. 2 in the next chapter. The Karaites’ awareness of ecclesiastical accounts and the possibility that these accounts exercised an influence on them will not be discussed here. On the links noted by some leading scholars between Karaite thought and Christian theology, see Crone, “Iconoclasm”; Pines, “Jewish Christians.” Sacramentum has three meanings. The ancient sense probably was close to its meaning in the non-Christian Roman world, referring to soldiers’ oath of allegiance to the Caesar and their fellow soldiers. In patristic literature, throughout the ancient Latin translations, Paul’s description of the couple’s becoming one flesh as a profound mystery (μυστήριον μέγα; Eph. 5:32) is translated with sacramentum, denoting a hidden meaning, an embodiment of a divine intention, that is realized in earthly reality. Only later did the idea of holiness became a central component of sacramentum, alongside the performative dimension. Sacramentum thus signifies not only the deity’s intentions and plans, but also the capability to actualize potential divine holiness through religious institutions and rites. According to Thomas Aquinas’s definition (Summa Theologica 3.60.2, p. 848), sacramentum is “the sign of a sacred thing that makes men holy” (signum rei sacrae in quantum est sanctificans homines). In the early days of the Protestant Reformation, as part of the secularization of marriage and its redefinition as a social institution and legal status, the distinction between mystery, as secret, and sacrament, as divine plan or will, gained acceptance. See Foster, “‘Mysterium’ and ‘Sacramentum’”; Van Slyke, “Changing Meanings”; Witte, Law and Protestantism, 199–255.

25

Corporal Union as Performance of Belonging

According to this reading, the corporal union (unitas carnis) of man and woman is a primordial part of the divine intention. The sacramental reading is consistent with the ancient androgynous myth,15 in which the mutual connection of a couple is predestined so that their shared identity is not newly engendered but revealed through a carnal connection that reunites them as one flesh (una caro). The transformation into one flesh reflects a conscious transition along the axis of these identities, a Platonic realization in which the primordial unity of man and woman manifests. The discrete existence of the two individuals and their two different sets of parents are illusory, coincidental, and temporary. With their corporal union, their primeval unity becomes apparent as a certain, stable reality. One of the sacramental meanings of becoming one flesh appears in the New Testament in Jesus’s answer to the Pharisees’ question about the legitimacy of divorce. The prohibition of divorce, according to Jesus, stems from the conception of the single flesh as an indisputable divine work: “‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh.’ So they are no longer two [ὥστε οὐκέτι εἰσὶν] but one flesh. What therefore God has joined together, let not man put asunder.”16 This reading emphasizes the congruence of two opposing axes: a quantitative axis with values of one and two, and a theological axis of God and man. The union of man and woman is the work of God, and their separation is an act of human subversion of divine handiwork or a challenge to divine creation. Yet, notwithstanding Jesus’s contention that the union of man and woman is a favored outcome expressive of the divine will,17 whether the shared identity of one flesh reflects a primordial unity (as in the androgynous myth18) or a new corporal connection established between man and woman remains unclear. An additional set of images that stresses the sacramental meaning of “one flesh” draws a similarity between the union of man and woman and that of the community of believers with Jesus. The union of the latter pair as one flesh is described as a profound mystery19 and linked to the conception of the church, of which the faithful are part, as a component of the divine body itself. This parallel notably does not obscure the gendered hierarchy of the elements that coalesce into a unity, in which the head – Jesus, the male – remains uppermost.20 15

16 17

18 20

As in the Platonic myth of the androgyne (Symposium 190a–c), the marriage rite among Gnostic sects expressed the restoration of an androgynous union. The biblical description was considered to reflect the reunification of the primordial union of the couple, and the marriage rite was thus considered a mystery. See Robert M. Grant, “Mystery of Marriage”; Wayne, “Androgyne.” Mark 10:7–9. The Christian idea that the union of man and woman is directed by the divine will probably is based on the version of the Septuagint, in which the verb “cleaves” (προσκολληθήσεται) appears in the passive voice. 19 See Niederwimmer, Askese und Mysterium, 45–49. See n. 8. “Even so husbands should love their wives as their own bodies. He who loves his wife loves himself. For no man ever hates his own flesh, but nourishes and cherishes it, as Christ does the church, because we are members of his body. ‘For this reason a man shall leave his father and

26

Kinship, Law, and Politics

Within the sacramental reading of una caro, there are various and sometimes diametrically opposed trends. Alongside the reading that looks favorably on the union of man and woman, there are exegetical traditions that are critical of carnal union. According to these, the transition described in the verse – separation from parents, unification of flesh – is neither unidirectional nor irreversible. Separation from one’s parents is not imperative, and the corporal union of man and woman constitutes not a crowning point of mutual completion but simply another stage in the spiritual journey of the soul. In this view, becoming one flesh is not the divine objective but a low point from which to flee. Such critical readings are most common in exegeses loyal to the Platonic theory of the soul. From this perspective, separation from parents and corporal union are viewed as tribulations that the soul undergoes due to becoming separated from its source in the heavenly sphere and existing in earthly reality. For instance, Philo allegorically interprets the transition described in the verse as a process of deteriorating to a depth where the man, representing reason (νους), forsakes the dispassion of his divine source – God himself, the father of all things (τον πατέρα τών Ολων), and his divine wisdom (σοφίαν τοϋ θεοϋ), the mother of all existence (τήν μητέρα τών συμπάντων) – and is drawn toward the woman, representing sensuality (αίσθήσεως), to the point of becoming one flesh (μία σαρξ) with her.21 In the spirit of Platonic dualism, this interpretation calls for severing reason from deceptive sensory reality and returning it to the bosom of its parents: the divine origins of all existence. It challenges the idea of unidirectional passage from parents to wife, calling upon man to strive to restore the primordial union between offspring and progenitors. Other such appeals, notably in Platonic theologies, incorporate a restorative element within human genealogy and call for extending the scriptural description into a complete cycle at whose conclusion renewed union is achieved with the progenitors in circumstances identical to those of old.22 Another critical allegorical appeal may be identified in The Exegesis on the Soul, a Gnostic work in which the soul, once androgynously united with its brother, departs the home of their father, assumes a material form, and falls into the earthly existence of the sensory world. The journeys of the soul, its fall, and its redemption are described in terms of alternately indecent and proper sexual behaviors. While yet in terrestrial existence, it acts like a restive prostitute who sleeps, unwillingly or consensually, with numerous men, and

21 22

mother and be joined to his wife, and the two shall become one flesh.’ This mystery is a profound one, and I am saying that it refers to Christ and the church; however, let each one of you love his wife as himself, and let the wife see that she respects her husband” (Eph. 5:28–33). See also n. 43. The Allegories of the Laws 2.14 (pp. 255–257). For further discussion of the descent of the soul (descensus animae) as a problem in Platonic systems, see Dillon, “Descent.”

27

Corporal Union as Performance of Belonging

consequently bears deformed offspring. Its life as a prostitute abounds with frustration and a sense of perpetual discord. Only once the soul has repented and returned to its father does it change in behavior, return to its original form, and prepare for reunification with its original and ordained mate, the brother from whom it split apart and separated upon its fall to earthly existence.23 The dramatic tribulations endured by the soul are portrayed through a comparison of its abortive associations in terrestrial existence with its fraternal reunification on the celestial plane: For since that marriage is not like the carnal marriage, those who are to have intercourse with one another will be satisfied with that intercourse. And as if it were a burden, they leave behind them the annoyance of physical desire and they turn their faces from each other. . . . But once they unite with one another, they become a single life. Wherefore the prophet said concerning the first man and the first woman, “They will become one flesh.” For they were originally joined one to another when they were with the father. . . . This marriage has brought them back together again and the soul has been joined to her true love, her real master, as it is written: “For the master of the woman is her husband.”24

Unlike the appeals discussed previously, the distinction here between the fleshly and spiritual union of the soul wrests the scriptural description, and even the concept of one flesh, away from its straightforward meaning. Later incarnations of this Gnostic paradigm likely would shed light on notable theosophical developments over the course of the years. For the present purpose, however, what is important is the precedent of the association of corporal union with fraternity. This point, as we will see, gains significance in later normative outgrowths of the biblical reference to one flesh. The understanding of one flesh as reflecting a preordained fact simultaneously weakens the significance of the act of physical contact that comprises the fleshly union and imposes restrictions on alternative and additional physical unions to that within marriage. This difference is readily evident from a comparison of the sacramental reading to its alternative.

“One Flesh” as Transubstantiation Whereas the sacramental approach underscores an established and inflexible pattern, the transsubstantive approach also stresses the arbitrary aspect of the scriptural verbiage about becoming one flesh, thus significantly reducing the extent and weight of the divine intention as envisioned by the sacramental approach and placing the emphasis on the physical union. The order of the 23

24

The fall of the soul probably results from its abandoning the father’s household and violating the androgynous existence with the brother. See William C. Robinson, “Exegesis on the Soul,” 104. James M. Robinson, “Exegesis on the Soul,” 195. The final quotation may be taken as a loose paraphrase of Genesis 3:16.

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elements in the causal process of physical union differs from one reading to the next. While the sacramental reading posits that the pronouncement that “a man leaves his father and his mother and cleaves to his wife” is the reason for the corporal union of man and woman, the transsubstantive reading views sexual contact – the fleshly union – as a cause whose consequences manifest in a broad range of areas. The distinction between the two readings is put into sharp relief by Paul, who argues that the special status of one flesh is an express consequence of corporal union, and not necessarily a manifestation of predestinated unity. The metaphysical unity of one flesh thus stems from the physical union, produced by the act of human congress, and is not externally imposed upon humanity by heavenly decree. Any corporal union, even casual sexual contact, generates the unity of one flesh. In the words of Paul: “Do you not know that he who joins himself [κολλώμενος] to a prostitute [πόρνῃ]25 becomes one body with her? For, as it is written, ‘The two shall become one flesh.’”26 The discrepancy between the reading of “one flesh” as sacrament and as denoting a change in identity discloses competing trends in the jurisprudential logic of sacred law. An understanding of the scriptural verse as describing a change in identity resulting from corporal union has antinomian potential that weakens the conception of marriage as a legal institution.27 Over the years, ecclesiastical tradition came to prefer the transsubstantive sense. According to the analysis of Georges Duby, the transition from the sacramental to the transsubstantive reading is evident from the early ninth century.28 Familial ties were considered to stem from corporal union, products of straightforward sexual relations, and not an externally imposed paradigm. The Decretum Gratiani, written in the mid-twelfth century, expressly notes the prevenience of the transsubstantive approach. It states that marriage does not 25

26

27

28

Following Martin, Hayes sees here an expression of Paul’s exclusivist ideology. Thus πόρνῃ metaphorically signifies the other – namely, one who is not a Christian believer and defiles the believer by contact. See Martin, The Corinthian Body, 174–178; Hayes, Intermarriage and Conversion, 92–93. Koltun-Fromm explains this term as referring to a woman who is prohibited to her husband, so that their carnal union is contagious with regard to the prohibition. See Koltun-Fromm, Hermeneutics of Holiness, 77–96. 1 Cor. 6:16. The analogy between sexual union and unification with the deity appears in the same context, creating a contrast between unification with the harlot and with God: “But he who is united to the Lord becomes one spirit with him” (v. 17). See Boyarin, Radical Jew, 170–172. Perhaps for this reason, the Rabbis disapproved the essentialist reading of the verse and preferred a legalistic reading that applied to all human beings: “Rabbi Yonah in the name of Rabbi Shmuel said: If a harlot was standing in the marketplace, and two men had intercourse with her, the first is not culpable while the second is, because she is considered a married woman. . . . Hence this proves that cohabitation in the case of gentiles (Noachides) creates marriage, though it is not in accordance with the law” (Genesis Rabbah 18, in Freedman, Genesis, 1:144–145). This homily differentiates between matrimonial relations resulting from legal means and from sexual intercourse. On the variety of legal attitudes toward incest and divorce regulation in the Qumran literature and the ancient halakhah (Jewish law), see Shemesh, “Laws of Incest”; Vered, “Divorce in Qumran.” See Duby, Modern Marriage, 23–53.

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Corporal Union as Performance of Belonging

create a familial relationship between spouses in the absence of sexual contact,29 as well as that religious conversion does not constitute grounds for annulment of a marriage.30 Notwithstanding their differences, both readings represent an essentialist view of corporal union. The description of becoming one flesh encompasses the distinction between the identity of the individuals as discrete entities and their shared identity. An essentialist view of the notion of one flesh demolishes the visible borders of the individual31 and recognizes the possibility of a personal identity that exceeds the bounds of one person’s body. Such an approach challenges the separateness of the individuals32 and deepens the connection between body and selfness against the backdrop of ecclesiastical imposition of monogamy, prohibition of divorce, and condemnation of sexual contact outside wedlock.

Rabbinic Anti-essentialism Given the centrality of the essentialist understanding of the term one flesh and the rich exegetical discourse on the verse in religious literature of antiquity, the verse’s meager treatment in Rabbinic literature is perplexing.33 Although in Talmudic literature the idea of the deep association between man and wife is 29

30

31

32

33

Commenting on the account of one flesh in Genesis: “These words show that a man and woman cannot become one flesh (unam carnem) unless they join together in carnal union (carnali copula). It is inconceivable for us that a man, who never had intercourse with woman in nuptial union, could become one flesh with her through the mere words of betrothal (nuda sponsionis uerba). Blood relationship is stated by words (propinquitas enim sanguini), but not made by words. Nor does a kiss create the relationship, because it involves no mixing of blood (sanguinis conmixtionem)” (Gratian, Decretum 2.27.2.18). “Some say that marriages should be dissolved for the sake of religion. One should recognize that, although human law (lex humana) permits this, divine law (lex divina) prohibits it. . . . We know that it is written, ‘The two shall be one flesh.’ If husband and wife are one flesh, and the husband dismisses his wife for the sake of religion, or the wife dismisses the husband, yet one spouse remains in the world, or perhaps wanders off into illicit activities, what kind of oblation is this? One and the same flesh will be partly continent and partly polluted” (Gratian, Decretum 2.27.2.19). The modern meaning of individual as a separate and unique thing stands in opposition to its medieval sense of inseparability from and necessary association with the environment (individere). The transition from the inseparable meaning to the later one, paralleling the separation of the human being from its surrounding world, is related to scientific, social, and religious developments through the seventeenth century. See Raymond Williams, Keywords, 161–163; Bordo, Cartesianism and Culture, 59–96. The key question here is to what extent corporal union fuses the identities of man and woman. A radical answer is found in the early Gnostic Christian context, where corporal union is depicted as a messianic climax in which gender differences fade and different identities unite: “Jesus said to them, ‘When you make the two one, and when you make the inside like the outside, and the outside like the inside, and the above like the below, in order that you make the male and the female one and the same, so that the male be not male nor the female female . . . then will you enter the [kingdom]’” (Gathercole, Gospel of Thomas, 307–308, quoting Thomas 22:4–7). For a contrast of Rabbinic readings with those of Philo and the Epistle to the Ephesians, see Sampley, “One Flesh,” 54–56.

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given a number of expressions,34 the Rabbis tended to ignore the possibility of an essentialist reading. For instance, the homily on the verse voiced by Rabbi ‘Aḳiva says nothing at all about the meaning of the union of flesh, but instead derives from each element of the text a limitation on sexual associations that is described elsewhere in Scripture: “His father” means his father’s wife. “His mother” is meant literally. “Cleaves,” and not to a male. “To his wife,” and not to his neighbor’s wife. “They become one flesh,” applying to those that can become one flesh, thus excluding cattle and beasts, which cannot become one flesh with man.35

The verse, as interpreted by this homily, does not focus on a process that touches on the identity of the individuals it names. The event of corporal union that it describes thus is not ascribed significance. Since the verse discusses corporal union, the exegete sees fit to link its content to a discussion of forbidden sexual relationships. Man – the subject of the verse – may not engage in sexual relations with his father’s wife, his mother, another male, a married woman, or an animal. The sole topic of the verse, read thus, is legitimate patterns of sexual association. The components of a man’s identity are his sex and the fact of his being a relative; his identity, so defined, is fixed and unchanging. Rabbi ‘Aḳiva attributes no content or meaning to the corporal union of man and woman. It is difficult to rule out the likelihood that the preponderant approach to the verse in Rabbinic literature expresses an anti-essentialist position on the meaning of becoming one flesh, and perhaps an objection to the theological approach of Gnostic and Christian circles.36 The essentialist understanding of fleshly union is very much central across the generations of Christian tradition, from which it made its way during the Middle Ages to all Western civilization, where conceptions of marriage and incest that they shaped continue to hover in the background even in post-Christian societies. In Rabbi ‘Aḳiva’s homily, the verse in Genesis is interpreted according to a list of forbidden relationships found in Leviticus. A converse exegetical model, in which the forbidden relationships are understood in light of the principle of one flesh, is prevalent in the exegetical approach of the catenary theorists and in church tradition, in both of which the corporal union is viewed as the crux of the concept of kinship. The array of forbidden relatives is 34

35

36

For Talmudic expressions such as “his wife is as his own body,” see in the Babylonian Talmud Berakhot, 24a; Ketubbot, 65b; Bekhorot, 35b; Yevamot, 62b. Babylonian Talmud, Sanhedrin, 58a. Maimonides (Mishneh Torah, Kings 9:5) augments Rabbi ‘Aḳiva’s statement with Gen. 20:12 and infers from both six individuals with whom a male may not engage in sexual relations: his mother, his father’s wife, a married woman, his half-sister from his mother, another male, and an animal. Presumably this is the background of the approach, taken by the Ananites and by the Palestinian Talmud, that the expression “one flesh” denotes not corporal union but offspring. On the reading of the Palestinian Talmud, see n. 17. On the polemical aspect of the question of marrying two sisters, see Yaron, “Duabus sororibus coniunctio.”

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interpreted according to the principle of becoming a single flesh, which not only has the sense of the union of man and woman, but also indicates the merger of the kin of both as a single set. The prohibition against marrying two sisters is locus classicus of the essentialist reading. Christian theologian Basil of Caesarea (329–379) opines that the reason for this prohibition is the principle of one flesh, which he interprets as a link forming a mutual connection between the relatives on both sides: The words “None of you shall approach to any one that is near of kin to him, to uncover their nakedness,”37 embrace also this special affinity, for what could be more akin to a man than his own wife, or rather than his own flesh? For they are no more two but one flesh (non enim amplius duae sunt, sed una caro). So, through the wife, the sister’s affinity transits (itaque per uxorem soror ad viri affinitatem transit). For as he shall not take his wife’s mother, nor yet his wife’s daughter, because he may not take his own mother nor his own daughter, so he may not take his wife’s sister, because he may not take his own sister. And, on the other hand, it will not be lawful for the wife to be joined with the husband’s kin, for the rights of relationship hold good on both sides.38

Basil here gives expression to the legal approach that dominated canon law in this area from the fourth century.39 Fleshly union, according to this approach, not only alters the identity of the individuals but also forges new kin relationships for each spouse. Contrary to the consequentialist explanations of the prohibition on relations with relatives, including with women who are sisters,40 Basil gives as the reason that a man who marries a woman, thus becoming one flesh with her, concurrently becomes the brother of his wife’s sister, and she thus becomes forbidden to him under the basic prohibition against marriage of brother and sister. The same logic lies behind the prohibition of relations between a man and his mother-in-law or his wife’s daughter: 37 38

39

40

Leviticus 18:6. The full text appears in Migne, Patrologia Graeca 32.627 (Epistle 160), and in Vööbus, Synodicon, 178–182. Following the Christianization of the Roman Empire, the prohibition to marry two sisters, even subsequent to divorce or the death of one, became prevalent. Canon 61 of the Synod of Elvira (De his qui duabus sororibus copulantur) prohibits marrying a sister of a deceased wife. In 315, at the Council of Neocaesarea, a woman who married two brothers was excommunicated till death, except in case of sickness. An edict passed by Constantius and Constans in 355 adopted the ecclesiastical law and forbade marrying two sisters, despite the fact that existing Roman law permitted such marriages. A 415 edict of Honorius and Theodosius II deemed marriage to two sisters incestuous; see Codex Theodosianus 3.12.2, 4. Secularized legal systems struggled with this prohibition through the nineteenth century; see Pusey, Deceased Wife’s Sister; Paton, Deceased Brother’s Wife. Consequentialist reasoning for the prohibition to marry two sisters may be implicit in Leviticus 18:18. More explicit is the case of Hittite law, which forbade relations with two sisters, or a mother and her daughter, only within a single residence. The first reason that Philo (On the Special Laws 3.4.25) gives for forbidding marriage with two siblings is the fear of abuse and coercive relations within the domicile. Such reasoning was widespread in medieval halakhic thought; see, for instance, The Book of Education [Sefer ha-Ḥinnukh] (edited by H. D. Chavel [Jerusalem, 1960]), M. 206 (pp. 281–283).

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because the personal identities of man and woman become amalgamated, the kin of the woman – her sister, her mother, her daughter – become kin of the man and are considered his sister, his mother, his daughter. As in the words of Basil, corporal union was perceived as not only the performance of belonging between the two uniting individuals, but also a performance of belonging between the groups to which these individuals previously had belonged – their consanguineal kin. Carnal union accordingly has a double legal import. First, it erases the separate personalities of man and woman, who now are seen both metaphysically and legally as two parts of a single personality. Second, the principle of becoming one flesh serves as the basis of the organizational logic of the structure of kinship.

“One Flesh” as One Self This multifaceted view of corporal union designates the performance of belonging on two levels: performance of individual belonging between the congressing individuals and performance of kin belonging between the already existing kinship groups of the congressing individuals. While the previous readings of one flesh focused on the corporal union as an elementary launch of individual belonging, corporal union is in this view considered a repeated mechanism that preforms kin belonging between already standing of belongings. This multilayered reading is at the core of the discursive literature of the Karaite catenary theory, which will be presented in detail in the following chapter. However, in contrast to the above understanding of corporal union as predestination or transubstantiation, the catenary theory introduced a new meaning to the idea of one flesh. Instead of stressing the corporal sameness of the congressing individuals, the advocates of the theory introduced an abstract concept of sameness based on the notion of self.41 Generally speaking, the catenary reading of the biblical idea of one flesh introduced the idea of one self, or in the term of those theorists, “one soul” (nefesh aḥat). This concept was based on two principles: the idea of shared selfness and the idea of the extension of selfness.

Shared Selfness The first of these principles reads the biblical principle of one flesh as denoting not a tangible sameness of two joining individuals, but a spiritual sameness reflected by the concept of selfness. This abstract yet essentialized reading of the idea of one flesh gives a different meaning to the belonging that is 41

For an explanation of this concept in the catenary theory, see the section “The Catenary Theory” in the following chapter.

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Corporal Union as Performance of Belonging

performed by corporal union – a meaning focused on the individuals’ self and identity. Drawing upon the above, we can identify the fundamental difference between the catenary reading and the readings that dominated the ecclesiastical tradition. In the ecclesiastical tradition, one flesh, as an outcome of carnal union, is a concrete corporal trait. In the view of the church, marriage is a concrete, insoluble union, and kinship resulting from marriage is a concrete consanguineal connection. Meanwhile, proponents of the catenary theory viewed the shared selfness of a single flesh as an abstract trait.42 This difference in perceptions between the two traditions may be explained by Patricia Cox Miller’s premise of the material turn, which consisted of deep changes to ancient Christianity’s view of the tangible reality of the material world in general and the human body in particular. According to Miller, a major cause of this transformation was the legalization of Christianity in the fourth century, following which that religion developed a more sympathetic view of the material world, which came to be perceived not as antagonistic to Christian existence, but as an intermediary of divine holiness. Miller’s analysis demonstrates the epistemological consequences of political changes that affected the status of Christianity and the manner in which these changes fashioned a new, positive relationship between materiality and meaning. In the wake of these fluctuations, the human body was viewed in Christianity as a religious fact with significance, even as the very locus of religious epistemology.43 The adherents of the catenary theory, however, ascribed no special significance to the physical dimension of the marital bond or kinship writ large. Their view is based on a pragmatics where kinship is formulated in abstract terms of shared selfness. Instead of characterizing belonging as a common corporal trait, or shared flesh, the catenary theory sees it as an abstract trait of shared selfness, or a single soul. The difference between the various interpretations of “one flesh” may be conceptually characterized as arising from the two disparate meanings of the act of union: the church’s preferred sense of union as metamorphosis, and the Karaite preference of union as hybridity. In the view of the church, union is a drastic and absolute transformation that leaves behind no remnant of the independent individuals that preceded the union, an unchangeable union dictating an exclusivity that keeps the unified individuals forever merged and unable to become one with others. Thus for the church, union is an unchangeable connection that leaves no place for human volition or choice. The Karaite sense of union, meanwhile, is a far more dynamic and fluid one under which 42

43

The corporal understanding of kinship, no doubt linked to the prevalent image of the church as the body of Jesus (see, e.g., Rom. 5:12; 1 Cor. 10:17; 12:27; Eph. 4:12; 5:23), is faithfully reflected in family trees in medieval canonical legal literature, where the entire family is depicted as a human body. See Miller, Corporeal Imagination.

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both mandated and volitional changes are possible. What is more, in the Karaite model, even the scope of the union may change, expand, and come to include many more individuals by dint of amalgamation.44 In both traditions, the distinction between consanguineal and affinal kinship is blurred by the spouses’ becoming one flesh, but not in identical ways. In the tradition of the church, marriage establishes an absolute union that unites both the spouses and their families through an expanded consanguinity. The catenary theory, however, equates consanguinity and affinity, in the sense that both bestow shared selfness upon individuals. Thus Leṿi ben Yefet, a prominent advocate of the catenary theory in the former half of the eleventh century,45 equates the shared selfness of one flesh, which results from marriage, with the shared selfness of siblings, and in doing so blurs the fundamental difference between the two: Know that [the scriptural terms] “kin” and “flesh” have the same meaning . . . and Scripture used these terms metaphorically [to denote] relatives because they share a source, or [because they] express love and compassion, as Laban said, “you are my bone and my flesh.”46 . . . The view of those who say that [the scriptural term] “his flesh” [denotes] his wife and “his kin” [denotes] his wife’s relatives is far-fetched.47

Leṿi views the two concepts – kin and flesh – as metaphors that equally denote human belonging and familial ties, because the concepts share a common source and express bonds that develop through an emotional process.48 Even in the description of Leṿi’s student Yeshu‘ah ben Yehudah, who opposed the catenary position, the theory is portrayed as clouding the distinction between consanguinity and affinity because both express shared selfness: “They say that Scripture designated the daughter of my father’s wife as my sister only to clarify that her mother and father are as one soul or as two siblings.”49 The line between categories of relatives is further blurred by another demonstration of kinship as shared selfness. In contrast to Basil, Leṿi opines that the prohibition against marrying one’s wife’s sister is not limited to a biological sister but encompasses others considered to have the status of a sister, whether metaphorically or by convention: We have learned from the preceding men that all the mentioned relatives are forbidden in life and after death, because [Scripture] equated one’s wife to him 44

45 47

48

49

Unlike the ecclesiastical position that the principle of one flesh requires monogamy and bars divorce, Karaite legal literature does not clearly insist on monogamy. However, there is evidence from the eleventh century that Karaites avoided polygamous marriages; see Midrash Leḳaḥ Tov, Deuteronomy (Vilna, 1880), p. 70. 46 On Leṿi ben Yefet, see n. 21 in the next chapter. Genesis 29:14. Leṿi ben Yefet, Sefer ha-Mitsṿot, 164a–b (MS Bodleian, Ox. Reggio 5), 263b (MS Leiden, Or. 4760). Excerpts throughout this volume are based on these two Hebrew translations; see n. 33. Laban’s statement indicates Jacob’s affinity through his mother, Rebecca, who is Laban’s sister. In other contexts, the expression “bone and flesh” refers to tribal fraternity (2 Sam. 19:13–4) or the link between husband and wife (Gen. 2:23). Yeshu‘ah ben Yehudah, Sefer ha-Yashar, 77.

35

Corporal Union as Performance of Belonging himself in that all those who are forbidden to him are forbidden on his wife’s side as well. Thus since his sister is by any means forbidden to him, so his wife’s sister is forbidden to him, whether she is a real [sister] or a stepsister. Moreover, even according to those who said that “a milk sister is a sister,”50 she also is forbidden to him, for if his milk sister is forbidden to him, so is his wife’s milk sister forbidden to him. [Nonetheless] it is more likely that a milk sister is not included under incest prohibitions.51

An Extended Self While the scriptural portrayal of union – of a man cleaving to his wife – is understood in church tradition as denoting unifying contagion effected by unifying contact between man and woman, in the catenary theory it is depicted as conductive union characterized by disseminative contagion.52 Unlike the physical understanding of the church, the catenary theorists do not circumscribe the possibility of divorce, remarriage, or polygamy.53 In his criticism of the catenary theorists, Aharon of Nicomedia (1300–1369) describes their interpretation of the scriptural verse as meaning that physical congress creates disseminative contagion whereby shared selfness spreads and creates kinship between unrelated individuals: The manner of catenation that they described is: if a man marries a woman, he and she become one soul. So too if that woman marries another man, he and she become one soul. Hence because they shared the same wife, both husbands are one soul. Their proof text is: “Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh.”54 50

51 52

53

Here is evidence that the Karaites embraced a conception of milk kinship. On milk kinship in general, see MacClancy, “Milk Tie.” Leṿi ben Yefet, Sefer ha-Mitsṿot, 169b (MS Bodleian), 273a (MS Leiden). A semantic link between unifying contact and conductive union is implied in the Bible (Deut. 28:21) but particularly notable in Latin, where both contact and contagio derive from contingere. The view of marital union as a vehicle that spreads kinship appears in Philo’s explanation of why incest is forbidden: “Why should one be willing to limit the associations and connections with other men, and to confine a most honorable thing within the narrow space of the walls of a single house, which ought rather to be extended and diffused over all continents, and islands, and the whole inhabited world? For the intermarriages with strangers produce new relationships, which are in no respect inferior to those which proceed from ties of blood” (On the Special Laws 3.4.25). Augustine gives the similar exogamous logic that sexual intercourse is the “seedbed of political life” (seminarium est ciuitatis); see De Civitate Dei 15.16. On similar reasoning prior to Augustine and its reception in medieval literature, see Rolker, “Models of Incest.” Such a rationale appears in Augustinian terms in medieval Provençal Jewish thought – for example, thirteenth-century philosopher Rabbi Leṿi ben Avraham (Livyat Ḥen, 113): “another reason for the prohibition of marrying relatives is that mankind can be improved only by political unions, and a [political] union will be completed only by love, and love will be completed through [general] spirit, brotherhood, and affinity much more than personal affinity of a few persons.” See n. 39 above. 54 Aharon ben Eliyyahu Nikomodio, Gan Eden, 130a.

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The catenary theorists opine that shared selfness established through marriage does not come to an end with the termination of the marital bond, is not limited to the individuals who were parties to the act of contact, and is not subject to any variation based on a person’s sex. Selfness transmitted through conductive contact can come to apply to wholly unrelated men if they come into sexual contact with the same woman, because in doing so, they form with her the shared selfness of a single soul. Physical union in the catenary theory is not a state of unification as a single body, but a process of attachment that extends and disseminates selfness. The idea of attachment as disseminative contagion should be viewed against the backdrop of the sacred contagion model, which Mary Douglas uses to explain many aspects of the scriptural worldview.55 Her analysis of the metaphysics of scriptural concepts of impurity discloses the importance of contagion as a causative factor explaining how traits or things pass among places or people. The notion of sacred contagion also fulfills certain social functions, serving as a theoretical catalyst for the imposition of order and responsibility on society, inasmuch as the spread of traits is a result of human action or omission, and thus permits those responsible to be identified. Yet the idea of contagion, Douglas argues, also serves the more important purpose of defining identity. Similarly here, contagious selfness appears to serve a social function of the first order by acting as a means of identifying the other, and as a theory with which to demarcate the border between us and them.56 The concept of contagious selfness is consistent with – but not dependent upon – that of kinship as shared selfness. Contagious selfness may manifest in relation to contagio carnalis, a physical model of kinship prevalent in church tradition.57 However, Leṿi ben Yefet’s comments identifying and contemplating the far-reaching ramifications of this concept are instructive with regard to the marginal or secondary significance of the view of kinship as shared selfness: “This case concerns the wives of [different] men. [If] a woman is married to Reuben and he divorces her and she marries Simon, do Reuben and Simon become one flesh or not? So too if a man has a wife and dies and his wife marries another man.”58

55 56

57

58

See Douglas, “Sacred Contagion.” On the usage of sexuality as a means of shaping an identity distinct from the other, see Knust, Abandoned to Lust. In early medieval Christian contexts, this metaphor was used to denounce extramarital sexual relations. Prostitution thus is not only a private wrong, but also an environmental hazard. The catenary theory neutralizes the negative meaning and the epidemic image of contagious selfness. On the Christian context of the metaphor, see Fowler, “Outlawing Affineal Incest,” 112–113; Shell, “Incest.” Leṿi ben Yefet, Sefer ha-Mitsṿot, 169a (MS Bodleian), 271b (MS Leiden). In some critical descriptions, the principle of contagion is presented as unanimous among the catenary theorists. Rabbi Eliyyahu Bashyazi (1420–1490), for example, describes the catenary notion of contagious selfness as extending to include four persons; see Eliyyahu Bashyazi, Adderet Eliyyahu, 282.

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Corporal Union as Performance of Belonging

Conclusion The above survey of the systematic readings of the biblical idea of one self suggests that corporal union be viewed as a performance of belonging. Our analysis traces three distinct accounts of the nature of the belonging that is performed by the corporal union. Late ancient accounts absorbed and further developed by the church and canon law located the answers to this question in the metaphysical realm, understanding corporal union as either realizing a predestinated form of belonging (unification as sacrament) or an act that transforms the individual’s entity and generates a new identity (unification as transubstantiation). These two accounts differ with regard to the performative aspect of the human union. According to the sacramental account, even affinal belonging is given, and only revealed by corporal union. Thus while the first account minimizes the human ability to effect belonging (“What therefore God has joined together, let not man put asunder”), the second acknowledges the theurgic power of the corporal union to alter the substance of the members of the couple. Unlike these accounts, the Karaite catenary account passes over metaphysics in favor of interpersonal experience and social identity. Belonging here is essentially about sharing an aspect of human existence – one’s selfness – and shared selfness can be a given matter (consanguineal kinship) or a result of interpersonal attachment (affinal kingship).59 Finally, our analysis indicates the possibility of a relationship between Karaite law and conceptions characteristic of the ecclesiastical legal tradition that preceded the East–West Schism and indeed bridges that fissure. Despite the differences between the various approaches, their common resort to the principle of one flesh as the basis for establishing the meaning of kinship justifies a reevaluation of interactions between legal and exegetical traditions and theological legal thought during the Middle Ages. In the next chapter we will outline two further transitions in the conceptual history of belonging: the evolution of the discourse from individual belonging to kin belonging and the transition from essentialist to structuralist perception of kin belonging.

59

The Karaite theory of kinship has been analyzed here based on evidence from surviving legal literature. A comprehensive study remains to be performed with attention to exegetical literature and Karaite scriptural commentaries, as the catenary reform is known to have been driven and justified by hermeneutical considerations. On the theological and logistical background of the reform, see Schwarb, “God’s Speech.” See also Polliack, “Translating Biblical Narrative”; Sasson, “Gender Equality.”

2

The Making of Kin Belonging What establishes a familial relationship between two individuals? What role do consanguinity and affinity play in defining a familial relationship? The answers to these questions lie in the concept of kinship. It is kinship that establishes our social and legal status as persons and defines the relationships among us. The concept of kinship gives meaning to relatedness and belonging, serving as a system of symbols that allows us to cope with mortality and temporal existence. Efforts to identify the foundations of social existence have placed the question of the essence of kinship at the center of anthropological, psychological, sociological, and philosophical studies for more than 150 years. The common point of departure in these disciplines is the recognition that kinship can be a helpful reference point for evaluating various types of partnership, communal life, solidarity, and other social relations. Traditionally, kinship was conceptualized based on observation of foreign, primitive, and non-Western forms of life and theoretical analyses of personal or social mentality. In recent decades, under the influence of critical methodologies and paradigm shifts, theological and legal traditions have been introduced as additional sources of information about the essence of kinship.1 In the following analysis, we will trace the development of conceptions of kinship through an analysis of various discussions of prohibitions of close kin marriages in medieval Karaite law, based on which we will seek to trace the development of Karaite thought concerning the theological and legal meaning of the marital bond. More concretely, we will deliberate on the transformations wrought by marriage and the familial outcomes of the marital bond. Our discussion will revolve around the concepts of kinship that informed tenth-century Karaite law and the legal reform that later did away with the catenary theory of forbidden marriages. The theory, which was embraced between the late ninth and eleventh centuries by Karaite legal authorities, such as Ya‘qub al-Qirqisani, Sahl ben Matsliaḥ, and Yefet ben ‘Ali, is centered on a conceptualization of kinship through the notion of a shared selfhood that 1

It would be difficult to do justice to the rich scholarship of new kinship studies in these pages. Among the most significant studies are Franklin and McKinnon, Relative Values; d’Avray, Medieval Marriage; Worby, Law and Kinship; White, Kinship and Feudalism; Sabean, Teuscher, and Mathieu, Kinship in Europe; and Johnson, Jussen, Sabean, and Teuscher, Blood and Kinship. There is a parallel trend in the study of the meaning of blood, and anthropologists’ interest in blood in rituals and its corporal and contaminative aspects recently has captured the attention of historians as well. See Bildhauer, Medieval Blood; Biale, Blood and Belief.

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creates a collateral link between individuals, whether blood relations or relatives by marriage. Relatives are seen as parts of “one soul,” or in the equivalent modern phrase, one self. Karaite views advocating and opposing the catenary theory have received little scholarly attention, and we therefore lack a clear picture of the identity of those who led the reform that abolished it and when they did so. Subsequent accounts offer conflicting narratives. One, common in Byzantine Karaite literature, describes the refutation of the catenary theory as an enterprise jointly led by Yosef ben Avraham the Blind (960/967–ca. 1038) and his disciple Yeshu‘ah ben Yehudah (in the latter half of eleventh century) and claims that the differences between the views of these two sages were negligible.2 A contesting narrative asserts that the two sages represented different approaches to the reform. According to this narrative, the reform predated Se‘adyah the Prince, the teacher of Yosef the Blind,3 and the differences between Se‘adyah and Yosef are due to methodological changes and legal influences within Karaism that differed between the Palestinian center and that in Byzantium.4 Analysis and reconstruction of the debate between proponents and opponents of the catenary theory will provide us with a rare internal point of view reflecting a change within a legal tradition, the consciousness of those who effected the change, and the manner in which they contended with its success.5

Consanguinity versus Affinity The distance between advocates of the catenary theory and their rivals seems to have resulted principally from competing conceptions of kinship – specifically, differing insights into the essence of kin belonging, or the ties between relatives.6 The questions that are fundamental to understanding the competing views concern the distinction between affinal kinship and consanguineal kinship.7 First, is the familial relationship binding two affinal relatives 2 3

4 5

6

7

See Aharon ben Yosef, Sefer ha-Mivḥar, 30b. There is no known detailed account of the life of Yosef the Blind (Arabic: Yusuf al-Basir) and his studies in Persia or Iraq, prior to his arrival in Jerusalem toward the turn of the millennium. For legal and theological background on Yusuf, see Sklare, “Yūsuf al-Baṣīr”; Schwarb, “Yūsuf alBaṣir.” See Mosheh Bashyazi, Sefer ‘Arayot, 62. On the importance of internal points of view in comparative law, see Ewald, “Comparative Jurisprudence (I)”; “Comparative Jurisprudence (II)”; Whitman, “Neo-Romantic Turn.” The use of analogical reasoning (qiyas) was a strong secondary part of the debate about prohibited relatives. Opponents cast the catenary theory as excessively reliant on analogical reasoning, while the Rabbanite stance frequently is accused by Karaite sources of total rejection of analogical reasoning in the context of incest laws. On the theological and logistic background of this reform, see Schwarb, “God’s Speech.” See also Polliack, “Translating Biblical Narrative”; Sasson, “Gender Equality.” The term consanguinity, emphasizing the blood as means or metaphorical expression of kin ties, is well attested in Latin and Christian contexts and was a foundation of modern kinship scholarship; see Lewis H. Morgan, Systems of Consanguinity; Leyerle, “Blood Is Seed.” Beside the

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equivalent to that between blood relatives? Second, what is the meaning of the relationship signified by each? The categories of consanguinity and affinity lurk in the background of perceptions of kinship found in legal literature from antiquity to the present, and the relation between the two sometimes is obscure.8 Biblical law, on which Karaite law is based, does not clearly describe the relationship between these two types of kinship. The list of forbidden relationships in Leviticus 18, for example, does not distinguish between consanguineal relatives (parents, sister, granddaughter, aunt) and affinal relatives (paternal grandmother, her daughter, brother’s wife, son’s wife, father’s brother’s wife). The relationship between the categories thus remains unresolved. Legal discussions within Karaite literature about the laws of incest are typified by attempts to formulate foundational principles for defining familial ties and articulating the meaning of kinship. These attempts may be understood as traversing three notions of kinship, each based on a different one of the fundamental principles that reflect three distinct stages in the history of medieval Karaite law. In the first stage, that of Ananite law, kinship was viewed as a fundamentally corporal trait, so that relatives were defined as individuals having a common corporality. From this perspective, as we will see, even affinal kinship consists of a commonality of bodily traits. This similarity blurs the boundary between consanguineal and affinal kinship, which function as different manifestations of a single fundamental concept of kinship. In the second stage, represented in later Karaite literature by the systematic doctrine of the catenary theory, the concept of selfness surfaces as a core component of kinship. Kinship is an expression of shared, but not necessarily physical, selfness. This approach conceives of kinship in horizontal terms, as collateral and based on fraternity. Here as well, there is a conspicuous effort to eliminate the distinction between consanguineal and affinal kinship, a distinction seemingly unnecessary if all kinship is shared selfness. This perspective invites a comparison with comparable theoretical trends in the ecclesiastical legal tradition. The third, reformative stage9 introduces a theoretical and conceptual alternative to the catenary theory by positing that kinship is predicated not on shared attributes but on external, structural relationships between relatives.

8

9

blood, as a sign of vitality, milk and semen were perceived as the biological carriers of vitality. On milk kinship in general, see MacClancy, “Milk Tie.” The exclusivity of these categories as the fundamental patterns of kinship was the bedrock of modern anthropological interest in kinship and taboos. For criticism of this presumption and a demonstration that the distinction between consanguinity and affinity is a cultural construct, see Schneider, “Kinship.” Our analysis is informed by a perspective on the history of ideas that adds to existing sociological and ideological perspectives. Nemoy explained the reform in mainly sociological terms, resulting from the pure survival motives of small and isolated Karaite communities. Ankori understood the reform as a process of the liberation of Karaite law from the conservative and

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The Making of Kin Belonging

This view stresses the vertical model of kinship, or lineal kinship, in which heredity is ascribed primary significance as the cornerstone of kinship. Though the relationship between consanguineal and affinal kinship remains murky in this approach, this ambiguity raises an array of new issues due to the transition from the conception of kinship as a shared attribute to that of kinship as a pattern.

Ananite Law The distinction between Anan (eighth century), the Ananites who came after his death, and the Karaite movement that followed in their wake is well acknowledged in modern scholarship, as well as in medieval sources by both Karaites and others.10 The Karaites drew up a systematic and consistent legal tradition only in the late ninth or the early tenth century, so that Anan’s Sefer ha-Mitsṿot (Book of Commandments) is not considered representative of canonical Karaite law.11 Nevertheless, there is ample thematic and textual justification for viewing later shifts in the conception of kinship against the backdrop of Ananite law.12 Anan’s formulations suggest an intriguing approach in which marriage per se does not establish kin ties between spouses but is a precondition for the creation of such ties, which arise only with the production of a common offspring. In other words, the marital bond creates familial ties only upon the existence of offspring embodying both parents’ corporal traits. Marriage and reproduction thus function as a continuous event that creates kin ties. Marriage is incomplete without reproduction, and reproduction signifies the culmination of marriage as an event that creates kinship. A definitive test case for evaluating the conditions under which the marital bond establishes kinship is that of stepsiblings with no common parent. Here, where there is no consanguinity, the relationship between the stepsiblings must be described with reference to the marital bond between their parents. The stepsister is described in Leviticus 18:11 as “begotten by your father,” which Rabbanite law takes to denote a procreative link between the father and his wife’s daughter, limiting the prohibition to half-siblings and excluding a stepsister conceived by another man.13 However, according to Ananite law, stepsiblings may marry only so long as their parents have no offspring in

10

11 12

13

missionary policy of former jurists. See Nemoy, “Controversial Points,” 247; Ankori, Karaites in Byzantium, 7–84. See Shur, History of the Karaites, 22–27; Erder, Karaite Mourners of Zion, 38–81; Ben-Shammai, “Ananites and Karaites.” See Erder and Polliack, “Karaite Canon”; Brody, Seʻadya Gaon, 30. Yeshu‘ah ben Yehudah (Sefer ha-Yashar, 107) downplays the gap between Anan and the catenary theorists. See Sifra, Ḳedoshim 11:12. The Aramaic translations (Onkelos, Pseudo-Jonathan, Peshitta) render the expression as “sired by your father.” Avraham Ibn Ezra (1089–1167) mentions in his commentary ad loc. the differences between the Rabbanite and Karaite legal readings.

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common. Anan interprets the Hebrew moledet avikha14 as limiting the prohibition to circumstances where the father and his wife have offspring in common. Only when the parents have consummated their marriage by bringing a child into the world does kinship set in between their preexisting children, who become siblings. In the view of Anan, the scriptural verses give rise to the following rules: a. And it is prohibited for a man to marry the daughter or sister of his father’s wife once his father’s wife has given birth to a child from his father. b. And [it is prohibited for a man to marry] the daughter of his daughter-inlaw once she has given birth to a child from his son. c. And the daughter or sister of his mother’s husband once his mother has given birth to a child from him. d. And the daughter of his son-in-law once his daughter has given birth to a child from him. e. And it is prohibited for a woman to marry the son or brother of her father’s wife once her father’s wife has given birth to a child conceived from her father. f. And the son of her daughter-in-law once her daughter-in-law has given birth to a child from her son. g. And the son or brother of her mother’s husband once her mother has given birth to a child from him. h. And the son of her son-in-law once her daughter has given birth to a child from him. i. And it is prohibited for a man to marry his father’s wife’s son’s wife or [his father’s wife’s] brother’s wife once his father’s wife has given birth to a child from his father. j. And the wife of his daughter-in-law’s son once his daughter-in-law has given birth to a child from his son. k. And his mother’s husband’s son’s wife or [his mother’s husband’s] brother’s wife once his mother has given birth to a child from him. l. And the wife of the son of his daughter’s husband once his daughter has given birth to a child from him. . . . m. And it is prohibited for a woman to marry her father’s wife’s daughter’s husband or [her father’s wife’s] sister’s husband once her father’s wife has given birth to a child from her father. n. And the husband of the daughter of her daughter-in-law once her daughter-in-law has given birth to a child from her son. o. And her mother’s husband’s daughter’s husband or [her mother’s husband’s] sister’s husband once her mother has given birth to a child from him. . . . p. And the husband of the daughter of her daughter’s husband once her daughter has given birth to a child from him.15 14

Latin: peperit patri tuo.

15

Harkavy, Dat Bene Miḳra, 91–92; initial letters added.

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According to Anan, marriage or physical union does not suffice to establish kinship. An individual is forbidden to marry kin of his or her father’s wife (a, e, i, m), kin of his or her mother’s husband (c, g, k, o), the child of his or her daughter-in-law (b, f), the erstwhile spouse of the child of his or her daughterin-law (j, n), the child of the spouse of his or her daughter (d, h), or the erstwhile spouse of the child of the husband of his or her daughter (l, p) only once the father and the father’s wife have common offspring. This conception of kinship is essentially consequentialist. The scriptural premise that man and woman become one flesh is fulfilled not by unification but by reproduction embodied in offspring.16 How is the existence of common offspring a necessary condition for establishing kin ties? I propose that the requirement may be understood thus: A person who has corporal traits in common with each of multiple individuals who are unrelated to each other causes them to become related through the synthesis in himself of their traits. According to this logic, individuals are associated when either they share a corporal trait, which is the case with blood kin, or their corporal traits are unified in another person, through the birth of a common blood kin. Common offspring amalgamates corporal features of previously unrelated individuals. The requirement of offspring from the marriage recasts affinal kinship as a subcategory of consanguineal kinship. The logic of the law as propounded by Anan perceives kinship as shared corporality. Both consanguineal and affinal kinship stem from the existence of a common denominator, whether a relation from birth or one who became a relative due to the birth of another individual who bears his traits. Kinship thus need not be an intrinsic trait but can be contingent upon human action. It is this model that lays the groundwork for the conceptual turn in the understanding of kinship and the relationship between consanguineal and affinal kinship, in the catenary theory adopted by prominent Karaite scholars of the tenth century.

The Catenary Theory The central development accompanying the rise of the catenary theory was the transition from a perception of kinship organized around the concept of common corporality to one based on the concept of selfness. Notwithstanding the modern associations of the concepts of the self and selfness, these are very much at the heart of the perception of kinship in the catenary theory, and reference to them must not be dismissed as anachronistic. 16

This perception appears in the Palestinian Talmud (Ḳiddushin 1:1, p. 2a), which explains the expression “they become one flesh” as denoting offspring, rather than the unifying couple, and in the commentaries of Rabbi Shelomoh Yitsḥaḳi (Rashi, 1040–1105) on the Pentateuch (ad loc.) and the Babylonian Talmud. On the different interpretations of Rashi and Nahmanides, see Diamond, “One Flesh.”

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The concept of selfness that informed the views of catenary theory proponents differs from the modern concept of the self in one fundamental respect: where the modern conception assumes a correlation between the physical separateness of persons and their selfness, selfness in the catenary theory can extend beyond the body to encompass other individuals.17 Such an identification of kinship with selfness appears as early as Aristotle,18 for whom parenthood and fraternity are forms of extended selfness.19 The catenary notion of selfness is based upon two central concepts: the idea of shared selfness as embodying the biblical principle of one flesh and the idea of the extension of selfness. The various viewpoints of the theory’s proponents may be characterized in terms of these two factors as discrepant versions of a unified approach. We will arrive at these two factors through an analysis of two scholars who represent, though they certainly do not exhaust, the Karaite catenary theory: Ya‘aḳov al-Qirqisani (first half of tenth century) and Leṿi ben Yefet (first half of eleventh century).20 The notion of shared selfness draws on the biblical description of the union of man and woman: “Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh.”21 Catenary theory proponents used the idea of the couple as one flesh as a key rationale in conceptualizing the marital bond as well as kinship. Kinship is defined as shared selfness – “one soul”22 – so that kin are defined as individuals who have a part in this selfness or as organs of an extended self. The principle of one flesh, according to catenary theorists, expresses the scriptural idea of the shared selfness of man and woman as the result of disconnection and then union: a man’s departure 17

18

19

20

21 22

The distinction between the medieval notion of selfness and the modern one corresponds to the distinction common among anthropologists between Western (individual) and non-Western (dividual) conceptions of the self and the distinction common among philosophers between modern (buffered) and premodern (porous) conceptions of the self. See Karl Smith, “Selves”; Taylor, Secular Age, 30. “Parents, then, love their children as themselves (for their issue are by virtue of their separate existence a sort of other selves) . . . for their identity with them makes them identical with each other. They are, therefore, in a sense the same thing, though in separate individuals” (Aristotle, Nicomachean Ethics, 8.12.1161b–1162a). On the Aristotelian conception of “second self” or “other self,” see Alverio, “Other Selves.” On the concept of shared selfness in the Bible, see H. Wheeler Robinson, Corporate Personality. Al-Hiti mentions Leṿi ben Yefet, also known as Abu Sa‘id, alongside Abu al-Faraj Harun and Yusuf al-Basir (Yosef the Blind) as a disciple of Yusuf ibn Nuh and a teacher of Abu al-Faraj Furqan ibn Asad (Yeshu‘ah ben Yehudah); see Margoliouth, “Karaite Doctors,” 433–440. Since Leṿi inherited the position of his father, Yefet ben ‘Ali, and played a central role in the Karaite academy in Jerusalem, his Sefer ha-Mitsṿot (Book of Commandments) surely represents opinions that were widespread among Karaite elites in his time. See Ben-Shammai, “Levi ben Yefet”; Frank, Karaite Exegetes, 19–22. On the concept of shared selfness in the Bible, see H. Wheeler Robinson, Corporate Personality. The terms self and soul are interchangeable in the theological and philosophical literature of late antiquity and the Early Middle Ages. See Corrigan, “Body and Soul”; Schroeder, “Self.” The catenary theorists use the biblical term “one flesh” and at times also “one body,” “one soul,” “one status,” and “status of one soul.” As we will see, the growth of the vocabulary is not accidental, but marks a shift toward legal and abstract aspects of the coupling.

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The Making of Kin Belonging

from the parents who gave birth to him and his subsequent unification with a woman. The appearance of the conjunctive adverb therefore at the beginning of the verse indicates a causal connection between the description of the creation of the woman from the man’s body23 and the processes whereby man separates from his parents and clings to his wife. The disparity between Ananite law and the catenary theory reflects an altered understanding of the essence of kinship and of the marital bond as a necessary but insufficient precondition to generate kinship. The centrality of the concept of selfness to the meaning of kinship is a dramatic change emphasizing not intrinsic traits but human actions of interpersonal engagement, not the corporal dimension of kinship but the abstract and the spiritual. Thus for adherents of the catenary theory, contrary to the Ananite view, kinship is an intangible component of identity, and marriage is an event that unifies disparate individuals as parts of a novel shared selfness.

Ya‘akov ben Yosef al-Qirqisani ˙ Qirqisani objects to Anan’s rejection of marriage as a sufficient basis for the establishment of kinship.24 For Qirqisani, the principle of one flesh means that nothing other than marriage, which he defines as a physical bond, establishes kin belonging of the relatives of a man and a woman, irrespective of the existence of common offspring. In his view, the principle of shared selfness is buttressed and reflected by both legal and narrative passages of the Bible, notably Leviticus 18:7, which introduces a list of forbidden relatives: “You shall not uncover the nakedness of your father, which is the nakedness of your mother; she is your mother, you shall not uncover her nakedness.” The wording of the verse does not explicitly state what sort of uncovering of nakedness is forbidden or the reason for this prohibition. Whereas its conclusion refers to uncovering the mother’s nakedness, its beginning refers to uncovering the father’s nakedness and that of the mother. The resulting ambiguity permits several potential readings. One identifies two separate acts of incest in the verse: the uncovering of the nakedness of a father who engages in sexual relations with his daughter and the uncovering of the nakedness of a mother who engages in relations with her son.25 What would motivate this reading is not entirely clear, albeit the challenge posed by the lack of any explicit prohibition of the union of father and daughter is thus averted.26 Qirqisani rejects this reading, instead opining that the verse does not 23 24 25

26

Genesis 2:18–23. Al-Qirqisani, Kitab 1.12.3 (p. 54); Nemoy, “Jewish Sects and Christianity,” 384. Such a reading is reflected in the free translation of Pseudo-Jonathan ben Uzziel and also ascribed to Anan by Shelomoh ben David the Prince (in Yeshu‘ah ben Yehudah, Sefer haYashar, 97) and probably a position mentioned by Leṿi ben Yefet without specific attribution. See Ben-Shammai, “Levi ben Yefet,” 118. According to a straightforward reading, the verses in the section address only men unless otherwise noted. For discussion, see Ziskind, “Missing Daughter.”

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describe two forbidden acts but draws attention to the dual legal consequences of a single act, based on the principle of one flesh: Our stance regarding the verse “[You shall not uncover] the nakedness of your father, which is the nakedness of your mother; [she is your mother, you shall not uncover her nakedness]” is that it means to outlaw one incestuous act – with the mother only, not with anyone else – and the phrase “the nakedness of your father” means to inform and teach us that one who sleeps with his mother uncovers the nakedness of two: the nakedness of his father and the nakedness of his mother. This is so because the father and the mother through their marriage and sexual union have become one body and one person, as it is said, “and cleaves to his wife, and they become one flesh,” so that because they have become one body, her nakedness necessarily is his nakedness as well, and one who uncovers her nakedness is as one who uncovers his nakedness.27

The verse, says Qirqisani, asserts the identity of the nakedness of the father and the nakedness of the mother. His comments demonstrate how the conception of shared selfness – “one body” – gives rise to the kin belonging reflected by the legal formulations of forbidden sexual relationships in Leviticus.28 Yeshu‘ah ben Yehudah, in his thoroughgoing critique of the catenary theory, notes that Qirqisani shares this exegetical stance with other Karaite scholars of the tenth and the early eleventh century.29 After quoting Qirqisani, Yeshu‘ah rejects the notion of a shared selfness based on the principle of one flesh and reflects on the essence of the phenomenon with reference to the conditions required for it to pertain: Is the shared selfness of one body the result of sexual union or of the legal ritual of marriage? As for his saying, “for the man and the woman through marriage and sexual union have become one body and one flesh,” and his mention of the two terms marriage and sexual union – by sexual union meaning intercourse followed by marriage . . . but marriage [would suffice] even if not followed by intercourse. He may mean that the man and the woman become one body only if marriage is followed by intercourse. Yet in mentioning intercourse, he refers to intercourse that is not followed by marriage. Accordingly, it seems that once there has been intercourse, they inevitably become one flesh, whether it was legal or by fornication.30

Yeshu‘ah’s inquiry into the factors that produce shared selfness discloses the ambiguity surrounding the nature of the concept: Does being one body 27 28

29

30

Al-Qirqisani, Kitab 5.11.8 (p. 1127). Qirqisani similarly uses the idea of shared selfness to explain why Orpah, Ruth’s sister-in-law, is described as Ruth’s levirate person – the literal meaning of the Hebrew yevimtekh (“sister-inlaw”; Ruth 1:15). As a result of Orpah’s being married to Kilion, who bore a potential obligation to enter levirate marriage with Ruth because Ruth was married to his brother, Orpah was considered as part of his body. See al-Qirqisani, Kitab 5.26.10 (p. 1155); 27.14 (p. 1160). Namley, Sahl ben Masliah (910–990) and Yefet ben ‘Ali (tenth century). See Yeshu‘ah ben Yehudah, Sefer ha-Yashar, 52. Yeshu‘ah ben Yehudah, Sefer ha-Yashar, 123–124.

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The Making of Kin Belonging

constitute a legal status, or is it an objective fact independent of legal validity and recognition? He examines three possibilities to understand how carnal union, whether permissible or as fornication, creates one body: it is not sufficient or necessary, it is necessary but not sufficient, or it is sufficient to make the couple one body. This inquiry touches on how shared selfness is extended and the bounds of kinship broadened, and has practical ramifications for an issue frequently addressed by Karaite scholars: marriage to a woman who was one’s father’s mate out of wedlock, such as a prostitute, seducee, or rape victim. Does the fact of the father’s relations with such an individual cause her to be forbidden to his son?31 Yeshu‘ah personally need not concern himself with this discussion, because for him “one flesh” simply is a metaphor that in no way reflects a personal identity but rather serves his central argument against the viability of the principle of shared selfness.

Levi ben Yefet ˙ notion of kin belonging based on shared selfness figures in several legal The discussions in Sefer ha-Mitsṿot by Leṿi ben Yefet.32 Like Qirqisani, Leṿi opines that the words “You shall not uncover the nakedness of your father, which is the nakedness of your mother” allude to the principle of shared selfness. However, in disagreement with the Ananite position, Leṿi does not condition the prohibition of stepsibling marriage on the existence of a common biological sibling, because in his view the fraternal relationship between them is an inherent consequence of the shared selfness of their parents, independent of shared corporal traits: “Begotten by your father, since she is your sister.”33 We further infer from this verse that when the two unite, they become one. [The verse] refers to the relatives of the man and the relatives of the woman, for when a person has intercourse with his spouse, both become one, and the son of one becomes the son of the spouse. So too with all relatives, for if the wife’s daughter is the man’s daughter, he [i.e., the man’s son] is the wife’s son, and if the son of one becomes the son of the spouse, equally a father of one becomes a father of the spouse. So too with the mother, the brother, and the sister. Since the daughter of the father’s wife is equated to the father’s daughter, [the relatives] of the father’s wife are prohibited to the father’s son to the same extent that the father’s [relatives] are prohibited, for his father and his wife are of the same status. This is a major principle in the [laws of] prohibited marriages from which many prohibitions are derived.34 31

32

33 34

This investigation broaches the question of legal nominalism or legal realism, which has not yet been studied in the context of Karaite law. On Leṿi’s Sefer ha-Mitsṿot and its dating to 1024, see Ben-Shammai, “Levi ben Yefet,” 100–103. Ben-Shammai’s philological conclusions (pp. 130–133) indicate significant gaps between the Arabic source and its Hebrew translations. Leviticus 18:11. Leṿi ben Yefet, Sefer ha-Mitsṿot, 167b (MS Bodleian), 269b (MS Leiden).

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Leṿi refers to the same verse, discussed by Qirqisani above, that prohibits uncovering the nakedness of one’s mother. Leṿi associates this verse with that prohibiting marriage by stepsiblings. Because the father and his wife comprise a single selfness, their shared selfness incorporates their children, who are considered for this reason to be siblings, even if their parents have no children in common: “if the son of one becomes the son of the spouse, equally a father of one becomes a father of the spouse.” Similarly, a man’s son and the daughter of the man’s wife, irrespective of the existence of a corporal link between his son and her daughter, become full-fledged siblings. Unlike Qirqisani, Leṿi manifests an awareness of the challenges posed by the catenary theory. He does not obfuscate the problem that shared selfness expands the scope of fraternity far beyond consanguineous fraternity and thus empties it of any biological meaning inherent to the fraternal relationship – a fact that later would emerge as the crux of catenary theory criticism: Because God equated the status of the husband and his wife, his wife’s sister becomes his sister. . . . Because God equated as well the status of the man and his wife, his wife becomes a sister of the husband of his sister. So too it is necessitated that the wife of his wife’s brother becomes his sister, just as his brother’s wife [becomes] his sister. Some [jurists] would extend these [prohibited relatives] further, but this is the midway.35

When man and woman become a single self, the woman’s sister becomes the man’s sister, his wife becomes the sister of his brother-in-law (his sister’s husband), and his sisters-in-law (his wife’s brother’s wife and his brother’s wife) become his sisters. Here we see exemplified how the principle of shared selfness styles the prohibition against marriage to two sisters as a prohibition against marrying one’s sister: the wife’s sister is considered the sister of the husband himself, and “based on this [principle] we prohibit two brothers to marry two sisters, for if a man marries a woman, the wife’s sister becomes his sister” (as discussed in more detail later). This peculiarity, which equates a person’s sister-in-law (his wife’s sister) with his sister, is indicative of a pattern of collateral kinship and a central target of the criticism leveled at the catenary theory. By stating that “this is a major principle in the [laws of] prohibited marriages from which many prohibitions are derived,” Leṿi demonstrates that he is aware of the effects that the principle of shared selfness will have in expanding the scope of kinship. Due to the principle of shared selfness, kin belonging dilates and swells, with distant relatives becoming closer. He thus notes that the set of prohibited relatives grows to include relatives separated by many degrees, who under the principle of shared selfness become tantamount to sons, daughters, uncles,36 and aunts: 35 36

Leṿi ben Yefet, Sefer ha-Mitsṿot, 168a (MS Bodleian), 270a (MS Leiden). Notably, Rabbanite law permits and sometimes has encouraged marriage between uncle and niece. See Babylonian Talmud, Yevamot, 62b–63a.

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The Making of Kin Belonging Based on this [principle] we prohibit two brothers to marry two sisters, for if a man marries a woman, the wife’s sister becomes his sister. Similarly, if he marries the sister of his son-in-law, it is as if he marries his daughter’s sister, who is considered as his daughter. Similarly, if he marries the sister of his daughter-in -law, it is as if he marries his daughter. Similarly, if he marries the sister of his father’s wife, it is as if he marries his father’s sister. Similarly, if a woman marries the brother of her father’s wife, it is as if she marries her uncle. If she marries the brother of her daughter-in-law, she is like a woman who marries her son, and so forth.37

Leṿi here expresses the reductive rationale of the catenary model, under whose logic kinship expands and accretes, and the scope of forbidden relatives consequently expands beyond consanguineal kinship. Thus because a man’s daughter and her husband (the man’s son-in-law) comprise one single self, the man’s son-in-law’s sister is equivalent to the man’s daughter’s sister, who is in turn tantamount to the man’s daughter. If we carefully read the description given by Leṿi, we see two reductive processes at work in concert. In the first step, “if he marries the sister of his sonin-law, it is as if he marries his daughter’s sister.” That is, a person’s son-in-law, by virtue of comprising a shared self with his daughter, is equated to his son, so that the son-in-law’s sister is tantamount to the man’s daughter’s sister. In the second step, which is reliant on the first, the man’s son-in-law’s sister is equated to the man’s daughter – “his daughter’s sister, who is considered as his daughter.” To summarize, the son-in-law’s sister is equated with the daughter’s sister, who is equated with the daughter. The first reduction is coherent and justified by the principle of shared selfness, which reckons the two spouses as one personality. Yet what can justify the identification of a woman’s sister with the woman herself for the purposes of identifying forbidden relatives? What is the cause of fraternal shared selfness? The above idea of the transmission of shared self through conductive contact provides an answer to these questions.38

From One Soul to Root and Branch The wave of criticism that brought down the catenary theory is characterized as a legal change and even a reform of religious law that not only rejected the foundations of that theory but also provided a systematic alternative to the conception of kinship as shared selfness – a profound change that reconceptualized the basic principles of the Karaite understanding of kin belonging. While the catenary theorists conceived of kinship as a shared selfness disseminated most evidently on the horizontal plane of collateral kinship, the reformers presented a model of vertically oriented kinship at whose heart 37 38

Leṿi ben Yefet, Sefer ha-Mitsṿot, 168b (MS Bodleian), 271a (MS Leiden). See n. 47 above.

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was filial, or lineal, kinship. More deeply, instead of the catenary view of kinship as an intrinsic trait common to discrete individuals, kinship came to be conceptualized as an extrinsic, structural relationship and was thus expressed in botanical terms, with reference to roots and flowers. The transition is reflected by the logic used by Yeshu‘ah ben Yehudah to define the applicability of the prohibition of incest in the context of relations between a man and his stepsister or with an associate wife of a woman with whom he is forbidden to engage in sexual relations. The catenary model of shared selfness, as discussed earlier, explains the prohibition against relations between a man and his stepsister by equating her to his sister because her mother and his father are considered a single soul. Yeshu‘ah, however, uses a logic that compares familial ties to the parts of a plant: Scripture already prohibited a man to marry his father’s wife, and here it prohibited him [to marry] her daughter. All these constitute a prohibition of root and flower. This [logic] necessarily must be applied to similar circumstances: mother and son are root and flower, and the mother’s husband and his daughter are root and flower. However, the aforementioned rationale does not allow the prohibition to be extended.39

The prohibition against marrying one’s stepsister, in the view of Yeshu‘ah, is due not to the relationship of the stepsiblings, but to the structural incongruity that characterizes the forbidden union of two sets of root and flower. This example demonstrates that the problematic of incest, according to his structural logic, stems from the combination of the relationship between the wouldbe spouses and that between them and their respective relatives. Using this alternative logic, Yeshu‘ah explains why the prohibition of incest does not include the associate wives and husbands of forbidden women: Root and flower should not be united with [another] root and flower . . . and a man is prohibited [to marry] the flowers of his father’s wife other than their associate wives, and a woman [is prohibited to marry] the husband of the flowers of her father’s wife other than the husbands of their associate wives.40

At the core of the catenary theory, as described above, is a shared selfness that can bind previously unrelated individuals who have come into contact with the same person. It therefore construes associate wives, or husbands of a given woman, as parts of a single soul, and consequently forbids their relatives to each other. Yeshu‘ah rejects this catenation and thus rejects this extension of the prohibition to marry. The conception of kinship in terms of a botanical organism introduces an additional logic to the forbidden relationships in Leviticus 18. The catenary theory bars incestuous unions because of what contemporary anthropology 39 40

Yeshu‘ah ben Yehudah, Sefer ha-Yashar, 65. Yeshu‘ah ben Yehudah, Sefer ha-Yashar, 71.

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calls combination of the identical.41 This idea extends the prohibition of incest to individuals who share a component that is fundamental to their existence, be it a concrete component, such as semen, blood, bone, flesh, or milk, or an abstract one, such as a soul or name. In Ananite law and ecclesiastical legal tradition, incest is problematic due to the union of individuals who share corporal traits, while in the catenary view, the problem is the union of individuals who are part of the same abstract shared selfness. The botanical model of kin belonging imposes its own additional constraints on potential unions, as a result of the need to preserve and buttress the internal hierarchy of kinship. The significance of the turn away from the catenary theory is clear from a comparative assessment of the development of the botanical model as a central metaphor for the conception of family and kinship in the Latin West. Strictly speaking, the botanical conception of family dates to Roman antiquity. Although Roman genealogical scrolls (stemmata) did not depict the family as a tree, they were formulated in terms of offspring stemming from a single given source. Such concepts as branch (rami) and shoots (ramusculi) were used in Roman family records to indicate interpersonal relationships, and later served jurists and Christian clergy in describing the degree of immediacy between kin. Beginning in the early ninth century, the record of a family line was designated a family tree (arbor juris), reflecting the solidification of the botanical conception of family. This conception is commonly viewed as a dormant metaphor that matured and came to reshape views of family and kinship only with the appearance of family trees in the form of tables of familial proximity in the Church and Roman civil law.42 Family-tree diagrams thus visually reproduced the botanical model that had emerged as a result of particular linguistic usage and conceptual underpinnings of kinship in the Roman cultural heritage. Despite its similarities to the Roman model, the rise of the botanical model represented a reversal in how heredity was viewed, accompanying a reversal of temporal consciousness during the Middle Ages. Both the Roman concept of genealogy and the botanical model are oriented toward the hereditary axis and a vertical conception of time, but while Roman diagrams have an up–down orientation, giving earlier offspring a higher position than later offspring, the botanical model is oriented from the bottom upward, so that diagrams based on it describe heredity in terms of upward growth and sideward enlargement.43

41

42 43

Françoise Héritier, Anthropology of Incest, articulates the logic of the “combination of the identical,” based on the opposition of “identity” and “difference,” as the key for understanding incest taboos. The purpose of the taboo is to strengthen the balance between those who are identical and those who differ, and to avoid instability caused by excessive aggregation of identical quantities. See Teuscher, “Flesh and Blood.” The reversal in how heredity is portrayed reflects a new view of the mythical source as in front of the present generation, rather than behind it. A similar reversal of the directions of time occurred in geonic thought. See David, “Book of Adam.”

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This change in consciousness is a distinct example of feedback between verbal representation and the visual or figurative expression of family genealogies, Toledot Yeshu, and diagrams of family trees appearing in legal works with the function of indicating forbidden relatives, precedence in order of inheritance, and so on.44 The comparison of the family to a plant that develops and branches out expresses family cohesion, the internal structure of kinship, and the hierarchy within it. The botanical model thus serves as an explanatory model for the relationship between consanguinity and affinity. The shift away from the catenary model of kinship, I would argue, should be assessed in view of the rise of the botanical conception. The most telling expression of the conceptual change brought about by the reform is seen in the transition from the conception of kinship as sharing a single soul to the analogy of a tree. At the heart of the rejection of the catenary theory, we see a conception of family as an organism composed of roots and branches45 – a conception that is the foundation of new patterns of thought concerning the essence of kinship and the constraints that it engenders. Under the botanical model, marriage between relatives is forbidden not on account of the personal identity of the relatives or the simple fact of their being relatives, but due to an organic, structural link that already binds them. The botanical model of kin belonging is a response and an alternative to the catenary idea of shared selfness, as noted by Yeshu‘ah above. However, though he presents the botanical analogy as what causes relatives to be forbidden, he does not portray it as the rationale for this prohibition. The distinction between the cause and the rationale is central to the thought of Yeshu‘ah. Even as he determines from the botanical logic that “the roots are prohibited to the flowers and the flowers are prohibited to the roots,”46 he opines that the injunctions against incest are commandments with no intellectual rationale: It is well known that the various prohibitions of incestuous relations, from all aspects, can be traced to Scripture. Otherwise there would be no way to prohibit them . . . for the [divine] will for the incest bans has no intellectual basis.47

Twelfth-century Karaite scholar Yehudah ben Eliyyahu Hadassi also puts the reason for the prohibition of incest in terms of root and branch, with an emphasis on the structural significance of kinship: 44 45

46 47

See Klapisch-Zuber, “Family Tree.” Botanical imagery was used in Jewish sources to describe the family as early as Second Temple literature; see Fujita, “Metaphor.” Within the ecclesiastical context, the botanical image corresponds to the conception of family as a body, and some pedigrees thus combine the two images; see, for example, Widener and Weiner, Law’s Picture Books, 70–71. Yeshu‘ah ben Yehudah, Sefer ha-Yashar, 107. Yeshu‘ah ben Yehudah, Sefer ha-Yashar, 37–38. Although the Mishnah (Ḥagigah 2:1) considers the background of incest prohibitions to be concealed knowledge, not to be disclosed or taught in a regular manner, various statements in Talmudic literature acknowledge the rationality of these prohibitions (e.g., Babylonian Talmud, Yoma, 67b). Nevertheless, throughout the Middle Ages there were Rabbanite and Karaite scholars alike who regarded them as inexplicable. See, for example, Nahmanides to Leviticus 18:6 (vol. 2, p. 107); Mosheh Bashyazi, Sefer ‘Arayot, 60.

53

The Making of Kin Belonging A branch is not permitted to have sexual intercourse with a root and [so too] a root with a branch . . . this is the general principle: that a root must never unite with its branch. This is its application: all Jacob’s offspring, from his wives and the wives of his sons, are prohibited to him . . . so too Jacob’s descendants may not [unite with] his antecedent mothers or with the wives of his antecedent fathers.48

The relationship between the root and the branch is expressive of an organic pattern to be preserved and sustained. The botanical model thus gives kinship meaning as a natural order liable to be corrupted by marriage between relatives. The example in which Jacob may not enter into a relationship with any of the wives of his forefathers or his descendants demonstrates the place of heredity as the central axis of the structure of kinship. The transition from the conception of kinship as shared selfness, expressed as a single soul, to its conception as an organic structure, understood in terms of root and branch, shifts the focus in the problem of incest from the horizontal dynamic of fraternity to the vertical dynamic of heredity. Due to this change of focus, the prohibition of marriage between individuals who are related through fraternity, such as brother and sister, nephew and aunt, or man and brother’s wife, is not immediately intelligible as a function of shared selfness. Hadassi acknowledges as much later in his discussion, noting the difficulty of premising injunctions stemming from fraternal relationships solely on the botanical model: A father’s sister and mother’s sister are forbidden [to marry] the branch of their brother. The general rule is: uniting with a branch is forbidden to a root that is a root like the first [in its relationship to the branch in question]. . . . A father and his brother are entirely comparable to each other and [thus] they are two roots, whose sons are branches . . . [and the prohibition of] the brother’s wife, who constitutes the brother’s nakedness, is understandable. . . . The [prohibition of the] relatives of the brother’s wife is very difficult to understand.49

The botanical model indeed proves limited in relevance to the problem of horizontal, fraternal relationships. The fraternal relationship of father and uncle here is described as one that cannot be successfully conceptualized in terms of roots and branches. Hadassi similarly makes no effort to conceal the inability of the botanical model to explain the prohibition of a brother’s wife’s relatives. There are many other instances in which opponents of the catenary theory portray heredity as eclipsing fraternity in the structure of kinship. Shelomoh ben David the Prince, in his epistle on the incest regulations,50 ignores 48 50

Hadassi, Eshkol ha-Kofer, 118a. 49 Hadassi, Eshkol ha-Kofer, 118a. According to al-Hiti’s report (Margoliouth, “Karaite Doctors”), Shelomoh ben David the Prince was the most prominent Karaite authority in his time. He served as the head of the Karaite community in Egypt, and his teachings and decisions reached eastern as well as western Karaite communities. He died in 1203. The epistle was addressed to the Byzantine Karaite authority

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fraternal relationships as a component of kinship, instead characterizing siblinghood as an indirect hereditary link. The sibling relationship is consequently characterized by a degree of relationship that differs from that linking parents and their children. A fraternal bond is considered tantamount to other relationships based on an indirect hereditary link, such as the link with an uncle or grandparent. Know that [the category of] kin is divided into two. One is a relative who is not related through another relative, including father, mother, son, and daughter, and the second is a relative who is also related through another relative, such as brother, sister, mother’s parents, father’s parents, father’s siblings, and mother’s siblings.51

Placing kinship on the vertical axis of heredity produces a distinction between different orders of kin belonging – namely, primary kin (“a relative who is not related through another relative”) and secondary kin (“a relative who is also related through another relative”) – and reduces the degree of proximity between siblings. We find an acute expression of the weakened horizontal kinship of fraternity in the writing of Moses Bashyazi (1537–1555), whose refusal to define siblings as true and natural kin is due to the botanical model: Know that parents are termed sources because they are the person’s roots and the main wellspring from which he originated. . . . Because they are the person’s roots and the source of his being, the sages habitually termed them sources. This is the reason for their being prohibited ad infinitum with no exception . . . and siblings are termed wings because their kinship is not organic, as they are not permanent root and source, but instead their kinship is incidental, for my father is my root and source and my son is my flower and branch. Therefore father and son are mutually tied as a flame [is attached] to an ember, and equally mother and daughter, for my parents are my genuine kin and relatives, and my siblings are [merely] relatives of my relatives, for I am not in the least interwoven or enmeshed with my siblings as I am with my parents. . .. Thus a person comes forth from the parents’ origins and emanates from their loins, but not so with my siblings, for neither do I come forth from their loins nor do they come forth from my loins, and my blood is not shared with his blood. . . . So too twins do not in the least share the same blood, for if they shared the same blood, they would be born as a single person.52

Bashyazi here takes the conceptual metaphor of the botanical organism to its logical conclusion, positing that fraternity has no natural place in the botanical

51

52

Aharon Kusdini, of whom very little is known, and demonstrates that its author enjoyed high standing among the Byzantine Karaites and visited family members in Egypt. He is also termed “the author of the sermons” (ba‘al ha-derashot), though no book of his sermons is known to have survived. See Shur, History of the Karaites, 79. The epistle of Shelomoh the Prince appears in various manuscripts. This excerpt is based on the Bodleian manuscripts: Or. 4752, 236b; Or. 4790, 103a; Or. 4743, 36b. Mosheh Bashyazi, Sefer ‘Arayot, 70–71.

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model. He argues that the conception of kinship in terms of root and branch necessitates recognition that heredity is neither equivalent nor comparable to fraternity. Unlike heredity, which is a true, natural, and inherent kinship, fraternity is merely incidental. Bashyazi therefore proceeds to redefine the group of relations who are a person’s kin. Departing from the traditional approach, which describes six kin – mother, father, son, daughter, sister, and brother – Bashyazi argues that there are only four true kin relations:53 I have nothing in common with my brothers, but instead we share only that we passed through the same passage. For this reason, the sages in the past termed them wings, for the wings are marginal to the main body, and thus the prohibition does not advance through them and they are permitted [to marry] in some cases. The prohibition of two relatives to marry two relatives refers only to genuine and undivided relatives, such as father and mother and their children, and these constitute four relations – father, mother, son, and daughter – while relatives of relatives include the father’s parents and mother’s parents, siblings, and grandchildren and great-grandchildren.54

This novel exposition of the status of siblings has ramifications in religious law. The prohibition against the marriage of two relatives to two relatives, argues Bashyazi, applies only to true kin. Marriage of two brothers to two sisters therefore is not forbidden.

Conclusion During the Middle Ages, the Karaite approach to incest prohibitions underwent several phases reflecting discrepant conceptions of kinship. The Ananite conception of kinship as a physical trait gave way to the model of shared selfness championed by the catenary theory, and finally the catenary theory was discarded and replaced with a conception of kinship as an extrinsic relationship between individuals within an organic pattern explained by the botanical metaphor of related roots and branches. The question of the theological and legal background of Karaite religious law has on more than a few occasions preoccupied scholars of Karaism, whose search for intra-Jewish sources of inspiration or influence has brought them to consider Karaite law in light of the Sadducees, the Qumran sect, the Samaritans, and even Philo.55 Another trend in the scholarship – one that is integral to the characterization of Judeo-Arab culture as a coherent field of study – seeks to understand the development of Karaite law with reference to the similar content of positivist laws and jurisprudential methodology in the 53

54

The tradition of six relatives is also mentioned by his ancestor Eliyyahu Bashyazi. See Adderet Eliyyahu, 284. Mosheh Bashyazi, Sefer ‘Arayot, 71. 55 See Revel, Karaite Halakah.

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Sunni Islamic tradition.56 As mentioned above, our analysis indicates a possible relationship between Karaite law and ecclesiastical legal tradition predating the East–West Schism. Despite the differences between the approaches, their common resort to the principle of a single flesh as the basis for establishing the meaning of kinship justifies a reevaluation of interactions between legal and exegetical traditions and religious legal thought during the Middle Ages. The foregoing discussion suggests that the eventual rejection of the catenary theory resulted not only from social duress and constraints or from the style of religious legal scholarship in vogue, but also (and no less) from a deep change in consciousness and a transformation in the conception of kinship and selfness. This change manifested in a renewed emphasis on the structural paradigm of kinship, which was correlated with the botanical model and the relative places it assigns individuals within the family group. The conception of kinship as a structured system, central to both Karaite and Rabbanite thought from the eleventh century, explains the injunctions against incest as prohibiting corruption or violation of the organic order that prevails in the human reality.

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Lasker (“Islamic Influences”) analyzes the Islamic influence indicated by the principal narratives about the emergence of Karaism and concludes that without Islamic intellectual fertilization, Karaism would look different if it existed at all. On the similarities between the jurisprudential thought of Qirqisani and al-Shafi’i, see Ahsan, “Influence of Islamic Law.”

Part 2

Law

Each of the following two chapters contemplates a moment in Jewish history in which the theme of belonging to the law was rearticulated. The first case is a medieval attempt to convert the traditional mode of belonging to the law into a conception of territorial jurisdiction. This monumental effort by a thirteenth-century jurist and thinker went against the traditional perception of Jewish law, so much so that had such a radical perception gained acceptance, it would have challenged the ethnic dimension of Jewish law and promoted its universalization as a land law. In the second case, the very idea of belonging to the law was defined as a theological stance and consequently became a matter of religious identity. Belonging to the law turned into the core of Jewish identity, defining Jewish status and legitimacy in contrast to other religions and the self-perceptions of modern Jews. These two unrelated endeavors met very different fates. The first, executed by a peerless rabbinic authority, generally failed and had no continuation in later Jewish thought. The second endeavor, however, though an outcome of a developing discourse of identity politics external to Judaism, was not only adopted by non-Jews but also absorbed into the mainstream of modern Judaism as the perceived core of Jewish identity.

3

Territorial Belonging and the Law Over the course of the past two millennia, the desire to resettle the Land of Israel has been a consistent component of Jewish consciousness. Sometimes this desire has encountered the opposition of pro-exilic ideologies,1 and sometimes it remained a sentimental or eschatological fantasy. Nevertheless, various religiously motivated endeavors to resettle Zion have been documented and studied in contemporary historiography. The sense of belonging to the Land of Israel that accompanied Jews in the Diaspora was accompanied by a vision of the differences between Jews and non-Jews in the resettled land as Jews imagined it, and the status and legitimacy of non-Jews in that land were a product of the Jewish longing for the Holy Land and the anticipated Jewish presence within it. The approach of Rabbi Mosheh ben Naḥman (Nahmanides; 1194–1270) in his work on the subject is exceptional. He considered the right to a land to be not unconditional but dependent on certain behaviors. As an individual, Nahmanides traveled from his native Spain to the Holy Land, where he developed a strong theological motivation to resettle the land, as well as a new perception of Jewish law containing a new conception of belonging to the law and an innovative approach that revalues the importance of religious identity vis-à-vis the law. Accordingly, Nahmanides provided a new definition of the distinction between us and them. Nahmanides’s innovative approach, which has received attention in the traditional and scholarly literature, belongs to the field of legal theology.2 Building on this prior scholarship, our analysis will assess the basic lines along which he reformulates the traditional views about belonging to the law; theorizes anew the concept of jurisdiction and the relation between law, identity, and land; and offers a new perspective on his conceptual and 1

2

Pro-exilic ideologies are widespread in the Babylonian Talmud and the literature of the Babylonian geonim, whose self-perception demonstrates the metaphoric transformation of Zion from a geographic area to the scholastic institution of the yeshiva; see Grossmann, “Yeshivah.” The Catalonian Jewish thinker Avraham bar Ḥiyya (1070–ca. 1140) claimed that the Land of Israel would in messianic times stretch beyond its historical borders to include the entire world. Ezra of Gerona (d. 1227), a contemporary of Nahmanides, went so far as to argue that the religious duty to settle the Land of Israel had been replaced by the suffering of exile. For an analysis of these Catalonian scholars and their contexts, see Idel, “Land of Israel.” The term legal theology signifies an understanding of the law derived from a theological context, a legal theory that cannot be described independently of theological perceptions. Many premodern legal theories can fairly be considered legal theologies.

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theological sources.3 We argue that in addition to the influence of his mystical tendencies, Nahmanides was responding to legal and theological doctrines that pervaded European Christendom of his time. According to our understanding, Nahmanides sought to rearticulate the notion of the halakhah as divine law and established a feudal association between God and his territory. One outcome of this innovative move was the introduction of a new style of belonging to the law: a belonging that is mediated through territory rather than derived from one’s religious identity. Nahmanides’s spatial notion of the halakhah stands in opposition to its traditional perception as direct, personal prescription.4 The following analysis will call for a reassessment of his approach to the Holy Land5 and of the inspirational motivation behind his personal voyage there in 1267.6

Law and Polycratic Lordship Nahmanides’s legal theology is encapsulated in his use of the biblical idiom “the law of the god of the land” as the fundamental notion of the divine law. The term originates in the biblical tale of the fate of the populations that were brought to Samaria by Sargon II of Assyria to take the place of the exiled Israelites (2 Kings 17:24–30). The Bible narrates that after their arrival, the Samaritans were attacked by wild lions for their violation of “the law of the god of the land,” which they eventually acknowledged with the help of an Israelite priest, thus ending the attacks. This miraculous episode is a problematic one in that it challenges the common assumption that the halakhah, at least in general, is applicable to Israelites and not to gentiles. As such, it affords Nahmanides the opportunity to reveal the territorial dimensions of the halakhah, valid only within the Land of Israel and transcending the division between those groups. For him, the biblical idiom “the law of the god of the land” stands not only for the local code 3

4

5

6

Ravitzky views Nahmanides’s approach as an evolutionary phase in a longstanding tradition around the idea of “waymarks to Zion,” an idea that originated in Sifre (discussed later), further developed within Rabbinic and antinomian circles, and eventually merged into the Zionist theology articulated by Rabbi Abraham Isaac Kook (1865–1935); see Ravitzky, “Waymarks to Zion.” Without denying Nahmanides’s part in this tradition, I wish to portray his proposal as a radical modification of the fundamental infrastructure of the halakhah that failed to gain acceptance as plausible. While Ravitzky distinguishes the halakhic aspect from the theological one, I view Nahmanides’s legal theology as a single coherent whole. A common denominator of most Jewish conceptions of divine law is the notion that it directly addresses its subject. For example, Philo claims that the notion of divine law is consistent with and even overlaps natural law (Martens, Philo, 13–30); Maimonides views the divine law as originating exclusively in the monumental revelation at Sinai and further extended and developed by human reasoning (David, “Maimonides”); Nissim Gerondi views the divine law as triggering divine bounty (Lorberbaum, Secularizing the Political, 93–149); and Yosef Albo views it as a universal vehicle for achieving spiritual success (Ehrlich, “Reassessment”). Halbertal uses Nahmanides’s antiphilosophical approach to the problem of death and law to exposes the antinomian aspect of his halakhic thought. See Halbertal, Nahmanides, 117–148. For a challenge to the traditional narrative that Nahmanides’s journey was an outcome of the Disputation of Barcelona, see Kayserling, review. See also Idel, “Land of Israel,” 205.

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of behavior but also for the fundamental rationale of the divine law as conditioned on a territorial criterion. This articulation had no precedent in mainstream rabbinic literature. Nahmanides’s argument can be taken as an attempt to paradigm shift affecting the most fundamental concepts of every legal system: jurisdiction and sovereignty. Nahmanides’s legal imagination is deeply anchored in a heavenly political structure that includes astrological powers governed by celestial constellations created, designed, and tasked by God. As he notes, this should be understood against the backdrop of medieval astrology and the parallelism between heavenly and earthly political structures that generated the basileomorphic vocabulary of his legal theology.7 Among the various ancient representations of God, the image of king is one of the most prominent. Nevertheless, even within biblical basileomorphic imagery, there are two clear subtypes, or metaphors, of God as ruler. The more common is the monocratic image of God as an emperor enjoying centralized and universal control.8 Nevertheless, the Bible also contains remnants of a polycratic image in which there are national deities subordinate to God, each administrating his own province. Within this metaphoric structure, divine dominion upon earth branches through inferior delegations that govern local domains or peoples. While the deity’s power in the monocratic model is all-encompassing, the polycratic image contains a structured hierarchy9 with divine agency that mediates between the supreme deity and his subjects.10 The tension between the monocratic and the polycratic image of God’s kingship is perhaps best demonstrated in two versions of Deuteronomy 32:8. The Masoretic version stresses a monocratic representation of God and accordingly the idea that God set national boundaries according to his elected people: “When the Most High gave to the nations their inheritance, when he separated the sons of men, he fixed the bounds of the peoples according to the number of the children of Israel.” However, the versions of the Septuagint and the Dead Sea Scroll copies of Deuteronomy state that the divine allocation was 7

8

9

10

Graetz (“Die Mystische Literatur”) coined the term basileomorphism for the representation of God through the imagery of kingship, which he traced in this form to Byzantine court ritual. See Schäfer, Jewish Mysticism, 344, for a critique of the usage of the term by Graetz and later scholars. As Philip Alexander (“Heikhalot Literature”) showed, imperial Roman and Sassanian court rituals probably are behind the royal imagery in hekhalot literature and the perception of the heavenly entourage as familia caelestis (pammalya shel ma‘lah) and familia caesaris. See also Heiser, “Divine Council.” For a prime example, see Psalm 47: “Clap your hands, all peoples! Shout to God with loud songs of joy! For the Lord, the Most High, is terrible, a great king over all the earth. . . . For God is the king of all the earth. . . . God reigns over the nations; God sits on his holy throne.” On the principle of hierarchy in legal thought in the time of Nahmanides, see Tierney, “Origins of Jurisdiction.” On the problem of divine agency in late ancient Judaism and Christianity, see Hurtado, One God, 17–40. On the analogy between earthly and heavenly ideas of rulership in Christian texts of the third and fourth centuries, see Lunn-Rockliffe, Ambrosiaster’s Political Theology, 127–145.

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made in accordance with the “angels of God” or “sons of God.”11 The theology of a polycratic heavenly structure in which divine power is distributed to secondary deities in charge of particular nations or territories is Greek in origin.12 The confrontation of the monocratic and polycratic images stood for opposing theologies in the first centuries of Jewish–Christian13 and Jewish– pagan14 polemics, as well as throughout the Middle Ages.15 Against the mainstream rabbinic tendency to emphasize the monocracy of God’s kingship, Nahmanides supports the view of God’s kingship as a polycracy. Surprisingly, Nahmanides endorses the polycratic image by reference to Deuteronomy 32:8, although he does not allude to different versions of the text: But the secret of the matter is in the verse which states, When the Most High gave to the nations their inheritance, when He separated the children of men, He set people etc. For the portion of the Eternal is His people etc. The meaning thereof is as follows: The glorious Name [i.e., God] created everything and He placed the power of the lower creatures in the higher beings, giving over each and every nation in their lands, after their nations some known star or constellation, as is known by means of astrological speculation. . . . He allotted to all nations constellations in the heavens, and higher above them the angels of the Supreme One whom He placed as lords over them. . . . Now the glorious name is God of gods, and Lord of lords.16

Nahmanides, like other medieval thinkers, used esoteric methods to resolve tensions between traditional perceptions and deeper truths. Here he says nothing of the distinct meanings of Deuteronomy 32:8 but reorganizes them vertically so that the monocratic image is evident exoterically while the 11

12

13

14

15 16

The phrase “angels of God” (ἀγγέλων Θεο) is found in nearly all extant Septuagint manuscripts. Several earlier manuscripts (and the Standard Version, inter alia) have “sons of God” (υἱῶν θεοῦ), a literal rendering of the biblical Hebrew phrase bene elohim, found in 4Q Deut j. Most scholars agree that the Qumran reading has polytheistic overtones that later scribes found unacceptable. Those scribes probably modified the verse to bring it more into line with Israel’s monotheistic faith. On a possible Ugaritic background to this problem, see Joosten, “Note.” For Plato, the structure of distributed deities enables a stable and peaceful order of the universe: “Then, in the beginning, God ruled and supervised the whole revolution, and so again, in the same way, all the parts of the universe were divided by regions among gods who ruled them, and, moreover, the animals were distributed by species and flocks among inferior deities as divine shepherds, each of whom was in all respects the independent guardian of the creatures under his own care, so that no creature was wild, nor did they eat one another, and there was no war among them, nor any strife whatsoever” (Pol. 271d–e). The second-century church father Justin Martyr (“Dialogue,” 706) acknowledged the two different versions of Deuteronomy 32:8 and the Jews’ preference for the monotheistic version. The Roman emperor Julian the Apostate (331–363) confronts the two images by ascribing to Moses the image of God as exclusive sovereign and ascribing the other image to the Romans: “If the immediate creator of the universe be he who is proclaimed by Moses, then we hold nobler beliefs concerning him, inasmuch as we consider him to be the master of all things in general, but that there are besides national gods who are subordinate to him and are like viceroys of a king, each administering separately his own province” (“Against the Galileans,” 358–359). See discussion by St. Anselm of Canterbury, Cur Deus Homo, 1.18 (pp. 132–134). Nahmanides, Commentary on the Torah, Leviticus 18:25, paraphrasing Deuteronomy. 10:17 at end.

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concealed truth is polycratic. Pure monocracy of God is only an exoteric representation; in reality, the powers controlling what takes places on Earth are distributive. The polycratic image of God’s kingship paves the way for Nahmanides’s construction of the God–law–land matrix. It allows the corresponding individualization of the three components. Thus just as the divine land is intimately related to God, so too the divine law is related to the divine land: The venerable God is the god of gods and the lord of lords over the whole world. But the Land of Israel, which is the axis mundi, is the inheritance of the Eternal designated to His name.17 He has placed none of the angels as chief, observer, or ruler over it, since He gave it as a heritage to His people who declare the Unity of His name. . . . Now He sanctified the people who dwell in His Land with the sanctity of observing the laws against forbidden sexual relationships, and with the abundant commandments. . . . He has set us apart from all the nations over whom He appointed princes and other celestial powers, by giving us the Land so that He, blessed be He, will be our God, and we will be dedicated to His Name.18

While the major streams of post-biblical Judaism celebrated the monocratic perception of God’s sovereignty and rejected the polycratic theology, as ultimately expressed in the Masoretic version, Nahmanides is much more sympathetic to and consistent with the Christian scriptural version. In fact, it would be no exaggeration to claim that his stance is an attempt to revive the biblical option of polycratic theology. Nahmanides’s construction of the God–law– land matrix therefore is not necessarily a direct outcome of cabalic or theurgic ideas.19 Here again his views appear to be consistent with traditional Christian doctrine.20 Contrary to the enlightened philosophical ethos that religious consciousness evolved from polytheism to monotheism, Nahmanides conversely claims that the monocratic deity is only an external guise of the concealed truth of the polycratic deity. 17 18 19

20

On the notion of the axis mundi, see Eliade, Sacred, 32–47, and n. 35 below. Nahmanides, Commentary on the Torah, Leviticus 18:25 (pp. 109–112). A polycratic theology that ascribes God’s specific direct sovereignty to both the People of Israel and the Land of Israel appears in various post-biblical Jewish writings. See Jubilees 15:31–32; Targum Yerushalmi to Genesis 11:8 and Deuteronomy 32:8–9; Midrash Tanḥuma, Re’e 8; Leḳaḥ Ṭov to Genesis 9:19; Pirḳe de-Rabbi Eli’ezer 24. In Jewish medieval thought, the concept appears thus: “Rabbi El‘azar said, ‘It is written: “a land in which you will eat bread without scarcity, in which you will lack nothing” (Deut. 8:9). Why this repetition of “in which”? Because as has been said, the holy One, blessed is He, apportioned all nations and lands among deputies and envoys, while He has taken as His inheritance the Land of Israel, not granting it to any envoy or deputy, but ruling over it Himself alone. Similarly, no angel or deputy rules over the people of Israel, but He alone. So He brought the people over whom no one else rules into the land over which no one else rules’” (Zohar, Vayyera, 108b). On the tension between Nahmanides’s theology and that of the Zohar, see Huss, “Early Dissemination.” Funkenstein (“Typological Reading”) argued that Nahmanides’s typological hermeneutic was influenced by Christian theological hermeneutical methods. Halbertal pointed out that Nahmanides innovatively developed a rabbinic perception of original sin, obviously under the inspiration of the Christian doctrine. See Halbertal, Nahmanides, 121–126.

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This preference for the polycratic over the monocratic model should also be viewed in light of the European legal and political imagination of the time, and notably the decline of imperial structures in favor of a feudal order. This change challenged the imperial supremacy of the Holy Roman Empire and replaced it with secondary sovereignties in the form of local and territorial authorities.21 The end of imperial lordship contributed to the legal theory that the universe is a system of mutually independent territorial sovereignties,22 and jurists came to emphasize the distinction between a state of de jure overlordship (dominus totius mundi23 or rex universalis) and de facto independent kingships that excluded superior sovereignty (principes superiores non recognoscentes). The transition from imperial to feudal structures, from a unitary politics to localized and varietal politics, very well may have bolstered the polycratic imagination in the theological realm as well. We ought not overlook the likely effects of feudalism and the polycratic imagination on Nahmanides’s God–law–land matrix and the identification of the Holy Land with the inheritance of God.

God’s Inheritance A cornerstone of Nahmanides’s novel proposal is his insistence in this context on designating the Holy Land not as the Land of Israel, as was the norm, but as “the land of the Lord” or “God’s inheritance.” The latter term appears several times in the Bible, generally referring to the people of Israel and in a few cases to a more specific tract of land.24 Nahmanides ignores the ethnic meaning and espouses the territorial one. In his argument, the territorial meaning becomes 21

22

23

24

The breakdown of the unified concept of universal sovereignty is attributed to two causes: the strengthened position of local kings backed by papal support, such as the declaration of Pope Innocent III that the French kings need not recognize any imperial authority above theirs, and the revival of Aristotelian thought on the natural origin of political society, in which political life derived its legitimacy from its natural origins and not from the participation of the particulars in the whole. As some scholars have shown, this distinction is the foundation of the legal theory on which the sovereign territorial state of early modern times developed. See Grewe, Epochs of International Law, 47; Ullmann, “Sovereignty.” The statement dominus mundi (I am master of the world), uttered by the Roman emperor Antoninus Pius (86–161), later was adapted to articulate the legal category of imperial sovereignty (see Dig. 14.2.9). On the development of imperial ideology and the jurisprudence of sovereignty in the twelfth and thirteenth centuries, see Pennington, “Imperial Ideology.” This explicitly is the case with Jephthah’s protest against the aggression of the Ammonite king: “Will you not possess what Chemosh your god gives you to possess? And all that the Lord our God has dispossessed before us, we will possess” (Judg. 11:24). A similar case is David’s pleading during his persecution by Saul: “Now therefore let my lord the king hear the words of his servant. If it is the Lord who has stirred you up against me, may he accept an offering; but if it is men, may they be cursed before the Lord, for they have driven me out this day that I should have no share in the heritage of the Lord, saying, ‘Go, serve other gods’” (1 Sam. 26:19). The Talmud favors the territorial reading, as it supports the Talmudic celebration of the duty to settle the Holy Land: “Whoever lives in the Land of Israel may be considered to have a God, but whoever lives outside the Land may be regarded as one who has no God. . . . Similarly it was said in Scripture in [the story of] David” (Ketubbot, 110b).

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the fundamental pillar of the halakhah as territorial law, prioritizing the land’s belonging to the deity over its belonging to the people of Israel and consequently the believers’ belonging to the law as mediated through the land. As seen above, the idea of God’s inheritance is consequential to the tension between the deity’s totality and particularity. In a New Year’s sermon delivered in Acre in 1269, Nahmanides reiterated the idea of God’s inheritance, differentiating between God’s two images as creator and as sovereign. These two images, Nahmanides insists, do not overlap. While God undeniably created the entire universe, His lordship is over a concrete territory: What is the meaning of (this phrase): “The Land of the Lord”? Isn’t the entire universe “The Land of the Lord”? [Behold] He created everything, He formed everything and everything is His . . . but the Land of Israel is the axis mundi, is God’s inheritance peculiar to his name . . . . He bestowed [the land] upon His people who proclaim the unity of His name.25

Here Nahmanides organizes the logic of the God–law–land matrix into two phases. In the first, because of the singularity of the land at the center of the world, which connects heaven and earth, that land is God’s special inheritance. Only in the second phase is God’s inheritance bestowed upon those who proclaim the unity of His name. Israel’s association with and belonging to the Holy Land stem by feudal reasoning from God’s territorial lordship.26 Although identification of the Holy Land and God’s inheritance did not become a widespread concept in mainstream rabbinic thought, it was a vital component of Crusader propaganda and ideology. It gave legal and political justification to the Crusades and motivated Christians to join those attempts to recover Christian control over Palestine.27 The term “God’s inheritance” marks Crusader writings starting from the 1095 Clermont sermon of Pope Urban II.28 After the Crusaders’ military defeat in the late twelfth century, resulting in the loss of Jerusalem and much of Palestine, Psalm 79, which opens with a reference to the violation of God’s haereditatem,29 was introduced for some time into the daily mass. Likewise, the rhetoric of the Second Crusade (1197–1192), such as that preserved in the Itinerarium Peregrinorum et Gesta Regis Ricardi,30 includes many references identifying the Holy Land as God’s inheritance.31 The believer’s 25 26

27 29

30 31

Nahmanides, “Drashah,” 149–150. Consider Von Rad’s statement on the independence of the concepts of the Promised Land and God’s land in the Bible: “The promise of the land is a group of concepts which are completely independent of the concept of Jahweh as the owner of Canaan. Not in a single instance amongst the well-nigh innumerable passages where appeal is made to the promise of the land is this land described as the property of Jahweh – it is rather the land which formerly belonged to other nations, which Jahweh, in making his design in history effective, gave to Israel to possess” (Old Testament Theology, 300). Daniel, “Legal and Political Theory.” 28 Schein, Gateway, 35–38. “O God, the heathen have come into thy inheritance; they have defiled thy holy temple; they have laid Jerusalem in ruins.” See Nicholson, Chronicle. The announcement of the Islamic occupation sent by the Archbishop of Tyre was couched in terms of the occupation of God’s inheritance by infidels: “Fame had carried to the ears of all the

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duty to support and join the Crusades often was conceptualized in terms of feudal responsibility to the Lord’s patrimony. Such argumentation can be seen in the way Jacques de Vitry (1160/1170–1240)32 motivates potential Crusaders with a description of the duty to crusade as a test of a vassal’s loyalty: The Lord has indeed suffered the loss of his patrimony and wants to test [his] friends and find out if you are his faithful vassals. He who holds a fief from a liege lord is rightfully deprived of his fief if he abandons him, when he is involved in a war and his inheritance is taken away from him (hereditas sua illi aufertur). You hold your body and soul and all that you have from the highest emperor, who has you summoned today to come to his aid in battle, even if you are not bound by feudal law (iure feodi). I beseech you, brothers . . . that you come . . . to the aid of the Lord, who has been deprived of his inheritance, like faithful vassals and liege men, but also to your own aid, and that you may not receive such great grace in vain.33

The Holy Land is considered God’s patrimony of which he has been deprived. Therefore the Crusaders, as loyal vassals, are called upon to recover the Lord’s inheritance. This is a likely backdrop to the thinking of Nahmanides here. His feudal imagery was not used to gain political or military power or to recruit warriors for a long journey (albeit his use of the term “God’s inheritance” may be a latent polemic against crusading Christians’ self-identity as the true offspring and heirs of God). Instead, it served to articulate his legal theology and formed the basis for his relocation to the Holy Land. Having emphasized the extra-Jewish backdrop of Nahmanides’s legal theology, let us now turn to the intra-Jewish aspects, perhaps most dramatically his advocacy of the trope of divine sovereignty rather than the traditional image of God as supreme legislator. As we will see, the move from God the legislator to God the sovereign is at the core of Nahmanides’s reductive claim that the halakhah should be taken as territorial law.34

32

33

34

kings, and of all the faithful, that the inheritance of Christ was occupied by the heathen” (haereditatem Christi a gentibus occupatam; Nicholson, Itinerarium Peregrinorum, 47). The Holy Land was placed in Muslim hands because of the sins of the Christians: “the Lord seeing that the land . . . had sunk into an abyss of turpitude, treated with neglect his inheritance (haereditatem Suam sprevit), and suffered Saladin . . . to put forth his fury” (p. 23). The Christian defeat in the battle of Hittin (1187) is described as God’s plan to “hem in his people with the sword” and to punish “the sins of men” by giving “over his inheritance (haereditatem suam peccatis) to slaughter and devastation” (p. 32). Likewise, Saladin’s megalomaniac motivation is described as an aspiration “to occupy the land which is the inheritance of our Lord” (haereditatem Domini totis viribus occupare conatur; pp. 28–29). Jacques de Vitry toured France and Germany to recruit crusaders and eventually became the Bishop of Acre (1216). Maier, Crusade Propaganda and Ideology, 98–99, 126–127. See also pp. 186–187, 250–263, on the later adoption of the allegory by Gilbert of Tournai. Stern (Problems and Parables, 85–86) points out that the idea of the territoriality of the halakhah correlates with the Nahmanidean view that the reasons for the commandments are theocentric rather than anthropocentric.

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Land Dependency There [in the Holy Land] is the place for fulfilling the commandments and accepting upon oneself the kingship of heaven. Our worship there is accepted, for there are the house of our God and the gates of heaven. —Rabbi Asher ben Yeḥi’el, Responsa

The candor of Rabbi Asher ben Yeḥi’el, a thirteenth-century Spanish Jew who took a vow to immigrate to the Holy Land, articulates the importance of physical presence in a concrete place for the complete performance of religious duties. The reference to Jacob’s reaction in Genesis 28:16–17 to the revelation at Bethel (a toponym denoting “the house of God”) in his escape to Aram encompasses the two features emphasized in Nahmanides’s arguments: that the Holy Land is God’s residence and that it is where heaven and earth meet.35 These features make it strategic for religious worship. The Nahmanidean reduction of the entire halakhah to territorial law can be understood by tracing the conceptual evolution of the Talmudic category of land-linked commandments, an ambiguously named grouping that may be understood to invoke the earth or ground in general, or particularly the Land of Israel. This duality admits two notions of territorial dependency: territorial laws whose practice is restricted to the Land of Israel, and laws that have to do with the ground, with no territorial limits. Both notions appear in various contexts in Talmudic literature, producing different intersections of law and territory. The preeminence of the latter notion is well exemplified in the following midrash, which acknowledges both but gives preference to the idea of laws of the earth, contrasting them with the other laws, which are linked to the body: “You shall surely destroy all the places [where the nations whom you shall dispossess served their gods].”36 Just as [the annihilation of] idolatry is a commandment linked to the body and not linked to the land and is obligatory both inside and outside the Land, so every commandment linked to the body and not linked to the land is incumbent both inside and outside the Land.37

However, other Talmudic sources, mainly those ascribed to the school of Rabbi Shim‘on ben Yoḥai, highlight the notion of territorial dependency: Rabbi El‘azar ben Rabbi Shim‘on said, “All commandments that the Israelites were commanded [to practice] before their entry into the Land are operative 35

36

The biblical association of God’s residence with the gates of heaven appears to be among the motives of the Crusades, as can be seen in another sermon of Jacques de Vitry: “The cross is the key that opens the gates of paradise (reserans portas paradise) . . . as the house of God is recognized by the cross on top of it, so a man of the house of God (homo dignoscitur domus Dei) is recognized by the cross put on his shoulders” (Maier, Crusade Propaganda and Ideology, 106–107). Deuteronomy 12:2. 37 Sifre, Re’e 12:59.

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Kinship, Law, and Politics both inside and outside the Land; [commandments that they were commanded to practice] after their entry into the Land are operative only inside the Land.”38

The dichotomy of territorial and corporal duties echoes the typological contrast between territorial jurisdictions and personal jurisdictions. However, against the Talmudic legal tendency to view the corporal–territorial dichotomy as reflecting a reasonable taxonomy of the divine commandments, Nahmanides associates that dichotomy with rabbinic esotericism and a need to bury cryptic truths in abstruse categorizations. Thus the dichotomy reflects not types of law, but the covert truth that the halakhah is a territorial law, while its external appearance is that of a corporal law. The above doctrine of land-linked commandments is in fact the raison d’être of the divine law, an explosive truth that cannot be disclosed to a wide audience. The law is therefore presented as corporal law. Commenting on the divine justification for blessing Abraham,39 Nahmanides suggests viewing the corporal–territorial taxonomy as a constructed conundrum between the territorial essence of the law and the external guise of corporal duties: “Although the commandments had been decreed to us as corporal duties [being valid] at any place, they are the law of the god of the land. And our rabbis hinted this secret and I will note on it with God’s help.”40 The need to conceal this explosive truth is understandable. Its disclosure would subvert the traditional conception of the divine law and risk undermining practical commitment to the halakhah, no less. The antinomian aspects in the thought and writings of Nahmanides have received attention in modern scholarship. Halbertal writes that Nahmanides’s antinomianism is evident in his historiosophic picture and his notion of “the period of the Torah.”41 The antinomianism of the above account is even more pronounced and thus more perilous. Nahmanides’s antinomian outlook on the corporal–territorial taxonomy appears in other contexts as well. The biblical restrictions on sexual conduct listed in Leviticus 18 provide him with an opportunity to readdress the taxonomy and fulfill his earlier promise to expand on this secret to which he alluded. For him, the scriptural narrative that attributes the Canaanites’ expulsion from the land to their sexual behavior42 supports the territory-linked view of the entire body of the halakhah and advocacy of the general doctrine of the law of the god of the land. The 38 39

40 41

42

Tosefta, Ḳiddushin 1:12. “Because Abraham obeyed my voice and kept my charge, my commandments, my statutes, and my laws” (Gen. 26:5). Nahmanides, Commentary on the Torah, Genesis 26:5. In the work of Nahmanides, the concept of the period of the Torah represents the idea that the laws of the Torah are temporal, applicable only to the premessianic period, during which there is a disparity between human will and the divine law. In the messianic period, by contrast, there will be no autonomous human will, no imposed law, and thus no individualization and no human death. See Halbertal, By Way of Truth, 117–148. “Do not defile yourselves by any of these things, for by all these the nations I am casting out before you defiled themselves; and the land became defiled, so that I punished its iniquity, and the land vomited out its inhabitants” (Lev. 18:24–25).

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description in Leviticus 18, together with the midrashic notion of the nullity of the commandments in exilic circumstances, furnishes Nahmanides with solid grounds for his legal theology. Nahmanides begins his remarks in Leviticus by rhetorical asking why the Bible depicts sexual crimes as causing expulsion from the land: Scripture was very strict in forbidding these sexual relationships on account of the Land which becomes defiled by them, and which in turn will vomit out the people that do [these abominations]. Now, forbidden sexual relationships are matters [are in fact] corporal-duties, and do not depend on the Land [so why should the Land be affected by these personal immoral acts]?43

Nahmanides further argues that the Canaanites’ sexual misconduct is judged not as a corporal sin, but as a sin against the environment, prompting their removal from the land. For the sake of grounding the unintuitive statement that even sexual behavior should be seen as violating land-linked commandments, Nahmanides invokes a midrashic account of how obedience to the halakhah has different meaning inside and outside of the land: “[Take heed lest your heart be deceived, and you turn aside and serve other gods and worship them, and the anger of the Lord be kindled against you, and he shut up the heavens, so that there be no rain, and the land yield no fruit] and you perish quickly off the good land which the Lord gives you.”44 Although I banish you from the Land to outside the Land, make yourselves distinctive through the commandments, so that when you return, they will not be novel to you. This can be compared to a king who was angry with his wife and sent her back to her father’s house and told her, “Adorn yourself with your adornments, so that when you come back it will not be novel to you.”45

The midrash introduces an optimistic view of exile by comparing it to a family crisis that ends well. Within this allegory, the restoration of family harmony is envisaged even during the darkest moment, when the couple separates and the wife is sent back to her father’s household. The expulsion of the wife is accompanied by the husband’s allusion to a future reunion. Looking ahead to the eventual reunification with his wife, the husband urges her to continue adorning herself while separated from him. The midrashic allegory conjures up a rich imagery of the relationship between the divine law and the land, using the metaphor of the household. The image of the commandments as ornaments is significant in that it calls attention to the function of the law in the bonding of God and Israel as husband and wife.46 When the couple live together at home, the garments 43 45 46

44 Nahmanides, Commentary on the Torah, Leviticus 18:25. Deuteronomy 11:16–17. Sifre, Eḳev 43. While this perception is consistent with the spousal image of the relationship between Israel and the deity, it stands apart from traditional images of the divine law. More prominent images include the pharmacological metaphor, originating in Greek legal and political thought (Plat., Stat. 293b–c); the image of the divine law as light, on which see Thomas, Summa Theologica

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address the husband, serving to ensure that his wife remain attractive to him. Conversely, during their separation, wearing the garments will remind her of him and make her want to return to him. The divine law thus has one role within the divine space and another outside of it. Inside the home its purpose is to maintain attraction between the two, while outside the home it preserves the living memory of their life together. Nahmanides clearly finds the twofold aspect of the commandments coherent with the territorial image of the law. In home territory, fulfillment of the divine laws is part of an active relationship with the deity; outside it is merely a reminder of this relationship. The corporal–territorial dichotomy thus reflects not an essential typology within the halakhah, but two spatial contexts, or two legal modes – exile and homeland – in which the law serves different ends. In exilic circumstances, only corporal commandments, which function as self-referential reminders, are obligatory. Within the land, says Nahmanides, the commandments play a role in the intimate relationship with God, in accordance with the doctrine of the law of the god of the land: Now the verses which state and ye perish quickly . . . and ye shall lay up these my words etc. make obligatory in the exile only corporal-commandments, such as the [wearing of] phylacteries and [placing of] mezuzah, and concerning them the rabbis explained [that we must observe them] so that they shall not be novelties to us when we return to the land, for the main [fulfillment] of the commandments is [to be kept] when dwelling in the Land of God.47

The Nahmanidean reading of the midrash introduces new parameters and features to the halakhah as divine law. Accordingly, the concepts of sovereignty, legal authority, jurisdiction, and being subject to the law are redefined.

Universality and Changeability of the Divine Law The same law at all times and all nations and eternal and unchangeable (et omnes gentes omni tempore una lex et sempiterna et immutabilis). —Cicero, De republica 3.22

Differences between various conceptualizations of the divine law can be measured against the famous Ciceronian notion of natural law.48 Some conceptualizations view the divine law as intelligible, introspective, and corresponding to nature, while others stress its universality and eternal nature, and

47 48

1.2.91, 3 (pp. 209–210); and that of a botanical organism, on which see Hallaq, Islamic Legal Theories, 153. Nahmanides, Commentary on the Torah, Leviticus 18:25. “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. . . . We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it . . . one eternal unchangeable law will be valid for all nations and all times” (Cicero, De republica 3.22).

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still others embrace only one of these features. Some attitudes toward divine law can be seen as grappling with its universality and eternality.49 Nahmanides’s view of the halakhah as territory-mediated law gives a new form to its features and jurisdictional limits.50 Traditionally, the determinants of halakhic jurisdictional boundaries correspond to the nature of the halakhah as a generally personal, non-territorial law. Yet even within Talmudic literature, we encounter a stream of thought that systematically backs the universal relevance of the study and practice of Torah.51 For medieval thinkers, meanwhile, the universality of the divine law was formulated mainly in respect of the universality of its sources. At stake were two possible sources of the halakhah: autonomous and heteronomous. Consequently, there were two epistemological approaches to its potential addressees. Some thinkers held that in principle, the halakhah was comprehensible autonomously as well as heteronomously. For them, reasoning, contemplation, and introspection were valid sources on whose basis to comprehend the divine law. Other thinkers meanwhile insisted on epiphany as the sole valid source of halakhic knowledge. Biblical stories about the patriarchs’ deeds provide test cases for the different approaches. Cases in which the patriarchs appear to observe yet-unrevealed laws challenge the heteronomous approach, while the autonomous approach must contend with patriarchal deeds that are in explicit contrast to these laws. Autonomous approaches appear in various periods and intellectual contexts. The earliest known to us is from the Hellenic period, when Philo identified the Torah with nomos physeôs, or natural law.52 Later, scholars who flourished in Islamic intellectual milieus followed the Mua’tazili distinction between rational and revelatory commandments53 and championed reasoning-based jurisprudence. Against the backdrop of fourteenth-century canonists, Rabbi Yosef Albo (1380–1444) embraced a threefold structure of the law to which they and others subscribed – natural, human, and divine – in his theory of the halakhah.54 At the same time, the heteronomous approach was also advocated by prominent thinkers. Maimonides, the great champion of rationally grounded jurisprudence, campaigned for the heteronomous approach by stressing that nothing but epiphany could validate halakhic norms and that the halakhah thus addressed the Jewish people exclusively. From the Maimonidean perspective, pre-Sinaitic laws preserved by observant non49

50

51 53 54

While both Christian and Islamic approaches endorse the changeability of the divine law, either by a new covenant or by a doctrine of abrogation (Qur’an 2:106; 16:101), Jewish approaches tend to stress the eternality of the Mosaic law. Likewise, while universal relevance of the divine law is consistent with Christian and Islamic theologies, the mainstream rabbinic view limits applicability by ethnicity. Etymologically, jurisdiction for the Romans was the speaking of the law (juris dicere), or the gift of the law given by dike (dikaiodosia, diken didonai). By jurisdiction here I mean the extent to which the law has force or validity. See Tierney, “Origins of Jurisdiction.” 52 See Hirshman, Torah. See Reinhartz, “Nomos.” See Sklare, “Gentiles”; Erder, “Early Karaite Conceptions.” See Melamed, “Classification of the Law.”

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Jews (known as righteous among the nations55) are meaningless unless those non-Jews accept the Sinaitic epiphany as the sole source of the law.56 Another theoretical point on which the two approaches differ is whether the promulgation of the divine law is a necessary condition for its being imperative. The autonomists would argue that the law is obligatory irrespective of promulgation, while heteronomists would deny the validity of nonpromulgated laws. Thus Maimonides denies that there is obligatory content in pre-Sinaitic revelations, even those that the Torah appears to record as commandments, such as circumcision and the prohibition against eating the sciatic nerve, which later were imposed in any event on the Israelites.57 Jacob’s marriage to two sisters is a favorite test case, as it stands in explicit contravention of a prohibition detailed in Leviticus 18.58 Rabbinic reactions to this inconsistency vary from pure apology to full justification. Apologetically, Jacob is excused on account of ignorance or the factual circumstances.59 55

56

57

58

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This category is hardly recorded before Maimonides, who in fact rooted the concept in Rabbinic sources. Its origins in the Talmudic literature denote non-Jews who were considered pious, such as Job (Bava Batra, 15a–16b), or the wise or helpful among Roman officials, such as Antoninus (Sanhedrin, 91a–b). “A heathen who accepts the seven commandments and observes them scrupulously is a ‘righteous heathen’ and will have a portion in the world-tocome, provided that he accepts them and performs them because the Holy One, Blessed Be He, commanded them in the Law and made it known through Moses, our teacher, that the observance thereof had been enjoined upon the descendants of Noah even before the Law was given. But if his observance thereof is based upon a reasoned conclusion, he is not deemed a resident alien, or one of the Righteous among the Nations, but one of their wise men” (Maimonides, Mishneh Torah, Kings 8:11, p. 230). This stipulation was a source of Spinoza’s attack on Maimonides for his allegedly illiberal view. See Spinoza, Theological-Political Treatise, 79; Strauss, Spinoza’s Critique, 154–155. Mendelssohn, defending Judaism in his famous polemics with Johann Caspar Lavater, emphasized the universalistic humanism of the Jewish Law by referring to the Rabbinic dictum that assigns to the righteous among the nations a share in the world to come. His dissatisfaction with Maimonidean “restricted tolerance,” which contradicted Mendelssohn’s emancipatory ideology, is well expressed in Mendelssohn’s correspondence with Rabbi Ya‘aḳov Emden (1697–1776). See Altmann, Moses Mendelssohn, 217–218, 294–295. The initial concept of pre-Sinaitic, or Noahide, laws in the Rabbinic tradition is based on Genesis 9:4–6. The Noahide laws are a list of several moral imperatives that the Talmud states God gave to Noah as a binding set of laws for all humankind. On the Mishnaic origins of this category, see Hirshman, Torah, 90–105. “Know that everything that we now do or refrain from doing is done only because God commanded us through Moses, and not because God commanded the prophets that preceded him. . . . Thus we practice circumcision not because Abraham circumcised himself and his household, but because God commanded us through Moses to circumcise in the same way as Abraham, may he rest in peace” (Maimonides to Mishnah, Ḥullin 7:6). For the original imperative to circumcise, see Genesis 17. On the prohibition against eating the sciatic nerve, see Genesis 32:25–33. “And you shall not take a woman as a rival wife to her sister, uncovering her nakedness while her sister is yet alive” (Lev. 18:18). For a comparative anthropological analysis of this type of incestuous relationship, see Héritier, Anthropology of Incest, 129–197. Justification by ignorance appears in Second Temple literature, on which in this context see Gary A. Anderson, “Retelling of the Bible.” For justification in light of circumstances, see the commentary of Avraham Ibn Ezra. Another interpretation argues that Leah and Rachel must have converted to Jacob’s religion before marrying him; since a convert to Judaism is

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Alternatively, if pre-Sinaitic misconduct is not to be judged or evaluated against the Sinaitic decrees, Jacob was exempt from laws later to be revealed, because fulfillment of the Sinaitic commandments before that revelation was a voluntary choice. The above Ciceronian standards of universality and eternality are better defined than first meets the eye. The universality of the law crosses temporal and national borders, and its eternity means that the law is unchangeable and unstoppable. Nahmanides, as an adherent of the autonomous approach, posits the universal relevance of the Torah. Contrary to Maimonides, he does evaluate the patriarchs’ fulfillment of the law independently of the future revelation at Sinai. Nevertheless, his universalistic approach is framed within a concrete territorial jurisdiction: It seems to me, according to our rabbis, that Abraham learned the entire Torah by the Holy Spirit . . . and observed it all voluntarily. Though his observance took place only at the land. And Jacob’s marriage to two sisters was only out of the land. And so is the case with Amram [who married Jochebed]. For although the commandments had been decreed to us as corporal-duties [being valid] at any place, they are the law of the god of the land.60

The validity of the halakhah remains subordinated to the spatial criterion. The jurisdiction of the halakhah for Nahmanides is limited to the geographic domain of God’s land, and for this reason the patriarchs’ deviations from the law are in fact cases of exemption from the law. Nahmanides’s radical deviation from mainstream rabbinic views is discernable in regard to the meaning of the eternity of the Torah as well. His insistence on the territoriality of the halakhah, a radical claim in post-Talmudic discourse, allows him to claim the abeyance of the Torah as divine law and accounts for his strict esotericism, as well as the harsh criticism of his legal theology. The cessation of the halakhah in exile is an obvious outcome of the territorial reduction Nahmanides advocates. He may even imply as much in his exposition of the God–law–land matrix. Further on in his commentary to Leviticus 18:26, he mentions the possibility of the discontinuation of the halakhah as a commonsense outcome broached in a midrashic tale: “This in fact was the thought of the wicked ones who said to the prophet Ezekiel: ‘our master Ezekiel, if a servant is sold by his master, does the master still have claim to him?’” Here Nahmanides’s esotericism again is apparent in his elusive reference to a Talmudic source. He probably intends the following midrash: . . . as the people of Israel said to Ezekiel: . . . “If a servant is sold by his master, hasn’t he left his authority?” He said, “Yes.”

60

halakhically considered to shed erstwhile kin relationships, they were legally reborn with Jewish identity and no longer considered siblings. Nahmanides, Commentary on the Torah, Genesis 26:5; final words rendered as elsewhere in this chapter.

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Kinship, Law, and Politics They said to him, “Since God has sold us to the nations of the world, we have left his authority.” He said, “. . . As I live, says the Lord God, surely with a mighty hand and an outstretched arm, and with wrath poured out, I will be king over you.”61

The midrash addresses two opposing perceptions of whether exilic existence affects the need for compliance with religious demands. The elders argue that since God has disposed of them, they have been released from His commandments. However, God, represented by Ezekiel, claims rulership over everything. The midrash thus tackles the tension between territorial and universal jurisdiction of the divine commandments, and favors the latter. Nahmanides’s representation of the midrash is much more ambivalent. He creates the impression that he condemns the view of the elders by labeling them “wicked ones.” However, the elders’ argument is completely consistent with his articulation of the halakhah as territory-linked law. Perhaps Nahmanides did not subscribe to the universal jurisdiction of the halakhah and was sympathetic to the elders’ argument but concealed his dissatisfaction with the Talmudic stance by seemingly condemning the elders as wicked. Nahmanides’s prestige and esotericism probably account for the relative lack of criticism of his legal theology. The sixteenth-century thinker Judah Loew ben Bezalel of Prague (1520–1609) was one of those who did criticize Nahmanides for this doctrine, alluding to its resemblance to the Christian conception of a new covenant: But if the lauded Lord did not prescribe the commandments as to be observed outside the land equally as within the land, then their future return to the land would be considered a new giving, for the commandments had been abolished. . . . There is no new giving here . . . for the Torah was given only once by the lauded Lord, not twice . . . and there are no new commandments, and the original obligation never was abolished.62

The cessation of the Torah’s applicability or exemption from the divine law is perhaps the clearest expression of Nahmanides’s antinomianism. His view, like that later espoused by Spinoza,63 shows his radicalism. 61

62

63

Sifre, Shelaḥ . . ., quoting Ezekiel 20:33 at end. Scholarly commentaries explain the elders’ approach as expressing a religious perplexity and a wish to clarify the status of their religious allegiance in exile; see Mein, Ezekiel, 193–194. Eichrodt (Ezekiel, 277) draws attention to the resemblance to 1 Samuel 8, where the Israelites’ desire for a king is expressed in similar terms. Yehudah Loew ben Betsal’el of Prague, Gur Aryeh (on Deuteronomy) (Jerusalem, 1972), pp. 54–55. He writes strongly on various occasions against the Nahmanidean doctrine: “this idea is implausible, for being in the land or outside the land does not affect [the validity of] corporal duties” (Tif’eret Yisra’el vol. I [Jerusalem, 2000], p. 286); “I am astonished by what Nahamanides said. . . . Nahmanides’s interpretation that the patriarchs observed the laws only at the Land of Israel is intolerable and implausible” (Gur Aryeh (on Genesis) [Jerusalem, 1972], p. 237). The view of exiles as released from the divine law is also argued by Spinoza, though for Spinoza the reason is not territorial dependence but dependence on government power (ex jure imperii): “On the same grounds, revealed religion no longer possessed the force of law after the

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Identity and Otherness In the same city there are two peoples under the same king, and with the two people two ways of life, and with two ways of life two dominions, and with two dominions a double order of jurisdiction emerges (duplex iurisdictionis ordo procedit). . . . The two dominions are the institutional Church and secular government; the double order of jurisdiction (duplex iurisdictio) is divine and human law. —Stephen of Tournai, Preface to the Summa

The tension between territorial jurisdiction, in which laws apply within a geographic area, and personal jurisdiction, in which laws apply to individuals based on their identity or belonging, was known in late ancient times. Broadly speaking, these two types of jurisdiction are not merely principles in the implementation of law, but also factors in the shaping of cultural and religious identity. This was the reason for the ambivalence of early Christians, who identified with Roman laws on some occasions and were alienated from the same legal system at other times.64 The two types of jurisdiction exemplify the complex relationship between religious nomoi based on an ethnos or populous, and an imperial nomos that transcends them. Thus St. Paul, born a Roman citizen, escaped a scourging from the Jewish authorities of Jerusalem by claiming a personal jurisdiction that exempted him from Judean territorial jurisdiction.65 For Stephen of Tournai (1128–1203),66 jurisdiction indeed was personal in essence, and a duplex iurisdictio or even more jurisdictions in a given location

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destruction of the Hebrew state. For there can be no doubt that as soon as the Hebrews transferred their right to the king of Babylon, the kingdom of God and the divine law immediately ceased to be effective. For, by that very fact, the covenant with which they undertook to obey everything that God ordained, and which had been the foundation of the kingdom of God, was utterly abolished. They could no longer continue to observe it since from that moment onwards they were no longer under their own jurisdiction (as when they were in the desert or in their own country) but under that of the Babylonian ruler whom they were obliged to obey in everything” (Spinoza, Theological-Political Treatise, 240–241). Spinoza’s view may have been inspired by Thomas Aquinas’s discussions of the relationship between the Old Law and the New Law: “The judicial precepts established by men retain their binding force for ever, so long as the state of government remains the same (manente illo statu regiminis). But if the state or nation pass to another form of government, the laws must needs be changed. . . . Consequently when the state of that people changed (mutato statu illius populi), the judicial precepts had to be changed also” (Thomas, Summa Theologica 1.2.104.3, pp. 305–306). On the Aristotelian-Thomasitic notion of the state as regime and the contribution of this notion to the theory of the state, see Alan Harding, “Aquinas and the Legislators.” See Andrew S. Jacobs, “Papinian.” Acts 22:25–29; 25:6–12; 26:32. Since the 1648 Treaty of Westphalia, territorial law has been accepted as dominant. In modern times, it may reflect the confusion between notions of the state and of the nation as decisive in determining a person’s rights and responsibilities. See Guterman, Legal-Constitutional Tradition, 11–29. Stephen of Tournai, a Roman Catholic canonist, studied canon law and Roman law at the University of Bologna, returning to his monastery at Saint-Euverte in Orléans in 1160. In 1192 he became Bishop of Tournai. He wrote Summa in decretum Gratiani in 1159. See Conklin, “Stephen of Tournai.”

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were possible. Mainstream rabbinic thought similarly adhered to personal jurisdiction and acknowledged the possibility of two jurisdictions over persons in a given place. This is best demonstrated by the Talmudic category of Noahide laws, which are intended for all humankind. While Jews, as members of the covenant, are obliged by their covenantal relationship to observe all the commandments, all human beings are obliged to observe the few Noahide commandments. Nahmanides, however, is led by his notion of territorial jurisdiction to challenge the Talmudic division between the Noahide laws and other halakhic requirements. In loyalty to the Rabbinic tradition, Nahmanides only cautiously criticizes the Talmudic conception of the universal commandments, noting on its inconsistency with the biblical description: Now scripture mentions that the people of the land of Canaan were punished on account of their immoral [sexual] deeds. And our rabbis have said that they were warned about these matters from the time of creation, when these laws were declared to Adam and Noah, for He does not punish unless He admonishes first. Scripture, however, did not state the admonition, but instead said that the Land would vomit them out, for the Land abhors all these abominations.67 Now the Canaanites were not the only ones who were admonished about these matters, and the scriptural section mentions specifically, After the doing of the land of Egypt, wherein ye dwelt, shall ye not do,68 which proves that the Egyptians also did all these abominations, and yet the land of Egypt did not vomit them out, nor did the lands of other nations vomit them out! Rather, this whole subject shows the distinction of the Land [of Israel] and its holiness [so that it alone is unable to retain sinners].69

Nahmanides does not ignore the contrast between the Talmudic construction of the Noahide laws and the scriptural descriptions, but stresses the disparity as a way of criticizing the Talmudic concept. The underlying presumptions of the Talmudic concept are personal jurisdiction and the need for admonishment of the law to be applicable70 – both of which are inconsistent with Nahmanides’s doctrine of the law of the god of the land. His autonomous approach acknowledges the universality of the divine law, but for Nahmanides, the sense of the law’s universality is that it is non-tribal, not that it is valid and binding everywhere. His insistence on territorial jurisdiction saves him from a universal perception of the law in the latter sense. The fate of the Canaanites in the biblical narrative is indicative of the two presumptions of the Talmudic concept. First, 67 69 70

68 See Leviticus 18:27. Leviticus 18:3. Nahmanides, Commentary on the Torah, Leviticus 18:25. Whether a law can be binding if not promulgated was a matter of debate among medieval jurists. Gratian (Decretum Gratiani, D.4.c.3.1.) states that “a law is not really law until it has been made known (Leges instituuntur, cum promulgantur),” while naturalist jurists emphasized that “the natural law needs no promulgation (lex naturlais non indigent promulgatione),” as formulated by Thomas Aquinas in his Summa Theologica 1.2.90.4 (pp. 207–208). On these two principles in Tannaitic literature, see Hirshman, Torah, 90–113.

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Nahmanides emphasizes that the Canaanites were punished even though they never were warned or apprised of their wrongdoings. Second, he emphasizes that the law binds not only the Israelites but also gentiles in the land. To demonstrate how crucial territoriality is in the applicability of divine law, Nahmanides focuses our attention on the different punishments for transgressions of the same incest laws committed by the Egyptians and the Canaanites, only the latter of whom were severely punished for these offenses and eventually ejected from their land. The Talmudic rabbis would have endorsed Stephen’s heterogeneous description; Nahmanides would have seen it as a misconception of the divine law.

Reimagining the Us–Them Distinction While difference is a matter of fact, otherness is a matter of discourse. Otherness is the result of a discursive process by which a dominant in-group (us, the self) constructs a dominated out-group (them, the other) by stigmatizing a real or imagined difference, which is presented as a negation of identity and thus a potential motive for discrimination. In the biblical tradition and post-biblical religious milieus, we can observe three meanings of otherness. The first meaning denotes estrangement from God and refusal to obey his instructions. This is evil, to be avoided at all costs: “You shall have no other gods before me.”71 In later contexts, terms of otherness such as αλλότριος, alienus, or the Hebrew aḥer72 signify Satan and competing gods.73 The second meaning of otherness is estrangement from common worldly matters. Whereas the first meaning is negatively charged, otherness as disengagement from ordinary existential circumstances is of ambivalent value. A good example is the Hebrew word ḳodesh, very much like the ancient Latin word sacer, denoting anything that is set apart from ordinary life.74 This meaning of otherness is operative in the biblical idea of Israel as the elected son, or chosen people, distinguished from all other 71

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Exodus 20:3. Similarly, “‘I declared and saved and proclaimed, when there was no strange god among you; and you are my witnesses,’ says the Lord” (Isa. 43:12). An equivalent biblical sense of otherness is fornication; see Judges 11:2. The category of otherness (alteritas), as opposed to oneness (unitas), played a crucial role in medieval theologies; see Summerell, The Otherness of God. In late antique rabbinic literature, the Hebrew term for other (aḥer) carried the meaning of the most foreign and thus the ultimately unacceptable. For example, Elisha ben Abbuyah, a former rabbi rejected as heretical by his former colleagues in the time of the Mishnah, was termed Aḥer; see Goshen-Gottstein, Rabbinic Invention. The meat of the pig, which the Torah specifically prohibits (Lev. 11:2–4; 11:7–8; Deut. 14:8), is termed by the Rabbis “another thing” (davar aḥer); see Babylonian Talmud, Shabbat, 129b; Berakhot, 43b. For a survey of the other in Judaism in earlier scholarly works, see Collins and Harlow, Other. See Mark S. Smith, Early History. The terms ḳodesh and sacer encompass both the hallowed and the cursed. See Agamben and Heller-Roazen, Homo Sacer.

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nations.75 Likewise, the purpose of Christian monasticism, especially desert monasticism, is to be other to worldly life in order to achieve an intimate and abiding knowledge of God. Being a monk demanded renunciation and detachment, the cutting of ties to habitual ways of living and certain places, and sometimes withdrawal to a marginal existence in the desert. Later, the medieval ideal of the absence of a sense of belonging, of landlessness – homo viator – was another expression of otherness as estrangement from the world.76 The third meaning of otherness is a horizontal estrangement among human beings. In this sense, otherness and identity mutually define and exclude each other; otherness signifies estrangement from us or ourselves. As Carl Schmitt and other modern thinkers put it, otherness and identity are two sides of the same coin, as the other exists relative to the self and vice versa. Some argue that the creation of this type of otherness, or othering, is deeply linked to asymmetric power relationships and to the principle that allows individuals to be classified in two hierarchical groups: them and us. The cohesion of the outgroup results from its opposition to the in-group’s identity. In other words, only a dominant group is in a position to impose the value of its particularity, or its identity, and to devalue the particularity, or otherness, of others. The biblical descriptions contain two distinct images of the Canaanites as others, reflecting two competing accounts of Israelite identity.77 In Genesis, the Canaanites are depicted as decent hosts who pose no threat to the identity of the Israelites’ ancestors. They are not described in opposition to the Israelites’ existence or faith, nor are they an object of polemical attack. In other books, mainly Leviticus and Deuteronomy, the Canaanites as a group are stigmatized as horrendous sinners, to be justly dispossessed from the Promised Land. They are portrayed as sexually and religiously perverse,78 as practicing child sacrifice and necromancy, resorting to soothsayers and diviners,79 and worshipping images at hilltop fertility shrines.80 Nahmanidean legal theology transcends the discourse of otherness. Because the law is binding upon residents of the Holy Land regardless of religious or ethnic identity, the distinction between Israelite and non-Israelite in this regard is blurred. The biblical fate of the Canaanites is not a result of their faith or religious status or an outcome of their otherness, but a direct consequence of their behavior. Nahmanides concurs more with the image of the Canaanites in the book of Genesis than with their image as ultimate others. Rather than considering them impure or immoral others, he views them as 75

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The Israelites are described as “a people dwelling alone, and not reckoning itself among the nations” (Num. 23:9). Their holiness is consequential to their being chosen by God: “For you are a people holy to the Lord your God, and the Lord has chosen you to be a people for his own possession, out of all the peoples that are on the face of the earth” (Deut. 14:2), and they therefore are to be holy like God: “You shall be holy; for I the Lord your God am holy” (Lev. 19:2). 77 See Ladner, “Homo Viator.” See Cohn, “Before Israel.” 78 Leviticus 18:27–29. 80 Deuteronomy 18:9–14. See Deuteronomy 12:2–3.

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residents living under the divine law and hence natural inhabitants of the Promised Land. In the sacred order of God’s inheritance, as interpreted in the radical legal theology of Nahmanides, the Canaanites are not strangers. They therefore are not essentially others. The territorialization of the divine law and mystification of the Holy Land neutralize the otherness of the Canaanites and undermine the us–them dichotomy in the jurisprudential perspective. In the eyes of Nahmanides, the fate of the Canaanites is the same as that of the biblical Samaritans and Sodomites81 – vomited out by the land due to their conduct. The fate of the Canaanites is the result not of the Israelite conquest but of Canaanite violation of the law of the god of the land. The fate of the Canaanites as understood by Nahmanides illustrates their belonging to the Land of Israel, and Canaanite–Israelite coexistence under the divine law definitely would have been conceivable.

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Nahmanides, Commentary on the Torah, Genesis 19:5.

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Religious Identity and Law Jurisprudential trends and movements throughout the latter half of the twentieth century splintered traditional legal theory and extended the prisms through which law was viewed, studied, designed, and criticized. Analyses of the interplay between law and other realms have seemed less synthetic ever since those initial blows were delivered to the traditional conception of law as “an independent realm of logic” and “a system of interdependent definitions.”1 Nevertheless, post-positivist jurisprudence still tends to employ a twodimensional approach focusing on a single factor or realm that is crucial to the apprehension of the law and its operation – economics, social power, social mechanisms, gender and race differences, and so forth. They do not claim to exclude other jurisprudential accounts, but modern and postmodern legal theories lack synergic methods and multidimensional approaches. Against this backdrop, we argue below for a conception of religious legalism as comprising a three-dimensional matrix of law, religion, and identity that is inseparable from the history and the politics of identities. We advocate a historical outlook on religious legalism and question some conventions of the phenomenology of religions. It is argued that religious legalism has much more to do with identity politics than with conceptual analysis of jurisprudential and theological ideas, and it should be viewed as the product of crucial moments and constructive rifts throughout the history of the Jewish–Christian symbiotic relationship.

Law and Religion Integrated Notwithstanding the predications of the Enlightenment, world religions have failed to vanish from the public sphere. On the contrary, they continue to play a crucial role in public reasoning even in most secularized societies. Despite any number of endeavors to equally protect freedom of religion and freedom from religion, the neutrality of the state in this regard and the separation of law and religion – if feasible at all – nowadays seem much more complicated and challenging than anticipated.2 A divide between law and religion was embraced 1

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Boorstin, Mysterious Science, 123. The refutation of legal indeterminacy by pragmatism and legal realism has encouraged the demystification of legal independence. Contemporary commentaries evidence an internalization of the various critiques of the category of religion. Consequently, the traditional understanding of religious freedom as protection of belief and consciousness is intensely criticized and revised. Among the vast literature, see

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and encouraged by the Reformation and the Enlightenment, the two constitutive movements of Western modernity.3 The rapidly accelerating academic study of law and religion thus can be fairly described as a revision of modern ideals based on the separability of law and religion. Contemporary academic studies in the field of law and religion are developing along three trajectories, each of which rests on a different set of presumptions and aims. One, the counter-separatist trend, seeks to unveil the ideological and theological biases and the conceptual deficiencies of separatist presumptions and emphasizes affinities and similarities between law and religion in both form and content. Contrary to the separatist perspective, counter-separatists stress the intrinsic interconnections, interplays, and interdependencies of law and religion as realms of normativity and sources of meaning. This trend naturally lends itself to agendas that would establish collaborative relationships between law and religion, as well as to elocution about the harmony between them.4 The regulatory trend, which focuses on constitutional interfaces of law and religion, is concerned with the protection of religious praxis and behavior. It incorporates a range of efforts to standardize and equilibrate religious concerns and interests with respect to other social and political matters. The third trend, which takes issue with criticism of religion as a neutral and universal category,5 is characterized by greater sensitivity and novel perspectives on legal matters, imagery, and reflections in religious traditions and experiences. These disparate trends have enriched the field of law and religion, inspiring profound theoretical revisions of traditional conventions and presumptions based on the separation of law and religion as distinct, independent realms. We will seek to identify a further aspect of the separation of law and religion through a genealogical inquiry into religious legalism. What we will find endorses the view that the disparateness of the two is not only a product of Reformation and Enlightenment ideals, but also driven by a discourse that deeply links identity and epistemology, consequently correlating a distinction

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Sullivan et al., Politics of Religious Freedom; Ahedar and Leigh, Religious Freedom; Sharma, Problematizing Religious Freedom; Sullivan (2013); DeGirolami, Tragedy; Steven D. Smith, American Religious Freedom. This distinction reflects the Lutheran reformation of the traditional hierarchical theory, a vertical framework, into a horizontal model of two distributed kingdoms. In the latter, heavenly and earthly realms are parallel, dependent but distinct, and the Christian simultaneously is a citizen of both kingdoms and invariably under the discrete control of each. See Witte, Law and Protestantism, 5–9. Mark Lilla argues that the “Great Separation” of religion and law in the West was a product not only of Reformation theology, but also of the secularist arguments of the Enlightenment; see Lilla, Stillborn God. Harold J. Berman (Faith and Order), an eminent pioneer of the study of law and religion, articulated this trend as a “reconciliation of law and religion.” In the Jewish and Islamic traditions, the reconciliation of law and religion manifests the revival of a presumed primal unity of both, reflected by a single signifier – dat in Hebrew, and din in Qur’anic Arabic – denoting both law and religion. Asad, Genealogies of Religion.

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between us and them with the distinction between ostensibly genuine religion and other manifestations of organized religion considered to engage in religious legalism in the sense of overvaluing law and legality – a viewpoint that belongs to the realm of the politics of identities. The phenomenology of religious legalism is assuming a significant role in various contemporary debates about legal pluralism, accommodation of religious minorities, religious freedom, and so forth.6 It thus is fitting to comment on this approach and its coherency from an emic perspective. The following analysis wrestles with the notion of religious legalism and its meaning as a concept and as a heuristic category in the study of law and religion. Our basic inquiry will be: How are we to understand the idea of religious legalism within the modern discourses that gave rise to the separation of law and religion?

Religious Legalism Revised The conception of religious legalism encompasses a wide range of attitudes that ascribe religious meaning to legal content or to legal compliance. Religious legalism is a central axis of the Western metanarrative about the differences among scriptural religions – mainly those separating Christianity from Judaism and Islam. Opposition to legalism, or at least criticism of it, thus is an essential part of Protestantism as compared to Judaism, Islam, Roman paganism, and Catholicism, according to Luther. A tangible depiction of the Christian message as principled antithesis to religious legalism is provided by Friedrich Nietzsche, one of the most critical commentators on Western religious traditions and civilization, who sarcastically describes Christ’s death as an illusion of liberation from the law: The law was the Cross on which he [i.e., Paul] felt himself crucified. How he hated it! What a grudge he owed. . . . For from that time forward he would be the apostle of the annihilation of the law (Lehrer der Vernichtung des Gesetzes)! To be dead to sin – that meant to be dead to the law also; to be in the flesh – that meant to be under the law! To be one with Christ – that meant to have become, like Him, the destroyer of the law; to be dead with Him – that meant likewise to be dead to the law. Even if it were still possible to sin, it would not at any rate be possible to sin against the law: “I am above the law,” thinks Paul; adding, “If I were now to acknowledge the law again and to submit to it, I should make Christ an accomplice in the sin”; for the law was there for the purpose of producing sin and setting it in the foreground, as an emetic produces sickness.7 6

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Assertions of religious legalism are not always explicit, but they are pivotal in many debates. For example, the core argument of Rowan Williams’s seminal and provocative address rests on the cautiously articulated observation that some religious minorities (namely, Muslims and Orthodox Jews) are in fact “communities that, while no less ‘law-abiding’ than the rest of the population, relate to something other than the British legal system alone” (Williams, “Civil and Religious Law,” 262). Nietzsche, Dawn Thoughts, 48–49.

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Nietzsche insists on portraying Pauline Christianity as not a positive new soteriological message, but oppositional religion: a protest against problematical moral life “under the law,” an outcome of the nexus of sin, flesh, and law. Nietzsche situates the Pauline detection of an intrinsic interconnection of these three elements at the very essence of Christianity, which is depicted as an antinomian religion. Nietzsche’s emphasis on the law–sin complex presents Christian religion as systematically disapproving of the morality of legalism, a view later embraced by political theologians who accentuated the political aspect of the Christian reaction to legalism. Jacob Taubes (1923–1987), for instance, views the birth of Christianity primarily as political transvaluation: It isn’t nomos but rather the one who was nailed to the cross by nomos who is the imperator! This is incredible, and compared to this all the little revolutionaries are nothing. This transvaluation turns Jewish-Roman-Hellenistic upper-class theology on its head, the whole mishmash of Hellenism . . . transvaluation of all the values of this world. There is nothing like nomos as summum bonum. This is why this carries a political change; it’s explosive to the highest degree. . . . The critique of law is a critique of a dialogue that Paul is conducting not only with the Pharisees – that is, with himself – but also with his Mediterranean environment.8

Naturally, the view of Christianity as an anti-legalist religion is accompanied by an image of the Jews as living “under the law” and Judaism as a law-based religion. Religious differences between these two symbiotic yet conflicting religions are thus only too easily summarized and reduced to the question of legalism, with Christianity embodying rejection of and liberation from legalism, and Judaism exacting adherence to the law. The question of legalism consequently became a matrix for Jewish–Christian religious differences, while the dichotomy of legalism and its diametric opposite, antinomianism, served in self-representations and the marking of religious otherness.9 In fact, the role that legalism has played within the history of Jewish–Christian borderlines is an excellent example of the mechanism that internalizes external representation as self-identification. The emphasis on Christianity as opposition to legalism fed the perception of Judaism as a religion based on legalism, a perception that was accepted and internalized by Jews themselves. The reduction of Jewish–Christian religious differences to the issue of religious legalism gained the consent even of those accused of living under the law. There is an apparent correlation between the intensification of the image of Christianity as an anti-legalist religion and Jewish apologetics on the religious value of legalism. Jewish reflections on religious legalism not only accept the depiction of Judaism as being under the 8

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Taubes, Political Theology of Paul, 24–25. Ansah (“Reinterpretations”) rightly identifies the renewed interest in Paul’s juridical thought as late modern (i.e., postmodern) and postdating the secular trend. On the important distinction, one that is crucial to our discussion, between otherness and approximate otherness, see Jonathan Z. Smith, “Difference.”

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law, but also give theological and political meaning to the equation of Judaism and legalism. Notable philosopher and scriptural scholar Moses Mendelssohn (1729–1786) believed throughout his endeavors to promote Jewish civil rights that traditional Judaism could integrate in civic life without giving up the religious identity of the Jews and without losing their commitment to their religious laws.10 He believed in resolving the “Jewish problem” in Europe by disentangling the Jews’ tendency to preserve their legal insularity and what he saw as the resultant suspicion that they were unfaithful citizens. He felt that full membership in society and loyalty to Jewish religious laws were reconcilable on the basis of a phenomenology distinguishing between state and religion, between civil laws (Gesetze) and religious laws (Gebote).11 Unlike Spinoza, who described the laws of the Hebrews as political laws that had lost their validity upon the collapse of the Hebrew politeia, Mendelssohn insisted on a distinction between political and religious laws and determinedly rejected the voidance of the latter: In fact, I cannot see how those born into the House of Jacob [i.e., Jews] can in any conscientious manner disencumber themselves of the law. . . . No sophistry of ours can free us from the strict obedience we owe to the law; and reverence for God draws a line between speculation and practice which no conscientious man may cross.12

The core of Mendelssohn’s integrative vision rests on a phenomenological distinction between the political demands of the state and the requirements of religion – to wit, a distinction between different meanings of obedience and of being under the law. While political laws are valid and have force even if they run contrary to the will and approval of the individual, the validity and enforceability of religious laws are dependent entirely upon intentional consent, empathy, and willingness to obey. Political laws therefore are essentially coercible, and religious laws are intrinsically voluntary and otherwise meaningless. Mendelssohn thus argues that political and religious laws are fundamentally incomparable; use of the equivocal term law in both contexts is misleading.13 10

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Contrary to the endeavors of medieval Jewish thinkers who argued for harmonization of Jewish law with metaphysics, Mendelssohn espoused obedience to Jewish law in conjunction with the political values of liberty, tolerance, and citizenship. “Here we already see an essential difference between state and religion. The state gives orders and coerces, religion teaches and persuades. The state prescribes laws (Gesetze), religion commandments (Gebote). The state has physical power and uses it when necessary; the power of the religion is love and beneficence” (Mendelssohn, Jerusalem, 45). Mendelssohn, Jerusalem, 127, 133. This distinction parallels that drawn by Kant between political and ethical laws: “A juridico-civil [i.e., political] condition is the relation of men to each other in which they all alike stand socially under public juridical laws (which are, as a class, laws of coercion). An ethico-civil condition is that in which they are united under non-coercive laws, i.e., laws of virtue alone” (Kant, Religion, 87).

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In contrast to Mendelssohn, some later Jewish thinkers dialectically idealized the concept of being under the law as a peculiar trait of Judaism, but also one whose significance and meaning were translatable to general ethical, theological, and political discourse. In the theory of Hermann Cohen (1842–1918), a paradigmatic representative of this trend, the notion of law and more precisely divine law is understood as a communicative device between the deity and humanity that preserves monotheism and morality. As a Neo-Kantian,14 Cohen argues that the notion of law is intrinsic to morality because it postulates its own precondition: free individuality.15 To be under the law therefore means to be responsive yet fully submissive to one God.16 Cohen equated the notion of law with revelation and viewed it as a necessary vehicle for human beings to be God’s addressees.17 Yet Cohen maintains the particular identification of Judaism with legalism and embraces the view that Judaism must remain an insular nomic religion: The continuation of Jewish monotheist religion is thus tied to the continuation of the law – in principle not in the details of individual laws: that the law makes the isolation possible which seems necessary for the care and development of one’s Own as the Eternal.18

Leo Strauss (1899–1973) furnished another example of Jewish self-understanding, using typological religious differences that are based on the antinomianist–legalist dichotomy. Where Cohen celebrated the particularity of Jewish legalism as demonstrative of the basic principle of morality, Strauss took it as a peculiar religious form of life predicated on a different perception of the relationship between thought and social affairs. Strauss’s point of departure is a statement of the irreconcilable opposition between philosophy and revelation, theology and 14

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Kant himself wrestled with the Protestant imputation of Judaism as blind adherence to the law: “The idea of living ‘under the yoke of the Law,’ on the other hand, has served since the polemics of the Apostle Paul as the dominant allegation with which to goad, tease, and heckle Judaism; intended as a stigma, it evokes the rebuttal: does not the sacramental rite of the Eucharist in this sense exceed the danger of legal ritualism attributed conventionally to Jewish law? To be sure, our reservation related to the distinction between ethical judgment and ritual laws of religious worship remains. However, the former doubt weighs even more heavily: is ethics at all compatible with an ethical system based on religious service and on the awe and love of God?” (Cohen, Ethics of Maimonides, 26–27). I here follow Batnitzky, Strauss, and Levinas’s articulation (Philosophy, 192) of Cohen’s position: “it is the scientific foundation of ethics . . . [because] the norms of right create the possibility of ethics because they create the possibility of the free individual.” Cohen elevated the existential condition of living under the law to an ethical ideal: man is to devote his endeavors to liberation from individuality, i.e., his nature, with the goal of becoming a social being, i.e., a member of a state governed by law: “God commands man, and man of his own free will takes upon himself the ‘yoke of the Law.’ The law remains a yoke. Even according to Kant’s teaching, man does not voluntarily commit himself to the moral law, but has to subjugate himself to duty” (Cohen, Religion of Reason, 345). “Revelation and law are thus identical. If law were not the necessary form for completing the correlation between God and man, revelation wouldn’t it be either. Thus, the law of God is a necessary concept in monotheism” (Cohen, Religion of Reason, 339). Cohen, Religion of Reason, 336.

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law. He blames medieval Christendom for replacing the Jewish understanding of revelation as divine law with a synthesis of revelation and philosophy. Under the influence of Christian scholasticism, revelation was viewed as a matter of knowledge rather than legislation. In medieval Judaism and Islam, however, philosophy did not thrive,19 and both of these latter religions succeeded in preserving the identification of the word of God with divine legislation, which secured them greater freedom of thought.20 The fact that all of the above expressions of Jewish–Christian religious differences are voiced by modern thinkers is no accident. The reduction of the differences to the question of legalism predominates in modern, rather than premodern, theological and intellectual discourse. Further, the emergence of legalism as a central axis of Jewish–Christian religious differences and a conventional Western metanarrative was profoundly inspired by Martin Luther’s theological construct of the Law–Gospel distinction.

Under the Law: Paul and Luther The association of Judaism and legalism has roots in patristic literature, but the formulation of the two as equivalent is clearly inspired by the Lutheran construction. The delineation of Christian–Jewish differences through the antinomianist– legalist dichotomy is pivotal in the theological reasoning of Martin Luther, who himself anchored it in Pauline theology. Luther famously designated the tension between Law and Gospel (Gesetz und Evangelium) as a binary contrast between two incompatible, comprehensive alternatives. He describes the distinction as fundamental knowledge21 concerning opposing religious realities: Therefore, the Law and the Gospel are two altogether contrary doctrines. . . . For the Law is a taskmaster; it demands that we work and that we give. In short, it wants to have something from us. The Gospel, on the contrary, does not demand; it grants freely; it commands us to hold out our hands and to receive what is being offered. Now demanding and granting, receiving and offering, are exact opposites and cannot exist together.22 19

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“This difference explains partly the eventual collapse of philosophic inquiry in the Islamic and in the Jewish world, a collapse which has no parallel in the Western Christian world” (Strauss, Persecution, 18–19). “The precarious state of philosophy in Judaism as well as in Islam was not in every respect a misfortune for philosophy. The official recognition of philosophy in the Christian world made philosophy subject to ecclesiastical supervision. The precarious position of philosophy in the Islamic-Jewish world guaranteed its private character and therewith its inner freedom from supervision. The status of philosophy in the Islamic-Jewish world resembled in this respect its status in classical Greece” (Strauss, Persecution, 21). “We believe, teach, and confess that the distinction between the Law and the Gospel is to be maintained in the Church with great diligence” (Triglot Concordia, Epitome of the Formula of Concord, Art. V, p. 801). “Whoever knows well this art of distinguishing between Law and Gospel, him place at the head and call him a doctor of Holy Scripture” (in Buree, “Distinction,” 156). Luther, Lectures on Galatians, 208.

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Luther’s Law–Gospel distinction contains within it an all-encompassing dualist division inclusive of a wide range of dichotomies: Old Testament and New Testament,23 Moses and Christ, temporal and eternal kingdoms,24 lawmaking and law-ceasing,25 legislation and grace,26 genuine Christianity and deviant versions of monotheism.27 To be sure, Luther emphasized that not only Judaism is trapped under the law: other religions, such as Islam,28 and other denominations, such as Catholicism, also failed by embracing legalism as a comprehensive doctrine.29 Judaism, however, is portrayed as the archetypal legalistic religion, and the Jewish insistence on legalism as a product of an intentional religious or theo-political agenda.30 Over and above previous associations of Judaism and legalism, Luther’s theology shifts legalism from the political realm to the religious, transforming it into an indicator of religious belonging and religious identity. Luther’s theology shaped the discourse of 23

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“Know, then, that the Old Testament is a book of laws, which teaches what men are to do and not to do . . . just as the New Testament is gospel or book of grace, and teaches where one is to get the power to fulfil the law” (Luther, Prefaces, 119). “Moses had established the temporal government and appointed rulers and judges. Beyond that there is yet a spiritual kingdom in which Christ rules in the hearts of men; this kingdom we cannot see, because it consists only in faith and will continue until the Last Day. These are two kingdoms: the temporal, which governs with the sword and is visible; and the spiritual, which governs solely with grace and with the forgiveness of sins” (Luther, Prefaces, 138). Luther rejected patristic and scholastic interpretations that viewed the Gospel as a new law and Christ as a legislator comparable to Moses: “For this reason then, when Christ comes the law ceases . . . the office of Moses in them ceases. . . . The office of Moses can no longer rebuke the heart and make it to be sin for not having kept the commandments and for being guilty of death, as it did prior to grace, before Christ came” (Luther, Prefaces, 127). “The office of Moses . . . no longer causes us pain and no longer terrifies us with death. For we now have the glory in the face of Christ. This is the office of grace . . . by whose righteousness, life, and strength we fulfil the law and overcome death and hell” (Luther, Prefaces, 127–128). “There is no difference at all between a papist, a Jew, a Turk, or a sectarian. Their persons, locations, rituals, religions, works and forms of worship, are, of course, diverse; but they all have the same reason, the same heart, the same opinion and idea. . . . ‘If I do this or that, I have a God who is favorably disposed toward me; if I do not, I have a God who is wrathful.’ There is no middle ground between human working and the knowledge of Christ” (Luther, Lectures on Galatians, 396). The Protestant categorization of Islam as a legalistic religion like Judaism is grounded in Luther’s theological construction. An interesting twist is Franz Rosenzweig’s (1886–1929) theological endeavors to portray Judaism as a religion of love rather than legalistic. Rosenzweig confronts Judeo-Christian symbiosis with Islamic nomocentrism and Kantian deontological ethics. Islam accordingly is a nostalgic religion that elevates obedience to the law to the highest level, while both Judaism and Christianity are future-oriented religions that emphasize the virtue of love as an ultimate divine commandment. See Rosenzweig, Star of Redemption, 216–217. “You hear, therefore, that all the children of men, all who are under the law, Gentiles and Jews alike, come under this judgment in the sight of God, that not even one of them is righteous, understands, or seeks after God, but all have turned aside and become worthless” (Luther, Bondage of the Will, 184). “For you see and hear how they [the Jews] read Moses, extol him, and bring up the way he ruled the people with commandments. They try to be clever, and think they know something more than is presented in the gospel; so they minimize faith, contrive something new, and boastfully claim that it comes from the Old Testament. They desire to govern people according to the letter of the Law of Moses, as if no one had ever read it before” (Luther, Prefaces, 138).

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religious differences based upon this semi-gnostic typology: a typology that totalized and essentialized religious differences as political theologies in contest. Legalism, or being under the law, is thus taken as the most colossal religious mistake of humanity and that from which Christianity emerged to redeem it. Luther reads his antithetical construction of Law and Gospel into Paul’s reactions to legalism, for which reason awareness of the impact of Lutheranism in this regard led to critical revisionist scholarship on Pauline juridical thought.31 However, new readings of Paul have revised perspectives on the identity of his audience, the religious affiliation of its members, and their values, and offer a clearer picture of his addressees and his criticism.32 Both revisionists and their opponents would seemingly agree that the underlying assumption of Paul’s dicta is the equation of nomos and torah, or the nominized meaning of torah. Against this backdrop, a reading of Paul’s reactions as constitutive of the discourse of religious differences becomes possible. On face value, Paul’s criticism is not of religious differences and contains no direct reference to the biblical torah. Rather, it is directed at several aspects of the Greek nomos. It refers to the theoretical notion of nomos rather than a concrete, material nomos,33 and discloses intrinsic tensions within the nomoic form of life, rather than rejecting nomos in favor of a religious alternative. The identification-qua-reduction of torah and nomos is not of Pauline origin. It is a product of the confluence of biblical ideas and values with Hellenistic political conceptions throughout the second century BCE. Yet the equation of nomos and torah clearly was far more than technical translation. It embraced Hellenic moral and political values,34 tore out the biblical semantic of torah, and recharged it with emphases on the legal. Because torah is a key notion of the biblical theological worldview, this process of nominizing torah reflects the Jewish–Hellenic amalgamation on a very deep, fundamental level. It was against this Judeo-Hellenic background that Paul problematized the 31

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The Lutheran Paul teaches that human beings are fundamentally trapped by sin, flesh, and law, and can be reformed only by faith in Christ, not by works done under the law. The New Perspective on Paul argues that tension between law and sin is universal and existential. Paul therefore is critical of the law and favors the possibility of living according to the Spirit. However, he is not an unremitting opponent of work ethics and living under the law. See Westerholm, Paul. See Farnell, “New Perspective on Paul.” Paul refers to various nomoi: holy law (νόμος ἅγιος; Rom. 7:12), spiritual law (νόμος πνευματικός; 7:14), “law of sin” (νόμῳ ἁμαρτίας; 7:23), “the law of God” (νόμῳ Θεοῦ; 7:25). More importantly, he outlines the intrinsic tension between the external flesh (σαρκί) and the inner man (ἔσω ἄνθρωπον), corresponding to the distinction between the law of mind (νόμῳ τοῦ νοός) and the law of the limbs (νόμον ἐν τοῖς μέλεσίν; 7:23). For example, the ancient Greek view that orderly life achieved through binding laws (eὐνομία), on one hand, and lawlessness (άνομος), on the other, are mutually exclusive. According to this conception, civilization developed from living under nomos, while the Greeks considered anomia – living without law, against the law, or outside the law – an extreme evil responsible for restless and insecure life and for catalyzing wars and tyranny.

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torah–nomos reduction on ethical and theoretical grounds, and his critique introduced new theological, moral, and political horizons of legalism and obedience to law. In essence, this critique relates to the fact that the law, or nomos, is essentially heteronomous, external, and alien to mental attitudes, such as love and faith. The law is unable to penetrate the inner world and is stands in opposition to inner human life. The torah–nomos reduction certainly is not unassailable. Many scholars argue that the use of nomos introduced a profound misunderstanding35 of the very basis of Judaism that then was perpetuated by early Christian writers, and that this reduction narrowed the meaning and significance of torah – denoting instruction or teaching – to include only its legalistic elements.36 Still, it is clear enough that the Pauline critique of nomos is of just that – not a particular Jewish version of it.37 The application of Paul’s critique to Judaism is viable only given the premise that the religion of the Jews is inherently associated with legalism and that the Jews ultimately adhere to the law in practice. Certainly these assertions are not inarguable. Only later commentators viewed the Pauline critique as launching a theology of religious differences around the religious aspects of legalism and the link between religious identity and law.38 It was Marcion’s (85–165) Gnostic approach that elevated the Pauline critique to a wholesale rejection of the nomic form of life, with Law and Gospel standing as mutually antithetical alternatives that manifest the stark dualism between the true God of the gospel (deum evangelii) and the God of the Law (deum legis).39 Nonetheless, most patristic and medieval accounts did not follow this antithetical perspective. Instead, they subscribed to an accommodative perspective narrating religious differences through historical progress, with a nomic period merely intervening between other phases in a restorative history.40 The accommodative method of narrating religious 35

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Schoeps (Paul, 213) places the blame for what he perceives as “the Pauline misinterpretation of torah” on the shoulders of Hellenistic Jewish writers, especially Philo. This criticism oversimplifies the torah–nomos reduction. The Greek nomos was multifaceted, and thus the nominization of torah was not simply a projection of a legalistic meaning on the biblical lexis of torah. For most Greek thinkers, the written law was secondary to higher laws, such as the unwritten law (άγραφος νόμος), the living law (νόμος έμψυχος), and the law of nature (νόμος φύσεως). Some commentaries on Paul limit the critique to specific superfluous parts of the Mosaic law, distinguishing between the irrefutable divine law and “Second Legislation” (δευτέρωσις, tinyan nimosa, second nomos, secundum legis), the latter of which appeared as required by circumstances. See Fonrobert, “Didascalia Apostolorum.” Paul’s biography is crucial background to his critique of the law. Prior to his missionary life, Paul was a student of the Rabbis in Jerusalem. He was well acquainted with Hellenic cultural values and political principles and had a complicated relationship with the Roman legal system: he enjoyed the privileged status of citizen under Roman law (Acts 22:28), yet was persecuted and executed by the same legal system. Tertullian reports that “Marcion’s special and principal work is the separation of the law and the gospel (separatio legis et evangelii), by which he contended the diversity of the gods (diversitatem deorum)” (Adversus Marcionem 1.19). For example, Ephrem the Assyrian (fourth century) suggested a tripartite periodization: the Hebrew epoch, in which individuals were “whole in knowledge,” naturally living in accord with

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differences by historicizing them was widespread in the late ancient and medieval discourse on religious differences. Aside from ecclesiastical traditions that place Jewish–Christian differences on a historical continuum, it was a central part of Qur’anic theology concerning earlier forms of monotheism and revelations, and embraced by Jewish thinkers who used historical narrative to give meaning to typologies of religious differences. Notwithstanding, legalism was not universally regarded as a core component and an explanatory feature of religious differences. For the predominant medieval Jewish thinkers, in fact, law and legalism were an entirely inessential component of religious identity and thus irrelevant as indicators of religious differences.41 In sum, the modern conception of religious legalism is related to the identification of Judaism and legalism, which is an outcome of the ancient torah–nomos reduction, Paul’s ethical criticism of nomos, and the Lutheran legalist–antinomian distinction. Yet the conception of religious legalism transcended the theological discourse of religious differences. The identification of Judaism and legalism simultaneously inspired competing camps within Jewish communities: traditionalist Jews elevated the ideal of legalistic religion to unprecedented heights of imaginative metaphysics,42 even as Reform Jews used it to characterize and criticize Orthodox Judaism.43 Scholars of the Wissenschaft des Judentums movement in the nineteenth century posited nomocracy in contrast to theocracy, describing the evolutionary stage of early Judaism as a shift from theocracy to nomocracy due to theological changes in the perception of the God of Israel.44 With the emergence of religious studies as an academic discipline, the antinomianist–legalist dichotomy came to be articulated through academic apparatuses as a scientific taxonomy that divided ethical religions (as opposed to natural religions) into nomic or national religions and universal religions.45

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God’s wishes, so that laws were not necessary; the Christian epoch, which restored the old religion through a divine gift that made laws again unnecessary; and between them, the legal epoch, in which individuals were incapable of living in accord with nature and laws thus were necessary. See Shepardson, Anti-Judaism, 75–77; Yelle, “Moses’ Veil.” See Galston, “Purpose of the Law.” Moses Schreiber (Ḥatam Sofer, 1762–1839), an uncompromising opponent of the Reform Movement in modern Judaism, coined the idiom “nature is subordinate to the divine law (torah).” See Schreiber, Ḥatam Sofer, no. 14 (pp. 6a–6b). Some scholars, such as Joseph Salvador, Abraham Geiger, Claude Montefiore, and Martin Buber, thought of Jesus as an ideal Jew who correctly grasped the fundamental idea of liberal Judaism – namely, that Judaism is not legalism – and a source of inspiration for Jewish reformation. See Brill, Judaism and World Religions, 236–237. “In due time the Jews recognized that God was not only their God but also the God of the universe. They believed, however, that they had been the only ones privileged to receive His Torah. . . . They therefore had to follow the laws of God . . . the Jewish religion which was a theocracy and based on faith was now changed to a religion controlled by laws . . . νόμοκράτια, nomocracy” (Zeitlin, “Judaism as a Religion,” 206–207). Zeitlin suggests a view of reactionary movements in the medieval and modern history of Judaism as struggling with the ideal of nomocracy. The reduction of the legalist–antinomianist dichotomy into that of the national and the universal increased the importance of interreligious differences to the question of Jewish emancipation and integration in general European culture.

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This portrayal came in the aftermath of nineteenth-century intellectual and theological endeavors to portray Christianity and Judaism as competing traditions about the theological value of law.46 Throughout the twentieth century, the notion of legalistic religion was used to describe the genius of Islam in comparison to the political experience and religious heritage of Europe,47 and nomocentrism was invoked to describe Islam in both internal and external perspectives. It was used to explain the intellectual hierarchy within traditional Islamic societies, under which jurists and legal learning were more respected than theologians and theosophical contemplations on the fundamentals of Islam.48 Likewise, nomocentrism was ranked as a key notion in comparative jurisprudence, highlighting the extent to which Western theories fell short in trying to account for non-Western and premodern legal traditions, and in doing so providing a counterexample to the statist premises of modern Western legal and political theories.49 Sherman Jackson, for one, stresses the cultural dimensions of nomocentrism as of greater salience than the political dimension,50 a position according to which Islam demonstrates an alternative to legal philosophy that acknowledges the monopoly of the state and offers an unalloyed case of a society that endorsed “the rule of law squared.”51 Historical and philological criticisms have challenged the identification of Judaism and legalism by faulting the bases of this claim. Nevertheless, the notion of Judaism and Islam as law-based religions remains accepted and widespread.52 The fact is that the identification of Judaism and legalism is based on an ostensible progression from ancient sources to early modern commentaries on these sources, but ignores medieval efforts to grapple with the relationship between divinity and law and with legalistic religious values. 46

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“Tiele begins by accepting the clearly apologetic distinction between ‘nature’ religions and ‘ethical’ religions, working out a complex taxonomy of nine types and subtypes of the former, but only two subdivisions of the latter – ‘national/nomistic’ and ‘universalistic.’ As the addition of the term ‘nomistic’ makes clear, the contrast is essentially that between Judaism and Christianity” (Jonathan Z. Smith, “Taxonomies,” 395). “Islam is, first and foremost, a nomocracy. The highest expression of its genius is to be found in its law; and its law is the source of legitimacy for other expressions of its genius. The traditionists themselves had to find expression in the schools of law. . . . The core of the Islamic genius is expressed in both law and traditionalism; and Islam, at its core, is a traditionalist nomocracy” (Makdisi, Sunni Schools of Law, 7–8). “Because Islam was a nomocracy, the first level was comprised of legal scholars. The religious law and traditions were valued above all else, and, therefore, valued even more than theology” (Edward Grant, “Islam and Western Christianity,” 509). Khadduri, for example, draws upon the nomocentric character of Islam in arguing for an inverted outlook on state–law relationships: “Hence the divine law (or a sacred code), regarded as the source of governing authority, was the essential feature in the process of control under these systems. The law, it will be recalled, precedes the state: it provides the basis of the state. It is therefore not god, but god’s law which really governs; and, as such, the state should be . . . called divine nomocracy” (Khadduri, Law of Islam, 16). Jackson, “Legal Pluralism.” 51 Jackson, “Legal Pluralism,” 163, 165. See the extensive discussions in Richardson, Studies in Religion; Richardson and Westerholm, Debate.

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A review of medieval Jewish thought suggests a deliberate omission of the nominized understanding of divine law and thus provides another rebuttal of the association of Judaism and religious legalism.

Beyond the Law: Denominized Divine Law Reflections by the bulk of medieval Jewish thinkers, especially those who lived in Islamic milieus, on the nature of Judaism as a religion, its legalistic components, and its values explicitly counter the identification of Judaism and legalism. In their perspectives, legalism and law, human as well as divine, are neither basic elements of theology nor ultimate religious ends. In contrast to the Hellenic propensity for identifying torah with nomos, medieval Jewish accounts of the divine laws and their religious meanings appear to stress the fundamental discrepancies between these two concepts. Their acquaintance with Greek philosophy indicates that they did not happen not to be exposed to this conceptual identification but consciously rejected the torah–nomos reduction even with regard to seemingly nomic elements of the traditional content of torah. This antinomic interpretative trend is manifested in a variety of ways: by demoting the legal value of religious content, by dislodging the law from the sociopolitical realm, and by treating the law as a means for higher ends. Departing from the traditional concern with the collective redemption of the Jewish people, intellectual circles in Judeo-Arabic culture focused their soteriology on the ultimate felicity of the individual. In contrast to Paul’s addressees, the target audience of these Andalusian rabbis was those Jews who focused on observing the law while neglecting ethical and intellectual demands or goals.

Bahya Ibn Paquda ˙ Baḥya Ibn Paquda, a Saragossan jurist of the first half of the eleventh century, developed a system that displaced Jewish law from the sociopolitical field to the ethical and spiritual domain. Though he lacked acquaintance with ecclesiastical literature,53 Ibn Paquda was highly sensitive to a key element of the Pauline critique: the dissonance of the exteriority of the law and the inner life of the self. However, while the Pauline critique extensively stressed the incompatibility of the law, as heteronomous demand, and inner mental attitudes,54 Ibn Paquda extended the applicability of the law to include mental dispositions as well. In other words, unlike Paul, Ibn Paquda abolishes the distinction between external conduct and internal mentality, between submission to heteronomous laws and autonomous affectus. He asserts that the law 53

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Ibn Paquda was, however, well acquainted with Islamic sources, which he quotes (Mansoor, “Arabic Sources”). On the articulation of Paul’s critique in terms of a tension between the exteriority of the body and the inner self, see n. 115.

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addresses the mental state of affairs as well and that the inner self is capable of compliance with demands and duties. Instead of incongruity between heteronomous law and autonomous love, Ibn Paquda developed a dual theory of an external, corporal agency and an internal, mental agency. He divided religious knowledge and obligations into two categories: external knowledge, which concerns obligations of the limbs (jawarih), and internal knowledge, concerning obligations of the hearts (qulub). The latter is more important than the former, since it is the heart that guides both inward and outward action.55 Consequently, once internal duties have been acknowledged and equated with external duties, the Pauline articulation of legal heteronomy as a problem vanishes, and harmony between religious mentality and behavior not only is plausible but also is designated a supreme religious goal: Know that the aim and the benefit of the duties of the hearts is the balancing of our outwardness and inwardness in obeying God, so testimonies of the heart, the tongue, and the limbs are equated . . . if our outwardness contrasted with our inwardness, and our belief [contrasted with] our speech, and the movement of our organs [contrasted with] our conscience, then our obedience to our creator would not be complete . . . for our adulterated worship and false obedience would not be accepted.

In line with his contemporaries, Ibn Paquda viewed divine law as historically relative and universal.56 Thus the duties of the hearts – namely, ten fundamental religious obligations57 – are described as means to universal ends.

Avraham Ibn Ezra The remarkable poet, scientist, commentator, and philosopher Avraham Ibn Ezra (1089–1167) was of comparable views in his approach to torah. In the introduction to his book Yesod Mora,58 he bitterly criticizes the many who seek expertise in Jewish law out of aspiration to gain juristic prestige, which leads to social friction, or in order to achieve a just society, because any law then would be superfluous.59 Ibn Ezra seeks an ultimate justification for the commandments that is invariant across all social and historical situations, since divine laws should have an ultimate purpose beyond incidental circumstances. In rejecting a nomic view of torah, Ibn Ezra posits that the ultimate purpose of 55

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On Ibn Paquda’s connection to Sufism and the role of the heart in Sufi tradition, see Yazaki, Islamic Mysticism, 145–173. Kreisel, “Asceticism.” These include unification (tawhid) and sincere devotion to God, contemplation (i‘tibar) of created beings, obedience (ta‘a) to God, total reliance upon God (tawakkul), dedication of all acts to God alone, humility (tawadu‘), repentance (tawba), self-examination (muhasabat alnafs), renunciation (zuhd) of this world, and sincere love (mahabba) of God. Ibn Ezra wrote Yesod Mora, a monograph on the rationale of the commandments, for his London friend Joseph ben Jacob 1158. On Ibn Ezra’s works and background, see Langermann, “Abraham Ibn Ezra.” Ibn Ezra, Yesod Mora, 80–87.

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human existence is not contribution to communal life or the establishment of a social or political order of one particular flavor or another (although he does acknowledge the political gist of medieval Neoplatonism). Instead, the purpose of human existence is to epistemically gain understanding God’s work and to know Him.60 Ibn Ezra emphasizes individual duties and responsibility, but divine laws are only one aspect of divine revelation and not necessarily the most important: The root of all divine commandments is to love God with all one’s soul and to unite with Him, and this can be fully attained only by acknowledging the deity’s deeds in heaven and on Earth and by knowing His accustomed conduct . . . and knowledge of God is possible only through knowledge of one’s mind, soul, and body.61

Maimonides Though the theology of Moses ben Maimon (1138–1204) is regarded as a paradigmatic synthesis of political philosophy and halakhah, it would be wrong to identify Maimonidean thought as advocating religious legalism. Various instances in his writing give the impression that he subscribed to but then retracted the view of the divine laws of the torah as a case of nomos. In the introduction to his theological work The Guide of the Perplexed, he distinguishes between legalistic inquiries into the laws of the torah and philosophical readings of it by designating experts on the latter and excluding scholars of the former as potential addressees of his composition.62 Further, in remarks on political science toward the end of the last chapter of his earliest work, the Treatise on Logic,63 he includes an intriguing note on the limitations of nomoi relative to divine standards of conduct: The learned men of past religious communities used to formulate, each according to his degree of perfection, measures and canons by which their princes governed subjects. They called them nomoi, and the peoples used to be governed by these nomoi. . . . In these times, all the preceding – that is, the policies and the

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“The person must set himself aright. He must know the commandments of God, who created everything. He must try with all of his strength to understand [God’s] works – then he will know his Creator . . . and when he knows Him, he will find favor in His eyes” (Ibn Ezra, Yesod Mora, 84). Ibn Ezra, commentary to Exod. 31:18. “It is not the purpose of this Treatise to . . . teach those who have not engaged in any study other than the science of the Law, i.e., jurisprudence. For the purpose of this Treatise . . . is the science of law in its true sense.” The complete Arabic text of the Treatise on Logic was discovered in Turkey by the early 1960s. My translation is based on the Arabic version published by Efros, “Introduction,” 41, with references to a medieval Hebrew translation (Efros, Maimonides’ Treatise on Logic), a modern Hebrew translation (Ḳafiḥ, Beʼur Melekhet ha-Higgayon), and philological commentary (Lawrence V. Berman, “Reexamination”).

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How are we to understand this statement? Is the distinction between nomoi and divine matters – or, in the original Arabic, al-awamir al-ilahiyyah – reflective of the distinction between human law and divine law, between nomos and torah, or something else? The Qur’anic and Classical Arabic term amr64 carries a rich variety of senses that comprise two main groups. One, with the plural awamir, embraces the notions of order, command, and decree, while the second, with the plural umar, signifies matter, affair, and concern. Medieval translations of Maimonidean texts render according to the second meaning, using “divine matters” (‘inyanim elohiyyim), “divine words” (devarim elohiyyim), or res divinae,65 while modern translations tend to prefer the first meaning, using “divine commands” (tsavvim elohiyyim)66 or “divine laws.”67 One way or the other, the core meaning of Maimonides’s statement remains unchanged.68 He distinguishes between two types of guiding standards for human conduct, extracted from two notions – nomos and al-amr al-ilahi69 – noting that over the course of history, divine standards have replaced human nomoi. Divine standards here are divine in a “secularized” way;70 the adjective has the sense of spiritual or non-corporal, and this is how Maimonides uses it earlier in the same chapter, explaining that divine science (al-i’lm al-ilah) is the science of non-corporal entities and includes theology and metaphysics.71

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Horovitz (“Proper Names and Derivatives”) argued that the Qur’anic amr derived from the Aramaic notion of memra, which was used in Christian literature for logos. See also Crollius, Word, 71–79. Logica Sapientis Rabbi Simeonis, per Sebastianum Munsterum latine iuxta Hebraismum uersa: quae Hebraeorum Comentaria uolentibus, non tam utilis est quam necessary (Basileae, 1527), f. 57. Ḳafiḥ, Beʼur Melekhet ha-Higgayon, 188. Efros, Maimonides’ Treatise on Logic, 64; Mahdi and Lerner, Medieval Political Philosophy, 189–190. Lawrence V. Berman (“Reexamination,” 110n10) rightly notes that the medieval versions seem to be mistaken, as the plural form awamir “can only have the meaning commands.” However, the fact that we have only one Arabic version and all medieval versions embrace the “non-legal” meaning allows us to speculate about the existence of another version, not yet found, in which the Maimonidean text uses the term al-umar al-ilahiyyah. Lawrence V. Berman (“Reexamination,” 110) comments on the originality of this remark and explains it as a neutral account merely describing contemporary circumstances in which religious communities claimed to be governed by divine standards rather than human-made laws without prejudging the merits of the nomoi and the divine alternative. Maimonides elsewhere differentiates between divine law (shari’a) and nomos with respect to the source that created them: the former is a product of the prophets; the latter is a product of statesmen. “Only this law do we call divine law; the other political measures, e.g., the Greek nomoi . . . are the works of statesmen, but not of prophets” (Guide 2.39). See Hughes, Texture of the Divine. “The divine science is divided into two parts. One of them is the study of . . . whatever appertains to God . . . and the transcendent intelligences. The other part of the divine science is the remote causes . . . and divine science is called metaphysics as well.”

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Divine standards thus are principles that are not of human creation, but derived from theological and metaphysical knowledge.72 By narrating the distinction between nomos and al-amr al-ilahi through a historical progression, Maimonides indicates that the two not only differ conceptually, but also illustrate discrete historical phases.73 This idea does not evidence an acquaintance with ecclesiastical literature, but it does reflect the anti-Hellenic historiosophic view that civilizational progress occurs along an axis stretching from an epoch of governance by nomoi to societies ruled by divine standards. As Butterworth observes, medieval Judaism and Islam provide only limited reflections on the law. Even their most sophisticated political philosophers did not question the divine law, but attempted to understand its purposes and goals or the intentions of the lawgiver.74 Being fully aware of Hellenic political philosophy, these reflections consistently deny the nomic aspects of the divine law and the torah–nomos reduction. Instead, they embrace the pharmacological image of the law, according to which its main end is to heal the soul of the individual and to ensure human health. The equation of Judaism and legalism is not a consistently accepted, certainly not an inherent, theological notion. To the contrary, it is a part of the economy of religious differences by which religious identities are expressed and defined as mutual alternatives, as has been demonstrated by an examination of the distinct discrepancies between three cultural settings: late ancient Judeo-Hellenic, medieval Judeo-Arabic, and post-Reformation European. Against the Biblical-Hellenic backdrop, the torah–nomos reduction became a keystone notion that impacted on the simultaneous formation of Christianity and Rabbinic Judaism and shaped some of their central motifs as religious alternatives. During the first century, each of these religious milieus responded differently to the possibility of understanding the word of God in terms of nomos, such as with Philo’s unreserved identification of torah with nomos, Paul’s criticism, or Marcion’s intense rejection. The reorientation of post-Temple Judaism around the scholasticism of the halakhah and the professionalization of legal knowledge through rabbinism were major results of the torah–nomos reduction, though less articulated in theoretical and reflective terms. In the wake of these developments, legalism became a predominant theme in the developing discourse of religious differences and a seemingly 72

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The devaluation of nomoi is in agreement with Maimonides’s philosophical temperament. He seems to share the view of Ibn Bajjah and Ibn Tufayl that religious laws are mere indicators of philosophical and theological truths. The same is the case in the philosophical inquiries of AlFarabi, Ibn Sina, and Ibn Rushd. Medieval philosophers thus revitalized the ancient translational option of rendering torah as logos rather than nomos. Lawrence V. Berman (“Reexamination,” 110n10) reflects on the parallel narrative, introduced by Ibn Khaldun, that “God dispensed with the rational regime of the Persians and replaced it with Islam at the time of the Caliphate because the ordinances of the sharia made it superfluous.” Butterworth, “Philosophy of Law,” 219, 249.

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indispensable part of interreligious polemics and dialogue. A discourse of religious differences is a constitutive process that creates the perception of selfness and otherness. Exposition of Jewish–Christian religious differences through the question of religious legalism is an example of a cyclical mechanism of representation, perception, and identification through which Jewish otherness was designed by Jews and non-Jews alike. During the Middle Ages, medieval Jewish thinkers contested or ignored the torah–nomos reduction, in the first case challenging the nomocentricity of Judaism and the religious values of the divine laws, and a discourse of religious differences was formed on the basis of different themes and principles.75 Lutheran theology in its day revived and intensified the discourse of religious differences on the basis of religious legalism. By radicalizing Paul’s critique of nomos, Luther essentialized the association of Judaism and legalism. This association then was internalized as Jewish self-perception and a major theme of the Western myth about Jewish–Christian religious differences.

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To borrow the title phrase of Hayes’ 2015 study (Divine Law), we may say that while in ancient times the question of divine law was what is divine about divine law, medieval thinkers were troubled by a very different question: What is legal in divine law?

Part 3

Politics

It is difficult to think of an idea or institution with such staying power as the family. Across cultural and religious traditions, the family has been a central institution from the earliest days of human civilization. The question of its political meaning takes on new forms and sheds them as the eras come and go, in antiquity as at present, even as it continues to raise profound dilemmas unlike those it posed in times past. The endurance and pervasiveness of the family encourage us to conceive of it in essential and universal terms. Yet whether essential elements of the familial form of life can truly be identified is unclear.1 As early as ancient mythology, family relations fulfilled a central role in describing the relationships between primordial beings.2 The religious perspective informed by Scripture similarly sees the family framework as having religious significance on both the earthly and the divine plane. Thus the relationship between the believers and God and the relationship between the believers themselves are typically described in familial terms.3 In mystical circles, even the celestial order is depicted in terms of intrafamilial relationships.4 Conversely, the idea of divine selection or sanctity is given expression as part of the earthly family unit.5 This perspective not only 1 2

3

4

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See Minow, “Membership, Loving and Owing.” Family relationships figure prominently in many mythologies that gave rise to the civilizations of the world. These mythic family relationships reflect the reality of the family even as they mold society’s grasp of such relationships. On Greek mythology as reflecting the reality of the family in ancient Greece, see Slater, Greek Mythology. Simultaneously, familial embroilments in myth are taken as the key to understanding psychological structures and social constructs in modern consciousness, as with Oedipus, who is given pride of place in Freudian psychoanalysis and modern political psychology (discussed later), and the story of Antigone, used in modern queer theory to understand social, political, and cultural phenomena. See Judith Butler, Kinship. See Rachel Adler’s critical feminist reading of metaphors describing scriptural attitudes toward the divinity, delivered in “The Battered Wife of God,” her explosive study of family forms and intimate relationships in the prophetic books. Moshe Idel (Sonship) has demonstrated that the father–son relationship not only was positioned as a pillar of religious structures in Christian theology but also is a central axis in the history of Jewish mysticism. Seth Kunin (“Logic of Incest”) offers an analysis of the tension between the element of choice and natural firstborn status in the Patriarchal stories of Genesis, discussing the family as a basic unit of meaning with reference to belonging, non-belonging, exteriority, and interiority. On the critical role of the institution of adoption in scriptural descriptions of the idea of choice, see Malul, “Adoption.” On the centrality of adoption in the Pauline writings of the New Testament

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recognizes the family as a significant arena for the appearance of religion but also sees depth patterns of the human form of life reflected in family structure. Such a worldview is without doubt deeply ingrained in modern consciousness, which attempts to blend it with newer insights regarding intrafamilial relationships. As with so many other subjects, historical and anthropological perspectives on the family tend to place an emphasis on contextual factors and on variables within cultural and historical context, thus contributing to the erosion of the essentialist notion of family. Meanwhile, none other than modern psychoanalysis, with its classical and progressive roots, calls for an archetypal view of intrafamilial relationships as a formative condition for human psychological development, and one that largely dictates the vagaries of an individual’s future.6 In this telling, at least some elements of the family come across as incidental outcomes of human history far more than as anything else. The question of the essential components of interfamilial relationships is critical to a slew of questions about state attitudes toward the institution of the family. Contemporary debates about how to relate to the ever-increasing number of family forms and to government intervention within the family unit tend to make certain assumptions about how essential the familial framework is, and these assumptions dictate how they understand the characteristics of the family unit. All these are matters that I will not attempt to settle. Instead, I wish to set out their theoretical underpinnings and to identify trends in how the political meaning of the family is contemplated. I seek not to evade the lessons of the historicization of the family, or else to deny the value attributed to it in psychoanalysis and other knowledge areas, but to focus on the nexus of the family and the political – the political meaning of the family and the shifts that this meaning has undergone from the dawn of political consciousness until the present day. Many issues associated with the family are at the top of the public agenda in the societies of the West. Stipends for families that procreate and raise children, fertility treatment funding, government spending on child-rearing, single-parent families, unisexual families, adoption, civil marriage and divorce, and bereavement are just a few examples where the concept of family comes into play in contemporary political discourse. Moreover, the heterogeneity of modern democratic societies, which are home to so many and such divergent worldviews, situates the place and meaning of the family at the epicenter of

6

as an act of joining with the community of believers, see Scott, Adoption. On the presence and influence of the model of the Holy Family in Christian tradition and European art, see Koschorke, Holy Family. Classical Freudian psychoanalysis emphasized the father–son relationship as central to psychological development and pathology. Psychoanalytic approaches that developed after World War II and were influenced by the conflict, such as that of Donald Woods Winnicott, emphasize the role of the mother in cognitive, emotional, and ethical constructs. For a robust discussion of shifts in the definition of parenthood in light of legal, psychological, and sociological insights, see Bainham, Sclater, and Richards, What Is a Parent? On fluctuations in the definition of parenthood in view of developments in fertility technology, see Dowd, Redefining Fatherhood.

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tensions over law and religion, between civil society and religious tradition, and between individual rights and the regulatory authority of the state. The remarks that follow do not presume to directly address the practical politics of the institution of the family with regard to these issues. Instead, they sketch the conceptual and fundamental outlines of a discussion of the family in modern liberal societies. The point of departure for our discussion is the assumption that the clash between liberalism and the institution of the family is a characteristic feature of every Western society with any commitment to the basic tenets of personal freedom. The central argument of my analysis is that the rise of liberal theory was a watershed moment in the history of the political meaning of the family. The forms of meaning imputed to the family before the consolidation of the basic assumptions of liberalism have been undercut, and the resulting vacuum has seen the formulation of experimental alternatives that not infrequently leave democratic regimes at a loss. Put otherwise, I will seek to argue that the erosion of the family in the modern liberal era is on a certain level bound up with the dissolution of the family’s political and traditional meaning. This being the case, I will describe three main trends in liberal endeavors to address this fracture and to redefine the political meaning of the family.

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The Familial–Political Analogy

The Family as a Source I can think of no better expression to characterize these similarities than “family resemblances”; for the various resemblances between members of a family: build, features, colour of eyes, gait, temperament, etc. etc. overlap and crisscross in the same way. – And I shall say: “games” form a family. And for instance the kinds of number form a family in the same way. Why do we call something a “number”? Well, perhaps because it has a – direct – relationship with several things that have hitherto been called number; and this can be said to give it an indirect relationship to other things we call the same name. —Ludwig Wittgenstein, Philosophical Investigations

In his later philosophical work, Ludwig Wittgenstein found no better way to describe the idea of language games by which we organize reality than the concept of the family. The family here is more than a metaphor: it is a prime concept, an expression in Wittgenstein’s terminology, a most elementary concept by which we signify and form relationships between things. The multiplicity of perspectives on family and of senses in which family, as an institution, is understood make its critical analysis a complex and contextually sensitive matter. For this reason, it is important as a preliminary stage to clarify certain aspects of the concept of family and the linguistic uses of the word. First of all, family is a broad and imprecise concept, an umbrella concept with respect to its meaning and reference. The word can refer to forms that are different from and even at odds with the mold of what is perceived as the traditional nuclear family – a unit based on a monogamous heterosexual relationship and led patriarchally. The noun family can signify a primitive clan, a household governed by the oldest living male (paterfamilias), a commune, a household led by a same-sex couple, and many other forms. These varied denotations are similarly evident from the diverse and distinct roles attributed to the family, whose functional descriptions include that of a unit with economic significance7 and an efficient framework for productivity, 7

Credit for placing the family on the agenda of economic theory belongs to Gary S. Becker, Family. His explanatory model distinguishes between the value of the family as an economic unit, with the purpose of maximizing utility, and its internal character, to be understood in terms of a union maintained through altruism. A major part of the criticisms of this model hinged on

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procreation, and child-rearing. This variety of denotations is also reflected by the existentiality of the family in our lives. Our families often signify for us the idea of home, our longing for it, and our dependency upon it.8 Our families commonly mark the protected private sphere that is a condition for our growth and for our physical and emotional nourishment.9 The family can assume the role of the source of our identity,10 the arena in which intimacy, sexuality, and freedom are practiced and actualized,11 and the breeding place of our values and our standards of justice,12 fairness, and equality.13 Family also is a source concept, a source of inspiration and semantic genealogy for additional systems. Thus various developmental descriptions of religions, religious traditions, and institutions extensively use vocabulary associated with family structures.14 Likewise, as demonstrated in the above epigraph, the manner in which we comprehend linguistic phenomena, language games, and cognition are reliant on our experience of the family and what family symbolizes for us. Family is a borderline concept – one that

8

9 11 12

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14

its failure to account for the members of the family as separate individuals with potentially contradictory interests. Later approaches, which examine the economic significance of the family from the perspective of the individuals, tend to construe the family as a venue of bargaining and fair distribution of resources. See Sen, “Gender and Cooperative Conflicts”; Agarwal, “Bargaining.” For analyses of the significance of the home as the foundation for a renewed understanding of the fundamentals of property law, see Fox, Conceptualising Home, 131–180. See Douglas, “Idea of a Home.” 10 See Malpas, Place and Experience, 175–193. See Kotef, “Ba’it.” The question of whether and to what extent principles of justice should govern family life has been enthusiastically taken up in the philosophical literature. Susan Moller Okin (Justice) painstakingly formulated the thesis that the family exists as a social institution on the same continuum as public social institutions, and therefore is subject to the requirement of justice. She argues that inequality between the sexes stems from and reflects the unequal division of labor in the family environment. The just family thus is the main foundation for a just society, the family being “the school of justice.” Those opposed to the ideal of justice within the family (e.g., Sandel, Liberalism) view it as an intimate group characterized by harmony of interests, and thus beyond the ideal of justice, or else argue that the family is inherently incapable of reflecting just relationships. An intriguing intermediate approach is that of Edna UllmannMargalit (“Fairness and Unfairness,” 575), in whose view the family should not be seen as a social institution subject to the requirement of justice, but there is good reason to expect the family not to be unjust and to function according to the principles of fairness and considerateness. See below on the view that the family simultaneously facilitates and is at odds with the political. Some emphasize the centrality of sex life in the family unit as the source of inequality in the consciousness of society at large: “Sex enters into this subservience of women to men as an emblem and as an engine of inequality . . . because the anatomical differences between men and women assign individuals to one of the two classes, the dominant and the subordinate, and those anatomical differences are the scene and object of sex: sex desired and sex enacted. Sex is the engine of inequality because it is inflicted on women to their pain and humiliation, because the consequences of sex – pregnancy, childbirth and parenthood – are used to make women vulnerable and to keep them subordinate as caregivers to children and servants to men. So sex is connected to family, and family is a scene and perpetuator of inequality” (Fried, Modern Liberty, 129). See the introduction by Eleanor Burke Leacock to Engels’s monumental work, Origin of the Family, 66–67.

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challenges accepted distinctions and the entrenchment of conceptual boundaries. The concept of the family thus undermines a number of dichotomies that are deeply etched in the traditional Western consciousness. For example, family occupies an unclear position in terms of the distinction between the private and the public,15 along the axis between nature and law,16 and relative to the presumed borders that differentiate sacred from secular.17 The concept of the family is an elusive one. It is perceived as an institution whose roots reach down to the cradle of ancient cultures, and thus a selfexplanatory one requiring no justification. Yet the complexity of family ties is a motif that has accompanied the family ethos since the beginning of human history. At the beginning of the twenty-first century, the importance of the family as social institution, its role, and its contribution to general well-being are not entirely clear and are in fact hotly contested. The essential components of family life and the ethical and cultural values that they represent are among the most salient questions in modern Western culture and liberal societies. The plethora of proposed definitions and perspectives on the family and the abundant research publications on various aspects of it reflect not only the growing need to understand the institution, its place, and its role in modern social realities, but also liberal society’s confusion regarding the importance of the family and how to grapple with traditional conventions and definitions.18 15

16

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On the erosion of this distinction and its connection to the family in various perspectives, see Kennedy, “Decline”; Rose, “Beyond”; Gavison, “Feminism.” On the theoretical and empirical significance of the distinction from a sociological perspective, see Weintraub and Kumar, Public and Private. See the intriguing position of Martha Craven Nussbaum (Women and Human Development), who refutes the naturalness of the family even as she argues that natural norms are not without validity. See also David Delaney (Law and Nature), for an analysis of the ramifications, uses, and significations of the law–nature distinction in modern contexts of notions of family and fertility. On the Western origins of the distinction and how it came to figure in discussions of nonWestern notions of family, see Asad, Formations of the Secular, 21–66, 205–256. Legal discussion has focused more on the question of the essence of marriage and parenthood, and less on the essence of the family. However, the right to “respect for family life” in British common law (Human Rights Act 1998) and the demand of the United Nations for the family’s “protection by society and the State” (Universal Declaration of Human Rights, UN General Assembly, December 10, 1948) seem to indicate a tendency to recognize family as a basic human need. The key question naturally is, What is a family? On this point, there are a number of competing approaches. The experiential approach may include relations other than blood relatives, and even pets that are considered part of the family; see Morrow, Understanding Families; Smart, Neale, and Wade, Changing Experience of Childhood. The formalist approach is true to legal definitions and standards that spare courts the need to take a position on controversial ethical questions, allowing those courts to pronounce judgment according to statutory characterizations of the family. According to the functionalist approach, although no entirely satisfactory definition exists, the family can be identified; see Derek Morgan, “Enigma Variations.” On whether children or sexual relations ought to be regarded as an essential element of the family, see Bainham, “Family Law.” The idealist approach sketches a picture of an ideal family, and thence derives legal imperatives. The self-definition approach declines to impose “external” definitions on family forms and instead leaves the matter to self-definition by

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The distinct patterns of family life and their corresponding distinct sources of legitimacy draw attention to the practical and conceptual diversity surrounding the concept. Clearly a serious examination of these issues cannot overlook the historical, cultural, and religious background of the institution of family. Our purpose here, however, is to illuminate another aspect of family as social institution: its political meaning within the liberal perspective. As part of this endeavor, I will attempt to shed light on an important aspect of the family in modern liberal societies – namely, the reciprocal relations between this social institution and the fundamental principles and values of liberalism. In so doing, I seek to draw attention to the two dimensions of these relations: the ways in which conceptions of family shape theories of political order, and the way in which liberal principles lead to reevaluation of the meaning of the family as social institution. Our proposed perspective suggests also viewing the changes in the status of the family against the reciprocal relations between the family and the political order and against the paradigmatic power of the family within these relations. On the basis of this observation, we will suggest a refreshed outlook on troubling contemporary questions about the legitimacy of state regulation and oversight of family life, family structure, and behavior within the family. In the first section below, I will sketch the historical conceptual contours of family–state relations. With these as a foundation, I will argue that the development of political liberalism should be viewed as a watershed in the history of those relations, and a foundational instance of renewed political meaning for the family. The formulation of liberal theories will thus be described as having instigated a dramatic change in the conceptual relationship of family and state. I will seek to demonstrate that family and state were traditionally understood as parallel concepts or realms that mutually served and affected one another, but the commitment to basic liberal principles demanded a redefinition. The encounter of the family with liberalism was in this sense nothing less than a crisis,19 and the effect of liberalism on the institution of family was an iconoclastic one.20 The erosion of the traditional structure of family and subsequent attempts to redefine various forms of family units thus must be

19

20

all group members; see Eekelaar and Nhlapo, The Changing Family. The changing form approach calls for following the social and cultural changes that continually reshape the institution of the family; see Dench and Ogg, Grandparenting in Britain; Lorraine Fox Harding, Family. The etymologically of the term crisis is in ancient medicine, where it signified the decisive turning point in the progression of an illness, the point where whether the body is destined for healing or for demise can be determined. Modern definitions of the word refer to a process where there is a change of form, where an old system no longer can be maintained and need of a new system arises. Crisis is characterized by inability to discern the future, uncertainty, a threat to fundamental patterns, and a need for change. Iconoclasm is defined as the destruction of key symbols, patterns, beliefs, or conventions. It generally is an important component of processes of religious or political change: many a religious ethos describes the point of transition to a rightful religious reality as accompanying the destruction of that preceding it.

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viewed as part of the history of political philosophy, and not only as a question of the ascendancy or decline of family values.21 The ensuing discussion will draw from the history of political thought and a close examination of the theoretical underpinnings of the liberal theory of John Locke, as we seek to chart the deep changes imposed by liberalism on the family–state dynamic. Acknowledgment of the liberal influence on the traditional perception of family will make it possible in the following section below to describe the three main attempts to redefine the political meaning of family as part of the liberal worldview. These attempts – the paternalist, the naturalist, and the apolitical – present distinct responses to the questions about the meaning of the family in the liberal state: To what extent does the existence of family serve the state’s interests? What benefit can a modern state derive from the family lifestyle of its citizens? Finally, if the state indeed has an interest in the existence of the family, to what extent should the state invest in the preservation and development of that institution? Through these questions, we will elucidate the connection between the changing perspectives on the meaning of the family and the development of Western liberal theories.22

The Family as a Paradigm The family is, then, if you will, the first model of political societies; the leader is the analogue of the father, while the people are like the children; and all, being born free and equal, give up their freedom only for their own advantage. —Jean-Jacques Rousseau, The Social Contract 21

22

The erosion of the traditional family is of course linked to various and sundry phenomena, such as the challenge to the heterosexual paradigm of the family, open display of intimacy, and reduced importance of blood ties. The approach taken here is not exclusive of the other descriptions, but complementary. The West European experience suggests that the crisis of the traditional family is the result of trends born of tensions between the individual, the family, and the state that pit defense of individual liberty against defense of vulnerable family members. See Meulders-Klein, “Individualisme et Communautarisme.” Other analyses, centered on the practice of American law, identify the rise of children’s rights and the recognition that children need not suffer or be punished for the behavior of their parents as a main cause of this change; see Woodhouse, “Children’s Rights,” 497. Two main types of justifications are commonly given for state incentivization of family life. The first looks to the individual’s fundamental need for family life, the emotional security provided to the individual by family life (see Schaffer, Making Decisions about Children) and the decisive role of family life in the development of identity, character traits, and personality in the individual (on which see Parsons and Bales, Family). The second, that more typical of Western conservatism, emphasizes the social or national utility of the existence of the family and its contribution to social resilience and the generation of a tradition of transmitting values and rituals (discussed later, n. 19). Meanwhile, those who reject incentivization of the institution of the family point to the use made of the family environment in hurting the weak and suppressing women (see Delphy and Leonard, Familiar Exploitation), or as a mechanism that bolsters selfishness, exclusivity, and occupation with self-interest, which undermine altruism, communitarianism, and concern for the public good (see Barrett and Mcintosh, Anti-Social Family). Our present purpose, as noted, is to examine the state’s interest in the family in view of the family’s political significance.

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In premodern times, parent–child relations were perceived as a pure and prime reflection of the ideas of authority and subjugation. Many accounts of the state’s interest in the existence of the family as an institution therefore focus on its paradigmatic value, viewing family as an archetype or crude plan on which relationships within the political sphere and even the political order itself are based.23 Family is taken to be a source of the political, and as such, it functions as a genealogical source, so that the natural evolution of cities and civilian life is the product of the expansion and the generalization of intrafamilial relations.24 The family, as a source for the political, also emphasizes the epistemological contribution of family to the establishment, preservation, and justification of the political order. Family then is not only a model and source of inspiration, but also a source of legitimization. Stated otherwise, family has a heuristic value for political order. Political orders are accordingly organized upon the elementary components of the family, such as authority, subjugation, subservience, sovereignty, and government – ideas and relations that originate in family life and from there are generalized and applied to broader social life. It thus is logical to begin an examination of presumptions about political frameworks by tracing their origins inside the family. Viewing the family as a historical and epistemological source of the political order, there are those who claim that since family is the core of political life, its preservation as a legal and social institution contributes to the preservation and stability of the political order.25 Due to their structural similarity, the family can be plausibly considered to comprise the DNA underlying the political order – a fundamental model that includes all of the essential ingredients of political life.26 The paradigmatic value of the family also explains why 23

24

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The conception of the family as a fundamental element of society is clearly expressed in judicial discourse. Comments of this sort represent not only worldviews that exalt the family as a foundation of human society but also views of the family as assuring the continued existence of human society, and hence the dependence of society upon it. See Nussbaum, “Preference and Family.” “And since the fathers were sovereign kings of their families, the equality of their state and the fierce nature of the cyclopes being such that no one of them naturally would yield to another, there sprang up of themselves the reigning senates, made up of so many family kings. These, without any human discernment or counsel, were found to have united their private interests in a common interest called patria, which, the word res being understood, means ‘the interest of the fathers.’ The nobles were accordingly called patricians, and the nobles must have been the only citizens of the first patriae or fatherlands” (Vico, The New Science, 188–189). This argument, which links sociopolitical stability to the family institution, is characteristic of modern conservative ideology, as in the words of Ronald Reagan: “Strong families are the foundation of society. Through them we pass on our traditions, rituals, and values. From them we receive the love, encouragement, and education needed to meet human challenges. Family life provides opportunities and time for the spiritual growth that fosters generosity of spirit and responsible citizenship.” See White House Working Group on the Family, The Family. UK Labour Party leader and future prime minister Tony Blair commented in a similar vein: “And we cannot say we want a strong and secure society when we ignore its very foundation: family life” (Anthony Blair, The Guardian, October 1, 1997). English philosopher Richard Cumberland (1631–1718) highlights in his book on natural law two central aspects of the notion that the family is a paradigm of the political. First, as in

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the family–state analogy appears in most classical political theories as an important component in the explanation of political structures and especially in their justification. Such a connection appears in the earliest political theories and becomes increasingly prominent in the political discourse of the beginning of modernity. No later than Plato, who aspired to do away with the private family, one can identify the buds of the analogy between the private family and political order of society. For him, control of the family and control of the political echelon are essentially identical, albeit with a difference of context.27 The family–state analogy is also clearly reflected in Aristotle’s refutation of the Platonic goal of eliminating private families. Aristotle approves of the structure of family–state relationships, but he construes the analogy differently. Rather than portraying family and state as images that mirror one another, he describes them in inseparable, complementary terms. According to Aristotle, the state as the ultimate and natural perfection of human life is attained by accumulation of households and villages – member units that can be viewed as the limbs of the political body. He appeals to the family–state analogy to support the naturalistic Aristotelian view of the state as suited to the nature of human beings as political creatures: homo politicus. In contrast to the Platonic position, the family–state analogy in Aristotelian thought does not make the role of private families obsolete, but assigns them a dialectical role and meaning in the overall political order. Family is an essential component of the state as an organism; at the same time, its meaning and purpose are derived from the political goals of a society.28 Whereas in ancient Greek philosophy, the family–state analogy was a subtle one, in early modern philosophy it moved to center stage.29 The combination of scholastic Hebraism and the pursuit of a comprehensive model that would reconcile religious and political tensions infused the family–state analogy with new meanings and gave it a prominent place in political thought throughout the modern era.30 In the modern telling, family was perceived not only as a natural framework but even more as the manifestation of a religiously valid truth, so that political insights based on this analogy had religious validity as well. Hence family not only is similar to the state but even dictates its style,

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geometry, paradigmatic value is discerned by contemplation of phenomena accompanying the object of interest and not necessarily the source of the behavioral pattern of such phenomena. Second, in his view, the paradigm of political relations lies not in the parental relation but in the marital relation that precedes it. See Cumberland, Laws of Nature, 714–715. “It is clear that all these are the objects of one science, and whether a man calls this the art of kingship or statesmanship or householding, let us not quarrel with him” (Politicus, 259c). Aristotle sees the family–state analogy as an outcome of his naturalist ontology. For him, the family is an essential component of political structure and accordingly precedes the state. Nevertheless, the family is not an autarkic entity; it is metaphysically reliant on the political construction: “that which is later in generation is prior in nature” (Aristotle, Metaphysics 1.989a). See Saba, “Greek Cities and Families.” 30 See Jonathan Jacobs, “Return to the Sources.”

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draws the outlines of its character, and justifies it as a form of political organization. Such a Hebraistic style of thought, in which the biblical family is the ultimate source for the political order, is championed by English political theorist Robert Filmer (1588–1653). In his advocacy of monarchy, this form of government is not only acceptable but also a mandated religious privilege. Monarchy, as a political arrangement, is a divine right of kings. Being sensitive to the power and implications of the family–state analogy, Filmer took the heuristic meaning of the family and transformed it into religious dictate. According to him, the institution of the family is an instructive paradigm for the establishment of legitimate political power. The privilege of the kings is an outgrowth of parental authority, and its roots are as ancient as the beginning of time. In grounding kingship in the very core of creation, Filmer rejected legitimizations of political sovereignty based on the contractual transference of rights from the people to the sovereign.31 He believed that the source of political authority is not the natural rights of the individuals but the unassailable parental authority that is rooted in the divine creation of the world. In the spirit and fashion of his time, he construed the absolute authority of kings as deriving from paternal authority as described in Scripture.32 Filmer fleshed out his argument by appealing to scriptural narrative. The parallel between fatherhood and kingship arises from equating the ultimate authority of the biblical Adam, the progenitor of the human race, with that of a monarch. Monarchy is described as an expression and manifestation of Adam’s authority, following natural succession throughout human history. Political authority precedes and in fact constitutes the political order. Political authority thus does not derive from human interactions and deliberations, but is delegated by god as a divine privilege: For as Adam was lord of his children, so his children under him had a command over their own children, but still with subordination to the first parent, who is lord paramount over his children’s children to all generations, as being the grandfather of his people. I see not then how the children of Adam, or of any man else, can be free from subjection to their parents. And this subordination of children is the fountain of all regal authority, by the ordination of God himself. From whence it follows, that civil power, not only in general is by Divine institution, but even the 31

32

The conception of monarchic legitimacy as based on the transmission of rights and political power from the people was formulated as the Roman legal doctrine of lex regia, where it signified the transition from the Republic to the emperorship of Augustus. According to this doctrine, the people gives the emperor absolute authority for the sake of preserving the state. In reality, the lex regia was a fiction produced by Roman legal scholars to justify imperial power. The doctrine, which was ensconced in Justinian’s Corpus Juris Civilis, later wielded powerful influence as democrats sought to use it as proof that the source of sovereignty is the people, while royal absolutists looked to the doctrine to justify the absolute authority of rulers. See Mousourakis, Legal History of Rome, 23–24; Tierney, “Prince.” Sommerville, “From Suarez to Filmer”; Greenleaf, “Filmer’s Patriarchal History.”

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According to Filmer, Adam was the paradigm of all possible forms of political authority. He became “monarch of the world, though he had no subjects,” when God said to him: “Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth.”34 The entire human race was born into his paternal authority, which then passed down to his royal successors. Alone among political authorities was Adam, the fatherless man, completely free.35 Filmer’s anthropology is diametrically opposed to the liberal view. According to him, human beings are not created free. They are born into preexisting relationships as children and subjects of a father who preceded them. The transition from the state of nature to the political order does not take place through individuals’ mutual concession of their personal freedoms and right to wield force. The essential shift is from one side of the equation to the other, the transfer of paternal authority to its historical and conceptual incarnation: the authoritative monarch.

33 35

34 Filmer, Patriarcha, 57–58. Filmer, Patriarcha, 289, quoting Genesis 1:28. Further on in his essay, Filmer further aggrandizes fatherhood as the model of authority by deriving God’s authority from his being a father. Having previously stated that the authority of fatherhood results from God’s word, he thus creates a circular logic. See Melissa A. Butler, “Early Liberal Roots”; Hulliung, “Patriarchalism.”

6

Liberal Iconoclasm Robert Filmer’s theory greatly expanded the boundaries of the family–state analogy and offered a philosophical and, for audiences of the time, a theological opposition to emerging liberal ideas, which had by his time gained a significant voice. The liberal response to him was given by John Locke. In discussing Filmer’s theory, Locke focuses on refuting the family– state analogy and the attempt to anchor the concept of political authority in paternal authority (patria potestas).1 At the core of his arguments are a scriptural reading and consequently a new understanding of the concepts of parenting and family relations that dismantles Filmer’s comprehensive perspective. Underlying Locke’s argument is a negation of the perception of parental authority as obtained by subjugation and thus absolute. Locke’s call for separating political and parental authority is a reductio ad absurdum. If political authority is nothing but an extension of parental authority, he argues, then it must lead to the Platonic conclusion of vanishing private families. If not, then parental authority has no political meaning at all. This shows the reason how it comes to pass, that parents in societies, where they themselves are subjects, retain a power over their children, and have as much right to their subjection as those who are in the state of nature. Which could not possibly be, if all political power were only paternal, and that in truth they were one and the same thing: for then, all paternal power being in the prince, the subject could naturally have none of it. But these two powers, political and paternal, are so perfectly distinct and separate, are built upon so different foundations, and given to so different ends, that every subject, that is a father, has as much a paternal power over his children as the prince has over his: and every prince, that has parents, owes them as much filial duty and obedience as the meanest of his subjects do to theirs; and cannot therefore contain any part or degree of that kind of dominion which a prince or magistrate has over his subjects.2

Like Filmer, Locke bases the idea of authority on an anthropological observation. Unlike Filmer, however, he invokes and even emphasizes the rational character of human beings.3 Authority, argues Locke, whether in the family or 1

2 3

In several parts of the First Treatise and the sixth chapter of the “Second Treatise.” See Locke, “Second Treatise,” 122–133. Locke, “Second Treatise” 6.71, p. 130. Schematically, the conflicting agendas of monarchism and liberalism can be viewed in terms of two conflicting paradigms of affiliation in the political life, both preserving the fundamental

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in the political world, arises from the individual’s rational faculty and consent to be subject to a higher authority. Parental authority must be considered to belong to a temporary custody, instrumental in nature and conditional in essence.4 The idea of basing a comparison of family and state on an identical relationship embodied in patria potestas is to Locke a fundamental mistake.5 Locke sees no other way but to deconstruct the fundamental perceptions of parenthood, the parental role, and authority. As a result, Locke not only rejects the traditional perceptions of these conceptions but also defines them anew. By redefining parental authority as a temporary and instrumental guardianship, Locke counters the prevailing notion of parenting as an expansion of the parent’s self and challenges the comparison of parenthood to political authority.6 For Locke, to parent is to care for and protect a young dependent. Therefore, parental authority is justified only when children are physically or mentally dependent. Parenthood as a duty-based right is distinct from political authority, and political authority can only be based on the cumulative consent of individuals, on their will and intelligence. Parenthood therefore is an accessory available to individuals who are mentally or physically limited; political authority, on the other hand, is the business of rational and capable individuals.

4

5 6

picture of the society as a family. The operative question is whether a political order ought to be constituted from the vertical relations between citizen-sons and the monarch-father or from the horizontal balance between the citizens as siblings or brothers of each other. A similar construction of political theory in terms of interfamily relations is evident in the writings of social psychologists following World War I. The resolution of the father–son complex according to Paul Federn (1871–1950) is a process of political healing: “The father–son complex has suffered the greatest defeat. Yet from the family education and the inherited feeling it is deeply rooted in mankind; and it probably this time also will prevent a complete victory of the fatherless society” (Federn, Zur Psychologie, 417). The struggle against the bourgeoisie too was depicted in terms of interfamily relations: “All previous organizations were organized from the leader down; the organizational pyramid provided the father–son relation with an ideal form. . . . The new organization – the council – grows out of the masses, out of the base, and from the base it receives the impulse and invisible psychic system: the relation of the brother” (p. 416). For analysis of Federn’s ideas and statements, see Jacoby, Social Amnesia, 84–86; Van Ginneken, “Killing of the Father.” “Nay, this [parental] power so little belongs to the father by any peculiar right of nature, but only as he is guardian of his children, that when he quits his care of them, he loses his power over them, which goes along with their nourishment and education, to which it is inseparably annexed; and it belongs as much to the foster-father of an exposed child, as to the natural father of another. So little power does the bare act of begetting give a man over his issue, if all his care ends there, and this be all the title he hath to the name and authority of a father” (“Second Treatise” 6.65, p. 127). Locke’s innovativeness is easily underestimated. Parenthood for him is a derivative concept of guardianship, not vice versa. His instrumentalist interpretation of parental power blurs the distinction between biological and adoptive parenthood. Indeed, consequent to the rise of the liberal perspective, the institution of adoption came to be viewed from a diametrically different moral perspective. “Second Treatise” 6.74, p. 131. The notion of parenthood as self-extension is a version of the Aristotelian idea of filial relations in the sense of second selves (see n. 24) and deeply rooted in the Judeo-Christian idea of imago dei, according to which every created individual is an extension of the divine image.

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Locke’s de-analogizing of family and state virtually dismantles the idea of parental authority, which is in his view unjustified.7 Again like Filmer, Locke anchors his perspective in a reading of Scripture and reference to the primordial image of Adam as setting the precedent for the nature of political authority and relations. Yet in contrast to Filmer’s emphasis on Adam’s authority, Locke emphasizes Adam’s autonomy. This autonomy exemplifies and establishes the autonomy of human beings who are not subordinate to any other human authority whatsoever.8 Locke uses his refutation of the doctrine of patria potestas to reemphasize the supremacy of God and his absolute authority over the entire human race, all members of which are described as equal sons and daughters of God,9 children and parents alike.10 A natural outgrowth of Locke’s claims is that the importance of consanguinity is weakened, and the distinction between biological and adoptive parents is blurred.11 Authority no longer is an essential aspect of parenting but has 7

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9

10

11

Locke uses a comparison of parental power and “swaddling-clothes” to refute the perception of parenthood as extended self and redefine it in temporal and functional terms: “Children, I confess, are not born in this state of equality, though they are born to it. Their parents have a sort of rule and jurisdiction over them when they come into the world, and for some time after; but it is but a temporary one. The bonds of this subjection are like the swaddling-clothes they are wrapt up in, and supported by, in the weakness of their infancy: age and reason, as they grow up, loosen them, till at length they drop quite off, and leave a man at his own free disposal” (“Second Treatise” 6.55, p. 123). (Toward the end of the seventeenth century, there was opposition to the use of diapers, which were deemed neglectful and described as “vain reasonings” of our “false wisdom” that was practiced in primitive societies; see Rousseau, Emile, 44.) “Adam was created a perfect man, his body and mind in full possession of their strength and reason, and so was capable from the first instant of his being to provide for his own support and preservation and govern his actions according to the dictates of the law of reason which God had implanted in him” (“Second Treatise” 6.56, p. 123). Parental images of God need not be related to monotheistic metaphysics. Some Gnostic worldviews embrace parental imageries of the deity, even as the monotheism of the Qur’an emphasizes the contrast between the transcendental perception of God and parental imagination: “And they falsely, Having no knowledge, Attribute to Him Sons and daughters. Praise and glory be To Him! (for He is) above what they attribute to Him! To Him is due, the primal origin, of the heavens and the earth: how can He have a son, when He hath no consort? He created all things, and He hath full knowledge, of all things” (Qur’an 6:100–101); “Muhammad is not the father of any of your men, but (he is) the apostle of God, and the seal of the prophets” (Qur’an 33:40; Qur’anic translations are from Ali, The Holy Qur’an). For examination of the interplay between familial structures and imageries of the divine from the perspective of cognitive development and Western legal imagination, see Antoine Vergote et al., “Concept of God”; Hertel and Donahue, “Parental Influences”; Dickie et al., “Parent–Child Relationships”; Sarat, “Imagining the Law.” “Adam and Eve, and after them all parents were, by the law of nature, ‘under an obligation to preserve, nourish, and educate the children’ they had begotten; not as their own workmanship, but the workmanship of their own maker, the Almighty, to whom they were to be accountable for them” (“Second Treatise” 6.56, p. 123). “God hath made it their business to employ this care on their offspring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it, as his wisdom designed it, to the children’s good, as long as they should need to be under it” (“Second Treatise” 6.63, p. 126). An instrumentalist view of the family that denies the property-based perception of parenthood and celebrates the child’s best interests also challenges the distinctions between married and unmarried couples and between heterosexual and unisexual families; see Kymlicka,

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become a means of raising children and responding to their needs.12 Family no longer is the locus of paternal domination;13 now it is an environment where children can receive the care they need. The view of parenting as temporary guardianship dramatically alters the political meaning of the family,14 which ceases to be a parent-centered institution with individual members and is transformed into a supportive environment with the individual at its heart. Locke’s arguments bring the question of parental authority into focus from a liberal viewpoint. Today, most legal and philosophical approaches to parental rights accept the view that parenthood is a social construct. The view of parental authority as an absolute natural right is not considered defensible, and the cultural diversity of opinions on that provides ample substantiation. Yet there is disagreement about the nature of this social construct and its correct conceptualization. The tendency to analyze the concept of parenthood using legal categories remains prevalent, and the alternatives are unclear. One approach invokes images of ownership, viewing children as the property of their parents. This perspective arouses discomfort and is vulnerable to critique from many directions, but some maintain that at its core is a troubling truth that should not be denied.15 An alternative approach that suits Locke’s direction characterizes parenthood in terms of guardianship. According to this, parental rights basically are mandated rights based on the presumption that children are best nurtured and best develop in the immediate environment of their parents. Therefore, the conception of parental rights is in fact a vehicle derived from parental responsibility.16 The view of parenthood as a trust is steadily growing, pushing aside the traditional view of parenthood as a kind of ownership. The latter is deemed

12

13 14

15

16

“Rethinking the Family.” Liberal views of parenthood as guardianship support the idea of licensing parenthood, as first argued by Mill; see Lafollette, “Licensing Parents.” “God having made the parents instruments in his great design of continuing the race of mankind, and the occasions of life to their children” (“Second Treatise” 6.66, p. 127). On the concept of dominium in Roman law, see Birks, “Dominium.” “His command over his children is but temporary, and reaches not their life or property: it is but a help to the weakness and imperfection of their nonage, a discipline necessary to their education. . . . The father’s empire then ceases and can from thenceforwards no more dispose of the liberty of his son than that of any other man: and it must be far from an absolute or perpetual jurisdiction, from which a man may withdraw himself, having license from divine authority to ‘leave father and mother, and cleave to his wife’” (“Second Treatise” 6.65, p. 127). Chris Barton and Gillian Douglas acknowledge their discomfort with this approach, which has been criticized by many philosophers, but believe it can be defended. See Barton and Douglas, Law and Parenthood, 22. The main opposition to the proprietary view of parenthood stems in my opinion from the fact that it leaves the fate of the object of possession to the unchecked control of the owner. Nevertheless, even in the most consummately proprietary models – such as the Roman family, where children were defined as property of the father – limits were imposed on his ability to do with them as he wished. See Saller, Roman Family. On the crystallization of the transition from a rights-based concept to one based on responsibility, affinity, and relationship, and how feminist ethical perspectives influenced this process, see Bartlett, “Re-Expressing Parenthood.” For a stimulating and thoughtful discussions of the relationship between conceptions of responsibility and conceptions of family, see Bridgeman, Lind, and Keating, Responsibility.

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a dark legacy of the past, albeit the normative discourse still contains associated rhetoric.17 These two distinct views are reflected through nonlegal categories as the tension between parenthood as self-expansion and parenthood as mission. Stated otherwise, the conception of parenthood as an aspect of the parents’ self stands in contrast to the instrumental conception in which parenthood is an ethical obligation undertaken in behalf of dependents. Even at the beginning of the twenty-first century, both conceptions are present in legal and ethical discourse. Locke’s instrumental parenthood and parental authority also affect the long-standing ethos of the family as a paradigm for politics. Family no longer justifies political authority or political structure, and it does not serve as their inspiration. The growth of liberal theory and the associated instrumental view of parenthood and family continues to undermine the view of family as the only possible environment for child-rearing and facilitating the development of an independent identity.18

Non-liberal Ideologies and the Instrumental View of Family The erosion of the essentialist view of the family left in its wake new conditions for defining the family–state relationship. The instrumentalist view percolated equally into liberal and non-liberal thought. Just as liberal thought struggled to redefine the meaning of family within its commitment to the foundations of liberalism, non-liberal views anchored their treatment of the topic in broad political developments of the age. Communism belonged to the latter category. From its earliest days, the ideological core of the movement described family as a form of ethical and social corruption that was a symptom and a cause of human weakness. In stark contrast to the essentialist view, communism described family as a ruse of the bourgeoisie whose purpose was to retain private capital and cultivate prosperity while exploiting the disintegration of family among the proletariat. The communist worldview pegged the very existence of family strictly on socioeconomic conditions. The disappearance of the family was therefore anticipated along with planned revolutionary changes.19

17

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William Ruddick (“Parents and Life Prospects,” 127) observes that legal language continues to reflect the view of children as parents’ property. Robert Dingwall and John Eekelaar (“Rethinking Child Protection”), on the other hand, argue for viewing the parents as agents or guardians whom society permits to execute their parental rights and obliges to help, support, and supervise their children. Martha Fineman (Autonomy Myth) takes Locke’s deconstructive move beyond the definition of parenthood and applies it in a redefinition of the marital bond. She argues against the view of that bond as the fundamental element of family life and substitutes for it relationships characterized by dependence and concern, which surely reflect a more sublime social value than do sexual relations. Consider the treatment of the family in the Communist Manifesto: “Transformation of the family! Even the most radical of the radicals flares up at this infamous proposal of the communists. What is the basis of the contemporary bourgeois family? Capital and private gain.

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Fascist regimes largely preserved the family–state analogy, promoting an authoritarian archetype of the leader as deserving blind obedience and submission, as due the father in the traditional family. Projecting the father figure onto the political field led to the transfer of paternal authority and power from the family unit to social and political institutions. Nazism shared some characteristics with fascist regimes, but National Socialist ideology purveyed an instrumentalist view of the family, albeit one that led to different conclusions from those of communist thought. Nazi policy was formulated in keeping with the ideal of the Volksgemeinschaft, or people’s community, which gave priority to state interests over private interests at every possible level, including policies affecting the institution of family. Motivated by a combination of social Darwinism and scientific racism, the Nazis assigned the family a key role in revitalizing Germany and strengthening the Aryan race in the face of demographic decline. Hitler committed to rejuvenate German families by rooting out ostensibly unethical behavior such as homosexuality and interracial marriage and restoring the traditional, patriarchal family and ethical order. Strengthening this model of the family was to produce jobs for the men; women would devote their time to motherhood and rearing young Germans: Marriage is not an end in itself but must serve the greater end, which is that of increasing and maintaining the human species and the race. This is its only meaning and purpose. This being admitted, then it is clear that the institution of marriage must be judged by the manner in which its allotted function is fulfilled. Therefore, early marriages should be the rule, because thus the young couple will still have that pristine force which is the fountainhead of a healthy posterity with unimpaired powers of resistance.20 Our contemporary generation of weaklings will naturally decry such a policy and whine and complain about it as an encroachment on the most sacred of human rights. But there is only one right that is sacrosanct and that right is at the same time a most sacred duty, namely, to protect racial purity so that the best types of human beings may be preserved and thus render possible a more noble development of humanity itself.21

The Nazis thus turned to the instrumental view of family not for cultivation of the individual, but to serve nation and race. The ideal German family was to preserve the purity of the race while satisfying the needs of the nation in the areas of labor, combat, and increasing the population. An anti-capitalist line of thought about the link between the family and the political can be seen in the philosophical-psychological critique of the

20

It is completely developed only for the bourgeoisie; but it finds its complement in the enforced dissolution of the family among the proletarians and in public prostitution. The bourgeois family naturally declines with the decline of its complement, and the two disappear with the disappearance of capital. . . . Bourgeois phrases about the family and child-rearing, about the deeply felt relationship of parent to child, become even more revolting when all proletarian family ties are severed as a consequence of large-scale industry, and children are simply transformed into articles of trade and instruments of labour” (Marx and Engels, Manifesto, 249). 21 Hitler, Mein Kampf, 99. Hitler, Mein Kampf, 313.

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relationship between the patriarchal family model and fascist political ideology. According to this critique, the traditional, patriarchal family model of husband, wife, and children (which comprises an autonomous unit within the political realm) supports or encourages a fascist sensibility. To this objection, Michel Foucault added the additional critique that even the distinction between the family and the political functions as a mechanism that empowers authoritarian, materialistic, and repressive political ideologies. Merely refuting the family–state analogy and the instrumental view of family and parenthood therefore is insufficient. The Oedipal model of the family, although it does not rest on the political, can potentially give rise to fascist logic and love of authoritarianism and even be exploited by power mechanisms that enforce repressive political ideologies: Thus, the father in the family is not the “representative” of the sovereign or the state; and the latter are not projections of the father on a different scale. The family does not duplicate society, just as society does not imitate the family. But the family organization, precisely to the extent that it was insular and heteromorphous with respect to the other power mechanisms, was used to support the great “maneuvers” employed for the Malthusian control of the birthrate, for the populationist incitements, for the medicalization of sex and the psychiatrization of its nongenital forms.22

22

Foucault, History of Sexuality, 100.

7

Beyond the Analogy: Liberal Alternatives The abandonment of the family–state analogy and the divorce of parental authority from political authority impacted the political meaning of the family and reintroduced the question of the state’s interest and involvement in the institution of the family. We will consider three attempts to characterize the political meaning of family in the context of the liberal worldview. The classification proposed here does not encompass all possibilities or all reformulations of the relationship between family and state. However, these proposals reflect general directions that represent the bulk of approaches to the topic in modern liberal thought. The paternalistic approach to these challenges relinquishes the idea of rehabilitating the family as a meaningful political institution. It sees no significant barriers to placing the family under ongoing state scrutiny and maintaining constant oversight of intrafamily conduct and the treatment of individuals within the family. This response doesn’t protect the autonomous character of the family, and with it the principled authoritativeness of parenthood and parental rights. The organic approach, in contrast, preserves the status of the family as a natural,1 prelegal entity. It anchors this status in a general perspective in which the state and the family are committed to acting for the sake of the “common good.” This view thus bestows a new meaning on the relationship between family and state, without ramifications for the political order. Meanwhile, the apolitical approach is linked to modern insights into not the essence of family or the concept of parenthood but family life: the experiences of individual children and adults within the family. According to this perspective, the family has ambivalent political meaning: on one hand, it is 1

I use the terminology of nature here with caution. We would do well to recall the comments of John Stuart Mill (Nature) on the conceptual confusion attending the use of natural terminology in theoretical arguments. The argument that the family is natural can have four senses: the biological (that the family form is inherent to human beings), the traditional (that family is the only known form and the one that always has existed), the imperative (that the family configuration is the only possible one), and the normative (that the family form is correct and proper). Martha Nussbaum (Women and Human Development) gives an updated version of Mill’s argument. In her view, the rhetoric of the naturalness of the family typically suffers from three faults. First, it disregards the role of convention and society in constructing the family as an institution. Second, the family is treated as a private sphere, in distinction to the public sphere, while the role of law in molding the family as an institution and its recognition of specific unions of individuals as a family are ignored. Finally, the feminine propensity to give love and concern is viewed as natural, while the role of law, convention, and culture in forming this emotional stance is ignored.

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an essentially apolitical environment. On the other hand, family experiences, skills acquired, and values shaped within the family have a formative value in the growth and development of the individual’s ethical personality and in turning him into an actor in the political sphere. The family is a zone where the political is paused, but family experiences are preparations for the political.

The Family as Agent of the State Liberal contractualism applied to the family, then, leads to a Hobbesian world of markets in bodies and services, and the trust principle applied to the family leads to an Orwellian world of parental licenses judicial restrictions. No liberal (to my knowledge) has endorsed either of these views. But that is because liberals apply a less demanding version of the parental trust principle to the monogamous heterosexual family than to other family forms. . . . The Hobbesian or the Orwellian world seems to be the logical culmination of basic liberal principles, and it is not clear what resources are available to liberals to blunt their force. —Will Kymlicka, “Rethinking the Family”

Paternalism can be viewed as an outcome of the internalization of Locke’s liberal insights about the instrumental meaning of family. Relations between family and state then are to be gauged according to not their structural resemblance, but the distribution of responsibility and care for dependent individuals. The liberal focus on the well-being of individuals, within the family and outside the family, therefore assigns parental authority and responsibility to the state. In the Lockian version, liberalism undermines the exclusivity of parents as the primary caretakers of their children and opens the door for paternalism, as the state is responsible to fulfill the parents’ role in loco parentis.2 Accordingly, parenthood and parental responsibility can be substituted and attributed to subjects other than biological parents. State intervention in the family accordingly does not require profound justification. The refutation of ius patria potestatis and the liberation from subjugation to traditional patriarchy invite and even justify state paternalism. Liberalism and paternalism thus are intimately tied to each other in that both emphasize the collapse of patriarchal authority. Modern paternalist approaches incline to embrace principled paternalism, the view of state authority and responsibility as not equivalent or residual to that of biological parents, but prior to theirs. The state is not a bearer of a residual responsibility (the doctrine of in loco parentis) but the primary party responsible for the children (the doctrine of parens patriae). The odd combination of liberalism and paternalism can give rise to internal tensions and inner contradictions. It has certainly catalyzed the erosion of the status of the family, and sometimes led to disrespect and violation of paternal rights. The slippery slope between liberalism and paternalism and the 2

Suber, “Paternalism.”

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predominance of principled paternalism over residual paternalism will be demonstrated as follows using several cases from Israeli legal history.

Principled Paternalism in Israeli Legal History Education The responsibility of the state to ensure the education of minors, as is the norm in Western countries, was recognized during Israel’s infancy with the Compulsory Education Act of 1949. The justification for this responsibility, in contrast to the responsibility of parents, was given in the explanatory notes to the act in liberal terms, as emanating from the recognition of education as a basic right of children, with the parents being responsible for their integration in recognized educational institutions. This residual paternalism is based on a liberal logic in which the normative role of the state is to provide oversight, ensure the conditions for making good on the right to education, and financially contribute to educational institutions. Minister of Education Ben-Zion Dinur (1884–1973) made clear in his speech when he introduced the State Education Act of 1953 to the Knesset that the transition from the Compulsory Education Act to that later legislation reflected a transition from residual paternalism to principled paternalism, ignoring the liberal core of the earlier law. Dinur conveyed that the transition to the state school system was intended not only to annul the prior system, where different population groups had enjoyed much autonomy in how they taught their young, but also to redefine the allocation of responsibility between the state and parents: State education means that education is under the authority of the state, residing completely in its realm of activity and under its total authority. State education does not mean only the amplification of state mastery over education, or merely removing education from the realm of public or partisan debate. The significance of state education is the imposition of responsibility for education upon the state – complete, unshakeable, indivisible responsibility. It means that the state not only obligates parents to exercise their natural right to educate their children for their cognitive, spiritual, and social development, granting them the opportunity to do so through the Compulsory Education Act; its significance is that the state also is responsible for the manner in which this responsibility is realized. The state bears total responsibility for the manner in which the development of the young generation will be shaped, guided, and realized.3

In this outlook, state education is not only a remedy for social disunity but also justified by a new, paternalistic definition of state responsibility for children’s education. In Dinur’s eyes, state authority for education therefore is “total,” and its responsibility “complete, unshakeable, indivisible.” Not only does the

3

Dinur, ‘Arakhim, 25.

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state have regulatory responsibility for fulfilling the right to education, but it bears primary responsibility for educating the young.

Adoption A transition from residual paternalism to principled paternalism, together with the preservation of a commitment to liberal principles, can be seen in Israeli adjudicative rhetoric, relating mainly to adoption law. In Israel, statutory law identifies the state, with the courts as its representative, as the bearer of paternal authority and responsibility for the individual. Israeli Supreme Court Justice Menachem Elon (1923–2013) thus explained in liberal terms the basis of state intervention in internal family issues, developing the court’s image as bearing primary paternal responsibility for children. In keeping with his ideology of reviving traditional Jewish law (halakhah) and using it as a relevant source for modern Israeli law, Elon pegged such state intervention on the Talmudic statement that “the court is the father of orphans.”4 In projecting a paternal image onto the court, Elon stipulated the supremacy of the state over biological parents. His view of biological parents as “agents” of the court who operate by virtue of its authority and dictates underscores how the political meaning of family has drifted, and provides a new conceptual configuration of family–state relations as part of a principled paternalistic worldview: In the Jewish legal system, the central concept of the laws governing guardianship of children – any child – has its foundation in the great principle that “the court is the father of orphans,” which applies to any minor and any child, and not specifically orphans. The parents, as well as any individual appointed guardian of the children, serve, as it were, as representatives of the court, acting on its authority and in accordance with its directives, both in seeing to the physicality and well-being of the minor and in maintaining his property and possessions, following the overarching principle of children’s welfare.5

In fact, the original meaning of the Talmudic dictum relates to the court only as a residual authority in the absence of biological parents, where the court is perceived as the authority best suited to act in loco parentis. While the medieval halakhic scholars expanded the scope of this rule to include helpless individuals other than orphans, such as the mentally ill,6 this expansion was 4

5

6

Giṭṭin, 37b; Bava Ḳamma, 31a. The Talmud does not clearly specify whether these fatherless orphans are motherless as well. On the sense of the Hebrew yatom (orphan) in Scripture, see Renkema, “YTWM.” Special Tribunal 1/81 Yehiel Nagar v. Ora Nagar, Supreme Court Decisions 38(1) 365 (1984, Hebrew). The idea is thus extended as early as the writings of Rabbi Yom Ṭov Ishbili (ca. 1250–1330) and similarly in the work of Rabbi David ben Solomon Ibn Abi Zimra (1479–1573), as well as others. It was given modern formulation by Sephardic Chief Rabbi of Israel Ben Zion Meïr Hay Uziel (1880–1953) in Shaʻare ʻUziʼel. Vol. 1, 8: “This is the foundation and the crux of guardianship among the Israelites: that it is placed in the hands of the judges of the Israelites and their court. From this guardianship of the court flows the guardianship of

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faithful to the original meaning of the idea and did not challenge parents’ status as the natural bearers of primary authority in matters concerning their children.7 What motivated Elon to diverge from the traditional understanding of the Talmudic precept as reflecting the doctrine of in loco parentis and to apply a paternalistic reading closer to the doctrine of parens patriae? A close reading of his argument indicates an awareness of his interpretive leap, likely rooted in his commitment to liberal principles that demanded expansion of state authority to exceed even that of the parents. The view of parents as guardians or custodians is consistent not only with a Lockean perspective but also with Elon’s religious disposition to have recourse to Talmudic imagery. His interpretation blurs the conceptual difference between fortunate children with attentive parents and those less fortunate. Both are subject to the authority and responsibility of the state, eligible for state protection and care. Elon’s transition from residual to principled paternalism displaces parental authority from the family unit and transfers it to the representatives of political authority.8 However, as noted previously, the paternalistic approach is slippery in nature and thus is the transition from residual paternalism to principled paternalism.

Bereavement The way in which the Israeli state was envisaged as entitled to violate some rights in the name of principled paternalism can be seen in the Israeli discourse of bereavement, particularly with regard to the rights of families who lost a member in the armed forces. In one case where the Israeli Supreme Court ruled on the right of bereaved families to use nonstandard inscriptions on the gravestones of their loved ones, Justice Yaakov Malz (1923–2006) remarked: But this is not the main difference. A civilian cemetery is a sacred place for the families of the deceased. A military cemetery, in my eyes, is much more than

7

8

the parents or bequeathers . . . and all is under the supervision and guidance of the court, who are the fathers of the nation and the fathers of orphans . . . and this is the correct and true sense of the concept of the guardian . . . therefore, the judges are agents of the holy One, blessed is He, in whose hand is the soul of everyone alive and the spirit of all human flesh . . . and He is the father of orphans and the judge of widows. The judges chosen and appointed by the nation are agents of the father of orphans and designated by His name.” Over the course of the Middle Ages, despite the emphasis in halakhic literature on the fatherhood of the court, custodians were in practice appointed from among orphans’ kin. See Winer, “Caring for Fatherless Children.” The fatherly image of state authority based on the Talmudic identification of the court as the father of orphans gained currency in judicial discourse even outside cases of adoption. According to some judges, it was the Hebrew reflection of the principle of parens patriae, as illustrated by the comments of Justice Mishael Cheshin: “Yet just as the court is the father of orphans, so is it custodian to persons who lack the knowledge, and perhaps the ability, to protect themselves from themselves and others” (High Court of Justice 5785/03 Jihad Ghadban v. State of Israel and Ministry of Health, Takdin Supreme Court Rulings 2003[3], 2453, 2459 [2003, Hebrew]).

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Kinship, Law, and Politics this. It is a sacred place for the people and for the state. The victims buried there are not only their families’ beloved, but the beloved of the entire nation, and the entire state. It bears not only the pain of the families, but the pain of the entire nation, and as such is to a great extent a historical site. It therefore is not surprising that the Council – which it must be reiterated is comprised entirely of bereaved parents – is so concerned with its uniform and egalitarian nature.9

The soldiers are nationalized not only in their lifetime but also in death. Here as well, the state’s insistence on uniformity among those in its service means recognition of the state’s parental privilege with regard to its fallen soldiers, expropriating bereavement from the privacy of the family and turning it into a national matter, and as such a political one.

Principled Paternalism and the Religious Imagination Evidently, the paternalist view of the family as an agent of a higher order is not an inherently modern phenomenon. It can alternately spring from the JudeoChristian theological imagination that embraces the image of the God as a father and the believers as his children. The attribution of paternity to the deity denies the view of human paternity as fixed and exclusive status, and in some cases the depiction of the relations to the deity in filial terms means nothing else than a denial of the paternity of the biological parents: There is an admission that children do not belong to their parents. Although many children presented for baptism are the biological offspring of the woman and man presenting them, such a relationship does not imply parental ownership. Rather, it presumes a fundamental (though not functional) equality between parents and children because of the common nature and destiny they share as creatures created in the imago dei. Parents and children share a unique bond that cannot be replicated in any other relationship, but the latter are not merely extensions of the former. . . . In short, baptism is not something parents do to their children. Rather, it is the free acknowledgement that God has entrusted this child to the care of these parents.10

The combination of these ideas – the conception of imago dei and its complement in the portrayal of God as father – encourages principled paternalism in which the deity assigns the parents to take care of the children. Parental authority is limited not on liberal bases but by the acceptance of God’s paternity, which also dismantles the hierarchy between parents and their children and treats all equally. The resemblance between this depiction and the Lockean maneuver is clear. In both cases, parental authority is basically a mandated responsibility conditioned on the potentiality of fulfilling the role of guardians of the children. 9

10

High Court of Justice 5688/92 Shmuel Weichselbaum v. Minister of Defense, Supreme Court Decisions 47(2), 812 (1993, Hebrew). Waters, “Theological Reflection on Adoption,” 425.

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Likewise, each approach advances an egalitarian view of individuals by blurring seeming distinctions, such as those between parents and children and that between biological and nonbiological children.11

The Family as a Social Organ The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. —Universal Declaration of Human Rights 16.312 A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good. —Pope John Paul II, “Centesimus Annus”13

An Aristotelian spirit no doubt guides the appeal to nature in the Universal Declaration of Human Rights. One might have expected such a document to avoid reference to particular religious or cultural views in the name of avoiding anything sectarian. However, the formulators of the Universal Declaration deemed it a universal, consensual position to recognize the family as a natural and fundamental institution in society with a key role in individual rights. The declaration assumes that protection of human rights is consistent with the view of the family as a natural and fundamental organ of social reality. This understanding of the family as foundational and essential need not depend on the family–state analogy and therefore is not affected by its refutation. The organic perspective views the institution of the family as a part of an ideal social order. The family is an organ within the multilevel order of society, conceived as a living body, and the meaning of the family and its relations to other social institutions are determined by its placement in the general 11

12

13

The conceptual link between individualism, equality, and a sense of God as father comes across in the Mishnaic description of legal procedure where witnesses in a capital case are adjured prior to their testimony: “Therefore was man created as one . . . for the sake of peace among humanity, so that no individual would say to his fellow: My father is greater than your father” (Sanhedrin 4:5). Pro-family organizations view this section as an affirmation of the natural family of conservative ideology, as illustrated by the 1999 Geneva Declaration of the World Congress of Families: “The natural family is the fundamental social unit, inscribed in human nature, and centered on the voluntary union of a man and a woman in the lifelong covenant of marriage. The natural family is defined by marriage, procreation and, in some cultures, adoption. Free, secure and stable families that welcome children are necessary for healthy society. The society that abandons the natural family as the norm is destined for chaos and suffering. The loving family reaches out in love and service to their communities and those in need. All social and cultural institutions should respect and uphold the rights and responsibilities of the family.” Due to the attribution of this view to Catholic sources, the idea of subsidiarity as a guiding principle of family–state relations tends to be seen as a Catholic doctrine. See Mueller, “The Principle of Subsidiarity.” On the roots of this principle in the work of Thomas Aquinas, see Aroney, “Subsidiarity.” Concerning this doctrine in other Catholic contexts, see Beabout, “Subsidiarity.”

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structure of the social body.14 Collaboration between the various organs of the social order is possible due to two features: the fact that the various organs of the social body are directed toward the common goal of the society’s common good, and the interdependency among the organs and between them and the social body as a whole. Translating these images to political terms, the family is viewed as functioning within the contours of the general body politic, and the social body as a whole is responsible for the functionality of the family, which is one of its vital organs. This image enhances reciprocity between the family and the state on the basis of subsidiarity. The state is obliged to support and maintain the family as long as doing so does not contravene the common good of society. Interference in internal family affairs is justified only when the family goes against the common good of society. The principle of subsidiarity thus demonstrates that the family can be understood as an institution that stands for itself, yet is under the responsibility of the state, which has the legitimacy to intervene if the family fails in its function. Maintenance of the family requires state intervention under pathological circumstances.15

The Family as an Apolitical Environment And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of antient Rome, as expressed in the words of Tully [Cicero]: “quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium [for what is more sacred, what more inviolable, than the house of every citizen]?” —Sir William Blackstone, Commentaries

The view of the family as an apolitical environment recasts the family and the political not as analogous entities but as different frameworks. In contrast to traditional views of the family–state analogy, this approach highlights the

14

15

Margaret Canovan rightly argues that the central principle of liberalism is not rationality but implicit assumptions about the nature of human beings and human society. She calls attention to the fact that through the eighteenth century, the core ideas of liberal thought were associated with the perception of nature as s “deep structure of reality” and later as a dimension of reality that is more real than is social reality. The categories of natural rights and natural law, she argues, were perceived not only as normative terms, but mainly as theoretical terms. See Canovan, “Economical”; Daston and Stolleis, Natural Law. The subsidiarity principle was elaborated in the statements of Pope Leo XIII regarding the intervention of public authorities in private affairs. The principle subsequently was expanded to the international arena and to the discourse on the sovereignty of nation-states in contrast to the development of federations, regional unions, and international organizations, such as the United Nations and the European Union. For a survey of the application and justification of the principle of subsidiarity in contemporary literature, see Føllesdal, “Subsidiarity”; Schweigert, “Solidarity and Subsidiarity”; MacCormick, “Democracy, Subsidiarity, and Citizenship”; Syrpis, “In Defence of Subsidiarity”; Dudley, “Language as Platform.”

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essential dissimilarities between family life and politics. The political meaning of the family accordingly lies in its being an apolitical habitus. This approach to the family emphasizes two of its features as producing a different experience from the political. The family counters the political but also is precursor to the political. The institution of the family is at the limits of politics and the borderlines where the political falters and even disintegrates. The interrelations between the family and the political are dynamic, because the former provides the conditions for the latter. However, the essential difference between them is crucial. The perception of family as an apolitical space emphasizes the environmental aspect of the family16 and is associated with classical liberal distinctions, such as the dichotomy of private and public, and that of forum internum and forum externum.17 Viewing family as an apolitical environment brings into focus the differences between the internal, familial dynamic, and external, political affairs. The family as an apolitical venue establishes a wall of immunity and refuge from the political. It suspends the political, for better or for worse, and in so doing limits and balances some of the features of the political sphere. This approach liberates the family, as environment, from the power of political norms and the economic and legal rules of the political arena. The view of family as apolitical also is evident in the modern liberal construction of family as the natural venue of religion. The liberal project of pushing religion out of political life and into the private sphere of the family exemplifies the articulation of family as a venue that is associated with sanctity and religion as matter that are exempted from the political arena: It is because the legal formation of the family gives the concept of individual morality its own “private” locus that the shariah can now be spoken of as “the law of personal status” . . . this way it becomes the expression of a secular formula, defining a place in which “religion” is allowed to make its public appearance through state law. And the family as concept, word, and organizational unit acquires a new salience.18

Assad’s distinction succeeds in capturing the tangled relationship of family and religion in the modern Western context. In his opinion, laws governing personal status must be understood as part of the project of secularization, in which European constitutional schemes defined religion as a private matter, limited its exercise, and excluded it from the public realm. He suggests seeing the sanctity of family, viewed through the legal category of personal status, as belonging to a political equilibrium, the outcome of a secularization that reduces the presence of religion to the home, the family, and other parts of the private sphere.19 16 17 18 19

See Douglas, “Idea of a Home.” See Walzer, “Liberalism.” On this distinction and its background, see Müller, “Internal Forum.” Talal Asad, Formations of the Secular, 230–231. Marital status laws are historically and conceptually tied to the European Enlightenment and the process of secularization. The term marital status was exported to Mediterranean

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The association of religion and family is not a modern phenomenon. The perception of the family as the site of the sacred experience is commonplace in our times. Certainly this is true with regard to Christianity, whose ethos of the Holy Family formed and shaped the Western view of the family throughout Western history.20 Similarly, in ancient Rome, the family was considered the natural site of the sacred – in that case, the family cult, or sacra pro familiis.21 Each family’s genius (gens) had unique obligatory religious rites and codes applying to all family members, whether their affiliation derived from birth or from adoption. A Roman abandoned the family sacra and lost the privileges associated with the family genius upon ceasing to be a member of the family, such as through adoption by another family or emancipation from slavery. Sacra pro familiis in ancient Rome, however, did not share the modern liberal view of religious life as a private matter. The privatization of religion is a salient characteristic of Western societies, and corresponds to the liberal aspiration to neutralize religious and religious authority in the public sphere. Nevertheless, it is certainly a very narrow and biased view of religion as private matter in essence. Modern efforts to neutralize the public sphere, to whatever extent they have succeeded, are more related to secularization of the political sphere than to the privatized character of religion. According to this approach, there is a dissimilarity between the family and the political. Yet the family is not entirely detached from the political, because it is a venue for fetal politics. The family, as an apolitical environment, mediates between the individual and political life, and prepares the individual for life in the political sphere. Contrary to the traditional family–state analogy, the family is not the role model for the political but the constitutive root of politics, the habitat that prepares the ground for political life. Family supplies the necessary skills for life and for interactions with others in the social and political realms. The idea that “everything starts with family” and that family life molds and imposes behavioral patterns and political values bolsters current stances in liberal discourse regarding the political meaning of the family. One such stance stresses that family life is a source of political injustices such as inequality, exploitation, male privilege, and violence, and challenges the romantic ethos of

20

21

societies from Europe via the Napoleonic Code, which recognized a distinction between marital status and actual status. For a detailed historical analysis, see Koschorke, “Holy Family.” For an alternative model, see Barshack, “Holy Family.” The entire Roman family was seen as a religious unit. Its head, the father, served as priest to the particular deities of the family, which were guardian gods of specific locations. Among them were lares, which typically represented the early forebears of a family, and penates, regarded as household guardian gods. Prayers and tributes were offered to these gods each day; on holidays, days of remembrance, and days of mourning, their forms were adorned with flowers and various additional rituals were performed. They were also offered prayers for the well-being and prosperity of the family. The family cult was perpetual, ending only with the extinction of the family. Roman inheritance law thus conditioned receipt of property on an undertaking to maintain the family cult of the decedent.

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the family as a place of justified privacy.22 Thinkers in this trend advocate state intervention in family life to the point of dismantling the immunity of the family and decisively call for imposing principles of justice even in “private” family matters: A society that is committed to equal respect for all of its members, and to justice in social distributions of benefits and responsibilities, can neither neglect the family nor accept family structures and practices that violate these norms, as do current gender-based structures and practices. It is essential that children who are to develop into adults with a strong sense of justice and commitment to just institutions spend their earliest and most formative years in an environment in which they are loved and nurtured, and in which principles of justice are abided by and respected.23

Another position approves of proportional intervention by the state in a manner that preserves the family unit as an apolitical environment. Proponents maintain that intervention in family life is justified by the influence of the family on the political but must be oriented toward shaping the family into a habitat of desired behavioral patterns and political values. Such positions, informed by appreciation of the contribution of family life to the formation of the individual’s moral personality, are associated with various popular theories of education, psychological development, and feminism, all of which also endorse the phenomenology of the ethics of care.24 In contrast to traditional liberal morality, the ethics of care deems family a primary sphere through which ethical behavior and ethical personality are developed and shaped. The ethics of care thus considers the family a crucial environment for the construction and processing of behavioral patterns and values needed for political life. The family, according to Nel Noddings, is what effectively enables existence outside the family: Other bodies, other selves, are encountered in places, and the place associated with the original condition – utter dependency – is home. Most people think of home as a place that provides food and shelter. A home must, of course, give shelter from rain and cold, but it must also provide a refuge from danger, humiliation, worldly stress, and the struggle for recognition. At home, sheltered, 22 23

24

See above, n. 16. Okin, Justice, 22. Rejecting the view of Allan Bloom, Okin calls for accepting injustice within the family as inevitable (p. 39). She also debates the libertarian approach of Robert Nozick (pp. 75–83). See above, n. 6, on Okin’s view of Sandel’s approach and the response of Edna Ullmann-Margalit. This phenomenology, initially developed by Carol Gilligan (In a Different Voice) and Nel Noddings (Caring), is critical of how society has assigned care functions to women and consequently minimized their importance. Gilligan posed the ethics of care as an alternative to approaches to justice that are based on rights (ethics of rights), while Noddings proposes that the ethics of care, based on receptivity, relatedness, and responsiveness, be viewed as more elementary and thus a better alternative than an ethics of justice. In practice, argues Noddings, an ethics of care has far broader potential and thus can encompass the ethics of justice that is at the root of the liberal tradition.

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Kinship, Law, and Politics we can be ourselves. A home, ideally, is both a place in which to reside and a place from which to venture forth. . . . A child who is well sheltered, one who has a healthy home, can wander forth and, as Heidegger put it, dwell in the world.25

The view of family as a precondition for political life is related to psychological theories that view the experience of family as a guiding force behind one of the most fateful abilities in ethical life – the ability to self-transcend. The perception of the family as the habitat of the political includes the performative experience of self-transcendence that eventually lays the foundations for future interpersonal connections and social integration. Experiences within the family thus are essential for the possibility of meaningful life with others.26 The apolitical approach endorses viewing the family as a model for the political, but in a very different way from the family–state analogy. As Laurence Thomas describes, the experience of parenthood, parental love, and the concept of individual rights allow the individual to acquire the moral sensitivity and capacity that are necessary for implementing principles of justice in society: Because good parents naturally love their children, a conception of the right might seem otiose. After all, what loving parents would want to harm their children? None, presumably. But consider the difference between conveying to a child that something is good for her merely because one claims that it is and conveying to that child that something is good for her because it is the right thing to do for her. Obviously, these two propositions do not have the same content. The first puts no restrictions at all on what one may say is good for the child; whereas the second clearly does. And love at its best cannot generate the second sentiment in the absence of a conception of the right. More to the point, the child cannot come to have an intrinsic sense of worth unless the child understands that it is because her parents love her that there are some things that they must do or refrain from doing because these things would enhance or diminish her well-being, as the case may be.27

In contrast to viewing the family as the archetype of the political, the apolitical approach emphasizes the apolitical experiences of family life as constituents of moral and political life. The move from the apolitical environment of the family to the political sphere is a move that transfers experiences, such as parental love, into political values, such as goodwill or solidarity.28 25 26

27 28

Noddings, Starting at Home, 150. “Family connections stretch beyond the present situation and group, linking family members to social and genetic heritage, to meaning systems, ascribed statuses, present identity and future possibility, to obligation, order, and opportunity” (Howard M. Bahr and Kathleen Slaugh Bahr, “Paradigm of Family Transcendence,” 545). Thomas, Family, 94–95. Thomas’s argument concerning the bond between love and rights in the parent–child relationship is not independent of contemporary psychological and educational insights into the essentialness of family experiences for the development of emotion, personality, and ethics. Since his ethical analysis is undeniably informed by Western bourgeois values, he becomes

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For Rabbi Joseph B. Soloveitchik (1903–1993), marriage is a relationship that allows the personalization of sexuality and intersubjective relations. Soloveitchik views the nuclear family as a miniature community or the nucleus of community life. The marital relationship on which the family is founded comprises the core community in which a person transcends herself and commits herself to her beloved ones of her own free will. In his existentialist religious terminology, family life “redeems” human beings from their independence and loneliness, and actualizes their ultimate purpose as social creatures. A parallel theology of family is proposed by Pope John Paul II (1920–2005) through his development of the ideal of the communio personarum, or community of persons. According to this doctrine, which is receiving much attention in the Catholic world today, the value of a family does not derive merely from its function as a building block in the general structure of society. The family is a place where a person can function free of interests in her interactions with others. The family is the venue in which the idea of partnership is experienced and developed into a social value. The idea of partnership underlies the structure of the community of persons, and it emerges from mutual giving and receiving within the family – a fundamental experience of mutual confirmation and affirmation of one another as human beings.29

Conclusion The nature of one’s parents appears to be something on the confines between immortal and mortal essences. Of mortal essence, on account of their relationship to men and also to other animals, and likewise of the perishable nature of the body. And of immortal essence, by reason of the similarity of the act of generation to God the Father of the universe. . . . Parents are the servants of God for the propagation of children . . . some persons, who are rather audacious, magnify the title of parents, saying that the father and mother are evident gods, inasmuch as they imitate the uncreated God in their production of living animals, limiting, however, their assertion in this way, that the one is the God of the whole world, but the others only of those children whom they have begotten. —Philo, On the Ten Commandments

The religious imagination of antiquity emphasized the similarity between parenthood and divinity. Philo of Alexandria portrayed the theomorphic30 view of parenthood popular in Stoic circles in a positive light, describing

29 30

caught in a circular argument where the theory of parent–child relations simultaneously arises from and justifies liberal values. See Shivanandan, Threshold of Love, 81. I differentiate between anthropomorphic depiction of God as father (see above, n. 38) and theomorphic identification of father as God. While the former derives from a religious imagination that stems in turn from the conceptual world of Scripture, the latter echoes throughout the world of Hellenistic thought.

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parents as the embodiment of earthly divinity, or the image of God upon earth.31 Family and parenthood are concepts that traditionally supported religious imagery and conceptualizations of the political. The family–state and parenthood–divinity analogies are continually formulated and unformulated as the centuries pass. With the secularization of the status of parenthood and the depoliticization of the institution of family, the political meaning of family remains an unmet challenge looming before modern liberal sensibilities. Liberal thought has borne a decisive influence on the development of Western civilization. Attempts to describe the growth of liberalism as an evolutionary or alternately as a revolutionary trend rely on different historical readings and serve distinct interests. The developmental description of liberalism, a perspective rooted in the culture of antiquity,32 eases the way for those who seek to defuse the tensions between liberal and conservative worldviews. In contrast, the description of the growth of liberalism as a revolutionary phenomenon allows for great proximity between liberalism and modernism, and emphasizes the rift between the conservative view and the liberal and modernist views. As far as the institution of family is concerned, the assertion of the value of individual freedom and the autonomy of the individual as a subject possessing rights not only marks a turning point from the old world but also represents a shift that has unraveled and dismantled a tenacious traditional institution. The view of liberalism as the watershed in the intellectual history of politics is extremely significant for understanding its boundaries and attitudes toward traditional institutions and religion in liberal frameworks. In contrast, blurring liberalism’s fault lines conceals the influences of its encounter with the traditional institution of family and with religion. Liberalism, according to the analysis proposed here, must be understood as the manifestation of a liberation movement and thus inherently iconoclastic – containing an element that deconstructs the sources of authority, stability, and security enjoyed by the institutions of preliberal society, among them the family. Ethical approaches and political thought tend to focus on frameworks predicated on relationships among individuals or between individuals and 31

32

The attribution of the image of God to parents appears in Plato’s discussion of the causes of filial duties. See Plato, Laws 930–931. The Rabbis also justified the duty of filial honor by comparing the parents to God, as in the following homily: “It is said, ‘Every one of you shall revere his mother and his father’ [Lev. 19:3], and it is said, ‘You shall revere the Lord your God’ [Deut. 6:13, modified trans.]: it correlated reverence of father and mother with reverence of the Omnipresent. It is said, ‘Honor your father and your mother’ [Exod. 20:12], and it is said, ‘Honor the Lord with your substance’ [Prov. 3:9]: it correlated honor of father and mother to honor of the Omnipresent. It is said, ‘Whoever curses his father or his mother shall be put to death’ [Exod. 21:17], and it is said, ‘Whoever curses his God shall bear his sin’ [Lev. 24:15]: it correlated cursing of father and mother to cursing the Omnipresent” (Sifra, Ḳedoshim 1:4–6). Friedrich von Hayek (New Studies) distinguishes between the evolutionary approach of liberalism, which he identifies in the British view, and the revolutionary approach, which he finds in Continental thought.

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society at large. Therefore, the preliminary concepts with which they are concerned are justice, universalism, impartiality, and duty. Family, thus viewed, does not fulfill a clear political role, leaving liberal theory impotent to approach it. Some important thinkers have pointed out that liberalism’s stubborn insistence on neutrality sidelined value-producing institutions, such as religion and family, leading to their depletion in the modern secular state. According to them, liberalism is unable to assume that private institutions will fulfill the roles previously served by the state, so that a retreat from liberal individualism toward communitarianism is imperative.33 We have illustrated that the institution of family challenges liberal thought. There is a tension between family and the very foundations of liberalism. The crisis of family in the liberal context is an iconoclastically induced rift that demands a reconsideration of the significance of family. My above analysis points to three directions for reestablishing the political significance of family based on the friction between the institution of family and liberal thought: family as an agent of the state, as an organ of the state, and as an antipolitical or pre-political locus. Many issues on the contemporary public agenda touch directly or indirectly on the role of family under the liberal state. As I have demonstrated, each of the three directions gives rise to its own rationale and its own balance between the family and the political.

33

MacIntyre, After Virtue; Sandel, introduction.

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Index

Adam, 7, 51, 76, 110, 111, 114, 137 adoption, 24, 66, 99, 100, 113, 122, 123, 125, 128 Aharon of Nicomedia, 35 Anan, 41, 42, 43, 45 Ananites, 24, 41, 45 Ananite law, 40, 41, 45, 51 androgyny, 7, 25, 27 another self, 8 anti-essentialism, 29 antinomian, 28, 60, 68, 74, 83, 90 antinomianist–legalist dichotomy, 85, 86, 90 apolitical approach, 119, 130 Aristotle, 7, 8, 44, 109, 135 Asher ben Yeḥi’el, 67, 135 autonomy, 114, 121, 132 Avraham Ibn Ezra, 41, 72, 93 Baḥya Ibn Paquda, 92 Basil of Caesarea, 31 basileomorphism, 61 being–longing dialectic, 4, 5 belonging as sameness, 5, 7, 8, 9, 10 belonging politics, 2 belonging to the law, 57, 59, 65 Ben-Zion Dinur, 121 Biblical law, 40 biological parents, 120, 122, 124 blood ties, 10, 107 botanical model, 51, 52, 53, 54, 55, 56 Carl Schmitt, 78 catenary theory, 24, 32, 33, 34, 35, 36, 38, 39, 40, 43, 44, 45, 46, 48, 49, 50, 51, 52, 53, 55, 56 combination of the identical, 51 common good, 119, 125, 126 communio personarum, 131 Communism, 116

Compulsory Education Act, 121 concept of belonging, 4 consanguinity and affinity, 23, 34, 38, 40, 52 consciousness-independent relations, 14, 15 contagious selfness, 36 corporal duties, 68, 74 corporal law, 68 corporal union, 19, 21, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 37 corporal–territorial taxonomy, 68 Csanad Szegedi, 16 Darwinism, 117 disseminative contagion, 35, 36 divine law, 29, 60, 61, 63, 68, 69, 70, 71, 72, 73, 74, 76, 79, 85, 86, 89, 90, 91, 92, 93, 95, 96, 97 divorce, 25, 28, 29, 31, 34, 35, 100, 119 ecclesiastical traditions, 22, 90 Enlightenment, 80, 81, 127 ethnic identity, 78 Extended Self, 35 extended selfness, 8, 44 family as an apolitical environment, 126, 127 family tree, 51 family–political analogy, 20 family–state, 106, 109, 110, 112, 116, 117, 118, 119, 122, 125, 126, 128, 130, 132 Fascist, 117 fatherhood, 110 Foucault, 3, 118, 139 fraternal relationships, 53, 54 fraternity, 27, 34, 40, 44, 48, 53, 54 Friedrich Nietzsche, 82 friendship, 8

154

Index Gnostic, 24, 25, 26, 27, 29, 30, 89, 114, 138, 147 God as father, 124, 125, 131 God of the gospel, 89 God of the Law, 89 God’s inheritance, 64, 65, 66, 79 guardianship, 113, 115, 122 Hebraism, 109, 142 Hermann Cohen, 85 Holy Family, 100 home, 2, 17, 26, 69, 70, 100, 104, 127, 129 homo politicus, 109 household, 27, 69, 72, 103, 128 human imagination, 3, 9 human solitude, 5, 6 Ibn Khaldun, 9, 10, 96, 141, 142 idea of belonging, 1, 2, 3, 4, 5, 6, 8, 9, 57 idea of home, 104 idea of identity, 4 identity politics, 10, 57, 80 imperfect identity, 15, 18, 19 in loco parentis, 120, 122, 123 incest, 19, 23, 28, 30, 35, 39, 40, 45, 50, 51, 52, 53, 55, 56, 77, 99 individual belonging, 19, 32, 37 instrumental, 116 intrafamilial relationships, 99, 100 Islam, 82, 86, 87, 91, 96, 135, 136, 137, 140, 142, 143, 149 Israeli law, 122 Jacob Taubes, 83 Jacques de Vitry, 66, 67 Jean-Jacques Rousseau, 107 Jewish identity, 18, 57, 73 Jewish law, 18, 28, 57, 59, 84, 85, 92, 93, 122 John Locke, 107, 112, 136 John Paul II, 125, 131, 142, 149 Joseph B. Soloveitchik, 131 Judah Loew ben Bezalel of Prague, 74 Judeo-Arabic, 92, 96 Karaite law, 37, 38, 40, 41, 47, 55 kin belonging, 8, 19, 20, 32, 37, 39, 45, 46, 47, 48, 49, 51, 52, 54 kinship, 10, 19, 23, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 kinship as shared corporality, 43

land law, 57 land-linked commandments, 67, 68, 69 law and religion, 21, 80, 81, 82, 101 Law of Return, 17 law-based religion, 83 legal change, 49 legal imagination, 61, 114 legal source, 21 legal theology, 59, 60, 61, 66, 69, 73, 74, 78, 79 Leo Strauss, 85, 135 Leṿi ben Yefet, 34, 35, 36, 44, 45, 47, 48, 49 lex regia, 110 lineal kinship, 41 logical identity, 11 Ludwig Wittgenstein, 103 Maimonides, 30, 60, 71, 72, 73, 85, 94, 95, 96, 136, 137, 138, 140, 143, 144 Marcion, 89, 96 marriage, 1, 22, 24, 25, 27, 28, 30, 31, 33, 34, 36, 38, 39, 41, 42, 43, 45, 46, 47, 48, 52, 53, 55, 72, 73, 100, 105, 117, 125, 131 Martin Luther, 86, 136, 144 meaningful, 12, 13, 15, 17, 119, 130 Membership, 99 Menachem Elon, 122 Monarchy, 110 monogamy, 23, 29, 34 Moses Bashyazi, 54 Moses Mendelssohn, 72, 84, 134 Nahmanides, 43, 52, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 73, 74, 76, 78, 79, 138, 141, 145 natural law, 60, 70, 71, 76, 108, 126 natural order, 53 natural rights, 110 Nazism, 117 nomocentrism, 87, 91 notion of identity, 11 one flesh, 6, 11, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 43, 44, 45, 46, 47 one soul, 32, 34, 35, 39, 44 organic perspective, 125 Oswald Rufeisen, 17 otherness, 77, 78, 79, 83, 97 ownership, 8, 115, 124

155

Index parens patriae, 120, 123 parental authority, 110, 112, 113, 114, 115, 116, 119, 120, 123, 124 parental love, 130 parental rights, 115, 116, 119 parenthood, 8, 44, 100, 104, 105, 113, 114, 115, 116, 118, 119, 120, 130, 131, 132 parenthood as mission, 116 parenthood as self-expansion, 116 parents as guardians, 123 paterfamilia, 8 Paternalism, 120, 121, 124, 149 patria potestas, 112, 113, 114 patriarchal, 8, 22, 71, 117, 118, 120 Paul, 13, 24, 28, 75, 82, 83, 85, 86, 88, 89, 90, 92, 96, 97, 113, 125, 135, 136, 139, 140, 142, 145, 147, 148, 149, 150, 151 pedigrees, 10 perfect identity, 15, 17 performance of belonging, 22, 32, 37 personal identity, 12, 29, 47, 52 personal jurisdictions, 68 personal perception, 14 Philo, 24, 26, 29, 31, 35, 55, 60, 71, 89, 96, 131, 144, 146 Plato, 7, 62, 109, 132, 134, 145 political authority, 110, 111, 112, 113, 114, 116, 119, 123 political meaning of the family, 100, 101, 115, 119, 127, 128 political order, 94, 106, 108, 109, 110, 111, 113, 119 polygamy, 22, 35 principled paternalism, 120, 121, 122, 123, 124 psychoanalysis, 99, 100 Qumran, 24, 28, 55, 62, 139, 146 Qur’an, 71, 114, 134, 137 Rabbanite law, 41, 48 Rachel Dolezal, 18 Reformation, 24, 81, 96, 151 religious belonging, 9, 87 religious differences, 83, 85, 86, 88, 89, 90, 96, 97 religious identity, 20, 57, 59, 60, 75, 84, 87, 89, 90 religious imagination, 131 religious legalism, 80, 81, 82, 83, 90, 92, 94, 97 residual paternalism, 121, 122, 123 Robert Filmer, 110, 139

sacramental reading, 24, 25, 26, 27, 28 sacred law, 28 Sahl ben Matsliaḥ, 38 Se‘adyah the Prince, 39 second self, 8, 44 selfhood, 14 self-identification, 15, 17, 18, 83 selfness, 7, 29, 32, 33, 34, 35, 36, 37, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 97 self-sufficiency, 8 self-transcendence, 2, 130 sense of belonging, 1, 2, 11, 59, 78 separation–individuation template, 5, 7, 9 shared selfness, 32, 33, 34, 36, 37, 40, 44, 45, 46, 47, 48, 49, 50, 53 Shelomoh ben David the Prince, 45, 53 siblinghood, 8, 54 sin, 63, 69, 82, 83, 87, 88, 132 social identity, 11, 19, 37 social order, 1, 4, 125 social recognition, 14, 17 solidarity, 1, 9, 38, 130 source of legitimization, 108 source of the law, 72 source of the political, 108 sources of the halakhah, 71 sovereignty, 61, 63, 64, 66, 70, 108, 110, 126 Spinoza, 72, 74, 84, 149 State Education Act of 1953, 121 state of nature, 111 Stephen of Tournai, 75, 137, 149 stepsibling, 47 subjective–intersubjective dialogue, 15 subsidiarity, 125, 126 territorial jurisdiction, 57, 68, 73, 75, 76 territorial law, 65, 66, 67, 68, 71, 75 theological imagination, 124 theological sources, 60 torah–nomos reduction, 89, 90, 92, 96, 97 transsubstantive reading, 28 under the law, 20, 82, 83, 84, 85, 87, 88 unifying contagion, 35 union as hybridity, 33 union as metamorphosis, 33 Universal Declaration of Human Rights, 105, 125 Urban II, 65 us and them, 4, 36, 59, 82

156

Index well-being, 105 Ya‘qub al-Qirqisani, 38, 151 Yaakov Malz, 123 Yefet ben ‘Ali, 38, 44, 46 Yehudah ben Eliyyahu Hadassi, 52

Yeshu‘ah ben Yehudah, 34, 39, 41, 44, 45, 46, 50, 52, 151 Yosef Albo, 60, 71 Yosef ben Avraham the Blind, 39 Zion, 41, 59, 60, 122, 138, 139, 140